Opinion
I. INTRODUCTION
Plaintiff Dwight R. appeals from an order granting defendant Christy B.’s special motion to strike his third cause of action against Christy for conspiring with state actors to violate his and his two minor daughters’ federal civil rights. (42 U.S.C. § 1983.)
Christy is a licensed marriage and family therapist and mandated reporter of known or suspected child abuse or neglect. (Pen. Code, §§ 11165.7, subd. (a)(21), 11166.) In his complaint, Dwight alleges that Christy conspired with his former mother-in-law, L.S., and state actors, including several San Bernardino County social workers, to falsely accuse him of sexually abusing his five-year-old daughter Rl. Dwight maintains that Christy unduly persuaded or “coached” Rl to draw illicit pictures of herself and Dwight in bed together, and made a knowingly false report that Dwight was sexually abusing Rl.
Christy’s alleged conspiracy with L.S. and the social workers occurred shortly after the family court allowed Dwight to have unsupervised visits
We conclude that the section 1983 claims are based on acts in furtherance of the rights of free speech or petition, specifically actions preparatory to or in anticipation of official proceedings, including an official investigation by child protective services and juvenile dependency proceedings. (Code Civ. Proc., § 425.16, subd. (e)(2).) We also conclude that Dwight did not demonstrate a probability of prevailing on the claims.
n. BACKGROUND
A. Facts and Procedural History
In September 2008, Dwight and his former wife N. initiated divorce proceedings. In November, they met separately with a family court mediator to work out a temporary agreement for custody and visitation rights to their two daughters, R1 and R2, then ages five and three, respectively. N. expressed no concern during the mediation that Dwight had sexually abused the girls, and the mediator’s report of the mediation did not mention any concern of sexual abuse. Through the mediator, Dwight and N. agreed that N. would have temporary sole legal and physical custody of the girls, Dwight would visit the girls three days each week, and Dwight’s parents would supervise the visits. The agreement did not provide any provision for overnight visits.
During a second mediation on February 24, 2009, Dwight sought unsupervised, overnight visits with the girls. At the time of the February 24 mediation, Dwight was living with his parents, was self-employed, and set his work schedule according to work availability. He believed his visits with the girls had been going well, and he did not wish to further impose on his parents to supervise the visits.
At the February 24 mediation, the mediator again spoke separately with Dwight and N. N. wanted the paternal grandparents to continue supervising the visits. She acknowledged that the girls were enjoying the visits and would likely enjoy overnight visits, but she believed the visits were going well only because the paternal grandparents were involved. She told the mediator she did not trust Dwight’s judgment, but she expressed no concern that Dwight
During a March 16, 2009, order to show cause hearing in the family court, N. accused Dwight for the first time of sexually abusing the girls. The family court rejected the accusation as unfounded, and adopted the mediator’s recommendation that Dwight have unsupervised visits, including overnight weekend visits. Even though the court authorized unsupervised visits, after the March 16 hearing Dwight made certain his parents were present during all of his visits with the girls as a precaution against N.’s false accusations of sexual abuse.
Dwight visited the girls on Tuesday and Thursday, March 17 and 19, 2009, in the presence of his parents. These daytime visits “went smoothly and uneventfully, without any problems.” The first overnight visit took place on Friday, March 20, through Sunday, March 22, 2009, at the paternal grandparents’ home. The girls had never before spent the night there, and the paternal grandparents were present throughout the visit.
Shortly after the March 20 to March 22 weekend visit, Dwight discovered that R1 had had her first therapy session with Christy on Friday, March 20. Before March 20, neither R1 nor R2 had ever seen a therapist.
Dwight alleges that N. and her mother, L.S., arranged Rl’s March 20 therapy session with Christy. N. and the girls lived with L.S., and L.S. had for many years worked as a “professional paraeducator” for the Los Angeles County Office of Education, specializing in “extremely disturbed children,” including victims of sexual abuse. Dwight alleges that L.S. had long-standing professional relationships with Christy and San Bernardino County social workers, and conspired with Christy and the social workers to falsely accuse him of sexually abusing the girls. In their professional capacities, Christy, L.S., and the social workers are mandated reporters of suspected child abuse or neglect. (Pen. Code, §§ 11165.7, subd. (a)(9), (15), (21), 11166, subd. (a).)
