Opinion
D070767
10-25-2017
PHILIP BOHRER, Plaintiff and Respondent, v. LISA CARROLL, Defendant and Appellant.
Law Offices of David C. Beavans and David C. Beavans, Caitlin V. Steele, John T. Sylvester, for Defendant and Appellant. Palmer Rodak & Associates and Matthew Eric Palmer; Niddrie Addams Fuller and Victoria Fuller for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 37-2016-00006783-CU-PO-NC) APPEAL from a judgment of the Superior Court of San Diego County, Earl H. Maas III, Judge. Reversed. Law Offices of David C. Beavans and David C. Beavans, Caitlin V. Steele, John T. Sylvester, for Defendant and Appellant. Palmer Rodak & Associates and Matthew Eric Palmer; Niddrie Addams Fuller and Victoria Fuller for Plaintiff and Respondent.
Lisa Carroll appeals from a superior court judgment entered after the trial court denied her special motion to strike her former husband Philip Bohrer's complaint. (Code Civ. Proc., § 425.16.) Carroll contends Bohrer's tort claims set forth in his complaint arise from acts in furtherance of her right to petition. She further contends that Bohrer cannot meet his burden of showing a probability of prevailing on his tort causes of action because (1) they involved custody and visitation matters then pending in the family court, which had exclusive jurisdiction, and (2) they are based on conduct that is absolutely privileged under Civil Code section 47, subdivision (b) (the litigation privilege). To the extent there is a narrow exception in cases of this nature for claims based on knowingly false reports of child abuse to third parties, Carroll argues that Bohrer presents insufficient evidence that any report she made was knowingly false. We agree and reverse.
Statutory references are to the Code of Civil Procedure unless otherwise specified. Section 425.16 is commonly referred to as the anti-SLAPP (Strategic Lawsuit Against Public Participation) statute. (Navellier v. Sletten (2002) 29 Cal.4th 82, 85.)
FACTUAL AND PROCEDURAL BACKGROUND
The background facts are taken from the allegations of Bohrer's complaint. Bohrer and Carroll were married in 1998 and had a son who was born in 2004. Under a 2008 judgment for dissolution of marriage, both parents shared equal custody of their son; however, their custody and visitation arrangements were subsequently modified by court orders and stipulations. In March 2016, Bohrer filed this suit against Carroll, alleging causes of action for intentional and negligent infliction of emotional distress, tortious interference with custodial relationship, intentional interference with custodial relationship, and violation of the fundamental right to parent a child under the state and federal Constitutions. Bohrer sets forth in his complaint seven recent family court rulings on the parties' motions to modify custody and visitation orders.
Bohrer alleges as to all causes of action that Carroll "systematically, over an extended period of time, engaged in behavior to convert [their son's] thoughts against his father with the intention of destroying the relationship between father and son to effect a separation of the father from [his son's] life. [Carroll] has taken action and made statements so egregious that it shocks the conscious [sic] and she has done so in furtherance of her goals to destroy the father-son relationship." Bohrer lists several assertions that his son repeatedly made in the previous four years that are "examples of [Carroll's] influence over [their son's] perception of his father." Specifically, Bohrer claims Carroll engaged in "convincing" his son that Bohrer has "not one good quality about [him]," and is "unemployed, dirty and lazy." Bohrer further claims she convinced her son that Bohrer "has sexually abused him and touched him inappropriately as a child, which has caused investigation by Child Protective Services as well as law enforcement"; convinced the son that he is "unsafe with his father"; "gave [their son] pubic lice"; "does not care about [the son]"; and "influences the judge, mediators and doctors to present evidence that is untrue."
Bohrer also alleges that Carroll "has used her close emotional bond and influence over [the son] to wrongfully turn him against his father in the following ways: Carroll "made false allegations to law enforcement, teachers, medical professionals, media, and child welfare services"; "made or facilitate [sic] the reporting to Child Welfare Services of false allegations of physical and sexual abuse"; "attempted to get restraining orders issued against Father based on false allegations"; "filed motions to modify custody and visitation based upon false allegations"; "has facilitated and encouraged [their son] not to see his father even after [Carroll] had been admonished by the Family Court." Bohrer alleges that Carroll's conduct resulted in him not seeing his son since May 2015.
