Tort – SLAPP – Malicious prosecution

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Where a defendant who worked at the front desk of an apartment complex reported an incident to the Newton police involving the plaintiff tenant, the defendant is entitled to dismissal of the plaintiff’s malicious prosecution claim, as the plaintiff did not carry her burden to show by a preponderance of the evidence that the defendant’s petitioning activities lacked any reasonable factual support or arguable legal basis, but a decision to deny the defendant’s special motion to dismiss should be upheld as to the plaintiff’s other claims.

Reversed in part.

“In this interlocutory appeal, the defendant challenges the denial of her special motion to dismiss under G.L.c. 231, §59H (the anti-SLAPP statute). We affirm in part and reverse in part. …

“… The defendant worked at the front desk of an apartment complex where the plaintiff lived; the defendant also had a second job as a public school crossing guard. Building residents complained to the defendant and management about the plaintiff’s behavior, and the plaintiff was subsequently evicted for material noncompliance with her lease. After the eviction, the defendant reported an incident to the Newton police in which the plaintiff allegedly drove through the intersection where the defendant was working as a crossing guard, nearly striking her. The district attorney’s office brought a criminal case against the plaintiff for assault with a motor vehicle; as a result, the plaintiff’s driver’s license was suspended. At trial in the criminal case, the defendant testified and submitted a victim impact statement. The plaintiff was found not guilty.

“The plaintiff commenced this action on June 20, 2023, alleging malicious prosecution based on the defendant’s report to the police and the subsequent criminal proceeding; two counts of slander, the first based on statements to the management office of the plaintiff’s apartment building, and the second based on a statement allegedly made by the defendant to a court officer before the trial of the criminal case; and intentional infliction of emotional distress based on all of the foregoing acts. …

“… The police report and the defendant’s victim impact statement included a detailed account of the history between the parties and the alleged assault; the plaintiff provided no affidavits or evidence to show that the defendant’s recounting lacked an objectively reasonable basis. …

“… Here, where a judicial officer found probable cause to issue the assault charge, the criminal complaint cannot be said to have been ‘devoid of any reasonable factual support or any arguable basis in law.’ G.L.c. 231, §59H. … We reverse the denial of the special motion to dismiss count one.”

Other counts

“The motion judge correctly found that the defendant’s statements to building management do not constitute petitioning activity ‘made before or submitted to’ a government body or proceeding. G.L.c. 231, §59H. The issue is whether these statements qualify as petitioning activity under the other categories in §59H. They do not. …

“Here, although the defendant transmitted information to her employer, it was building management, not the defendant, that initiated the eviction process against the plaintiff. In the circumstances, we have little difficulty concluding that the defendant ‘was not seeking from the government any form of redress for a grievance of [her] own or otherwise petitioning on [her] own behalf,’ and that, therefore, she ‘was not exercising [her] “right of petition under the [C]onstitution” within the meaning of the statute.’ … Because the alleged slander was not petitioning activity under §59H, the defendant ‘cannot make the requisite threshold showing,’ and the special motion to dismiss was properly denied. …

“As for count III, the defendant did not meet her threshold burden. …

“Although the defendant’s statement to the court officer was made during the plaintiff’s criminal trial, it was a ‘tangential comment’ that was not ‘related to the petitioning process.’ … The judge correctly denied the special motion to dismiss count III. …

“Although [Count IV for intentional infliction of emotional distress] incorporates the allegations of count I, which we have concluded constituted petitioning activity, it also incorporates the allegations of counts II and III, which we have concluded do not challenge petitioning activity. It follows that count IV has a ‘substantial basis’ in conduct ‘other than … petitioning activities.’ … The judge correctly denied the special motion to dismiss count IV. …

“We reverse so much of the December 4, 2023 order as denied the special motion to dismiss count I of the plaintiff’s amended complaint and remand for the entry of an order dismissing count I. We affirm so much of the order as denied the special motion to dismiss counts II, III, and IV. To the extent the defendant appeals from so much of the order as denied her motion to dismiss pursuant to Mass. R. Civ. P. 12(b)(6), it is not subject to interlocutory review and that aspect of the appeal is dismissed. The matter is remanded for further proceedings consistent with this decision.”

Wynn v. Delorie (Lawyers Weekly No. 81-001-25) (12 pages) (Docket No. 24-P-52) (Jan. 2, 2025).

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