Steve W. v. Crain

Filed 9/29/06 Steve W. v. Crain CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of Riverside County. Roger A. Luebs, Judge. Affirmed.

Daley & Heft, Robert R. Heft and Lee H. Roistacher for Defendant and Appellant.

Law Offices of Margo Justine Dockendorf and Margo Justine Dockendorf for Plaintiffs and Respondents.

Defendant Deborah Crain (Crain) appeals from the trial court’s order denying her special motion to strike under Code of Civil Procedure section 425.16, the anti-SLAPP (strategic lawsuit against public participation) statute, asserting that the trial court erred when it determined that the gravamen of the complaint did not arise from her report of suspected child abuse to Riverside County authorities. She also asserts that the plaintiffs cannot establish a probability of success on their claims and therefore requests that we order the trial court to grant her anti-SLAPP motion. We affirm.

Facts and Procedural History

On April 29, 2004, plaintiffs Steve W. and Christina W. (Plaintiffs) filed a form complaint against Crain alleging a single cause of action for defamation based upon Crain’s wrongful accusations that Steve W. sexually molested his minor daughter. On January 10, 2005, Plaintiffs filed the operative first amended complaint against Crain and others not party to this appeal alleging causes of action for defamation, interference with the parent/child relationship in violation of Civil Code section 49, and negligence. The complaint alleged that Plaintiffs are the biological parents of Alyson W. and her siblings. Crain developed a close personal relationship with Alyson W. and desired to establish a parental relationship with her. In order to do so, Crain, in concert with other defendants, engaged in acts intended to result in the termination of Plaintiffs’ parental rights over Alyson W., then age 14, so that Crain could be a foster parent for and ultimately adopt the child. Crain made a report to Riverside County authorities that Steve W. had raped and sexually abused Alyson W., resulting in the removal of her and her siblings from Plaintiffs’ care and their adjudication as dependents of the court.

The complaint further alleges that Alyson W. was placed in group foster homes, during which placement Crain continued to contact her and encourage her to continue making accusations against her father Steve W. Crain also encouraged Alyson W. to leave her placements without permission (AWOL) and knew that she had done so. Despite being informed that a protective custody warrant had issued for Alyson W., Crain concealed her whereabouts from the authorities and/or harbored Alyson W. in her home and provided her with financial assistance, which the child used to buy illegal drugs.

In response to Plaintiffs’ complaint, Crain filed a special motion to strike under Code of Civil Procedure section 425.16 on the ground that she could not be sued for reporting a suspected crime and was indeed a mandated reporter as a licensed foster parent, which makes her immune from prosecution for making a report of child abuse (Pen. Code, § 11166).

Plaintiffs opposed the motion on the ground that the allegations of their complaint did not arise from Crain’s reporting of suspected child abuse to the authorities but rather from her unprotected conduct in telling uninterested parties that Steve W. molested and abused Alyson W., and in interfering with the Plaintiffs’ efforts to reunify with Alyson W. after her removal from their home.

The trial court heard oral argument on April 19, 2005, and took the matter under submission. The ruling, denying the motion on the ground that Code of Civil Procedure section 425.16 did not apply to Plaintiffs’ causes of action, was issued on April 21, 2005. This appeal followed.

Discussion

Code of Civil Procedure section 425.16, subdivision (b)(1) provides that “[a] cause of action against a person arising from any act of that person in furtherance of the person’s right of petition or free speech under the United States or California Constitution in connection with a public issue shall be subject to a special motion to strike, unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim.’ The statute further provides that “[a]s used in this section, ‘act in furtherance of a persons’ right of petition or free speech under the United States or California Constitution in connection with a public issue’ includes: (1) any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law; (2) 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; (3) 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; (4) or any other conduct 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.’ (Code Civ. Proc., § 425.16, subd. (e).)

In ruling on an anti-SLAPP motion, a court must engage in a two-step process. It must first determine whether a defendant has shown that the challenged cause(s) of action arises out of protected activity. Then, if that showing is made, it must determine whether the plaintiff has demonstrated a probability of prevailing on the claim. (Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67.) “These determinations are legal questions subject to our de novo review. [Citations.]’ (Tuchscher Development Enterprises, Inc. v. San Diego Unified Port Dist. (2003) 106 Cal.App.4th 1219, 1232.)

