DEDICATION:

This blog is dedicated to "The Children Left Behind." We will not rest until the safety of our children and those that are entrusted with their mental health care are held accountable for abusing the children's God given rights, those rights upheld by our constitution, and those that have been complicit in obfuscating the truth!

Sunday, February 1, 2015

DIAMOND RANCH ACADEMY RECEIVES ANSWER TO THEIR COMPLAINT—AND THEN SOME!



UTAH – January 30, 2015  ATTORNEYS AT BALLARD SPAHR LLP HIT COURT FILING OUT OF THE PARK WITH DEFENDANT’S ANSWER TO DIAMOND RANCH ACADEMY’S COMPLAINT


It is not often that one reads court filings with a grin. Ballard Spahr LLP submitted a brilliant, even humorous response to the complaint filed by Diamond Ranch Academy’s (DRA) attorneys against Ms. F----, alleging  defamation—including both libel and slander.
                                                                
The Bazelon Center for Mental Health Law? Spice things up, eh? We shall savor every bite.

If one is familiar with the burgeoning, multi-billion dollar so-called Therapeutic Teen Industry, this  case is worth a read... Seriously, there is humor to be found in this filing, which is welcome by children’s rights advocates in what they rightly view as a sinister, dark industry. An industry, where accountability appears virtually non-existent.



The “Thirteenth Defense” in this filing actually defines slander to DRA’s attorney’s and the Court, as not applicable, because slander is oral, not written.  “Plaintiff’s Amended Complaint and the slander and slander per se causes of action asserted therein are barred because Plaintiff’s alleged defamatory statements are all written—not spoken.” Go ahead chuckle. It is pretty comical.



The “Twenty-Fourth Defense” in the filing is a gift that would keep on giving for the defense and those individuals referred to as “Survivors of DRA,” if this case goes to court. “Some or all of the damages of which DRA complains were the result of the fault and/or actions of DRA itself, were the result of the fault and/or actions of persons or entities over whom or over which Ms. ----- has no control, and/or were the result of intervening causes.”  Advocates are hearing potential witnesses for the defense are wishing for a subpoena to give testimony—such testimony...that apparently no sane facility would welcome in the public arena, let alone their own lawsuit.



Ballard Spahr, in its filing, cites California’s Anti-SLAAP law, Utah’s Anti-SLAAP Act, along with the First and Fourteenth Amendment, the Utah Constitution et al. The Counterclaim  – touché.


Whatever the outcome, it is clear the Ballard Spahr LLP group is quite capable,  assembled quite an army with foresight, and the “JV” team in DC could benefit from them. One can only hope that the cognitive capabilities of the Court far exceed attorney’s having to define “slander.”



If you wish to read the original complaint:


ANSWER TO THE COMPLAINT:

 * Note: Court document was modified into MS Word.  Some identifiers were removed.


Case 2:14-cv-00751-TC Document 25 Filed 01/30/15 Page 1 of 25



Anthony C. Kaye ()
Zaven A. Sargsian ()
BALLARD SPAHR LLP
201 South Main Street, Suite 800
Salt Lake City, Utah 84111-2221
Telephone: --------; Facsimile: --------
kaye@ballardspahr.com
sargsianz@ballardspahr.com

Daniel M. Benjamin (admitted pro hac vice)
Edward Chang (admitted pro hac vice)
BALLARD SPAHR LLP
655 West Broadway, Suite 1600
San Diego, California 92101-8494
Telephone: (619) ---------; Facsimile: -------
benjamind@ballardspahr.com

Ira A. Burnim (admitted pro hac vice)
Jennifer Mathis (admitted pro hac vice)
Julia Graff (admitted pro hac vice)
Andrew Christy (admitted pro hac vice)
BAZELON CENTER FOR MENTAL HEALTH LAW
1101 15th St. NW, #1212
Washington, DC 20005
Telephone: --------; Facsimile: ----------
irab@bazelon.org
jenniferm@bazelon.org
juliag@bazelon.org
andrewc@bazelon.org
Attorneys for Defendant, C------ F----

IN THE UNITED STATES DISTRICT COURT
DISTRICT OF UTAH, CENTRAL DIVISION
DIAMOND RANCH ACADEMY, INC.,
Plaintiff,
v.
C------ F----,
Defendant.


ANSWER OF DEFENDANT C------ F---- AND COUNTERCLAIM
Case No.: 2:14-CV-00751-TC
Judge Tena Campbell

Case 2:14-cv-00751-TC Document 25 Filed 01/30/15 Page 2 of 25

Defendant C------ F---- (“Ms. F----” or “Defendant”) hereby responds to the Amended Complaint (Dkt. No. 23) filed by DIAMOND RANCH ACADEMY, INC. (“DRA” or “Plaintiff”) as follows:

FIRST DEFENSE
Ms. F---- responds to the individually numbered paragraphs of the Amended Complaint as follows:

NATURE OF THE ACTION
1. Ms. F---- admits that Plaintiff purports to bring an action as described in Paragraph 1 and Ms. F---- speaks publicly and continues to make public statements about Plaintiff. Ms. F---- denies that she has made statements that were and are false, unsupported, offensive, defamatory and injurious to DIAMOND RANCH ACADEMY’s professional reputation. Ms. F---- is without knowledge or information sufficient to form a belief as to the truth of the remaining allegations in Paragraph 1, and, on that basis, denies those allegations.

