#TheyLied Defamation Case Based on Allegations of False Accusations of Rape Can Go Forward

Anti-SLAPP motions generally can't be used to resolve he said/she said factual disputes in such matters.

From last week's decision in Ziade v. Abdullah by the Nevada Court of Appeals (Chief Judge Bonnie Bulla and Judges Michael Gibbons and Deborah Westbrook)

Ziade, a Las Vegas resident, and … Abdullah, a Canadian citizen residing in California, were in a long distance online relationship for approximately five months before Abdullah relocated to Las Vegas. During the relationship, Ziade provided Abdullah with funds that she represented would be used to pay for legal representation to obtain a restraining order against her abusive ex-boyfriend, and to pay for hospital bills.

On August 6, 2021—shortly after Abdullah arrived in Las Vegas—she filed a police report that alleged Ziade sexually assaulted her on multiple occasions while visiting her in her hotel room. However, the responding officer indicated in the police report that Abdullah declined to press charges, and that she refused to submit to a Sexual Assault Nurse Examination exam at the time of the report. Soon after Abdullah moved in with Ziade.

The relationship quickly deteriorated. On August 27, both parties reported a domestic disturbance at Ziade's home. Ziade called the police non-emergency line and reported that Abdullah locked herself in her bedroom and was refusing to leave his home after a discussion wherein Abdullah was "crying and yelling because [he] was not showing her the attention she wanted."

After leaving the home, Abdullah called 9-1-1 and later reported to the officers responding to her call that Ziade had committed an act of domestic violence on her person by shoving her down the stairs, grabbing her by the shoulders and dragging her by the hair toward the front door. The accompanying police report reflects that Abdullah refused to show the responding officers her injuries at the scene and that they "could not substantiate that a battery occurred." Abdullah presented to the hospital the next day with bruising on her left collarbone.

As a result of the August 27 police report and related follow-up interviews, Ziade was charged with misdemeanor domestic violence. Although Ziade denied the allegations made against him, he apparently agreed to take anger management courses in exchange for a dismissal of the misdemeanor charge.

Ziade sued Abdullah for "defamation, among other things, alleging that she made false and defamatory statements against him to police officers in connection with false reports that he sexually assaulted her on August 6, and battered her on August 27." Abdullah moved to dismiss the case under Nevada's anti-SLAPP statute, which allows early dismissal of such cases if they clearly lack legal merit. Abdullah argued "that her statements to police were truthful and made without knowledge of falsehood." Ziade argued in response that Abdullah's statements were knowingly false, and "that he never had sex with Abdullah or assaulted or attempted to assault her during their relationship":

Ziade declared that he had given Abdullah a substantial sum of money before she moved to Nevada and that he had multiple text messages from Abdullah "attacking [him] and telling [him he] is not supporting her for not giving her money."

The district court granted Abdullah's anti-SLAPP motion:

[T]he district court found that Ziade's "specific factual evidence is not enough to present a prima facie case of success on the merits or demonstrate any minimal merit to his defamation claim," and that he failed to overcome the qualified privilege for statements made to police about suspected criminal activity …. In so doing, the court found that "no genuine issue of material fact [remained], [found Abdullah] credible, and [found] no evidence that she spoke untruthfully or with actual malice." …

But the court of appeals disagreed:

In determining if Ziade has satisfied prong two of the anti-SLAPP statute, "[t]he court does not make any findings of fact. Rather, prong two merely requires a court to decide whether a plaintiff's underlying claim is legally sufficient." A claim is legally sufficient if the plaintiff demonstrates that his claim has minimal merit—that is—if the plaintiff makes "a sufficient prima facie showing of facts to sustain a favorable judgment if the evidence submitted by the plaintiff is credited."

Under the current statutory scheme, an anti-SLAPP special motion to dismiss functions like a motion for summary judgment. Accordingly, when reviewing whether a claim has minimal merit under the second prong of anti-SLAPP, "the evidence, and any reasonable inferences drawn from it, must be viewed in [the] light most favorable to the nonmoving party." …

In its order granting Abdullah's special motion to dismiss, the district court based its determination that Ziade's defamation claim lacked minimal merit on its findings that Abdullah was credible and that there was no evidence that she spoke untruthfully or with actual malice. The court further found that Ziade's "specific factual evidence [was] not enough to present a prima facie case of success on the merits or demonstrate any minimal merit to his defamation claim," although it offered no explanation as to how Ziade's evidence was insufficient for this purpose.

These findings demonstrate that the district court failed to apply the proper … analysis in granting Abdullah's special motion to dismiss. Here, the foundation of Ziade's defamation claim was that Abdullah purportedly made false reports to police stating that he committed crimes against her person, constituting defamation per se. In the proceedings below, the parties presented sworn declarations under penalty of perjury stating different versions of events, alongside copies of the police reports in question. Abdullah also presented medical documentation from the day after the August 27 incident, purportedly demonstrating bruising that she claimed was a result of her injuries from Ziade's acts of domestic violence.

As detailed above, in determining whether a claim has minimal merit, the district court does not weigh credibility or evaluate the weight of the evidence, instead, the district court should view the evidence presented in the light most favorable to the nonmoving party. But in this case, despite the parties' presentation of competing evidence, the district court's findings reflect that it weighed the parties' credibility and relied, at least in part, on that determination to conclude Ziade failed to demonstrate prima facie evidence that his claim had minimal merit.

The court's findings further reflect that it improperly weighed the evidence in finding there was no evidence Abdullah was untruthful or acted with actual malice and that Ziade's "specific factual evidence" was insufficient to present a prima facie case of success on the merits. Instead, the district court should have accepted all evidence favorable to Ziade as true and only assessed Abdullah's evidence to determine if it defeated Ziade's evidence as a matter of law.

Based on our review of the record before us, and taking the evidence presented in the light most favorable to Ziade, we conclude that the competing declarations, taken alongside the demonstrated variations in Abdullah's statements to police, were enough to demonstrate minimal merit as to the element of Ziade's defamation claim that Abdullah's statements were false. Further, to the extent the district court found, and Abdullah argues, that the [qualified privilege for reports to the police] applies, we conclude Ziade presented sufficient evidence at this stage to demonstrate minimal merit as to his allegation that Abdullah acted with actual malice in making the police report such that the privilege may not apply.

The court thus concluded the case was improperly dismissed, and could go forward, perhaps eventually to a trial where a jury—or a judge, if the parties agree to a bench trial—would decide who was telling the truth.