24CA1456 Howard v Howard 08-27-2026 COLORADO COURT OF APPEALS
Court of Appeals No. 24CA1456 Jefferson County District Court No. 23CV30901 Honorable Russell Klein, Judge
Muhammad Howard, Plaintiff-Appellant, v. Jessica Katherine Howard a/k/a Jessica Katherine Knepp, Defendant-Appellee.
JUDGMENT REVERSED AND CASE REMANDED WITH DIRECTIONS
Division I
Opinion by JUDGE J. JONES Grove and Schutz, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced August 27, 2026
Ernst Legal Group, LLC, Dan Ernst, Denver, Colorado, for Plaintiff-Appellant
Killmer Lane, LLP, Darold W. Killmer, Thomas B. Kelley, Denver, Colorado; Law Office of Steven D. Zansberg, L.L.C., Steven D. Zansberg, Denver, Colorado, for Defendant-Appellee
¶1 Plaintiff, Muhammad Howard (Howard), appeals the district court’s judgment dismissing his complaint against defendant, Jessica Katherine Howard a/k/a Jessica Katherine Knepp (Knepp). We reverse the judgment and remand the case for further proceedings.
I. Background
¶2 Howard and Knepp were married in January 2014. Seven years later, in January 2021, they jointly filed for dissolution of their marriage. By Knepp’s account, “[t]he dissolution proceeding was drawn out and highly contentious.”
¶3 On March 29, 2022, while the dissolution case remained ongoing, Knepp telephoned the Arvada Police Department to report that Howard had engaged in various acts of fraud. As now most relevant, she told an officer that Howard had opened credit card accounts with Citibank, Vectra Bank, American Express, Capital One, and U.S. Bank without her knowledge or permission. She claimed that she had only learned of those credit cards in December 2020 when she obtained a credit report showing the accounts. Following an investigation and consultation with the First Judicial District Attorney’s Office, the Arvada police “determined that there
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was not enough evidence to continue a criminal investigation into this specific allegation.”1
¶4 In June 2023, Howard filed a complaint against Knepp asserting a claim of defamation and defamation per se. Therein, he alleged that Knepp had made the following false and defamatory statements in her report to the police:
• Howard “had fraudulently opened numerous credit cards in [Knepp’s] name.”
• “[T]he first [Knepp] knew of these cards was in December of 2020.”
• “[Howard] was under criminal investigation for financial fraud of over $1 million in Denver County.”
• “[Knepp’s] signature had been forged by [Howard].”
With respect to the credit cards, Howard also alleged in the complaint that (1) Knepp knew about them all along because she had opened the accounts herself; (2) various communications showed that Knepp knew about the cards “well before December 2020”; and (3) Knepp knew that Howard hadn’t forged her
1 The police department told Knepp that, in addition to a lack of sufficient proof, there was a statute of limitations problem.
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signatures because “she was the one who signed the relevant contracts.”
¶5 Knepp filed a motion to dismiss the complaint under Colorado’s anti-SLAPP statute, section 13-20-1101, C.R.S. 2025.2 She attached documents and her affidavit in support. Howard filed a brief in opposition to the motion, attaching documents and his own affidavit. Howard’s counsel requested a hearing on the motion.
¶6 The district court denied Howard’s counsel’s request for a hearing and granted Knepp’s motion to dismiss. The court first concluded that Knepp’s police report was subject to the anti-SLAPP statute because (1) Knepp hadn’t “recanted her statements and they have not been demonstrated to be false” and, (2) absent such recantation or refutation, a complaint to law enforcement is an act in furtherance of a person’s “right of petition or free speech in connection with a public issue.” See § 13-20-1101(2)(a). The court then determined that Howard hadn’t established a reasonable
2 “SLAPP” is an acronym for “strategic lawsuit against public
participation.” Coomer v. Donald J. Trump for President, Inc., 2024 COA 35, ¶ 2 n.1 (citation omitted).
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likelihood of success on his claim. See § 13-20-1101(3)(a). It therefore dismissed Howard’s complaint under the statute. See id.