Bohrer alleges as to all causes of action that Carroll "has taken other actions to interfere with Father's right to visitation and his ability to maintain a relationship with his son." Bohrer alleges his son "has internalized [Carroll's] allegations in that he actually believes them all to be true. He has repeated the same statements [Carroll] has made during her testimony in her deposition to law enforcement officers, court appointed mediators, minor's counsel and therapists. [Carroll] has brainwashed [their son] into believing that her allegations are based in fact. As a result, [their son] wants nothing to do with his father and has painted this image of his father as an uncaring and abusive person."
As to the first cause of action for intentional infliction of emotional distress, Bohrer alleges that Carroll "intentionally and reckless [sic] manipulated, indoctrinated, influenced and voluntarily converted and brainwashed the mind of [his son] against his father." Bohrer alleges Carroll's actions were "outrageous, wrongful, intolerable, malicious and contrary to public policy;" moreover, they caused him to suffer severe emotional distress. In particular, he experienced "[t]he complete alienation and loss of affection of his son"; "[t]he complete destruction of the emotional bonding existing between himself and his son"; "[n]ervousness, humiliation, emotional distress, pain and suffering, fright, shock, tension, anxiety, and loss of sleep"; and "[d]enial of the social pleasures and companionship of his son." Bohrer accordingly seeks exemplary damages under Civil Code section 3294.
Bohrer alleges in the second cause of action for negligent infliction of emotional distress that Carroll's "actions were taken in a reckless and negligent disregard of the possible and probably [sic] outcome of the same." He alleges the same harm and seeks the same damages as in the first cause of action.
Bohrer alleges in the third cause of action for tortious interference with visitation that despite Carroll knowing the family court's July 2, 2014 order required him to have equal visitation with their son, she "has systematically interfered with [Bohrer's] court[-]ordered visitation time by preventing [their son] through her indoctrination, influence and brainwashing of [their son], against his father."
Bohrer alleges in the fourth cause of action for intentional interference with custodial relationship that he has "custodial visitation with [his son] which is reflected in the Court's order dated [May 12, 2014], wherein he is to see [his son] every Wednesday from 2:30 pm until 7:00 pm depending on [his son's] extracurricular activities." Nevertheless, Carroll was "interfering with the relationship between [father and his son] by brainwashing [his son] and fabricating allegations of sexual molestation, emotional abuse, neglect, and abuse. [Carroll] has made these allegations to Child Protection [sic] Services as well as other law enforcement agencies. All allegations have proven unfounded."
In the fifth cause of action for violation of fundamental right to parent under article 1, section 7 of the California Constitution, Bohrer alleges that Carroll, "through her tactics, unsubstantiated allegations of abuse and molestation, brainwashing and systematic refusal to follow court orders has impeded [his] constitutional right to parent [their son]." Bohrer repeats that allegation in the sixth cause of action for violation of his fundamental right to parent under the 9th and 14th Amendments of the federal Constitution.
For each cause of action, Bohrer prayed for an award "against [Carroll] in the Amount of $1,000,000 for general damages including costs and interest, and attorney fees. Additionally, [he] requests $50,000 in exemplary damages, $250,000 in punitive damages and such other and further relief as the Court deems just and equitable."
Bohrer attached several family court documents to his complaint. One court order outlined the parents' agreement to use social worker Patricia Chavez-Fallon as mediator and parenting coordinator regarding their son's custody and visitation, and authorized her to contact any third parties. The parties were ordered to sign any and all releases necessary for her to speak with a therapist or any other person. Following a July 2014 hearing, the family court ruled: "If [the son] is infected with lice aka crabs, the parents are to immediately notify Patricia Chavez-Fallon via email. Parents will also within one (1) week of infestation be examined by their respective doctors and [the son] will be examined by his doctor. Each residence to be inspected by a professional immediately and parties to follow the recommendations of the doctors and/or inspectors to address the source at the residence."
Chavez-Fallon recommended in a family court filing: "The father shall refrain from all alcohol or drug use at all times. If he is refused visitation by the mother because she suspects [he] is not sober, [he] shall immediately test with the laboratory."
In a July 2014 ex parte application, Bohrer requested that Carroll comply with court ordered visitation instead of "making irrational and aggressive claims" against him. In a subsequent ex parte application, Bohrer sought relief because "[Carroll] continues to use [their] child in fabricating false allegations and continues to attempt to alienate [Bohrer] completely." Bohrer filed an ex parte application a few months later, claiming Carroll "continue[d] to alienate [their son] and not facilitate visitation."