As a licensed marriage and family therapist, Christy received client referrals from the San Bernardino County Superior Court. In a declaration in support of her anti-SLAPP motion, Christy claims that N. contacted her around February 2009 and expressed concern that R1 was exhibiting behavioral problems, including bed-wetting. Christy told N. that she did not typically work with families who were still working with the courts, but she
Christy acknowledges that she had her first therapy session with Rl on March 20, 2009. She claims that, in keeping with her custom and practice for new patients, she instructed Rl to draw pictures of “a tree, a house, herself and her favorite animal.” This helped her connect with and learn more about the child. Christy claims that, “[b]ased on the pictures [Rl] drew, as it pertained to her father’s house and sleeping arrangements she shared with her father, and based upon my professional opinion, I had a reasonable suspicion that there may be sexual abuse.”
Christy denies Dwight’s allegations that she facilitated, instructed, or guided Rl “into making certain statements and drawings, to conjure up sexual abuse allegations” against Dwight. She also denies conspiring with anyone, including N., L.S., or any social workers, to violate Dwight’s or the girls’ federal civil rights. She claims the only action she took concerning Rl was notifying child protective services of her suspicion as a mandated reporter.
On Tuesday, March 24, 2009, Christy completed a mandated report of her suspicion that Dwight was sexually abusing Rl (Pen. Code, § 11166, subd. (a)), and notified child protective services of her suspicion. Christy did not immediately report her suspicion because she did not believe Rl was “in any immediate danger.” She understood that N. had custody of Rl, and believed that Rl would be staying with N. over the weekend of March 20 to March 22. Christy continued to treat Rl on a weekly basis until February 2010.
In his declaration opposing Christy’s motion, Dwight claims that on March 30, 2009, Christy stated: “ 1 [(Christy)] asked if she [(Rl)] could draw me a picture of daddy [(Dwight)] and her [(Rl)] in bed.’ ” Dwight does not say to whom or under what circumstances Christy made the statement, but according to Dwight, Christy’s act of “coaching” Rl to draw pictures of herself in bed with Dwight was “nothing more than impermissible coaching of [Rl] to make false sexual abuse allegations against [Dwight].”
Dwight adduces the declaration of R.L. Hanlon, Ph.D., a licensed psychologist and marriage and family therapist, who states he has “never come across a reliable or valid protocol, standard, or guideline that allows anyone to make reliable or valid inferences about the dynamic meaning of children’s
In a declaration signed on March 26, 2009, and submitted to the juvenile court, L.S. claimed she recommended that N. take both Rl and R2 to see a counselor “sometime before March 20, 2009.” According to L.S., N. took Rl to see Christy on March 20 “because of behavioral issues [Rl] was having at home.” Rl wet her bed every night during the week of March 16. L.S. also claimed that both Rl and R2 were exhibiting signs and made statements to L.S. indicating that Dwight had sexually abused them—both before and after the weekend of March 20 to March 22.
Around the end of March 2009, San Bernardino County social workers instituted juvenile dependency proceedings for the girls. During an April 3 interview with social workers, Rl denied that anyone had ever touched her inappropriately. The juvenile court did not sustain any dependency allegations against Dwight, including any sexual abuse allegations, and dismissed the dependency proceedings in February 2010.
In December 2010, Dwight, acting for himself and as guardian ad litem for the girls, filed a second amended complaint against the County of San Bernardino (the County), the San Bernardino County Department of Children’s Services (DCS), four San Bernardino County social workers (the social worker defendants), and Christy.
In the third cause of action, Dwight alleges that Christy violated his and the girls’ federal civil rights by conspiring with L.S. and the social worker defendants (1) to detain the girls in violation of his and the girls’ Fourth Amendment rights to be free from unreasonable seizures, and (2) to interfere
Christy filed a special motion to strike Dwight’s section 1983 claims, as alleged in his third cause of action, under the anti-SLAPP statute. (Code Civ. Proc., § 425.16.) The trial court granted the motion, and Dwight appeals.
B. Reporter Immunities Under California Law
California has a strong interest in preventing and remediating child abuse and neglect. (Storch v. Silverman (1986)
The Reporting Act designates as “mandated reporters” certain professionals who work in positions where child abuse and neglect is likely to be detected. (Pen. Code, § 11165.7, subd. (a).) In addition to teachers, physicians, and other professionals whose work regularly brings them in contact with children, mandated reporters include social workers (id., subd. (a)(15)), family and child counselors, such as Christy (id., subd. (a)(21)), and “[a]n employee of a county office of education . . . whose duties bring the employee into contact with children on a regular basis,” such as L.S. (id., subd. (a)(9)).