¶7 Though the district court ruled that none of Knepp’s statements are actionable, on appeal Howard only challenges the district court’s judgment with respect to her statements that Howard obtained the credit cards without Knepp’s knowledge or consent and that she only learned about the cards’ existence in December 2020 (the credit card statements).3 We therefore deem any challenge regarding any of the other allegedly defamatory statements abandoned. See CenCor, Inc. v. Tolman, 868 P.2d 396, 397 n.1 (Colo. 1994); Armed Forces Bank, N.A. v. Hicks, 2014 COA 74, ¶ 38. Accordingly, we limit our analysis to the credit card statements.
II. Discussion
¶8 Howard contends that the district court erred by (1) granting Knepp’s motion with respect to the credit card statements and (2) denying his attorney’s request for leave to either offer evidence at
3 Because Knepp’s credit card statements accused Howard of
committing a crime (or crimes), they are defamatory per se. See Wilburn v. Guthrie, 2026 COA 13, ¶¶ 1-2; Arrington v. Palmer, 971 P.2d 669, 671 (Colo. App. 1998).
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a hearing or, in the alternative, to file a surreply. We agree with Howard’s first contention and therefore don’t need to address the second.
A. Applicable Law and Standard of Review
¶9 The anti-SLAPP statute’s purpose “is to encourage and safeguard the constitutional rights of persons to petition, speak freely, associate freely, and otherwise participate in government to the maximum extent permitted by law and, at the same time, to protect the rights of persons to file meritorious lawsuits for demonstrable injury.” § 13-20-1101(1)(b). It allows for the filing of a “special motion to dismiss” and sets forth a two-step process for determining whether such a motion should be granted. § 13-20- 1101(3)(a).
¶ 10 The first step requires the court to determine whether the statute applies. It applies if the plaintiff’s claim arises from an act “in furtherance of a person’s right of petition or free speech under the United States [C]onstitution or the state constitution in connection with a public issue.” § 13-20-1101(2)(a). To qualify as such an act, it must fall within at least one of the following four categories:
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(I) Any written or oral statement or writing made before a legislative, executive, or judicial proceeding or any other official proceeding authorized by law;
(II) Any written or oral statement or writing made in connection with an issue under consideration or review by a legislative, executive, or judicial body or any other official proceeding authorized by law;
(III) Any written or oral statement or writing made in a place open to the public or a public forum in connection with an issue of public interest; or
(IV) Any other conduct or communication in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest.
§ 13-20-1101(2)(a)(I)-(IV).
¶ 11 If the act falls within one of these categories, the court must go to the second step: It must determine whether “the plaintiff has established that there is a reasonable likelihood that the plaintiff will prevail on the claim.” § 13-20-1101(3)(a). “If the plaintiff makes this showing, the case proceeds; if [he does] not, the case is dismissed.” Lind-Barnett v. Tender Care Veterinary Ctr., Inc., 2025 CO 62, ¶ 23; see also Coomer v. Donald J. Trump for President, Inc., 2024 COA 35, ¶ 62 (noting that the movant has the burden at the
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first step and that the burden shifts to the plaintiff at the second step).
¶ 12 “We review an order granting . . . a special motion to dismiss de novo, applying the same two-step analysis as the district court.” Coomer, ¶ 64.
B. Analysis
1. Applicability of the Statute
¶ 13 The district court didn’t explicitly identify which of the four categories of statements covered by section 13-20-1101(2)(a) Knepp’s report fell into. But, citing L.S.S. v. S.A.P., 2022 COA 123, the court said that, because Knepp hadn’t recanted her allegations and Howard hadn’t conclusively demonstrated that her statements were false, the anti-SLAPP statute necessarily applied.
¶ 14 The district court’s reliance on L.S.S. in this regard is somewhat problematic because the division in that case “assume[d], without deciding,” that the defendant’s reports to investigatory authorities and a therapist about child abuse fell within subparagraph (I) because the plaintiff had conceded the point. Id. at ¶ 28.
