Coomer v. Giuliani

22CA0843 Coomer v Giuliani 11-14-2024

COLORADO COURT OF APPEALS

Court of Appeals No. 22CA0843
City and County of Denver District Court No. 20CV34319
Honorable Marie Avery Moses, Judge

Eric Coomer, Ph.D.,

Plaintiff-Appellee,

v.

Rudolph Giuliani,

Defendant-Appellant.

ORDER AFFIRMED IN PART AND REVERSED IN PART,
AND CASE REMANDED WITH DIRECTIONS

Division IV
Opinion by JUDGE SCHOCK
Navarro and Kuhn, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced November 14, 2024

Cain & Skarnulis PLLC, Charles J. Cain, Bradley A. Kloewer, Salida, Colorado;
RechtKornfeld PC, Thomas M. Rogers III, Mark Grueskin, Andrew E. Ho,
Denver, Colorado, for Plaintiff-Appellee

Gessler Blue LLC, Scott E. Gessler, Geoffrey N. Blue, Greenwood Village,
Colorado, for Defendant-Appellant
¶1 Defendant, Rudolph Giuliani, appeals the order denying his

anti-SLAPP1 motion to dismiss the complaint filed by plaintiff, Eric

Coomer. Consistent with our opinion in Coomer v. Donald J. Trump

for President, Inc., 2024 COA 35 (Coomer I), we (1) affirm the denial

of the motion to dismiss the claims for defamation and intentional

infliction of emotional distress and the request for injunctive relief;

(2) reverse the denial of the motion to dismiss the civil conspiracy

claim; and (3) remand for the district court to consider Giuliani’s

request for attorney fees and costs and for further proceedings.

I. Background

¶2 Coomer is the former Director of Product Security and Strategy

at Dominion Voting Systems, Inc. (Dominion), a company that

provided voting technology and support services in connection with

the 2020 presidential election. He brought this lawsuit against

Giuliani and several other defendants based on statements they

made about him in questioning the validity of the election results.

1 “SLAPP” stands for “strategic lawsuit against public participation.”

Salazar v. Pub. Tr. Inst., 2022 COA 109M, ¶ 1 n.1. The anti-SLAPP
statute allows for a special motion to dismiss any cause of action
arising from an act in furtherance of a person’s constitutional right
of petition or free speech. § 13-20-1101(3)(a), C.R.S. 2024.

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¶3 We addressed Coomer’s claims against the other defendants in

Coomer I. In doing so, we considered the substance of Giuliani’s

statements because he was alleged to have made those statements

as an agent of one of the other defendants, Donald J. Trump for

President, Inc. (the Trump Campaign). See Coomer I, ¶ 34 n.3; see

also id. at ¶¶ 34-36, 108-09, 185-95. But we did not address

Giuliani’s appeal because the action was stayed as to him due to

his bankruptcy filing. See id. at ¶ 6 n.2. That stay has now been

lifted, meaning that Giuliani’s appeal may now proceed.

¶4 The facts underlying Coomer’s claims in this case are set forth

in Coomer I, ¶¶ 7-40, and we will not repeat them at length. In

short, Joe Oltmann, the co-host of the Conservative Daily podcast,

claimed to have infiltrated an “Antifa” conference call in September

2020, where he heard someone identified as “Eric . . . the Dominion

guy” say, “Don’t worry about the election. Trump is not going to

win. I made effing sure of that.” Oltmann explained that he had

determined the person was Coomer, and he accused Coomer of

“interfering with the election.” Oltmann repeated this account

several times on his own podcasts and in other media. The other

defendants made similar statements in sharing Oltmann’s account.

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¶5 Coomer’s claims against Giuliani are based on statements

Giuliani made at a November 19, 2020, press conference, where he

spoke on behalf of the Trump Campaign. Giuliani began the press

conference by introducing himself as a representative of the Trump

Campaign’s legal team. He then explained that the purpose of the

press conference was to present “the evidence that we’ve collected

over the last . . . two weeks” regarding allegations of election fraud.

