Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Madera County, No. MCV036354, James E. Oakley, Judge.
Stanley Bradford Clarke, in pro. per., for Plaintiff and Appellant.
Gonzalez & Hulbert, Gregory M. Hulbert and Rebecca L. Smith for Defendant and Respondent.
OPINION
Kane, J.
INTRODUCTION
In June 2005, respondent Robert Bernstein, Ph.D., a psychologist, testified in a Madera County Juvenile Court dependency matter, In re A.C. (Super. Ct. Madera County, 2005, No. BJP015618). Minor A.C. is the son of appellant Stanley Bradford Clarke and his former wife, E.C. Respondent reviewed psychological evaluations and reports along with videotapes of A.C., E.C., and appellant in order to express his opinion in the juvenile proceeding. On June 10, 2005, the juvenile court adjudged A.C. a dependent child of the court. On April 25, 2007, appellant sued respondent in superior court for intentional tort and general negligence, alleging respondent “illegally obtained, possessed and disseminated [appellant’s] personal individually identifiable health information in violation of State Public Law.…” After appellant amended his complaint several times, respondent successfully moved to strike appellant’s complaint under the anti-SLAPP statute (Code Civ. Proc., § 425.16). We affirm.
The acronym “SLAPP” refers to a “so-called strategic lawsuit against public participation.” (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1127.) Procedures governing anti-SLAPP actions are codified in Code of Civil Procedure section 425.16. (Christian Research Institute v. Alnor (2008) 165 Cal.App.4th 1315, 1318, fn. 1.)
Unless otherwise indicated, all further statutory references are to the Code of Civil Procedure.
STATEMENT OF THE CASE
On April 25, 2007, appellant filed an in propria persona complaint for personal injury in Madera County Superior Court. Appellant named respondent and Does 1 to 50 as defendants, alleged causes of action for general negligence and intentional tort (invasion of privacy and HIPAA violation), and prayed for compensatory and punitive damages according to proof.
On June 26, 2007, appellant filed a first amended complaint in propria persona alleging causes of action for invasion of privacy and professional negligence. On January 12, 2008, the superior court granted appellant’s motion for leave to file a second amended complaint. On May 16, 2008, appellant filed a verified second amended complaint for damages, alleging causes of action for invasion of the right to privacy, violation of the right to privacy through public disclosure of private facts, intrusion/possession/disclosure of private confidential information, negligence, negligence per se, negligent infliction of emotional distress, and intentional infliction of emotional distress.
On June 18, 2008, respondent filed a special motion to strike appellant’s second amended complaint pursuant to the anti-SLAPP statute (§ 425.16) and related supporting documents. Respondent filed a separate request for the court to take judicial notice of “juvenile court matter, In the Matter of [A.C.], Superior Court of California, County of Madera, Case No. BJP015618.” Appellant filed written opposition to the special motion to strike and respondent filed a written reply to appellant’s opposition papers.
On July 21, 2008, the superior court conducted a contested hearing, overruled the evidentiary objections, granted respondent’s special motion in its entirety, and awarded respondent $4,897.50 in fees and costs.
On July 28, 2008, the court filed a formal order granting the special motion, dismissing respondent with prejudice from the action, and awarding respondent $4,897.50 in fees and costs. On July 31, 2008, respondent filed a notice of entry of the formal order granting motion. On September 22, 2008, appellant filed a timely notice of appeal.
An order granting or denying a special motion to strike shall be appealable under section 904.1. (§ 425.16, subd. (i).)
On July 23, 2009, appellant filed a reply brief and requested that this court take judicial notice of a portion of respondent’s testimony in the underlying juvenile court action. On August 11, 2009, respondent filed a written objection to the reply brief and request for judicial notice, asserting appellant attempted to create confusion and misstate respondent’s testimony in the underlying juvenile court action. On August 27, 2009, appellant submitted written opposition and a motion to strike respondent’s objection, but appellant’s pleading was only “Received”-stamped and not filed with this court. On the same date, this court filed an order deferring a ruling on appellant’s request for judicial notice and respondent’s objection to the reply brief pending a consideration of the instant appeal on its merits.