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¶ 15 And on appeal, Knepp doesn’t argue that the credit card statements fall within subparagraph (I). Rather, she argues only that they fall within subparagraph (IV) — “[a]ny other conduct or communication in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest.”4 § 13-20-1101(2)(a)(IV). This, too, is problematic. In FilmOn.com Inc. v. DoubleVerify Inc., 439 P.3d 1156 (Cal. 2019), the California Supreme Court, interpreting California’s virtually identical counterpart to subparagraph (IV), held that to whom the statement at issue was made isn’t dispositive; the statement must itself be about a public issue or an issue of public interest. Id. at 1158-59, 1161. The Colorado Supreme Court, relying largely on FilmOn, recently adopted that interpretation in Lind-Barnett, ¶¶ 24-35.
¶ 16 Applying the two-step test articulated in Lind-Barnett, it is difficult to see how the credit card statements concerned an issue of
4 At oral argument, when asked whether Knepp was limiting her
argument to subparagraph (IV), counsel said that subparagraph (IV) seemed like an “easy fit.” Counsel said subparagraph (I) was a “fallback” but didn’t argue how the statements could fit under subparagraphs (I)-(III).
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public interest. (Knepp doesn’t argue that her statements were made in connection with a public issue.) At bottom, the credit card statements concerned her private dispute with her husband over who was responsible for any balances on the subject credit cards. They neither concerned “a person or entity in the public eye”; nor “conduct that could directly affect a large number of people beyond” Knepp and Howard; nor “a topic of widespread, public interest.” Id. at ¶ 33 (quoting Geiser v. Kuhns, 515 P.3d 623, 629-30 (Cal. 2022)). Though Knepp asserts that, broadly speaking, credit card fraud is an issue of public interest, “[i]t is not enough that [a] statement refer to a subject of widespread public interest; [it] must in some manner itself contribute to the public debate.” Id. at ¶ 28 (quoting FilmOn, 439 P.3d at 1166). Knepp doesn’t explain how the credit card statements meet that test.5
¶ 17 For his part, Howard argues that police reports don’t necessarily fit within any of subparagraphs (I)-(IV), and that the credit card statements don’t because they don’t concern a public issue. Yet, even he concedes that California courts have held that
5 At oral argument, Knepp’s counsel conceded that some police reports may concern purely private disputes.
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police reports fall within the anti-SLAPP statute unless recanted or proved demonstrably false. His effort to distinguish those cases only gets him so far. In our view, some of the cases aren’t distinguishable in principle, though most were decided before FilmOn and Geiser and contain little or no analysis. See, e.g., Kenne v. Stennis, 179 Cal. Rptr. 3d 198 (Ct. App. 2014); Comstock v. Aber, 151 Cal. Rptr. 3d 589 (Ct. App. 2012); Chabak v. Monroy, 65 Cal. Rptr. 3d 641 (Ct. App. 2007); accord Mouktabis v. Clackamas County, 536 P.3d 1037 (Or. Ct. App. 2023).
¶ 18 Despite the uncertainty whether the credit card statements to the police fall within the anti-SLAPP statute, given the relatively muddled state of the law in this area pertaining to police reports, we will assume that they do and therefore move to the second step of the analysis.
2. Reasonable Likelihood of Prevailing
¶ 19 At the second step of the analysis, “the court 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.’” Coomer, ¶ 63 (quoting L.S.S., ¶ 23). Importantly, the
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court “may not weigh the evidence or resolve factual conflicts” in making this determination. Id. The court “must accept the plaintiff’s evidence as true.” Id. at ¶ 66. And it must assess only whether the plaintiff’s evidence asserts facts that, if true, would make out a prima facie case, taking into account the applicable burden of proof. L.S.S., ¶ 42; Coomer, ¶ 63. If the plaintiff meets this burden of showing at least “minimal merit,” Navellier v. Sletten, 52 P.3d 703, 713 (Cal. 2002), the court must allow the case to proceed unless the defendant’s evidence “defeats the plaintiff’s claim as a matter of law.” L.S.S., ¶ 23; accord Coomer, ¶ 72; Baral v. Schnitt, 376 P.3d 604, 608 (Cal. 2016).6
¶ 20 Evidence in this context includes affidavits. § 13-20- 1101(3)(b); Coomer, ¶ 68 (“[O]nce affirmed in an affidavit, the plaintiff’s assertions are no longer mere allegations; they are
6 Knepp urges us to reject the analytical framework set forth in
L.S.S. v. S.A.P., 2022 COA 123, and applied in Coomer, and instead apply the framework set forth in Salazar v. Public Trust Institute, 2022 COA 109M, which, she argues, allows a court more leeway in assessing the relative strength of the parties’ evidence. It isn’t clear that L.S.S. and Salazar are inconsistent with each other. See Coomer, ¶¶ 67-69. But even if they are, we are persuaded that L.S.S. is more consistent with the statutory language and California decisions construing a nearly identical statute, on which Colorado’s anti-SLAPP statute was modeled.
