Opinion
16-P-739
02-07-2017
Kimberly A. GOODMAN v. TRANG TRAN.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
This appeal arises in the context of protracted and vexatious litigation between the plaintiff, Kimberly A. Goodman, and the defendant, Trang Tran, fighting over Goodman's son, who is also Tran's fiancé. Tran unsuccessfully sought a G. L. c. 258E harassment prevention order against Goodman. Goodman attempted to sue Tran in the small claims session of the District Court, then filed the present action in the District Court civil session, alleging abuse of process (count I) and intentional infliction of emotional distress (count II). A District Court judge allowed Tran's special motion to dismiss Goodman's complaint pursuant to G. L. c. 231, § 59H, the "anti-SLAPP" statute. Goodman appeals. We are constrained to reverse the order allowing the special motion to dismiss.
The term "SLAPP" stands for strategic lawsuit against public participation. See Duracraft Corp . v. Holmes Prods. Corp ., 427 Mass. 156, 160 n.7 (1998).
Count I of the complaint patently relates to Tran's petitioning activity, the filing of a G. L. c. 258E complaint. See Van Liew v. Stansfield , 474 Mass. 31, 36 (2016). Because Tran met her initial burden of showing that Goodman's claim against her was based on petitioning activity, the burden shifted to Goodman "to show by a preponderance of the evidence—... based on pleadings and affidavits—that [Tran's] petitioning activities were ‘devoid of any reasonable factual support or any arguable basis in law’ and that such petitioning activities ‘caused actual injury’ to [Goodman]." Ibid ., quoting from G. L. c. 231, § 59H. The motion judge erred in concluding that Goodman failed to satisfy these requirements.
To obtain a harassment prevention order under G. L. c. 258E, Tran was required to demonstrate "harassment," that is, "3 or more acts of willful and malicious conduct aimed at a specific person committed with the intent to cause fear, intimidation, abuse or damage to property and that does in fact cause fear, intimidation, abuse or damage to property." G. L. c. 258E, § 1, inserted by St. 2010, c. 23. Tran's affidavit in support of her c. 258E complaint alleged five instances of Goodman allegedly "harassing" her. However, at most only two of those incidents arguably qualified as harassment under c. 258E.
We will assume in Tran's favor that the first incident ("Goodman showed up at my property around 4 pm, harassing me, telling me to stay away from her son, creating fear, threatened me") and the fourth incident (outside Tran's house, Goodman "bursted out and started swearing at me calling me ‘a c- - -’! She was about to get out of the car and almosted [sic ] a fist fight with me") amounted "true threats." O'Brien v. Borowski , 461 Mass. 415, 423-424 (2012). However, none of Goodman's other conduct—sending letters to Tran's parents "harassing [Tran] in the letters"; contacting Tran's parents and "saying demeaning things"; and sending letters to her son "harassing [Tran] and [her] family accusing [Tran's] father is up to something illegal, about [Tran's] personal life and fabricated things about [her]"—comes close to qualifying as "fighting words" or "true threats." Ibid .
The judge who acted on Tran's G. L. c. 258E complaint denied Tran's ex parte request and then dismissed the complaint after an adversarial hearing. Even the granting of a temporary harassment order does not necessarily mean that there was sufficient factual support for the petitioning activity. Van Liew , supra at 40. Contrast McLarnon v. Jokisch , 431 Mass. 343, 349 (2000) (nonmoving party failed to show that moving party's petitioning activity lacked factual and legal basis where "several judges granted or extended protective orders against the plaintiff over a period of more than three years"). While we do not read Van Liew as holding that denial of a c. 258E complaint automatically equates with a finding that the petitioning activity was "devoid of any reasonable factual support or any arguable basis in law," we conclude that Goodman met her burden in this case. "It was clear from the text of [Tran's] complaint for a harassment prevention order that no valid basis for such an order was presented." Van Liew , supra .
Goodman also met the second requirement of G. L. c. 231, § 59H. She alleged that she spent "several thousand dollars in legal expenses" to defend against Tran's attempts to obtain a harassment prevention order. This is sufficient to show "actual injury." Van Liew , supra . Accordingly, Goodman met her burden as the nonmoving party, count I should not have been dismissed.
Nor was there any basis to dismiss count II of the complaint under the anti-SLAPP statute. Goodman alleged that Tran forbade Goodman's son from having personal contact with his family, did not allow him to accept telephone calls or mail, destroyed mail, and threw tantrums, and that this conduct was "specifically and purposefully designed to inflect emotional distress upon [Goodman]." None of this alleged conduct is petitioning activity. Goodman has alleged intentional infliction of emotional distress, not alienation of affection. Contrast Nelson v. Richwagen , 326 Mass. 485, 486-488 (1950) (child may not maintain action of alienation of affections and enticement away of parent). As weak as this claim may be, there was no basis to dismiss it under G. L. c. 231, § 59H.
We take no position on the merits of the parties' claims or other possible dispositive motions.
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Accordingly, the order allowing the special motion to dismiss is reversed.
So ordered .
Reversed.