JURISDICTION
2. Ms. F---- states that, to the extent the allegations in Paragraph 2 are legal conclusions, they require no answer. Ms. F---- admits that Plaintiff seeks damages in excess of $75,000 and that Plaintiff and Ms. F---- are citizens of different states. Ms. F---- denies that she caused damages in any amount to Plaintiff. Ms. F---- denies the remaining allegations in Paragraph 2.
3. Ms. F---- states that, to the extent the allegations in Paragraph 3 are legal conclusions, they require no answer. Ms. F---- denies the remaining allegations in Paragraph 3.
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4. Ms. F---- states that, to the extent the allegations in Paragraph 4 are legal conclusions, they require no answer. Ms. F---- denies the remaining allegations in Paragraph 4.

VENUE
5. Ms. F---- states that, to the extent the allegations in Paragraph 5 are legal conclusions, they require no answer. Ms. F---- denies the remaining allegations in Paragraph 5.

PARTIES
6. Ms. F---- is without knowledge or information sufficient to form a belief as to the truth of the allegations in Paragraph 6, and, on that basis, denies those allegations.
7. Ms. F---- admits the allegations in Paragraph 7.

FACTUAL ALLEGATIONS
8. Ms. F---- admits the allegations in Paragraph 8.
9. Ms. F---- is without knowledge or information sufficient to form a belief as to the truth of the allegations in Paragraph 9, and, on that basis, denies those allegations.
10. Ms. F---- denies the allegations in Paragraph 10.
11. Ms. F---- states that, to the extent the allegations in Paragraph 11 are legal conclusions, they require no answer. Ms. F---- admits that certain statements were posted on the website located at http://www.drasurvivors.com, as discussed further below. Ms. F---- is without knowledge or information sufficient to form a belief as to the truth of the remaining allegations in Paragraph 11, and, on that basis, denies those allegations.
(a) Ms. F---- denies that, on August 1, 2014, she posted a comment that “DRA is not a legitimate treatment facility and that its methods are unethical and illegal” on the Facebook page entitled “I survived Diamond Ranch Academy.” Between May

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and June 2012, the statement “Diamond Ranch Academy is NOT a legitimate treatment facility and their methods are unethical, illegal and abusive” was posted on the website located at http://www.drasurvivors.com. Ms. F---- admits that, on January 26, 2014, the statement “They end up paying tens or even hundreds of thousands of dollars for ‘treatment’ that is at best ineffective and at worst abusive, neglectful, and even fatal, and that often creates new problems or exacerbates existing problems rather than fixing any issues that the child may have” was posted at http://drasurvivors.com/diamond-ranch-academy-show-its-true-colors/. Ms. F---- denies that the “abusive, and fatal” statement was posted in “Letter to DRA Parent” on June 28, 2013 or “About Diamond Ranch Academy, Overview.” Ms. F---- admits that “Letter to DRA Parent” posted on June 28, 2013 was removed from the public website before the Complaint was served on Ms. F----. Ms. F---- denies that “About Diamond Ranch Academy, Overview” was republished. Changes, if any, to “About Diamond Ranch Academy, Overview” were not substantive and not material and changes, if any, occurred before service of the Complaint on Ms. F----. Ms. F---- denies the remaining allegations in Paragraph 11(a).
(b) Ms. F---- admits that on January 26, 2014, the statement “They end up paying tens or even hundreds of thousands of dollars for ‘treatment’ that is at best ineffective and at worst abusive, neglectful, and even fatal, and that often creates new problems or exacerbates existing problems rather than fixing any issues that the child may have” was posted at http://drasurvivors.com/diamond-ranch-academy-show-its-true-colors/. Ms. F---- denies that the “DRA physically, emotionally and psychologically abuses its students” statement was posted in “Letter to DRA Parent” posted on June 28,

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2013. Ms. F---- admits that, on June 19, 2012, the statements “However, that is not what former students of this school are saying… They indicate that children who have attend DRA were “physically, emotionally and psychologically abused” were posted at
http://drasurvivors.com/about-diamond-ranch-academy/. Ms. F---- admits that “Letter to DRA Parent” posted on June 28, 2013 was removed from the public website before the Complaint was served on Ms. F----. Ms. F---- denies that “About Diamond Ranch Academy, Overview” was republished. Changes, if any, to “About Diamond Ranch Academy, Overview” were not substantive and not material and changes, if any, occurred before service of the Complaint on Ms. F----. Ms. F---- denies the remaining allegations in Paragraph 11(b).
(c) Ms. F---- admits that the statement “Former students report that DRA owners and staff completely disregard the rights, individual needs and welfare of the children in their care” was posted at http://drasurvivors.com/about-diamond-ranch-academy/. Ms. F---- denies that the “DRA owners and staff ‘completely disregard the rights, individual needs and welfare’ of its students” statement was removed from the website located at http://www.drasurvivors.com. Ms. F---- denies the remaining allegations in Paragraph 11(c).
(d) Ms. F---- admits that the statement “Tuition for DRA can cost roughly $6000 a month and anywhere from $72,000 - $200,000 (or more) simply to unlawfully incarcerate a child” was changed to “Tuition for DRA can cost roughly $6000 a month and anywhere from $72,000 - $200,000 (or more)” on October 18, 2014 and then to “Tuition for DRA can cost roughly $6000 a month and anywhere from $72,000 –