¶6 After running through a litany of such allegations, Giuliani

asked Sidney Powell, another attorney he had introduced as a

member of the legal team, to describe what he called “another

totally outrageous situation.” Powell spoke generally about

Dominion’s role in the election and then turned to Coomer:

Eric Coomer . . . is on the web as being
recorded in a conversation with Antifa
members, saying that he had the election
rigged for Mr. Biden. Nothing to worry about
here. And he was going to — they were going
to “F” Trump. His social media is filled with
hatred for the President, and for the United
States of America as a whole . . . .

¶7 Later in the press conference, Giuliani returned to that

account:

[B]y the way, the Coomer character, who is
close to Antifa, took off all of his social media.

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Ah-ah, but we kept it, we’ve got it. The man is
a vicious, vicious man . . . and he specifically
says that they’re going to fix this election. . . .

This is real. It is not made up. [T]here’s
nobody here that engages in fantasies. I’ve
tried a hundred cases. I’ve prosecuted some of
the most dangerous criminals in the world. I
know crimes. I can smell them. You don’t
have to smell this one. I can prove it to you
eighteen different ways.

¶8 At the time of the November 19 press conference, the Trump

Campaign had filed lawsuits in Pennsylvania and Michigan

challenging the election results in those states. Neither of those

lawsuits referred to Coomer, and only the Michigan case involved

any allegations about Dominion. In the days and weeks after the

press conference, Powell filed four more lawsuits — in Michigan,

Georgia, Wisconsin, and Arizona — on behalf of individual plaintiffs.

¶9 Coomer sued Giuliani (and the other defendants), asserting

claims for defamation, intentional infliction of emotional distress,

and civil conspiracy, and seeking damages and injunctive relief,

based on Giuliani’s statements at the November 19 press

conference. Coomer alleged that Giuliani’s statements about him

were false and defamatory insofar as they asserted that Coomer

“suggest[ed] he would rig the election” and “took actions to rig the

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election.” In his complaint, Coomer denied (1) having any

knowledge of the alleged Antifa conference call; (2) participating in

such a call; (3) making the statements attributed to him; or

(4) taking any action to subvert the presidential election results.

¶ 10 Giuliani moved to dismiss Coomer’s complaint under section

13-20-1101(3)(a), C.R.S. 2024. He argued that (1) his statements

were protected by the litigation privilege; (2) Coomer could not show

that Giuliani made the statements with actual malice; (3) Coomer

could not satisfy the elements of his claims for intentional infliction

of emotional distress and civil conspiracy; and (4) Coomer’s request

for injunctive relief was not a separately cognizable claim. In

support, Giuliani submitted a declaration, attesting that he believed

the statements he made at the press conference regarding Coomer

were true and that the purpose of the press conference was to

“announce an opening statement” as to what the Trump

Campaign’s legal team expected evidence to show in litigation.

¶ 11 Coomer filed an omnibus response to all defendants’ special

motions to dismiss and attached his own declaration, attesting that

he was not on the alleged conference call in September 2020, did

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not make the statement the defendants had attributed to him, and

did not take any action to subvert the presidential election.

¶ 12 After a two-day hearing, the district court denied all

defendants’ motions, including Giuliani’s, in their entirety. It

concluded that the anti-SLAPP statute applied but that Coomer had

established a reasonable likelihood of prevailing on his claims.

II. Applicable Law and Standard of Review

¶ 13 We review an order denying an anti-SLAPP special motion to

dismiss de novo, applying the same two-step analysis as the district

court. Coomer I, ¶¶ 62, 64. First, we must determine whether the

defendant has made a threshold showing that the anti-SLAPP

statute applies — “that is, whether the claims arise from the

defendant’s exercise of free speech or right to petition in connection

with a public issue.” Id. at ¶ 62 (citation omitted). Second, if the

defendant meets that threshold, the burden shifts to the plaintiff to

establish a reasonable likelihood of prevailing on the claims. Id.