In a December 2014 letter to Bohrer, the San Diego County Health and Human Services Agency addressed an October 2014 referral that his son "may be at-risk of Emotional Abuse, Sexual Abuse, General Neglect, and Severe Neglect," and stating that "[a]fter conducting an investigation, we have concluded that this referral may safely be closed."
Carroll's Anti-SLAPP Motion
Carroll specially moved to strike under section 425.16, arguing Bohrer's complaint sought to punish her for the parties' ongoing family court litigation that had started in 2011. Carroll contended the family court had ongoing jurisdiction over orders concerning their then 11-year-old son, and a multi-day trial was scheduled for later in 2016. Carroll argued Bohrer's complaint "amounts to allegations that [she] sought to acquire and enforce custody and visitation orders, made statements to the Family Court and law enforcement, and made statements or engaged in conduct related to and in connection with the implementation of the parties' custody and visitation orders." Carroll further argued Bohrer could not establish a probability of prevailing on the merits of his causes of action because the trial court lacked jurisdiction over duplicative matters then pending in the family court. Carroll argued that each of her actions came within the litigation privilege.
Carroll also filed a demurrer and a motion for attorney's fees and sanctions on grounds the complaint was frivolous. The court overruled the demurrer and denied the motion. Carroll does not challenge those rulings on this appeal. --------
Carroll's Declaration
Carroll said in her declaration that Bohrer's complaint is "substantially lacking in fact or truth. Moreover, nearly every factual statement and issue raised has either been asserted previously in our family law matter or is an issue presently before the Family Court in our custody proceedings." Carroll stated that between June 2015 and April 3, 2016, the family court denied Bohrer's seven ex parte applications regarding custody and visitation matters. She outlined several matters the parties had litigated in the family court. Carroll mentioned a 2011 incident in which Bohrer was too drunk to drive home from a restaurant. Two days later, Bohrer denied he was drunk during that incident, claiming in his ex parte application seeking full custody of his son that he had not drunk alcohol in several years. The family court denied the application. Shortly afterwards, the family court found that Bohrer had committed perjury by lying about his DUI conviction. Carroll also submitted a social worker's report showing that on one occasion Bohrer's supervised visit with his son was terminated prematurely because Bohrer smelled of alcohol. In January 2012, Bohrer sent the visitations coordinator an email stating that his son did not want to see him; therefore, all visits should be suspended until Bohrer determined that his son was ready to resume the visits. Carroll stated that Bohrer made only two attempts to see his son in the next 18 months, and solely because a medical professional requested it. Carroll said that in May 2014, in order to give Bohrer another chance to develop a positive relationship with their son, she stipulated to increasing Bohrer's visitation time.
Carroll asserted that based on her "verified concerns" that their son was "infected with crabs" while in Bohrer's custody, she and Bohrer agreed to the parenting coordinator's recommendations that Bohrer maintain a clean living space to avoid exposing their son to pubic lice. She said that their son has "expressed suicidal ideation stemming from his relationship with his father," for which she took their son for emergency medical treatment and he subsequently received medication and therapy.
Bohrer's Opposition to the Anti-SLAPP Motion
Bohrer opposed Carroll's motion on the ground that Carroll had "abused the legal system and ha[d] alienated [him] from his son as a result." Bohrer stated he had not seen his son in approximately one year. Bohrer argued Carroll's statements were not protected and her references to the family court litigation history were irrelevant because his causes of action were solely concerned with her unrelated conduct and communication. Bohrer also argued he had made a prima facie showing that he would likely prevail on each cause of action.
Bohrer's Declaration
Bohrer stated in his declaration that he had been "in and out of court for many years trying to protect the relationship with [his son] that [Carroll] continually tries to destroy. [Carroll] has succeeded in keeping [his son] away from [Bohrer] for a year despite the current court order where we are to have equal parenting time. [Carroll] has been admonished to follow the court order. This is the second time since we have separated that I have not seen our son for a year as a result of [her] actions." Bohrer stated: "At the time for the step up and implementation of the equal visitation parenting plan, [Carroll] has done everything imaginable to delay and stop it."