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$200,000 (or more) depending on the length of time the child is enrolled” on October 24, 2014 and posted at
http://drasurvivors.com/about-diamond-ranch-academy/. Ms. F---- admits that the statement “It is the opinion of DRA Survivors that these strip searches are not only unnecessary and overused (multiple times a day) but used as a means of humiliation and dehumanization” was posted at http://drasurvivors.com/about-diamond-ranch-academy/. Ms. F---- denies that the “dehumanizes children” statement was posted in “Letter to DRA Parent” on June 28, 2013. Ms. F---- admits that “Letter to DRA Parent” posted on June 28, 2013 was removed from the public website before the Complaint was served on Ms. F----. Ms. F---- denies the remaining allegations in Paragraph 11(d).
(e) Ms. F---- admits that the statement “Deceptive marketing techniques are nothing new to the troubled teen industry, often when explaining the aspects of the program they use commonly known words to describe their program in order bring credibility to methods” was posted at http://drasurvivors.com/about-diamond-ranch-academy/. Ms. F---- denies that “About Diamond Ranch Academy, Overview” was republished. Changes, if any, to “About Diamond Ranch Academy, Overview” were not substantive and not material and changes, if any, occurred before service of the Complaint on Ms. F----. Ms. F---- denies the remaining allegations in Paragraph 11(e).
(f) Ms. F---- admits that the statement “According to former students, ‘Restraint’ (which DRA claims to be use as a last resort only) is actually a violent and painful form of torture” was posted at http://drasurvivors.com/about-diamond-ranch-academy/. Ms. F---- denies that “About Diamond Ranch Academy, Overview” was

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republished. Changes, if any, to “About Diamond Ranch Academy, Overview” were not substantive and not material and changes, if any, occurred before service of the Complaint on Ms. F----. Ms. F---- denies the remaining allegations in Paragraph 11(f).
(g) Ms. F---- admits that the statements (i) “Restraining a student may happen for any violation of the school’s rules, and is doled out by unlicensed, therapeutically unqualified staff members that many former students refer to as ‘grown up bullies,’” (ii) “Although DRA does employ licensed social workers and a small population of trained therapists, the majority of staff responsible for the children in their day to day activities are NOT licensed- many have little education beyond a high school diploma,” (iii) “According to licensing records, there are no licensed Ph.D’s or Psy.D’s on campus,” (iv) “DRA does not employ a resident supervising physician, their Clinical Director has only a license in Social Work,” and (v) “No staff on campus have certifications in Child Development, Abnormal Psychology or Applied Behavior Analysis” were posted at http://drasurvivors.com/about-diamond-ranch-academy/. Ms. F---- also admits that the statement “Are you aware that the staff employed by DRA who are responsible for the children’s daily activities are all unqualified, improperly trained and underpaid” was posted at http://drasurvivors.com/dra-survivors-utah-dhs-licensing-office-complaint/ on May 5, 2013. Ms. F---- admits that the statements “Most will describe them as overgrown bullies, unqualified and unfit to be working with children” and “I also think their parents don’t deserve to be lied to and sold a bill of goods that is simply impossible for such unqualified people to deliver” were posted in “Letter to DRA Parent” on June 28, 2013. Ms. F---- admits that “Letter to DRA Parent” posted on June 28, 2013

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was removed from the public website before the Complaint was served on Ms. F----. Ms. F---- denies that “About Diamond Ranch Academy, Overview” was republished. Changes, if any, to “About Diamond Ranch Academy, Overview” were not substantive and not material and changes, if any, occurred before service of the Complaint on Ms. F----. Ms. F---- denies the remaining allegations in Paragraph 11(g).
(h) Ms. F---- admits that on August 23, 2012, the statement “In reality, it is nothing more than a private prison, where due process of the law and even the most basic of human rights are violated without any reason other than their parents felt they needed help and ‘it looked nice in the brochures’” was posted at http://drasurvivors.com/about-diamond-ranch-academy/. Ms. F---- also admits that the statement “It is a privately-run teen prison, where due process of the law and even the most basic human rights of children may be violated without cause, legal repercussion or the ability for a student who has become the victim of abuse to voice their grievance” was posted at http://drasurvivors.com/about-diamond-ranch-academy/. Ms. F---- denies that “About Diamond Ranch Academy, Overview” was republished. Changes, if any, to “About Diamond Ranch Academy, Overview” were not substantive and not material and changes, if any, occurred before service of the Complaint on Ms. F----. Ms. F---- denies the remaining allegations in Paragraph 11(h).
(i) Ms. F---- admits that the statement “Is sending your child away worth the risk that they will be abused… or that they will never come back at all” was posted at http://drasurvivors.com/about-diamond-ranch-academy/. Ms. F---- denies that “About Diamond Ranch Academy, Overview” was republished. Changes, if any, to “About