¶ 14 At the second step, we must consider the pleadings and

supporting and opposing affidavits to determine “whether the

plaintiff has stated a legally sufficient claim and made a prima facie

factual showing sufficient to sustain a favorable judgment.” Id. at

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¶ 63 (citation omitted). In doing so, we must accept the plaintiff’s

evidence as true and assess the defendant’s evidence “only to

determine if it defeats the plaintiff’s claim as a matter of law.” Id. at

¶¶ 66, 72 (citation omitted). We do not weigh the evidence or

resolve factual conflicts. Id. at ¶ 63. Nor may we (or the district

court) make credibility determinations. Id. at ¶ 73. Instead, our

role is limited to determining whether the plaintiff has met the

“threshold burden” required for the case to proceed. Id. at ¶ 76.

¶ 15 Because Coomer does not dispute the district court’s

conclusion that the anti-SLAPP statute applies, we consider only

whether Coomer has met his prima facie burden of establishing a

reasonable likelihood of prevailing on his claims. See id. at ¶ 83.

III. Analysis

¶ 16 As noted above, we did not in Coomer I consider Coomer’s

claims against Giuliani personally. See id. at ¶ 6 n.2. But because

Coomer’s claims against the Trump Campaign are based in part on

Giuliani’s statements, we did analyze Giuliani’s statements in

assessing the viability of Coomer’s claims against the Trump

Campaign. Giuliani makes essentially the same arguments on

appeal that the Trump Campaign (and other defendants) did.

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¶ 17 Thus, many of our conclusions in Coomer I, which we choose

to follow, are equally pertinent to the issues Giuliani raises in this

appeal. While we repeat and summarize certain aspects of those

conclusions as they relate to Giuliani’s arguments, we incorporate

by reference the more fulsome analysis in Coomer I where it applies.

A. Defamation

¶ 18 Giuliani argues that Coomer did not present clear and

convincing evidence that Giuliani’s statements were false or that

Giuliani acted with actual malice. He asserts that the district court

erred by substituting its own interpretation of Giuliani’s statements

for what he actually said. And he contends that he did not act with

actual malice because he believed his statements were true.

¶ 19 Initially, to the extent Giuliani suggests that Coomer had to

prove falsity and actual malice by clear and convincing evidence in

response to the motion to dismiss, he is incorrect. Id. at ¶ 77. That

is the burden Coomer must meet at trial. Id. at ¶ 87. At this stage

of the case, Coomer need only show a reasonable probability that he

will be able to meet his burden of proof by clear and convincing

evidence at trial. Id. We conclude that Coomer has made this

prima facie showing as to his defamation claim against Giuliani.

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1. Legal Standard

¶ 20 To prevail on a claim of defamation, a plaintiff generally must

prove four elements: (1) a defamatory statement concerning the

plaintiff; (2) publication; (3) fault amounting to at least negligence;

and (4) either actionability of the statement irrespective of special

damages or the existence of special damages. Id. at ¶ 85.

¶ 21 But when the statement involves a matter of public concern,

as in this case, three heightened standards apply. Id. at ¶ 86. The

plaintiff must prove (1) the falsity of the statement by clear and

convincing evidence; (2) actual malice of the speaker by clear and

convincing evidence; and (3) actual damages. Id. Clear and

convincing evidence is “evidence that is highly probable and free

from serious or substantial doubt.” Id. at ¶ 87 (citation omitted).

2. Falsity

¶ 22 Giuliani does not dispute that he said Coomer said he was

going to “fix the election.” But he asserts that the district court

erred by concluding that “the substance of the statements”

conveyed that Coomer “did in fact subvert the election.” We

rejected this argument in Coomer I, ¶ 109, and we reach the same

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conclusion here, viewing the statements “in context to determine

how a reasonable person would have understood them.” Id. at ¶ 90.

