United States District Court, D. Kansas
GWENDOLYN G. CARANCHINI, Plaintiff,
LOLA PECK, et al., Defendants.
MEMORANDUM AND ORDER
MURGUIA UNITED STATES DISTRICT JUDGE.
plaintiff Gwendolyn G. Caranchini filed the present action
against Lola and Rick Peck, Johnson County Sheriff Calvin
Hayden, and individuals from the Johnson County Court and
District Attorney's Office. The matter is currently
before the court on Rick and Lola Peck's Motion to Strike
the Claims Against the Pecks Pursuant to K.S.A. 2016 Supp.
60-5320, Enforce the 30-Day Hearing Requirement and Stay of
Discovery (Doc. 3). For the following reasons, the court
grants the motion in part and denies it in part.
filed a 147-page complaint on May 14, 2018. The court will
highly summarize the facts relevant to the present motion.
Plaintiff, a former attorney, and defendant Rick Peck were
involved in an extra-marital affair. At some point Rick and
his wife, defendant Lola Peck, filed for a Temporary
Restraining Order (“TRO”) against plaintiff. At
the time the TRO was filed, defendants were divorced but
apparently still living together.
February 9, 2017, plaintiff appeared in front of a Johnson
County District Court magistrate judge for a hearing on the
TRO. At the conclusion of the hearing, deputies from the
Johnson County Sheriff s Department arrived to arrest
plaintiff on telephone harassment charges. These charges
involved defendants. Plaintiff was taken to the Johnson
County Jail, where she was held until she was released the
following evening on bond. She was incarcerated for
approximately 36 hours. The telephone harassment charges were
are listed in Counts I, II, II, IV, and V of the complaint.
In her complaint and response to the motion to strike,
plaintiff summarizes the claims against defendants as
. Count I - Libel/slander against Rick and
Lola Peck for the false filing of the TRO and false testimony
by Rick Peck during the TRO hearing,
. Count II - Libel/slander against Lola Peck
for filing false paperwork on the telephone harassment charge
and for making false statements to Assistant District
Attorneys John Fritz and Michael McElhinney,
. Count III - Harassment/threat of bodily
harm against Lola Peck,
. Count IV - Conspiracy to incarcerate
against Lola Peck,
. Count V - Libel/slander against Lola Peck
for claiming plaintiff was “in need of a mental
examination” in documents filed in the telephone
seeks injunctive and monetary relief from defendants.
moved to strike the claims against them pursuant to K.S.A.
§ 60-5320, the Public Speech Protection Act (“the
Act”). Defendants argue that plaintiffs claims against
them arise from the class of privileged communications
defined by and protected by the Act.
Kansas's Public Speech Protection Act, K.S.A. §
in 2016, the Act-also known as an “anti-SLAPP”
statute-was passed to protect against “meritless
lawsuits that chill free speech, ” known as SLAPPs, or
“strategic lawsuits against public
participation.” See Eric Weslander, The
First Amendment Slapps Back: An Overview of the Free-Speech
Protections of Kansas' New Anti-SLAPP Statute, J.
Kan. B. Ass'n, January 2018, at 30, 31. The stated
purpose of the statute is to “encourage and safeguard
the constitutional rights of a person to petition, and speak
freely and associate freely, in connection with a public
issue or issues of public interest . . . while, at the same
time, protecting the rights of a person to file meritorious
lawsuits for demonstrable injury.” K.S.A. §
60-5320(b). Under the Act, a party may bring a motion to
strike the claim if it is “based on, relates to or is
in response to a party's exercise of the right of free
speech, right to petition or right of association.”
K.S.A. § 60-5320(d). The motion to strike may be brought
early in the litigation-within 60 days of service of the
complaint-and the court must hold a hearing on the motion not
more than 30 days after service of the motion. Id.
The statute also directs a court to stay all discovery until
entry of the order on the motion to strike. K.S.A. §
invoke the protections of the Act, the party bringing the
motion to strike must first make a prima facie case
“showing the claim against which the motion is based
concerns a party's exercise of free speech, right to
petition or right of association.” K.S.A. §
60-5320(d). If the moving party meets this burden, the burden
shifts to the responding party who must then “establish
a likelihood of prevailing on the claim by presenting
substantial competent evidence to support a prima facie
case.” Id. The court must deny the motion to
strike if the responding party meets this burden.
Id. When deciding whether either party has met its
burden, the court must consider the pleadings and any
affidavits “stating the facts upon which the liability
or defense is based.” Id.
argue that plaintiff's claims against them are based on,
relate to, or are in response to their exercise of the right
of free speech, the right to petition, and the right of
association. The Act defines the “exercise of the right
of free speech” as “a communication made in
connection with a public issue or issue of public
interest.” K.S.A. § 60-5320(c)(1). A public issue
or issue of public interest is an issue related to: (A)
health or safety; (B) environmental, economic or community
well-being; (C) the government; (D) a public official or
public figure; or (E) a good, product, or service in the
marketplace. K.S.A. § 60-5320(c)(7). The “exercise
of the right to petition” means any communication
. A judicial proceeding; .
An official proceeding, other than a judicial proceeding, to
administer the law;
. An executive or other proceeding before a
department of the state, federal government, or other
political subdivision of the state;
. A legislative proceeding, including a
proceeding of a legislative committee;
. A proceeding before an entity that
requires by rule that public notice be given before