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Diamond Ranch Academy, Overview” were not substantive and not material and changes, if any, occurred before service of the Complaint on Ms. F----. Ms. F---- denies the remaining allegations in Paragraph 11(i).
(j) Ms. F---- admits that the statements (i) “It is the opinion of DRA Survivors that these strip searches are not only unnecessary and overused (multiple times a day) but used as a means of humiliation and dehumanization” and (ii) “Still considered an experimental therapy and outlawed as cruel and unusual punishment in some states, Aversion Therapy is cautioned to be used with reservation in adequately regulated environments and only by responsible mental health professionals” were posted at http://drasurvivors.com/about-diamond-ranch-academy/. Ms. F---- also admits that the statements (iii) “Are you aware that strip searches are used often and for little to no reason at all,” (iv) “Considering contraband is nearly impossible to acquire in DRA, this is not used for safety reasons, it is used as punishment and humiliation,” (v) Are you aware that the meals provided in this stage consist of nothing but plain oats and “burnt” rice and lentils,” (vi) “Are you aware that this meager meal plan could last anywhere from 3 weeks to several months,” and (vii) “Are you aware that this meal plan constitutes starvation” were posted at http://drasurvivors.com/dra-survivors-utah-dhs-licensing-office-complaint/ on May 5, 2013. Ms. F---- admits that the statement “Not to mention that the ‘therapy’ used in DRA, called Aversion Therapy, has been outlawed in most state prisons, because it has been deemed to be ‘cruel and unusual punishment’” was posted in “Letter to DRA Parent” on June 28, 2013. Ms. F---- admits that “Letter to DRA Parent” posted on June 28, 2013 was removed from the public website before the Complaint was

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served on Ms. F----. Ms. F---- denies that “About Diamond Ranch Academy, Overview” was republished. Changes, if any, to “About Diamond Ranch Academy, Overview” were not substantive and not material and changes, if any, occurred before service of the Complaint on Ms. F----. Ms. F---- denies the remaining allegations in Paragraph 11(j).
(k) Ms. F---- admits that, on August 23, 2012, the statement “This leads to many incidents going unreported, and the children being denied adequate medical care if the medical staff is not on duty” was posted at http://drasurvivors.com/about-diamond-ranch-academy/. Ms. F---- admits that the statement “All he needed was an extra dose of the medication he was already on and that was already in the possession of the DRA staff, but rather than give it to him, they neglected his requests for medical attention” was posted at http://drasurvivors.com/diamond-ranch-academy-show-its-true-colors/. Ms. F---- admits that the statements “Are you aware that a child died in Diamond Ranch Academy?” and “Do you know that they refused him medical care and all he needed was an extra dose of his medication and that family would still have their son?” were posted in “Letter to DRA Parent” on June 28, 2013. Ms. F---- admits that “Letter to DRA Parent” posted on June 28, 2013 was removed from the public website before the Complaint was served on Ms. F----. Ms. F---- denies that “About Diamond Ranch Academy, Overview” was republished. Changes, if any, to “About Diamond Ranch Academy, Overview” were not substantive and not material and changes, if any, occurred before service of the Complaint on Ms. F----. Ms. F---- denies the remaining allegations in Paragraph 11(k).

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(l) Ms. F---- admits that the statement “The truth is, Diamond Ranch Academy is not a therapeutic boarding school, it is a behavior modification program that employs techniques of seclusion, forced labor, physical violence, fear based control and brainwashing methods that violate all basic human rights and could certainly be considered child abuse, if not actual torture” was posted at http://drasurvivors.com/dr-drew-endorses-diamond-ranch-academy/ on August 17, 2012. Ms. F---- denies the remaining allegations in Paragraph 11(l).
(m) Ms. F---- admits that the statement “They end up paying tens or even hundreds of thousands of dollars for ‘treatment’ that is at best ineffective and at worst abusive, neglectful, and even fatal, and that often creates new problems or exacerbates existing problems rather than fixing any issues that the child may have” was posted at http://drasurvivors.com/diamond-ranch-academy-show-its-true-colors/ on January 26, 2014. Ms. F---- denies the remaining allegations in Paragraph 11(m).
(n) Ms. F---- admits that the statement “They do not provide real therapy, they do not follow clinical standards, they physically and psychologically abuse children and they scam their parents out of millions of dollars” was posted at http://drasurvivors.com/10-m-in-dra/ on June 28, 2013. Ms. F---- admits that “Letter to DRA Parent” posted on June 28, 2013 was removed from the public website before the Complaint was served on Ms. F----. Ms. F---- denies the remaining allegations in Paragraph 11(n).
(o) Ms. F---- admits that the statements (i) “Restraining a student may happen for any violation of the school’s rules, and is doled out by unlicensed, therapeutically