¶ 23 Giuliani began the press conference by explaining that its

purpose was to present evidence of alleged election fraud. After

Powell relayed the account of Coomer “saying that he had the

election rigged for Mr. Biden,” Giuliani highlighted that account,

repeating that Coomer “specifically says that they’re going to fix the

election.” He then followed that statement by asserting that there

had been a “crime” and that he could “prove it . . . eighteen different

ways.” Taken in context, this statement can reasonably be

understood as an assertion that Coomer not only said he was going

to fix the election but actually took steps to do so. See id. at ¶ 109.

¶ 24 Accepting Coomer’s evidence as true, he has shown a

reasonable likelihood of proving by clear and convincing evidence

that these statements were false. See id. at ¶¶ 137-145. Most

importantly, in his declaration, Coomer attested that he (1) did not

participate in the alleged conference call; (2) did not say he could rig

the election; and (3) did not take any action to subvert the election.

That declaration, if true, could itself provide clear and convincing

evidence that Giuliani’s statements were false. See id. at ¶ 139.

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Coomer also presented affidavits from two other individuals

corroborating his denial. Id. at ¶ 140. And he identified several

apparent inconsistencies or weaknesses in Oltmann’s account of

the call on which Giuliani’s statements were based. Id. at ¶ 141.

¶ 25 Like the other defendants in Coomer I, Giuliani cites other

evidence that he contends could support a jury finding that the

conference call occurred and that Coomer made the statements

Giuliani attributed to him. And he discounts Coomer’s declaration,

asserting that Coomer offered no alibi for the time of the call2 and

presented no evidence that a call did not happen. But as we

explained in Coomer I, we may not weigh the evidence or decide

which evidence we find more persuasive. Id. at ¶¶ 143-44.

¶ 26 The question is not, as Giuliani suggests, whether a

reasonable jury could find Giuliani’s statements were true. See id.

at ¶ 143. The question is whether, accepting Coomer’s evidence as

true, there is a reasonable likelihood that a jury could find by clear

and convincing evidence that Giuliani’s statements were false. Id.

For the reasons above and in Coomer I, we conclude that it could.

2 Neither Oltmann nor Giuliani identified a specific time of the

alleged call, and even the claimed date of the call varied over time.

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3. Actual Malice

¶ 27 Giuliani contends that Coomer did not establish a reasonable

probability of proving actual malice by clear and convincing

evidence because Giuliani reasonably believed his statements were

true. For the reasons in Coomer I, ¶¶ 160-66, 174-79, we disagree.

¶ 28 Actual malice means that the speaker made the statement

“with actual knowledge that it was false or with reckless disregard

for whether it was true.” Id. at ¶ 147 (citation omitted). A speaker

acts with reckless disregard if the speaker “entertains serious

doubts as to the truth of the statement or acts with a high degree of

awareness of its probable falsity.” Id. (citation omitted).

¶ 29 It is undisputed that Giuliani’s statements about what Coomer

said were based entirely on Oltmann’s account of the alleged

September 2020 conference call. Giuliani asserts that his reliance

on Oltmann — someone he calls a “reliable source with first-hand

knowledge” — precludes a finding of actual malice. He also asserts

that he conducted some investigation into Oltmann’s allegations

about Coomer and found no reason to disbelieve them, particularly

when other media sources were also reporting those allegations.

12
¶ 30 We rejected effectively the same arguments in Coomer I. See

id. at ¶¶ 161-66, 171-72, 174-180. As we explained there, even if

Giuliani genuinely believed Oltmann’s account of the conference

call, or the media reports of that account, “that account itself could

reasonably support a finding that [Giuliani] entertained serious

doubts” as to whether Coomer made the comment. Id. at ¶ 162. In

particular, Oltmann’s attribution of the comment to Coomer was

based entirely on (1) an anonymous person’s identification of

another anonymous speaker as “Eric, the Dominion guy”;

(2) Coomer’s position with Dominion; and (3) Coomer’s social media

posts in opposition to President Trump. Id. at ¶¶ 163-64. Given

the limited substantiation and the magnitude of the claim, there is

a reasonable likelihood that a jury could find that Giuliani, at a

minimum, entertained serious doubts as to its truth. Id. at ¶ 164.