Bohrer asserted: "[Carroll] has blatantly filled [their son's] head with suggestions that I have abused him, will kill him, and will otherwise harm him. This has caused nothing but fear and anxiety for [their son]. Her actions are extreme, outrageous and motivated by a deep hatred of me." Bohrer addressed Carroll's claims regarding previous family court orders: "The Family Courts have not denied my every Request for Orders in the family courts [sic]; rather, the court has set my requests for trial on the issues of child custody and child support, neither of which is at issue in this civil case. The family court has not been able to get [Carroll] to comply with the custody orders and cannot compensate me for my damages as a result of her actions."
Bohrer pointed out the inadequacy of damages available in the family court proceedings: "[Carroll] will not face financial sanctions because she states that her income is to [sic] low, and she is self-employed. Contempt will result only in a slap on the hand and would stay my current request to have [their son] removed from [Carroll] completely to restore our relationship."
Bohrer denied being intoxicated during the restaurant incident, which "happened many years ago," claiming Carroll used the incident to instill into their son a fear of Bohrer. Bohrer cited a Family Court Services mediator report stating that his son "even emulates his mother's statements in that he cannot find one 'redeeming quality about his father.' " The mediator stated that their son's " 'entire perception of life, at least regarding his father and the paternal family is through the eyes of his mother. He is an extension of his mother.' "
Bohrer asserted that Carroll had "made many false allegations regarding sexual abuse, sexual molestation and pubic lice to both [their son] and third parties." Bohrer points to a discrepancy in his son's reports regarding these matters. After his son was treated in 2014 for pubic lice, a medical professional wrote in hospital notes: " 'Child has full memory of his experiences and denies any inappropriate contact or assault therefore does not meet criteria for SART exam.['] " Bohrer claimed that his son changed his story in June 2015, when he told the Sheriff's Department interviewer that when he was eight or nine years old, Bohrer had molested him in the shower. Bohrer denied the sexual molestation allegations, claiming they are "[Carroll's] accusations that she has told to [the son] so many times that [he] actually believes they have happened, when in reality they did not." Bohrer included in his declaration a chart listing eight incidents of "unsubstantiated referrals to [Child Welfare Services]," starting in 2007 and ending in January 2015.
The Court's Ruling
Following a hearing, which was not reported, the superior court denied Carroll's anti-SLAPP motion, ruling that Bohrer's lawsuit did not fall within section 425.16. Acknowledging that Bohrer's complaint "brings forth numerous factual allegations that would absolutely arise from [Carroll's] privileged right of petition," the superior court nonetheless concluded: "[Bohrer] persuasively argues that such allegations are only background for the actual charging allegations which describe conduct and statements made to third parties not associated with the Court or other agencies which would be privileged." It added, "Even if the Court found the first prong of [section] 425.16 had been met, the allegations of [Carroll] falsely telling her child of abuse suffered at the hands of [Bohrer], if believed, would suffice to allow a finder of fact to find in [Bohrer's] favor."
DISCUSSION
I. General Legal Principles and Standard of Review
Under section 425.16, a court "shall" grant a defendant's motion to strike a cause of action "arising from" an act "in furtherance of" the defendant's constitutional petition or free speech rights unless the plaintiff establishes a probability of prevailing on the claim. (§ 425.16, subd. (b)(1).) To promote participation in matters of public significance, courts must construe this statute "broadly" in favor of the moving party. (§ 425.16, subd. (a).)
The court decides an anti-SLAPP motion using a two-step process. (Baral v. Schnitt (2016) 1 Cal.5th 376, 384 (Baral).) First, the defendant must make a threshold showing that the claims arise from protected activity and are within the scope of the statute. (Ibid.) If the defendant makes such a showing, the plaintiff must then demonstrate a probability of prevailing on the merits of one or more of the asserted claims to avoid dismissal. (Ibid.) " 'Only a cause of action that satisfies both prongs of the anti-SLAPP statute—i.e., that arises from protected speech or petitioning and lacks even minimal merit—is a SLAPP, subject to being stricken under the statute.' " (Oasis West Realty, LLC v. Goldman (2011) 51 Cal.4th 811, 820.)