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unqualified staff members that many former students refer to as ‘grown up bullies,’” (ii) “Although DRA does employ licensed social workers and a small population of trained therapists, the majority of staff responsible for the children in their day to day activities are NOT licensed- many have little education beyond a high school diploma,” (iii) “According to licensing records, there are no licensed Ph.D’s or Psy.D’s on campus,” (iv) “DRA does not employ a resident supervising physician, their Clinical Director has only a license in Social Work,” and (v) “No staff on campus have certifications in Child Development, Abnormal Psychology or Applied Behavior Analysis” were posted at
http://drasurvivors.com/about-diamond-ranch-academy/. Ms. F---- also admits that the statements “Are you aware that the staff employed by DRA who are responsible for the children’s daily activities are all unqualified, improperly trained and underpaid?” and “Are you aware that their medical staff is not usually present on campus and that the staff member tasked with administering medication is not a licensed medical professional?” were posted at http://drasurvivors.com/dra-survivors-utah-dhs-licensing-office-complaint/ on May 5, 2013. Ms. F---- denies that “About Diamond Ranch Academy, Overview” was republished. Changes, if any, to “About Diamond Ranch Academy, Overview” were not substantive and not material and changes, if any, occurred before service of the Complaint on Ms. F----. Ms. F---- denies the remaining allegations in Paragraph 11(o).
(p) Ms. F---- admits that the statement “With a long history of abuse, dangerous policies and a wrongful death, Diamond Ranch Academy is absolutely no place for a depressed child with suicidal tendencies” was posted at http://drasurvivors.com/paris-jackson-to-be-sent-to-diamond-ranch-academy/ on July 9,

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2013. Ms. F---- also admits that the statement “Are you aware that former clients of DRA have reported that they/ their children were systematically abused in DRA” was posted at
http://drasurvivors.com/dra-survivors-utah-dhs-licensing-office-complaint/ on May 5, 2013. Ms. F---- denies the remaining allegations in Paragraph 11(p).
(q) Ms. F---- admits that the statement “What is called ‘The program’ of Diamond Ranch Academy is not a clinically approved or evidenced based method of rehabilitation, but an experimental form of behavior modification that utilizes the response to fear to ensure submission to the program’s doctrine” was posted at http://drasurvivors.com/about-diamond-ranch-academy/. Ms. F---- also admits that the statement “This experimental therapy is not clinically approved treatment, but quite simply a form of corporal punishment” was posted at http://drasurvivors.com/paris-jackson-to-be-sent-to-diamond-ranch-academy/ on July 9, 2013. Ms. F---- also admits that the statement “Are you aware that the ‘therapy’ provided by DRA is NOT a clinically approved treatment, but an experimental therapy called ‘behavior modification’ based on the principals of Aversion Therapy, or in more simple terms, corporal punishment” was posted at http://drasurvivors.com/dra-survivors-utah-dhs-licensing-office-complaint/ on May 5, 2013. Ms. F---- denies that “About Diamond Ranch Academy, Overview” was republished. Changes, if any, to “About Diamond Ranch Academy, Overview” were not substantive and not material and changes, if any, occurred before service of the Complaint on Ms. F----. Ms. F---- denies the remaining allegations in Paragraph 11(q).

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(r) Ms. F---- admits that the statement “Our message is clear; Diamond Ranch Academy is NOT a legitimate treatment facility and their methods are unethical, illegal and abusive” was posted at http://www.drasurvivors.com between May and June 2012. Ms. F---- denies that the “sidebar of Diamond Ranch Academy Survivors website” was republished. Changes, if any, to the “sidebar of Diamond Ranch Academy Survivors website” were not substantive and not material and changes, if any, occurred before service of the Complaint on Ms. F----. Ms. F---- denies the remaining allegations in Paragraph 11(r).

12. Ms. F---- denies the allegations in Paragraph 12.
13. Ms. F---- denies the allegations in Paragraph 13.
14. Ms. F---- denies the allegations in Paragraph 14.
15. Ms. F---- denies the allegations in Paragraph 15.
16. Ms. F---- denies the allegations in Paragraph 16.

FIRST CAUSE OF ACTION
(Libel against all Defendants)

17. Ms. F---- repeats and reincorporates by reference her denials and admissions of Paragraphs 1 through 16 as if set forth fully herein.
18. Ms. F---- denies the allegations in Paragraph 18.
19. Ms. F---- denies the allegations in Paragraph 19.
20. Ms. F---- denies the allegations in Paragraph 20.
21. Ms. F---- denies the allegations in Paragraph 21.
22. Ms. F---- denies the allegations in Paragraph 22.

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23. Ms. F---- denies the allegations in Paragraph 23.
24. Ms. F---- denies the allegations in Paragraph 24.
25. Ms. F---- denies the allegations in Paragraph 25.
26. Ms. F---- denies the allegations in Paragraph 26.