Crain asserts that each of Plaintiffs’ three causes of action arises out of protected activity because she is being sued for reporting suspected child abuse to the authorities. “[R]eports of child abuse to persons who are bound by law to investigate the report or to transmit the report to the authorities are protected by [Code of Civil Procedure section 425.16]’ because they are “communications preparatory to or in anticipation of commencing official proceedings‘ and thus fall within subdivision (e)(1) and/or (2) of that statute. (Siam v. Kizilbash (2005) 130 Cal.App.4th 1563, 1569-1570.)

Crain claims that the trial court erred in determining that none of Plaintiffs’ causes of action arose out of her report to the authorities. She points to paragraphs 9 and 10 of the first amended complaint, which state that Crain reported the abuse of Alyson W. to Child Protective Services, resulting in the removal of Alyson W. and her siblings from Plaintiffs’ home. She then points out that these allegations are incorporated by reference in each of Plaintiffs’ three causes of action, in paragraphs 13, 17 and 20. Thus, Crain concludes, the allegation forms the basis of each of those causes of action.

“’[T]he statutory phrase “cause of action . . . arising from’ means simply that the defendant’s act underlying the plaintiff’s cause of action must itself have been an act in furtherance of the right of petition or free speech. [Citation.] In the anti-SLAPP context, the critical point is whether the plaintiff’s cause of action itself was based on an act in furtherance of the defendant’s right of petition or free speech.’ [Citation.] ‘The anti-SLAPP statute’s definitional focus is not the form of the plaintiff’s cause of action but, rather, the defendant’s activity that gives rise to his or her asserted liability and whether that activity constitutes protected speech or petitioning.’ [Citation.]’ (Huntingdon Life Science, Inc. v. Stop Huntingdon Animal Cruelty USA, Inc. (2005) 129 Cal.App.4th 1228, 1244, original italics (Huntingdon).) “In deciding whether the ‘arising from’ requirement is met, a court considers ‘the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based.’’ (City of Cotati v. Cashman (2002) 29 Cal.4th 69, 79.)

As did the trial court, we disagree with Crain that Plaintiffs’ causes of action seek to recover damages against her for her act of reporting suspected child abuse to the authorities. The first cause of action for defamation states that Crain “verbally accused Steve [W.] of raping, sexually molesting and torturing’ Alyson W. and “repeated said accusations to individuals who were not interested persons . . .’ which was slander per se within the meaning of Civil Code section 46. Steve W.’s declaration states that he learned that Crain told others who had nothing to do with Child Protective Services or other authorities that he had raped and tortured Alyson W. causing him shame in the community. The second cause of action contains the allegation that Crain’s acts were done in an effort to “induce Alyson [W.] to leave her family and to remain separate from her parents.’ Crain intended that Plaintiffs’ parental rights would be terminated and that she would obtain custody of Alyson W., either through foster care or adoption. Crain intentionally induced Alyson W. to go AWOL from group foster care to prevent reunification with Plaintiffs, harbored her after she went AWOL, despite knowledge that a protective custody warrant had issued, and concealed her whereabouts from the authorities in order to deprive Plaintiffs of a relationship with their daughter, with the aim of adopting the child as her own. Steve W.’s declaration states that Crain continued to have contact with Alyson W. after she was removed from Plaintiffs’ home and placed in group foster care, encouraging the child to continue to tell lies about what her father had done to her, giving her money and promising her that she would take care of her and that she could live with her. Crain also continued to attempt to persuade the Department of Public Social Services that Steve W. had raped Alyson W. and urged that Plaintiffs’ parental rights should be terminated, despite mounting evidence that Alyson W.’s accusations were untrue. Crain allowed Alyson W. to live with her on two separate occasions while she was AWOL from a group foster home where she was receiving treatment for drug abuse, despite knowing that a protective custody warrant had been issued for the child, lied to the authorities about her knowledge of Alyson W.’s whereabouts, and conspired with others to keep the child’s location a secret from the authorities. The third cause of action, for negligence, contains the allegation that in doing the things previously alleged, Crain breached a duty to Plaintiffs by failing to exercise due care to avoid causing them damage.