Appellant specifically requested this court to take judicial notice of a portion of respondent’s testimony in the juvenile court matter. Judicial notice may be taken of the records of any court of this state. (Evid. Code, § 452, subd. (d)(1).) A reviewing court may take judicial notice of any matter specified in Evidence Code section 452. (Evid. Code, § 459, subd. (a).) Respondent objects to our taking of judicial notice because “[a]ppellant sets forth these three pages of testimony out of context in an attempt to create confusion and misstate [respondent’s] testimony.” We grant the request.
STATEMENT OF FACTS
Facts of Underlying Juvenile Court Case
The following facts are taken from this court’s nonpublished opinion in In re A.C., No. F054232:
“In April 2005, appellant and [E.C.] submitted to the Madera County Superior Court’s exercise of juvenile dependency jurisdiction (Welf. & Inst. Code, § 300, subd. (c)) over their then three-year-old son, A.C. The child suffered serious emotional damage and was at substantial risk of suffering further serious emotional damage, evidenced by severe anxiety, depression, and withdrawal caused by the parents’ conduct. They were engaged in a bitter custody dispute over A.C. [E.C.] accused appellant of engaging in parental alienation. Appellant accused [E.C.] of physically and sexually abusing A.C. A mental health professional stated as a result of the number of interviews and investigations which occurred as part of the custody battle[,] it was impossible to tell if A.C. accurately reported the things he stated happened to him.” (In re A.C. (Aug. 6, 2008, F054232) [nonpub. opn.], p.2.)
Respondent was educated at Union College in New York and Ohio State University in Columbus, Ohio. He is duly licensed to practice psychology in the State of California. In 2005, respondent was retained by E.C.’s counsel to testify in the Madera County Juvenile Court matter In re A.C. (Super. Ct. Madera County, 2005, No. BJP015618) as an expert witness in the matter.
E.C.’s attorneys, Sheri Rich Mount and Charles H. Soley, provided respondent with psychological evaluations, reports and videotapes of A.C., E.C., and appellant at “child exchanges” to enable respondent to formulate an opinion in the context of the juvenile proceedings. On or about June 2, 2005, appellant testified before the Honorable Thomas L. Bender, judge of the superior court, and offered his opinion as an expert witness regarding the juvenile matter.
Respondent defined a “child exchange” as “the change/transfer of custody of the child from one parent to another.”
On June 2, 2005, respondent testified that E.C.’s counsel had supplied him with two Minnesota Multiphasic Personality-Inventory 2 (MMPI-2) forms and that one Dr. Alex Caldwell was the source of the reports. Respondent explained that Dr. Caldwell was “one of the most renowned MMPI-2 researchers in the world, and he has constructed an actuarial computer report to analyze MMPI-2 data.” According to respondent, Dr. Caldwell creates formulas for computer analysis of group-related data. He further explained the reports supply actuarial information about groups rather than about specific individuals. Respondent indicated the MMPI-2 is not a “stand alone source of information” and the hypotheses set forth in an MMPI-2 must be evaluated in the context of other sources of information. He further explained that clinicians would use the report information along with clinical interviews, observations of parents and children, information from involved professionals such as physicians, therapists, and social workers, and police.
Respondent said there are other sources of computer-generated MMPI-2 reports. He explained he received copies of the reports generated through Dr. Susan Napolitano of the Sullivan Center in Fresno. He took the raw data from those reports and generated two additional reports through the University of Minnesota/NCS Pearson, Inc. Respondent explained that NCS is a nationally prominent computer-generated program that is more conservative in generating hypotheses than Dr. Caldwell’s reports. Respondent said such reports are more explanatory than predictive. He explained, “[W]hat you’re looking for when you do these evaluations is multiple sources of information, and you have history, and history generally is the best predictor of future behavior. And what the MMPI-2 will give you is a profile that may be consistent with certain patterns of behavior that would be indicative of the kind of history that’s being suggested or implied, and from that one might then extrapolate to the risk of future behavior.”