For purposes of both prongs of an anti-SLAPP motion, "[t]he court considers the pleadings and evidence submitted by both sides, but does not weigh credibility or compare the weight of the evidence. Rather, the court's responsibility is to accept as true the evidence favorable to the plaintiff." (HMS Capital, Inc. v. Lawyers Title Co. (2004) 118 Cal.App.4th 204, 212.) With respect to the second prong, to demonstrate a probability of prevailing on the merits, the complaint must allege facts sufficient to state a legally cognizable claim, and that claim must be "supported by a sufficient prima facie showing of facts to sustain a favorable judgment if the evidence submitted by the plaintiff is credited." (Navellier v. Sletten, supra, 29 Cal.4th at pp. 88-89.)
II. The First Prong of Anti-SLAPP Statute is Satisfied
Carroll contends the principal thrust or gravamen of Bohrer's complaint arises solely from the parties' ongoing family court dispute, which is protected activity under the first prong of the anti-SLAPP statute. (§ 425.16, subd. (e)(2).) She contends Bohrer's complaint "amounts to allegations that [she] sought to acquire and enforce custody and visitation orders, made statements to the Family Court and law enforcement, and made statements or engaged in conduct related to and in connection with the implementation of the parties' custody and visitation orders." She correctly points out that almost every exhibit attached to Bohrer's complaint was filed in the family court.
In discussing the "arising from" prong of the anti-SLAPP statute, the California Supreme Court stated in Navellier v. Sletten, supra, 29 Cal.4th 82 that the defendant was "being sued because of the affirmative counterclaims he filed in federal court. In fact, but for the federal lawsuit and [defendant's] alleged action taken in connection with that litigation, plaintiffs' present claims would have no basis. This action therefore falls squarely within the ambit of the anti-SLAPP statute's 'arising from' prong." (Id. at p. 124; accord, Park v. Board of Trustees of California State University (2017) 2 Cal.5th 1057, 1063.)
We conclude Bohrer's specific allegations regarding Carroll's speech and conduct arise from the parties' family court litigation. The complaint is replete with references to family court proceedings and to the contents of court orders addressing the parties' visitation and custody arrangements. As to all causes of action, Bohrer lists several ways in which Carroll "wrongfully turn[ed] [their son] against [him]," causing permanent harm to his relationship with his son. Specifically, she "attempted to get restraining orders issued against [Bohrer] based on false allegations"; "filed motions to modify custody and visitation based upon false allegations; abused judicial resources with her false allegations"; and "facilitated and encouraged [their son] not to see his father even after she had been admonished by the Family Court." (Italics added.) As the italicized sections show, these are protected matters arising in the family court litigation.
More specifically, as to the infliction of emotional distress causes of action, Bohrer alleged he suffered severe emotional distress because of Carroll's actions referenced above, which led to the "complete alienation and loss of affection of his son" and the "[d]enial of the social pleasures and companionship of his son." These were issues that arose in the family court litigation, and but for that litigation, the injury Bohrer alleges would not have occurred. As to his third cause of action for tortious interference with visitation, Bohrer alleges a direct nexus between Carroll's actions in the family court and his claimed injury: "Carroll has systematically interfered with [his] court ordered visitation time by preventing [their son] through her indoctrination, influence and brainwashing of [their son], against [Bohrer]." The same nexus is manifest in the fourth cause of action for intentional interference with custodial relationship, in which Bohrer alleges that he had "custodial visitation" with his son as per the family court's May 2014 order. Finally, as to the fifth cause of action for violation of the fundamental right to parent under the federal Constitution, Bohrer alleges that Carroll's "systematic refusal to follow court orders has impeded [his] constitutional right to parent [their son]." Bohrer seeks to impose liability on Carroll for allegations made in her family court papers that Bohrer sexually molested their son. Because Carroll's conduct is protected activity, the action is "based on" that activity and comes within the scope of section 425.16.
In his complaint, Bohrer alleges Carroll made false allegations to law enforcement, teachers, medical professionals, media, and child welfare services. He argues on appeal that Carroll's conduct was unprotected and the "only basis for [his] affirmative claims." He further claims Carroll "does not dispute making a false (and therefore unlawful) report of abuse." To that extent, he asserts, section 425.16 does not apply.