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evidence. And that evidence must be accepted as true.”). What other forms evidence may take in this context isn’t clear, but Knepp doesn’t argue that the other evidence submitted by Howard in opposition to her motion can’t be considered. (And we note that Howard verified that evidence in his affidavit.) See Coomer, ¶ 79.
¶ 21 To prevail on a defamation claim, a plaintiff must prove the following 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. In addition, if, as we assume in this case, the statement involves a matter of public concern, the plaintiff must also prove by clear and convincing evidence that the statement is false and that the defendant acted with actual malice. And the plaintiff must prove
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actual damages, even if the statement is defamatory per se. Id. at ¶ 86.7
¶ 22 Knepp’s motion argued that Howard couldn’t establish a likelihood of prevailing as to these elements because (1) the credit card statements were materially true (and therefore not defamatory) and (2) there is an absence of evidence of malice. In addition, however, she argued that Howard must, but cannot, prove that the police report was a “sham.” She repeats these arguments on appeal. We therefore limit our analysis to those issues.
¶ 23 Turning to the last issue first, we disagree with Knepp that Protect Our Mountain Environment, Inc. v. District Court, 677 P.2d 1361 (Colo. 1984) (POME), a pre-anti-SLAPP-statute case, requires Howard to prove — in addition to the elements of his defamation claim — that her report was “devoid of reasonable factual support” and that the “primary purpose” of the report was to harass Howard
7 Howard doesn’t contest the applicability of the clear and
convincing evidence standard or that he must show actual malice. We therefore assume that those requirements apply. But we agree with Howard that, at this stage of the case, he doesn’t have to produce clear and convincing evidence; rather, he “must establish a probability that [he] will be able to produce clear and convincing evidence . . . at trial.” L.S.S., ¶ 41; accord Coomer, ¶ 77.
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“or to effectuate some other improper objective.” Id. at 1369. POME wasn’t a defamation case: It was an abuse of process case relating to the purpose of the defendant’s use of the judicial system. A defamation claim in contrast relates to the nature and effect of a person’s statements, regardless of the forum.8
¶ 24 Further, the anti-SLAPP statute’s framework — which applies at the earliest stage of the case — nowhere requires the type of proof urged by Knepp. More importantly, the requirements of showing falsity and malice to prevail on a defamation claim effectively mitigate any concern that a party could be found liable even if the statement had factual support and was made for a proper purpose.
¶ 25 L.S.S. and Salazar v. Public Trust Institute, 2022 COA 109M, on which Knepp relies, don’t support her argument.
8 As noted, in Lind-Barnett v. Tender Care Veterinary Center, Inc.,
2025 CO 62, the Colorado Supreme Court adopted a two-part test for analyzing a claim under subparagraph (IV) largely taken from the California Supreme Court’s opinion in FilmOn.com Inc. v. DoubleVerify Inc., 439 P.3d 1156 (Cal. 2019). It did so without mentioning Protect Our Mountain Environment, Inc. v. District Court, 677 P.2d 1361 (Colo. 1984), or the requirements discussed in that case.
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¶ 26 In L.S.S., a defamation case, the division only noted how POME had created a framework that was in certain respects similar to the one created in crafting the anti-SLAPP statute. L.S.S., ¶¶ 16-17. It didn’t hold that the statute adopted all aspects of POME. And the division didn’t analyze the “sham” exception at all in determining whether the plaintiff’s defamation claim was barred by the anti- SLAPP statute. Indeed, Knepp hasn’t cited any case, and we haven’t found one, applying the “sham” exception to a defamation claim.