While the pleading is certainly not a model of clarity, in asserting each of their causes of action, Plaintiffs specifically allege conduct that does not implicate Crain’s right to free speech or petition, while the allegation that she reported child abuse to the authorities is contained in the preliminary explanatory narrative of the events leading up to the action. Similarly, while Steve W.’s declaration recites the fact that Crain reported to authorities that he had raped and tortured Alyson W., which allegations were false, the tenor of the affidavit suggests that this was background information to explain Crain’s motivation and plan to alienate the child from her parents, the Plaintiffs. Consequently, from our review of the first amended complaint and the affidavits (Crain’s affidavit merely states that she reported that Alyson W. had been abused by her father based upon the child’s report to her, and that Crain was a certified foster care provider), it appears that none of Plaintiff’s causes of action are based on Crain’s act of reporting suspected child abuse to authorities, but are instead based upon other, non-protected conduct that Crain engaged in after she made that report. Consequently, Code of Civil Procedure section 425.16 does not apply to them.

According to Crain the fact that other acts of non-protected wrongdoing are also alleged is of no consequence because “mixed’ causes of action are subject to striking under the anti-SLAPP statute. (Huntingdon, supra, 129 Cal.App.4th at p. 1245.) Although this issue is currently under review by the California Supreme Court (Kids Against Pollution v. California Dental Association, review granted Sept. 17, 2003, S117156), pending its review of the issue we follow the existing appellate precedent that the anti-SLAPP statute applies to a mixed cause of action so long as the protected activity is not merely incidental to the cause of action. (Martinez v. Metabolife Internat., Inc. (2003) 113 Cal.App.4th 181, 187-188.) However, if protected speech is not the principal thrust or gravamen of the cause of action, but is merely incidental to it, the anti-SLAPP statute will not apply. (Id. at p. 188.) “[W]hen the allegations referring to arguably protected activity are only incidental to a cause of action based essentially on nonprotected activity, collateral allusions to protected activity should not subject the cause of action to the anti-SLAPP statute.’ (Ibid.)

Our analysis of the application of these rules in the instant case is quite similar to our determination whether the causes of action “arose from’ an act in furtherance of Crain’s right to free speech or petition. We are convinced that the gravamen of the complaint does not involve the protected activity of reporting suspected child abuse to the authorities. That allegation is not necessary to any of Plaintiffs’ causes of action which fundamentally involve Crain’s accusations to uninterested parties and her conduct in regards to Alyson W. once the child was removed from Plaintiffs’ home. Crain intimates that none of her alleged conduct would have occurred but for the reporting to Child Protective Services and therefore, the reporting must form the basis of each claim. However, “[a] cause of action may be ‘triggered by protected activity’ without necessarily arising from such protected activity.’ (Santa Monica Rent Control Bd. v. Pearl Street, LLC (2003) 109 Cal.App.4th 1308, 1318.) Crain has not met her burden of demonstrating that any of the causes of action in Plaintiffs’ first amended complaint arose out of an act she took in furtherance of her right to free speech or petition. Thus, it is unnecessary to consider whether Plaintiffs are likely to prevail on their complaint. We cannot conclude that the trial court erred in refusing to grant the anti-SLAPP motion.

Plaintiffs have requested that we take judicial notice of juvenile court records of the dependency proceedings involving themselves and Alyson W. Review of and reference to the contents of the records are not necessary to the outcome of this appeal. Therefore we decline Plaintiffs’ request. (Mangini v. R. J. Reynolds Tobacco Co. (1994) 7 Cal.4th 1057, 1062 (only relevant material may be judicially noticed).)

Disposition

The order is affirmed. Plaintiffs to recover their costs on appeal.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

RAMIREZ

P.J.

We concur:

McKINSTER

J.

GAUT

J.

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