Subject to exceptions not applicable here, a mandated reporter has a duty to make a report to an agency specified in Penal Code section 11165.9,
A mandated reporter is also absolutely immune from civil and criminal liability for “conduct giving rise to the obligation to report [including] the collection of data, or the observation, examination, or treatment of the suspected victim or perpetrator of child abuse,” and even for knowingly or recklessly making a false report or falsifying evidence of child abuse or neglect. (Krikorian v. Barry (1987)
In contrast to mandated reporters, voluntary reporters—persons who voluntarily report known or suspected instances of child abuse or neglect—have qualified immunity from civil or criminal liability “as a result of any report authorized” under the Reporting Act. (Pen. Code, § 11172, subd. (a).) Voluntary reporters are immune, “unless it can be proven that a false report was made and the person knew that the report was false or was made with reckless disregard of the truth or falsity of the report.” {Ibid.)
IH. DISCUSSION
A. Overview of Code of Civil Procedure Section 425.16
“A SLAPP suit—a strategic lawsuit against public participation— seeks to chill or punish a party’s exercise of constitutional rights to free
Code of Civil Procedure section 425.16 prescribes a two-step process for courts to follow in determining whether a cause of action constitutes a SLAPP. (Navellier v. Sletten (2002)
If the court finds the defendant has met this threshold burden, it then determines whether the plaintiff has demonstrated a probability of prevailing on the merits of the plaintiff’s claim. (Navellier v. Sletten, supra, 29 Cal.4th at pp. 88-89.) To meet this burden, the plaintiff must demonstrate “ ‘ “that the complaint is both legally sufficient and supported by a . . . prima facie showing of facts to sustain a favorable judgment if the evidence submitted by the plaintiff is credited.” ’ [Citation.] [f] Only a cause of action that satisfies both prongs of the anti-SLAPP statute—i.e., that arises from protected speech
We review an order granting or denying a special motion to strike de novo. (South Sutter, LLC v. LJ Sutter Partners, L.P. (2011)
B. The Section 1983 Claims Are Based on Protected Activities
Dwight claims Christy did not meet her burden of demonstrating that the section 1983 claims against her are based on protected free speech or petition activities. (Code Civ. Proc., § 425.16, subds. (b)(1), (e).) We disagree.
A cause of action “aris[es] from” protected speech or petition activities if the act underlying the claim is “itself’ an act in furtherance of the right of free speech or petition. (City of Cotati v. Cashman (2002)
The protected activities described in subdivision (e)(2) of Code of Civil Procedure section 425.16 include statements or writings made “in connection with an issue under consideration or review by a . . . judicial body, or any other official proceeding authorized by law.” (See Kibler v. Northern Inyo County Local Hospital Dist. (2006)
The core injury-producing conduct underlying the section 1983 claims against Christy is her alleged conspiracy with social workers and others to falsify evidence that Dwight was sexually molesting Rl, her improper
Dwight points out that he did not allege that Christy made a mandated report of her suspicion that Dwight was sexually abusing Rl. Instead he alleged that L.S. made the mandated report of Christy’s suspicion of the sexual abuse. This attempt to parse Christy’s alleged coaching and conspiracy activities from her act of making the mandated report is unavailing. Christy adduced uncontroverted evidence that she is a mandated reporter and that she, not L.S., reported her suspicion to child protective services that Dwight was sexually abusing Rl. (Pen. Code, § 11166.)
In any event the point is a red herring. Even if L.S. or someone other than Christy made the report, Christy’s other alleged acts of conspiring with L.S. and social workers to fabricate evidence that Dwight was sexually abusing Rl and “coaching” Rl to draw illicit pictures of herself and Dwight nonetheless constitute protected activities in anticipation of official proceedings. (Code Civ. Proc., § 425.16, subd. (e)(2); see Briggs v. Eden Council for Hope & Opportunity; supra,
Relying on Flatley v. Mauro (2006)
Unlawful or criminal activities do not qualify as protected speech or petition activities under the anti-SLAPP statute. (Flatley, supra,
Here, Christy does not concede that she engaged in any unlawful activities. Nor is there any uncontroverted evidence that her coaching and conspiracy activities, as Dwight characterizes them, were unlawful as a matter of law. In her declaration in support of her motion, Christy denies unduly persuading or coaching R1 to draw illicit pictures of herself and Dwight, or engaging in any conspiracy with social workers, L.S., or others to falsify evidence that Dwight was sexually abusing Rl. Dwight’s mere allegation that Christy engaged in unlawful coaching and conspiracy activities is insufficient to render her alleged actions unlawful as a matter of law and outside the protection of Code of Civil Procedure section 425.16.
