Key Decisions

February 2013 – Declarations Must Be Detailed

(filed under: Key Decisions Archive | February 22, 2013)

Declarations Must Be Detailed

Aber v. Comstock
(Cal. Ct. of App., 1st Dist.), filed December 18, 2012

Lisa Aber sued her employer and two of its employees based on an alleged sexual assault by the employees.  Michael Comstock, one of the employees, filed a cross-complaint against Aber, alleging claims for defamation and intentional infliction of emotional distress.  Aber filed a special motion to strike the cross-complaint under the anti-SLAPP statute (Code Civ. Proc. section 425.16).  The trial court granted the motion and dismissed the cross-complaint.

The Court of Appeal affirmed.  It found that Aber established that her conduct fell within the scope of the protection of the anti-SLAPP statute and that Comstock did not establish a likelihood of prevailing.

Although the court recognized that Comstock’s burden in showing a likelihood of prevailing was not great, the court found that his declarations were insufficient.  The court found that statements in Comstock’s declarations were too conclusory.  It also refused to draw inferences from what Comstock actually did declare.

Among other things, although Comstock declared that Aber made false statements about him having sexually assaulted her, the court declined to infer that Comstock actually denied having sexually assaulted Aber.  It noted that it would have been simple enough for Comstock to have expressly declared that he had not done so.