SECOND CAUSE OF ACTION
(Libel Per Se against all Defendants) 

27. Ms. F---- repeats and reincorporates by reference her denials and admissions of Paragraphs 1 through 26 as if set forth fully herein.
28. Ms. F---- denies the allegations in Paragraph 28.
29. Ms. F---- denies the allegations in Paragraph 29.
30. Ms. F---- denies the allegations in Paragraph 30.
31. Ms. F---- denies the allegations in Paragraph 31.
32. Ms. F---- denies the allegations in Paragraph 32.
33. Ms. F---- denies the allegations in Paragraph 33.
34. Ms. F---- denies the allegations in Paragraph 34.
35. Ms. F---- denies the allegations in Paragraph 35.
36. Ms. F---- denies the allegations in Paragraph 36.
37. Ms. F---- denies the allegations in Paragraph 37.
38. Ms. F---- denies the allegations in Paragraph 38.
39. Ms. F---- denies the allegations in Paragraph 39.
40. Ms. F---- denies the allegations in Paragraph 40.

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THIRD CAUSE OF ACTION
(Slander against all Defendants) 

41. Ms. F---- repeats and reincorporates by reference her denials and admissions of Paragraphs 1 through 40 as if set forth fully herein.
42. Ms. F---- denies the allegations in Paragraph 42.
43. Ms. F---- denies the allegations in Paragraph 43.
44. Ms. F---- denies the allegations in Paragraph 44.
45. Ms. F---- denies the allegations in Paragraph 45.
46. Ms. F---- denies the allegations in Paragraph 46.
47. Ms. F---- denies the allegations in Paragraph 47.
48. Ms. F---- denies the allegations in Paragraph 48.
49. Ms. F---- denies the allegations in Paragraph 49.
50. Ms. F---- denies the allegations in Paragraph 50.

FOURTH CAUSE OF ACTION
(Slander Per Se against all Defendants) 

51. Ms. F---- repeats and reincorporates by reference her denials and admissions of Paragraphs 1 through 50 as if set forth fully herein.
52. Ms. F---- denies the allegations in Paragraph 52.
53. Ms. F---- denies the allegations in Paragraph 53.
54. Ms. F---- denies the allegations in Paragraph 54.
55. Ms. F---- denies the allegations in Paragraph 55.
56. Ms. F---- denies the allegations in Paragraph 56.

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57. Ms. F---- denies the allegations in Paragraph 57.
58. Ms. F---- denies the allegations in Paragraph 58.
59. Ms. F---- denies the allegations in Paragraph 59.
60. Ms. F---- denies the allegations in Paragraph 60.
61. Ms. F---- denies the allegations in Paragraph 61.
62. Ms. F---- denies the allegations in Paragraph 62.
63. Ms. F---- denies the allegations in Paragraph 63.
64. Ms. F---- denies the allegations in Paragraph 64.

FIFTH CAUSE OF ACTION
(Intentional Interference with Prospective Economic Advantage against all Defendants) 

65. Ms. F---- repeats and reincorporates by reference her denials and admissions of Paragraphs 1 through 64 as if set forth fully herein.
66. Ms. F---- is without knowledge or information sufficient to form a belief as to the truth of the allegations in Paragraph 66, and, on that basis, denies those allegations.
67. Ms. F---- is without knowledge or information sufficient to form a belief as to the truth of the allegations in Paragraph 67, and, on that basis, denies those allegations.
68. Ms. F---- denies the allegations in Paragraph 68.
69. Ms. F---- denies the allegations in Paragraph 69.
70. Ms. F---- denies the allegations in Paragraph 70.
71. Ms. F---- denies the allegations in Paragraph 71.
72. Ms. F---- denies the allegations in Paragraph 72.
73. Ms. F---- denies the allegations in Paragraph 73.

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74. Ms. F---- denies the allegations in Paragraph 74.
75. Ms. F---- denies each and every allegation in the Amended Complaint that is not expressly admitted herein.

SECOND DEFENSE
Plaintiff’s Amended Complaint and the causes of action asserted therein fail to state a claim upon which relief can be granted.

THIRD DEFENSE
Plaintiff’s Amended Complaint and the causes of action asserted therein are barred by the applicable statutes of limitations.

FOURTH DEFENSE
Plaintiff’s Amended Complaint and the causes of action asserted therein are subject to California’s anti-SLAPP statute, Code Civ. Proc. § 425.16, and Ms. F---- intends to file an Anti-SLAPP motion under that statute at the time required.

FIFTH DEFENSE
Plaintiff’s Amended Complaint and the causes of action asserted therein are barred because Plaintiff’s alleged defamatory statements are true or substantially true.

SIXTH DEFENSE
Plaintiff’s Amended Complaint and the causes of action asserted therein are barred because Plaintiff’s alleged defamatory statements are privileged and concern matters of legitimate public interest.

SEVENTH DEFENSE
Plaintiff’s Amended Complaint and the causes of action asserted therein are barred because Plaintiff’s alleged defamatory statements were made by Ms. F---- without actual malice.