In contrast to the section 1983 claims, Flatley and Lefebvre involved claims based on activities that were indisputably unlawful as a matter of law and therefore unprotected under the anti-SLAPP statute. The plaintiff in Flatley sued an attorney for civil extortion and related causes of action based on the attorney’s alleged criminal attempt to extort money from the plaintiff by threatening to publicize the plaintiff’s alleged rape of the attorney’s client—unless the plaintiff paid the attorney and his client a seven-figure settlement. (Flatley, supra, 39 Cal.4th at pp. 305-311.) In opposing the attorney’s anti-SLAPP motion, the plaintiff adduced uncontroverted evidence that the attorney had engaged in the alleged extortion attempt. (Id. at pp. 328-329 [“[tihe attorney] did not deny that he sent the letter nor did he contest the version of the telephone calls set forth in [the plaintiff’s attorneys’] declarations . . . .”].) Based on the uncontroverted evidence that the attorney attempted to extort money from the plaintiff, the court in Flatley concluded that the attorney made the extortion attempt, which was “illegal as a matter of law,” and therefore not a protected form of speech under Code of Civil Procedure section 425.16. (Flatley, supra, at pp. 317-320.)
Lefebvre also involved undisputed unlawful activity—the filing of a false police report—which uncontroverted evidence showed was in fact a false
Additional cases further illustrate the critical distinction between a plaintiff’s bare allegations of unlawful activities and uncontroverted evidence of unlawful activities. In Siam v. Kizilbash (2005)
C. Dwight Did Not Establish a Probability of Prevailing on the “State Actor” Component of the Section 1983 Claims
Given that the section 1983 claims against Christy are based on protected activities (Code Civ. Proc., § 425.16, subd. (e)(2)), we turn to the second prong of the anti-SLAPP inquiry and consider whether Dwight met his burden of establishing a probability of prevailing on the claims (Navellier v. Sletten, supra,
“ 1 “ ‘The burden on the plaintiff is similar to the standard used in determining motions for nonsuit, directed verdict, or summary judgment.’ ” [Citation.]’ [Citation.] Thus, ‘The plaintiff need only establish that his or her claim has “minimal merit” [citation] to avoid being stricken [pursuant to Code of Civil Procedure section 425.16]. [Citation.]’ ” (Chabak v. Monroy, supra,
Section 1983 applies to persons acting “under color of’ state law,
To support these conspiracy allegations, Dwight was required to adduce competent, admissible evidence that there was an agreement or a meeting of the minds between Christy and at least one social worker or other state actor to deprive Dwight and the girls of their federal constitutional rights. (Woodrum v. Woodward County (9th Cir. 1989)
Instead, Dwight merely speculates that Christy conspired or engaged in joint action with social workers and L.S. to fabricate false allegations that Dwight was sexually abusing the girls. For example, Dwight alleges that L.S. had “preexisting personal and professional relationships” with the social worker defendants and with Christy, through her work for the Los Angeles County Office of Education. But L.S. and Christy flatly denied this allegation, and Dwight adduced no competent, admissible evidence to support it. More generally, Dwight speculates that L.S., Christy, and the social worker defendants were in cahoots because they all worked with abused children, and Rl’s initial therapy session with Christy took place on the day she was to have her first overnight visit with Dwight. But none of these circumstances support a reasonable inference that Christy conspired or engaged in joint action with state actors, including the social worker defendants or with L.S., to deprive Dwight or the girls of their federal constitutional rights to familial association and against unlawful seizure.
In sum, Dwight’s speculation is insufficient to support his conspiracy or joint action allegations. He therefore failed to make a prima facie evidentiary showing to support the state actor component of his section 1983 claims against Christy.