¶ 27 Salazar held only that the plaintiff had to “satisfy the POME standard to prevail on his malicious prosecution claim,” which it deemed similar to the abuse of process claim at issue in POME. Salazar, ¶¶ 39-41. Again, the division wasn’t addressing the plaintiff’s burden on a defamation claim.
¶ 28 With respect to falsity and malice, Howard’s affidavit made the following allegations:
• Knepp knew the allegations that he had taken out credit cards in her name without her knowledge and that she had only learned of those credit cards in December 2020 were false.
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• Knepp “knew that [Howard] had not forged her signature on credit card applications[] because she knew that she was the one who signed the relevant contracts.” • He and Knepp didn’t keep “separate finances” as alleged in Knepp’s motion. • Knepp signed the Vectra Bank credit card application, contrary to the allegation in her motion. • Knepp’s primary purpose in making the police report was to gain an advantage in the dissolution case, contrary to the allegation in her motion. • Knepp didn’t believe that the information she gave to the police was “completely true,” contrary to the allegation in her motion. • Knepp was told by credit card representatives that, to be relieved of the debts, she would need to file a police report. (Knepp expressly alleged this in her motion and supplementary affidavit.) • Knepp and Howard regularly discussed credit reports and Knepp printed them for reference during their discussions.
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• Knepp and Howard both went to U.S. Bank and Vectra Bank to execute documents and verify identifications so that the credit cards would be issued.
• Knepp used the allegations of the police report “to make misrepresentations to the [c]ourt in [the] divorce proceedings” and to other entities.
• Knepp was the primary contact on all the credit card accounts.
¶ 29 In addition, Howard submitted a number of documents. Among them were (1) various emails from Knepp to Howard acknowledging the existence of and approving the accounts as far back as January 2014, and in at least one case, referring to the card as “my card”; (2) text messages from Knepp to Howard acknowledging and requesting action on the accounts; (3) emails and pictures in text messages sent by Knepp to Howard showing that the account statements were addressed to Knepp; and (4) voicemail transcriptions of messages left by Knepp about
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messages she had received from American Express and U.S. Bank representatives, which themselves were transcribed.9
¶ 30 Based on all this, we conclude that Howard met his burden of establishing a prima facie case as to both falsity and malice or, put another way, that there is a probability that he will be able to produce clear and convincing evidence of falsity and malice at trial. See Coomer, ¶¶ 63, 77; L.S.S., ¶¶ 23, 41.
¶ 31 In dismissing Howard’s complaint, the district court said that “many of the refutations provided for in Mr. Howard’s affidavit are not supported by direct documentation, or do not provide sufficient context to find that the evidence relates directly to what Ms. Knepp told law enforcement in her complaints.” (Emphasis added.) The court went on to take issue with many of Howard’s allegations, saying, as now relevant, that it couldn’t tell whether the credit cards Howard referred to were the same ones Knepp had mentioned to the police. The court also noted that some of the emails Howard presented predated 2018, which was before the period Knepp had
9 As well, the police reports and follow-up internal police
documentation show that the police had a very difficult time obtaining additional information from Knepp.
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told police she believed the credit cards had been issued. The district court thereby erred in several respects.
¶ 32 First, Howard’s affidavit was evidence: other “direct” evidence wasn’t required. See Coomer, ¶ 68. And the court was required to accept that evidence as true. See id.
¶ 33 Second, and relatedly, the court drew inferences from the evidence against Howard. It was, however, required to draw all reasonable inferences in his favor. It was reasonable to infer from Howard’s evidence, for example, that the credit cards about which Howard spoke in his affidavit were the same credit cards Knepp had told the police about. Indeed, there was no evidence of any different credit cards and, with the possible exception of the Vectra Bank credit card account, Knepp didn’t even claim that there were other accounts to which Howard’s evidence could be attributed.
¶ 34 Third, though Knepp initially told the police that she believed Howard had opened the accounts within the four years prior to March 2022, she later told the police that “most of the accounts appear to have been opened back in either 2014 or up to 2017.” That time period coincides with the evidence Howard submitted in opposition to Knepp’s motion.