Case 2:14-cv-00751-TC Document 25 Filed 01/30/15 Page 19 of 25

EIGHTH DEFENSE
Plaintiff’s Amended Complaint and the causes of action asserted therein are barred because Plaintiff’s alleged defamatory statements were not made by Ms. F---- with knowledge that they were false or with reckless disregard of whether the alleged defamatory statements were false or not.

NINTH DEFENSE
Plaintiff’s Amended Complaint and the causes of action asserted therein are barred by the common law fair comment and/or fair report privileges.

TENTH DEFENSE
Plaintiff’s Amended Complaint and the causes of action asserted therein are barred because Plaintiff’s alleged defamatory statements are incapable of conveying defamatory meaning, constitute nonactionable opinion, and/or constitute rhetorical hyperbole.

ELEVENTH DEFENSE
Plaintiff’s Amended Complaint and the causes of actions asserted therein are barred by the doctrine of laches, waiver, estoppel, and/or other equitable defenses.

TWELFTH DEFENSE
Plaintiff’s Amended Complaint and the causes of action asserted therein are barred under Utah Code §§ 45-2-3 and 45-2-10 and/or California Civil Code § 47.

THIRTEENTH DEFENSE
Plaintiff’s Amended Complaint and the slander and slander per se causes of action asserted therein are barred because Plaintiff’s alleged defamatory statements are all written—not spoken.

Case 2:14-cv-00751-TC Document 25 Filed 01/30/15 Page 20 of 25

FOURTEENTH DEFENSE
Plaintiff’s Amended Complaint and the causes of action asserted therein are barred under 47 U.S.C. § 230 and/or Utah Code § 45-2-5

FIFTEENTH DEFENSE
Plaintiff’s Amended Complaint and the causes of action asserted therein are barred under the First and Fourteenth Amendments to the United States Constitution.

SIXTEENTH DEFENSE
Plaintiff’s Amended Complaint and the causes of action asserted therein are barred under Article I, Sections 1 and 15 of the Utah Constitution and/or under Article I, Sections 1 and 2 of the California Constitution.

SEVENTEENTH DEFENSE
Plaintiff’s injuries, if any, are the result, in whole or in part, of its own actions and contributory fault.

EIGHTEENTH DEFENSE
Plaintiff failed to mitigate any damages that it allegedly suffered.

NINETEENTH DEFENSE
Plaintiff’s claims are barred, in whole or in part, because Plaintiff’s alleged damages, if any, are speculative.

TWENTIETH DEFENSE
Plaintiff failed to adequately plead and/or cannot prove special damages.

TWENTY-FIRST DEFENSE
This Court lacks personal jurisdiction over Ms. F----.


Case 2:14-cv-00751-TC Document 25 Filed 01/30/15 Page 21 of 25
TWENTY-SECOND DEFENSE
Venue in this Court is improper.

TWENTY-THIRD DEFENSE
DRA has suffered no compensable damages as a result of Ms. F----’s alleged conduct.

TWENTY-FOURTH DEFENSE
Some or all of the damages of which DRA complains were the result of the fault and/or actions of DRA itself, were the result of the fault and/or actions of persons or entities over whom or over which Ms. F---- has no control, and/or were the result of intervening causes.

TWENTY-FIFTH DEFENSE
At all times relevant to this action, Ms. F---- exercised the requisite degree of care and prudence in undertaking any of Plaintiff’s alleged defamatory statements.

TWENTY-SIXTH DEFENSE
Plaintiff’s Amended Complaint and the causes of action asserted therein are barred under the single publication rule.

TWENTY-SEVENTH DEFENSE
Plaintiff’s Amended Complaint and the causes of action asserted therein are barred under the Noerr-Pennington doctrine.

TWENTY-EIGHTH DEFENSE
In accordance with Rule 11 of the Federal Rules of Civil Procedure, Ms. F---- reserves the right to assert additional defenses as the case proceeds.

Case 2:14-cv-00751-TC Document 25 Filed 01/30/15 Page 22 of 25

COUNTERCLAIM
Counterclaim Plaintiff C------ F---- (“Ms. F----” or “Counterclaim Plaintiff”), hereby counterclaims against DIAMOND RANCH ACADEMY, INC. (“DRA” or “Counterclaim Defendant”) as follows:

PARTIES
1. DRA is a corporation organized and existing under the laws of the State of Utah.
2. Ms. F---- is a citizen and resident of the State of California.

JURISDICTION AND VENUE
3. The Court has jurisdiction over this matter under 28 U.S.C. § 1332 because there is complete diversity between Counterclaim Plaintiff and Counterclaim Defendant and the amount in controversy exceeds $75,000.00, exclusive of interest and costs.
4. Assuming (without conceding) that venue is proper as to DRA’s Complaint, then venue is proper in this Court pursuant to 28 U.S.C. § 1391(b)(1).