D. Christy’s Immunity from the Section 1983 Claims Under Penal Code Section 11172
Even if a plaintiff makes a prima facie evidentiary showing in support of his or her claims based on protected activities, the claims may still be stricken if the defendant can establish a complete affirmative defense to the claims. (Chabak v. Monroy, supra,
In granting Christy’s anti-SLAPP motion and striking the section 1983 claims against Christy, the trial court concluded that Christy established a complete affirmative defense to the section 1983 claims—her absolute immunity to the claims as a mandated reporter under Penal Code section 11172. (Chadwick, supra, 224 Cal.App.3d at pp. 823-826 [mandated reporters of suspected child abuse and neglect are absolutely immune from liability for § 1983 damages claims under Pen. Code, § 11172, based on Congress’s intent in enacting the Child Abuse Prevention and Treatment Act (42 U.S.C. § 5101 et seq.) (CAPTA) in 1974].) Thus, the trial court in essence concluded that Dwight did not and could not present evidence sufficient to overcome Christy’s affirmative defense of absolute immunity to the section 1983 claims.
Dwight maintains that Chadwick has effectively been abrogated by amendments Congress made to CAPTA in 1995. While this appeal was pending, Division Seven of the Second District Court of Appeal addressed this very question in Arce v. Childrens Hospital Los Angeles (2012)
For the reasons articulated in Arce, we agree that Chadwick has effectively been abrogated by the 1995 amendments to CAPTA. The result here is that Christy’s absolute immunity as a mandated reporter under Penal Code section 11172 cannot be asserted as an affirmative defense to Dwight’s and the girls’ section 1983 claims. The claims must still be stricken, however, because for the reasons discussed Dwight did not make a prima facie evidentiary showing that Christy conspired or engaged in joint action with state actors to deprive him or the girls of their federal constitutional rights.
The order striking the section 1983 claims against Christy, as alleged in the third cause of action of Dwight’s second amended complaint, is affirmed. Christy shall recover her costs on appeal.
Ramirez, P. J., and Hollenhorst, J., concurred.
A petition for a rehearing was denied February 4, 2013, and appellant’s petition for review by the Supreme Court was denied April 10, 2013, S208703.
Notes
All claims arising under title 42 United States Code section 1983 will be referred to as section 1983 claims.
The complaint alleges causes of action for false imprisonment (first), intentional infliction of emotional distress (second), federal civil rights violations based on unlawful seizure and familial association (third), additional federal civil rights violations against the County and DCS based on their practices and procedures (fourth), child abduction (fifth), and declaratory relief (sixth).
Agencies specified in Penal Code section 11165.9 include police and sheriff’s departments and county welfare departments.
Penal Code section 11166.05 describes situations when a mandated reporter “may” but is not required to make a report of suspected child abuse: “Any mandated reporter who has knowledge of or who reasonably suspects that a child is suffering serious emotional damage or is at a substantial risk of suffering serious emotional damage, evidenced by states of being or behavior, including, but not limited to, severe anxiety, depression, withdrawal, or untoward aggressive behavior toward self or others, may make a report to an agency specified in Section 11165.9.”
Code of Civil Procedure section 425.16, subdivision (b), provides: “(b) [1] (1) 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 Constitution or the 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, [f] (2) In making its determination, the court shall consider the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based.”
Subdivision (e) of Code of Civil Procedure section 425.16 defines an “act ... in furtherance of [a] person’s right of petition or free speech” (Code Civ. Proc., § 425.16, subd. (b)(1)) as including: “(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, or (4) 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).)
The plaintiff’s complaint against the attorney in Flatley was not based on the attorney’s communications preparatory to or in anticipation of bringing a civil action against the plaintiff, because the attorney’s threat to file a civil action against the plaintiff for the alleged rape was merely incidental to the attorney’s attempt to extort money from the plaintiff by threatening to publicize the alleged rape. (Flatley, supra, 39 Cal.4th at pp. 305, 325-333 & p. 334 (conc. opn. of Werdegar, J.) [“That plaintiff alleges the extortion scheme also included threats to sue [citation] does not necessarily mean the action ‘arises from’ defendant’s litigation-related activities. (Kajima Engineering & Construction, Inc. v. City of Los Angeles (2002)
Section 1983 provides: “Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State ... subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured . . . .”
Because Dwight did not make a prima facie evidentiary showing on the state action component of the section 1983 claims, it is unnecessary to determine whether he made a sufficient prima facie evidentiary showing on the other elements of the claims, including that either he or the girls were deprived of their constitutionally protected rights without due process of law—another necessary element of the claims. (See generally Chadwick, supra,