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¶ 35 To be sure, Knepp (via her own affidavit) denied much of what Howard alleged. But her denials and limited supporting documentation don’t “defeat[] [Howard’s] claim as a matter of law.” L.S.S., ¶ 23 (quoting Baral, 376 P.3d at 608); accord Coomer, ¶ 72.10 At most, Knepp casts doubt on the veracity of Howard’s evidence. At this stage of the case, that isn’t enough to warrant dismissal of Howard’s claim.
¶ 36 We aren’t persuaded to reach a contrary conclusion by Knepp’s argument that even if the credit card statements were inaccurate in some respects, the “substance,” “gist,” or “sting” of the statements was nevertheless materially true.
¶ 37 Under Colorado law, a statement isn’t actionable defamation if the substance, gist, or sting of the statement is true, even if the statement isn’t literally true in every detail. Gomba v. McLaughlin, 504 P.2d 337, 339 (Colo. 1972); Barnett v. Denv. Pub. Co., 36 P.3d 145, 147 (Colo. App. 2001) (“A party asserting truth as a defense in a defamation action is not required to justify every word of the alleged defamatory matter. It is sufficient if ‘the substance, the gist,
10 As discussed above, Knepp asks us to reject the “defeats as a matter of law test” as adopted in L.S.S., but we refuse her request.
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the sting[] of the matter is true.’” (quoting Gomba, 504 P.2d at 339)). The test is “whether there is a substantial difference between the allegedly libelous statement and the truth; or stated differently[,] whether the statement produces a different effect upon the [one to whom the statement was made] than that which would be produced by the literal truth of the matter.” Gomba, 504 P.2d at 339; accord SG Ints. I, Ltd. v. Kolbenschlag, 2019 COA 115, ¶ 21; Fry v. Lee, 2013 COA 100, ¶ 23. And contrary to Knepp’s assertion, this question is “a factual one.” Gomba, 504 P.2d at 339; see also McIntyre v. Jones, 194 P.3d 519, 528 (Colo. App. 2008) (issue whether a statement is true for defamation purposes is one of fact).11
¶ 38 Knepp argues that the credit card statements were substantially true because she proved that (1) they were true as to at least three accounts (two Vectra Bank accounts and one American Express account), so any “mere errors of quantity, degree, or timing” are immaterial; (2) accounts were opened without her
11 We also observe that substantial truth is an affirmative defense
as to which the defendant bears the burden of proof. Barnett v. Denv. Pub. Co., 36 P.3d 145, 147 (Colo. App. 2001).
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permission; and (3) Howard forged her signatures on certain documents. But we have already concluded that Knepp’s evidence in this regard wasn’t sufficient to refute Howard’s contrary evidence as a matter of law.
¶ 39 To the extent Knepp argues that other statements she made were true, and therefore the credit card statements were substantially true, that argument also fails. In determining substantial truth, we look to whether some inaccurate detail in the statement at issue would cause a reasonable listener to think less of the person about whom the statement was made than if that listener knew only the accurate parts of the statement.
¶ 40 Gomba is illustrative. In that case, the plaintiff claimed that the defendant defamed him by falsely accusing him of assaulting an “elderly gentleman” “in Cheyenne.” 504 P.2d at 338. As it turns out, there was no evidence that the plaintiff assaulted an elderly gentleman in Cheyenne, but there was some evidence that he assaulted a gentleman “from Cheyenne” in Brighton, Colorado. Id. The court held that this evidence created a triable issue of substantial truth — that if the defendant proved that the plaintiff had assaulted a gentleman in Brighton, the statement wouldn’t be
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actionable because the gist or sting of the statement wasn’t impacted by the location of the assault. Cf. Interstate Med. Licensure Compact Comm’n v. Bowling, 113 F.4th 1266, 1285-86 (10th Cir. 2024) (applying Colorado law and concluding that although details of certain statements may not have been true, their gist was); Bustos v. A & E Television Networks, 646 F.3d 762, 762- 68 (10th Cir. 2011) (applying Colorado law and concluding that a statement asserting that the plaintiff was a “member” of a white supremacist organization was substantially true in light of evidence that he conspired with that organization); Gordon v. Boyles, 99 P.3d 75, 81 (Colo. 2004) (documents showing that the plaintiff had been arrested for assault and disturbing the peace “based upon domestic violence” supported a finding that the statement the plaintiff had previous “problems” with domestic violence was substantially true); Barnett, 36 P.3d at 146-48 (statement that the plaintiff had been convicted of stalking was substantially true because he had been convicted of an offense involving conduct similar to stalking that the sentencing judge had referred to as “almost stalking”).