¶ 31 A jury could also reasonably find that Giuliani acted with

actual malice in suggesting that Coomer had committed a “crime”

by in fact interfering with the election. See id. at ¶ 165. Oltmann

did not claim to have personal knowledge that Coomer had done so.

Nor does Giuliani advance any theory as to how he believed Coomer

had personally manipulated the election results. Id. And by the

13
time Giuliani made his statements, the government agency

responsible for election security had rejected any claim that the

election had been compromised. Id. As with the other defendants,

there is a reasonable likelihood that a jury could find Giuliani

“recklessly disregarded the truth by asserting such an explosive and

improbable claim without any evidence to support it.” Id.

¶ 32 We agree with Giuliani that actual malice is subjective and

that the focus must be on his state of mind when he made the

statements in question. See id. at ¶¶ 148, 179. And thus, the

district court erred by relying on information that post-dated those

statements. Id. at ¶ 177. But, as with the other defendants, we

reject Giuliani’s contention that the prevalence of election fraud

allegations generally precludes a finding of actual malice as to his

claim that Coomer interfered with the election. See id. at ¶ 179.

¶ 33 We likewise reject Giuliani’s argument that his review of

Coomer’s social media posts and investigation of Coomer

necessarily establish that he sincerely believed his statements to be

true. See id. at ¶¶ 174-75. Like the similar arguments raised by

the other defendants in Coomer I, these are facts Giuliani may

present at trial. Id. at ¶ 175. But for purposes of Giuliani’s anti-

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SLAPP motion, it is enough that Coomer has presented evidence

that is reasonably likely to support the finding that Giuliani acted

with actual malice when he made his statements. Id.

4. Litigation Privilege

¶ 34 Giuliani next contends that his statements at the press

conference were protected by the litigation privilege because they

were related to the ongoing lawsuit in Michigan and other lawsuits

Giuliani anticipated filing in good faith. We rejected this argument

in Coomer I, concluding that Giuliani’s statements were not

protected by the litigation privilege. Id. at ¶¶ 185-95. Giuliani

raises no argument that would cause us to revisit that conclusion.

¶ 35 In particular, for the litigation privilege to apply, the statement

must both (1) have some relation to the subject matter of the

litigation (existing or contemplated in good faith) and (2) be made in

furtherance of the objective of the litigation. Id. at ¶ 187. And as

we held in Coomer I, while Giuliani’s statements satisfied the first

prong of this analysis, they did not satisfy the second.

¶ 36 In his briefs, Giuliani did not offer any explanation as to how

his statements about Coomer — allegations that did not appear in

the Michigan complaint — furthered the objective of the existing or

15
contemplated litigation. Id. at ¶¶ 191-92. Indeed, Giuliani did not

address the second prong of the litigation privilege at all, focusing

only on whether his statements “related to” the litigation.3

¶ 37 At oral argument, Giuliani argued for the first time that his

statements about Coomer were in furtherance of the litigation

because their purpose was to find witnesses for future potential

lawsuits. We note that no lawsuit was ever filed by Giuliani or the

Trump Campaign that included any allegations about Coomer. But

even if such litigation was contemplated in good faith, Giuliani’s

counsel conceded at oral argument that the argument about finding

witnesses was not raised in Giuliani’s briefs. Nor does the record

contain any assertion by Giuliani that this was his purpose in

making the statements. We will not consider an argument first

made at oral argument, particularly one that lacks record support.

See Rucker v. Fed. Nat’l Mortg. Ass’n, 2016 COA 114, ¶ 35.