The court in Begier v. Strom (1996) 46 Cal.App.4th 877, 882 (Begier) held that the privilege for statements made in a judicial proceeding does not apply to statements made outside of the courtroom to nonparties unconnected to the proceedings. "[T]he statutory privilege of Civil Code section 47, subdivision (b), does not immunize a party who would otherwise be liable under Penal Code section 11172, subdivision (a)." (Begier, supra, at p. 885.) In other words, Penal Code section 11172, subdivision (a) makes knowingly false reports of child abuse illegal, and thus unprivileged.
As Bohrer recognizes, unless Carroll "concedes, or the evidence conclusively establishes" that her reports of abuse were illegal, they are protected activity subject to the protections of the anti-SLAPP statute. (Flatley v Mauro (2006) 39 Cal.4th 299, 320.) Here, Carroll denied making false statements to nonparties, claiming Bohrer's contrary allegation is "substantially lacking in fact or truth." Therefore, this case falls outside the scope of the principle stated in Flatley, that "section 425.16 cannot be invoked by a defendant whose assertedly protected activity is illegal as a matter of law and, for that reason, not protected by constitutional guarantees of free speech and petition." (Id. at p. 317.) Based on Carroll's denial in her declaration, we conclude she has met her burden under the first prong of the anti-SLAPP analysis.
III. The Second Prong of the Anti-SLAPP Statute is Not Satisfied
Carroll further contends that Bohrer cannot satisfy the second prong of the anti-SLAPP statute requiring him to show a probability of prevailing on the merits of his various causes of action. "In assessing the probability of prevailing, a court looks to the evidence that would be presented at trial, similar to reviewing a motion for summary judgment; a plaintiff cannot simply rely on its pleadings, even if verified, but must adduce competent, admissible evidence." (Roberts v. Los Angeles County Bar Assn. (2003) 105 Cal.App.4th 604, 613-614.)
As a general matter, Bohrer cannot prevail on his tort causes of action because the superior court lacked jurisdiction to adjudicate the tort claims raised in this lawsuit, as they involve the same matters pending in the family court. The general rule disfavors "civil actions which are really nothing more than reruns of a family law case." (Neal v. Superior Court (2001) 90 Cal.App.4th 22, 25 (Neal); see also Burkle v. Burkle (2006) 144 Cal.App.4th 387, 391 (Burkle) [during marital dissolution proceeding, wife filed separate civil action against husband and two accounting firms; the appellate court described the suit as "a textbook example of an improper attempt to wage 'family law . . . by other means' "].) "[F]amily law cases should not be allowed to spill over into civil law, regardless of whether the family law matter may be characterized as an action for fraud [citation], malicious prosecution [citation], or securities law violation [citation]. Almost all events in family law litigation can be reframed as civil law actions if a litigant wants to be creative with various causes of action. It is therefore incumbent on courts to examine the substance of claims, not just their nominal headings." (Neal, at p. 25.)
This deference to the family court stems from the principle of priority of jurisdiction, which holds that " ' "where a proceeding has been . . . assigned for hearing and determination to one department of the superior court by the presiding judge . . . and the proceeding . . . has not been finally disposed of . . . it is beyond the jurisdictional authority of another department of the same court to interfere with the exercise of the power of the department to which the proceeding has been so assigned . . . . If such were not the law, conflicting adjudications of the same subject-matter by different departments of the one court would bring about an anomalous situation and doubtless lead to much confusion. [Citation.]" . . .' [Citations.] [¶] 'One department of the superior court cannot enjoin, restrain, or otherwise interfere with the judicial act of another department of the superior court. Even between superior courts of different counties, having coequal jurisdiction over a matter, the first court of equal dignity to assume and exercise jurisdiction over a matter acquires exclusive jurisdiction. [Citations.] [¶] A judgment rendered in one department of the superior court is binding on that matter upon all other departments until such time as the judgment is overturned.' " (Glade v. Glade (1995) 38 Cal.App.4th 1441, 1449-1450.)
Bohrer essentially alleges in his complaint that Carroll's conduct caused their son to become disaffected and not want to visit with Bohrer. This is a case which, "but for the dissolution proceeding, would not have occurred." (Burkle, supra, 144 Cal.App.4th at p. 393.) Bohrer tellingly admits in his declaration that family court remedies are inadequate. But family law judges have resources to help the parties resolve their differences, and where necessary to impose monetary and other sanctions to effect compliance. "The remedy for egregious conduct in family law court is for the family law bench to nip it in the bud with appropriate sanctions." (Bidna v. Rosen (1993) 19 Cal.App.4th 27, 30.)