¶ 41 But Knepp doesn’t explain how, if the credit card statements are false — that is, that she knew of and consented to the opening
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of the credit cards, knew of them before December 2020, and in fact signed the documents necessary to obtain those accounts — they are rendered substantially true if, say, Howard defrauded others (in some unspecified way) and was under investigation for such fraud. As a logical matter, those facts don’t render the gist of the credit card statements true; indeed, they wouldn’t render any part of the credit card statements true. See Bustos, 646 F.3d at 766 (“[T]he material falsehood requirement narrows our comparison to statements on the same subject matter . . . . [It] focuses judicial attention on the comparatively narrow question [of] whether the particular challenged statement is true or false on its own terms . . . .”).
¶ 42 In effect, Knepp contends that if other statements — if true — show that Howard engaged in other criminal activity, any false statement about other criminal activity — the credit card statements — are substantially true even if entirely false. But this approach, aside from its problematic logic, characterizes the gist of the credit card statements at too high a level of generality. See Haynes v. Alfred A. Knopf, Inc., 8 F.3d 1222, 1228 (7th Cir. 1993) (“We must be careful, however, that we are not construing the gist
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of the allegedly defamatory statement so broadly as to invite defendants to commit, in effect, a further but privileged libel, by bringing to light every discreditable act that the plaintiff may have committed, in an effort to show that he is as ‘bad’ as the defamatory statements depict him.”); Bustos, 646 F.3d at 766 (the material falsity of the challenged statement must be assessed on its own terms).12
¶ 43 Along the same lines, Knepp argues, relying on Tonnessen v. Denver Publishing Co., 5 P.3d 959 (Colo. App. 2000), that even if the credit card statements are false, they aren’t actionable because any “incremental harm” to Howard’s reputation resulting from those false statements is minimal when compared to the harm resulting from her other statements, which she asserts are unquestionably true. This argument also fails, for several reasons.
¶ 44 First, the “incremental harm” rule has been criticized as both “too narrow and too broad.” Bustos, 646 F.3d at 765-67 (discussing
12 On appeal, Knepp doesn’t clearly articulate what she believes the
gist of the credit card statements is. In the district court, she argued that the gist is that Howard “acted in a criminal manner.” That is simply too broad for purposes of determining material falsity.
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those criticisms). And, as Bustos pointed out, it hasn’t yet been adopted by the Colorado Supreme Court.
¶ 45 Second, even if the “incremental harm” rule is viable in Colorado, Knepp hasn’t shown that the other statements are “unassailable truth.” Id. at 766. As with the credit card statements, Howard has sworn that those other statements are false: He swears that he hasn’t defrauded anyone and that Knepp made up the allegation that he was under investigation for financial fraud “out of whole cloth.”
¶ 46 Third, Knepp’s allegation that Howard “has defrauded numerous people” was utterly devoid of any relevant detail — such as who was defrauded, when, and how — which a court or jury could use to compare that alleged fraud to the credit card statements. And she later provided only minimal information regarding two other possible instances of fraud. As for Knepp’s allegation that Howard was “under investigation for financial fraud of over $1 million in Denver County,” it too is devoid of detail. Just as importantly, it is one thing to be investigated and quite another to be charged or convicted. And Knepp presented no evidence that any such investigation even resulted in charges. In sum, Knepp
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didn’t meet her burden of proving — to the extent required at this stage of the case — that Howard actually engaged in the conduct of which she accused him.
¶ 47 We, of course, don’t express any opinion on the ultimate merit of Howard’s claim. We hold only that the district court erred by dismissing the claim under the anti-SLAPP statute.
III. Disposition
¶ 48 The judgment is reversed, and the case is remanded to the district court for further proceedings.13 JUDGE GROVE and JUDGE SCHUTZ concur.
13 Because we reverse the judgment, we deny Knepp’s request for an
award of appellate attorney fees under section 13-20-1101(4)(a), C.R.S. 2025.