GENERAL ALLEGATIONS
5. This is a precautionary counterclaim stated in the alternative to the California Anti-SLAPP motion Ms. F---- intends to separately file. Ms. F---- believes that California law should control as the Anti-SLAPP law applicable to this case. Under California’s law, that issue is addressed via motion, not a counterclaim. However, in the event that Utah law controls as the applicable Anti-SLAPP law, Ms. F---- will pursue this counterclaim under Utah law.
6. On January 7, 2015, DRA filed its Amended Complaint against Ms. F---- [Dkt. No. 23].

Case 2:14-cv-00751-TC Document 25 Filed 01/30/15 Page 23 of 25

7. DRA alleges Ms. F---- made, inter alia, the following defamatory statements: “[t]hat DRA employs an unqualified, underqualified, and improperly trained staff” [Dkt. No. 23 at ¶ 11(g)]; “[t]hat DRA engages in improper strip searches, . . . humiliation, . . . and the starvation of its students” [Dkt. No. 23 at ¶ 11(j)]; “[t]hat members of DRA’s medical staff are not licensed medical professionals or are underqualified” [Dkt. No. 23 at ¶ 11(o)]; “[t]hat DRA has a ‘history of abuse’, ‘dangerous policies’ and a ‘wrongful death’” [Dkt. No. 23 at ¶ 11(p)]; and “[t]hat DRA’s therapy techniques are not ‘clinically approved’, ‘but quite simply a form of corporal punishment.’” [Dkt. No. 23 at ¶ 11(q)].
8. According to DRA’s Amended Complaint, these statements are from “DRA Survivors Utah DHS Licensing Office Complaint” prepared by Ms. F---- and emailed by her to to KRAnderson@Utah.gov and kstettler@Utah.gov and posted on May 5, 2013. [Dkt. No. 23 at ¶ 11]
9. On or about May 5, 2013, Ms. F---- contacted the Utah Department of Human Services, Office of Licensing about the state’s licensing of DRA and DRA’s operations.
10. On or about May 5, 2013, Ms. F---- posted a copy of her e-mail to the Utah Department of Human Services, Office of Licensing to the Diamond Ranch Academy Survivors website at the following URL: http://drasurvivors.com/dra-survivors-utah-dhs-licensing-office-complaint/.
11. Ms. F---- exercised her protected right of freedom of speech under the United States Constitution, the California Constitution and the Utah Constitution to influence legislative and executive decisions.

Case 2:14-cv-00751-TC Document 25 Filed 01/30/15 Page 24 of 25

12. By filing its lawsuit, DRA seeks to prevent Ms. F---- from exercising her right to freedom of speech protected by the United States Constitution, the California Constitution and the Utah Constitution, participating in a process of government (i.e., licensing of treatment facilities), and speaking out to protect the public’s interest.

FIRST CAUSE OF ACTION
(Violation of Utah’s Anti-SLAPP Act Utah Code §§ 78B-6-1401 to 1405)
13. Ms. F---- incorporates all other paragraphs of this Counterclaim as if fully set forth here.
14. Ms. F---- made statements to the Utah Department of Human Services, Office of Licensing questioning the licensure of DRA and seeking to influence the process of government.
15. DRA filed its lawsuit against Ms. F---- to prevent her from participating in the process of government.
16. DRA’s lawsuit against Ms. F---- has prohibited Ms. F---- from exercising her right to freedom of speech protected by the United States Constitution, the California Constitution and the Utah Constitution and participating in the process of government in violation of Utah’s Anti-SLAPP Act, Utah Code §§ 78B-6-1401 to 1405.
17. DRA commenced or continued their lawsuit against Ms. F---- for the purpose of harassing, intimidating, punishing, or otherwise maliciously inhibiting her from exercising her rights granted under the First Amendment to the United States Constitution.
18. As a result of DRA’s strategic lawsuit against public participation, Ms. F---- is entitled to costs and reasonable attorneys’ fees.
19. Additionally, Ms. F---- is entitled to compensatory damages.

Case 2:14-cv-00751-TC Document 25 Filed 01/30/15 Page 25 of 25

REQUEST FOR RELIEF
WHEREFORE, having answered the allegations and claims in the Amended Complaint, Ms. F---- respectfully requests the following relief:
1. That the Amended Complaint be dismissed with prejudice and that DRA take nothing thereby;
2. That Ms. F---- be awarded her attorneys’ fees and costs as permitted by law; and
3. That Ms. F---- be awarded such other and further relief as the Court deems just and equitable.

WHEREFORE, on her Counterclaim, Ms. F---- requests that judgment be entered in her favor as follows:
1. For a judgment in favor of Ms. F---- and against DRA for Ms. F----’s costs, attorneys’ fees, and interest on such amounts as permitted by law;
2. For compensatory damages as permitted by law; and
3. For such other and further relief as the Court determines is just.

JURY DEMAND
Ms. F---- hereby demands a jury trial of all issues in this action triable as of right by a jury.
DATED this 30th day of January 2015.

/s/ Edward Chang
Anthony C. Kaye, Esq.
Zaven A. Sargsian, Esq.
Daniel M. Benjamin, Esq. (admitted pro hac vice)
Edward Chang, Esq. (admitted pro hac vice)
BALLARD SPAHR LLP
Attorneys for Defendant, C------ F----
 

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