Having concluded the Family court had jurisdiction of the subject matter of Bohrer's claims, we also conclude the litigation privilege applies to those same claims. The privilege governs "not only testimony in court and statements made in pleadings, but also statements made prior to the filing of a lawsuit, whether in preparation for anticipated litigation or to investigate the feasibility of filing a lawsuit." (Hagberg v. California Federal Bank (2004) 32 Cal.4th 350, 361.) The litigation privilege also applies to statements made to police officers to report suspected criminal activity. (Id. at p. 355.) This privilege " 'absolutely protects litigants and other participants from being sued on the basis of communications they make in the context of family law proceedings.' " (Jacob B. v. County of Shasta (2007) 40 Cal.4th 948, 956, quoting Wise v. Thrifty Payless, Inc. (2000) 83 Cal.App.4th 1296, 1302; Begier, supra, 46 Cal.App.4th at p. 882; Nagy v. Nagy (1989) 210 Cal.App.3d 1262, 1270.) The privilege applies regardless of the existence of malice or intent to harm, and extends to all torts except for malicious prosecution. (Edwards v. Centex Real Estate Corp. (1997) 53 Cal.App.4th 15, 29.)
Implicitly recognizing that many of his allegations cannot form the basis for a proper tort claim, Bohrer focuses on those portions of his complaint that allege false reports of child abuse to third parties. His burden at this stage is to demonstrate that each challenged claim based on protected activity is legally sufficient and factually substantiated. Without resolving evidentiary conflicts, we must determine whether Bohrer's showing, if accepted by the trier of fact, would be sufficient to sustain a favorable judgment. (Baral, supra, 1 Cal.5th at p. 617.)
Here, Bohrer merely asserts in his declaration: "[Carroll] has made many false allegations regarding sexual abuse, sexual molestation, and pubic lice to both [their son] and third parties." But Bohrer's bald assertion is not competent evidence to show Carroll made false accusations that Bohrer sexually molested their son. (See San Diegans for Open Government v. San Diego State University Research Foundation (2017) 13 Cal.App.5th 76, 108 [affirming an anti-SLAPP order on the basis that appellant failed to provide admissible evidence, and pointing out that "an assessment of the probability of prevailing looks to trial, and the evidence that would be admissible to create triable factual issues at that time"].)
More critically, merely false reports of abuse are not illegal, and hence a proper basis for tort liability. Only knowingly false reports of abuse are proscribed by Penal Code section 11172, subdivision (a). (Begier, supra, 46 Cal.App.4th at p. 880.)
Bohrer relies largely on the opinions of certain professionals who concluded that his son's comments about him mirrored Carroll's negative sentiments. For example, Bohrer asserts in his declaration: "The Dr. Neil Ribner's report stated . . . 'there is evidence to suggest that [Carroll] might have inadvertently influenced [their son's] perception of his father and his level of safety in his father's presence.' " (Italics added.) On its face, Dr. Ribner's declaration does not aid Bohrer because it does not show Carroll's actions were intentional; rather, it points out that Carroll's influence on their child might have been inadvertent.
Bohrer further relies on a letter from the San Diego County Health and Human Services Agency stating that one of its investigations of child abuse against Bohrer "could 'safely be closed.' " But this is not competent evidence which, if credited, can lead a trier of fact to conclude that Carroll uttered an actionable falsehood because, again, Bohrer has not shown Carroll knowingly made a false statement. Accordingly, all Bohrer's claims are stricken for lack of evidentiary support, and "[a]llegations of protected activity supporting the stricken claim are eliminated from the complaint" (Baral, supra, 1 Cal.5th at p. 396) because they do not "support a distinct claim on which the plaintiff has shown a probability of prevailing." (Ibid.) We conclude that Bohrer's claims lack the minimal merit required to survive an anti-SLAPP motion. (Navellier v. Sletten, supra, 29 Cal.4th at p. 95.)
DISPOSITION
The order denying Lisa Carroll's anti-SLAPP special motion to strike is reversed. On remand, the superior court shall enter a new order granting the motion to strike. Carroll is entitled to recover her costs on appeal.
O'ROURKE, J. WE CONCUR: HALLER, Acting P. J. DATO, J.