3 As we explained in Coomer I, we agree with Giuliani that the

district court was incorrect in suggesting that the litigation privilege
“can be lost by a finding of actual malice.” Coomer v. Donald J.
Trump for President, Inc., 2024 COA 35, ¶ 186 n.16. But because
the litigation privilege does not apply, that error is harmless. Id.

16
B. Intentional Infliction of Emotional Distress

¶ 38 Giuliani’s sole argument with respect to Coomer’s claim for

intentional infliction of emotional distress is that Coomer failed to

meet his burden of showing actual malice. Because we have

concluded that Coomer has established a reasonable likelihood of

proving by clear and convincing evidence that Giuliani acted with

actual malice, we reject this argument. See Coomer I, ¶ 202.

¶ 39 To the extent Giuliani asserts that Coomer also failed to satisfy

his burden with respect to the element of extreme and outrageous

conduct, we disagree for the reasons stated in Coomer I, ¶¶ 203-05.

Specifically, accepting Coomer’s evidence as true, there is a

reasonable likelihood that a jury could find that Giuliani’s

accusations were sufficiently outrageous to sustain the claim. Id.

C. Conspiracy

¶ 40 Giuliani asserts that the district court erred by denying his

motion to dismiss the conspiracy claim because Coomer failed to

present any evidence of an agreement to defame him. See Coomer I,

¶ 208 (listing elements of civil conspiracy, including “a meeting of

the minds on the object or course of action”). On this point,

consistent with our conclusion in Coomer I, we agree with Giuliani.

17
¶ 41 As we explained in Coomer I, it was incumbent on Coomer to

present evidence of an agreement, direct or circumstantial, between

Giuliani and at least one other person to make the defamatory

statements. Id. at ¶ 209. He failed to do so. Id. at ¶¶ 210-12. To

the extent there was coordination among Giuliani, Powell, and other

members of the Trump Campaign, “[a] corporation and its agents

acting on its behalf ‘do not constitute the “two or more persons”

required for a civil conspiracy.’” Id. at ¶ 213 (citation omitted).

¶ 42 Thus, we conclude that Coomer has failed to meet his burden

of establishing a reasonable likelihood of prevailing on his civil

conspiracy claim against Giuliani. That claim must be dismissed.

D. Injunction

¶ 43 Finally, Giuliani argues, and Coomer agrees, that the district

court’s review of Coomer’s request for injunctive relief was

premature. We agree. An injunction is not a substantive claim that

is subject to an anti-SLAPP motion to dismiss. Coomer I, ¶ 218. It

is a remedy for a claim upon which a claimant prevails. Id.

¶ 44 We therefore agree with Giuliani that the district court erred

by addressing the merits of Coomer’s request for injunctive relief.

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But we affirm the denial of Giuliani’s motion to dismiss that request

because, procedurally, it could not be dismissed. See id. at ¶ 219.

IV. Attorney Fees

¶ 45 Giuliani requests his attorney fees and costs as a “prevailing

defendant” under section 13-20-1101(4)(a). Whether a party

prevailed on an anti-SLAPP motion — and to what extent any

partial success warrants an award of fees — is a determination

within the broad discretion of the district court. Coomer I, ¶ 221.

¶ 46 Thus, because we have reversed one aspect of the district

court’s ruling, we remand the case to the district court to determine

whether Giuliani is a partially prevailing defendant; the extent to

which his partial appellate success, if any, warrants an award of

appellate fees; and the reasonableness of those fees. Id. at ¶ 224.

V. Disposition

¶ 47 We reverse the district court’s denial of Giuliani’s motion to

dismiss the conspiracy claim. We affirm the district court’s order as

to Giuliani in all other respects. We remand the case to the district

court for determination of Giuliani’s request for attorney fees and

costs, and for further proceedings consistent with this opinion.

JUDGE NAVARRO and JUDGE KUHN concur.

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