Dr. Jay E. Fisher testified for appellant that he had received information about A.C.’s fear of his mother and that subsequent reports about A.C.’s lack of fear of his mother were irrelevant to Dr. Fisher’s recommendation about custody. Dr. Fisher also said he used a Thematic Apperception Test (TAT) as one of several tests to form an opinion in the case of A.C. In contrast, respondent said he had seen TAT’s used in psychological evaluations in the context of therapy, referrals, or hospital assessments. However, he had not seen them used in a custody evaluation. Respondent considered the TAT a projective psychological test and had not encountered any evidence to indicate there was a valid systematic method for analyzing TAT responses in a legal context. Respondent also said that social workers were a significant source of information as to whether A.C. had no fear of E.C. during supervised visits.
On cross-examination, respondent confirmed that a social worker’s observations about A.C.’s lack of fear toward E.C. would be significant. He explained that “[i]f the minor feels safe in the environment, does not feel threatened, that certainly could make a difference.” While the observations would be significant, respondent said he would have to evaluate those observations and give meaning to them. Respondent said he was not in the position to have done that in the case of A.C.
As to the TAT, respondent said it was unwise to use such tool because there is insufficient empirical validation and reliability of a scoring system to analyze. He explained, “The problem that comes up is then it’s subject to each individual clinician’s subjective interpretations of information.” Respondent admitted he had no information to suggest that Dr. Fisher based his conclusions only on the TAT results.
In respondent’s view, A.C. was an unreliable source of information about what had transpired in his young life. Respondent acknowledged that Dr. Fisher detected fear from A.C. toward E.C. on one occasion and noted that A.C. expressed no such fear a day earlier. Respondent said it was difficult to reconcile information reported by A.C. because respondent did not deem the minor a reliable reporter. Respondent acknowledged that he did not conduct a clinical interview of the parents and child in A.C.’s case. Nor did he contact Dr. Fisher and request additional data about A.C. Respondent said his role was not to conduct an evaluation. Rather, he was asked to evaluate the methodology of the evaluation conducted in A.C.’s case.
On recross-examination by counsel for the Madera County Department of Social Services, respondent noted he had the Caldwell reports and the MMPI-2’s for A.C.’s parents. He said the clinical scales and validity scales were exactly the same for both tests. However, there was a difference between the two types of tests because the MMPI 2 tests did not yield interpretive information. In other words, “none of the clinical scales on either party was elevated to clinical significance for interpretation.”
The MMPI-2 report on appellant noted that his profile was within valid limits but suggested that he was “‘perhaps responding in an effort to look good.’” Respondent also observed that the MMPI-2 detected a characteristic in appellant that the Caldwell report did not. According to the MMPI-2, appellant had a tendency to “‘overemphasize the masculine role and feel the need to dominate women.’” According to respondent, the Caldwell reports provided a significantly more liberal interpretation of the data than what the scores warranted.
Upon cross-examination by appellant’s counsel, respondent acknowledged that the MMPI-2 report said the clinical profile of E.C. might underestimate her psychological problems, that she was likely to be rigid and inflexible in her approach to problems, and might be somewhat arrogant and intolerant of other’s failings. Respondent ultimately said he would not place tremendous significance on information obtained from any of the four profiles that were generated because he did not believe there was sufficient clinical information.
Upon questioning by E.C.’s counsel, respondent said if he had been hired as a court-appointed mutual evaluator under Evidence Code section 730 (appointment of expert by court), he would not have engaged in ex parte communications with one side, provided information only to one side, or drafted questions for one counsel to ask an expert. On recross-examination, respondent explained, “If I were in the position of conducting a[n evaluation under Evidence Code section] 730, and I was in the process of the whole court proceedings, I would make every effort not to engage in what I would label as ex parte communication with either party. I would maintain that neutral stance regardless of, you know, what my conclusions were, and who was subpoenaing me or paying me for testimony, that would be irrelevant.” Respondent said he reviewed the records in connection with A.C.’s case at the request of E.C.’s counsel. He estimated his total compensation in the A.C. case was $5,000 as of the time of his testimony.
Respondent subsequently declared he had no personal health information for appellant other than “the psychological evaluations and reports as well as the videotapes of [A.C.], [E.C.] and [appellant] at child exchanges provided to me by Ms. Mount and Mr. Soley for the purposes of the juvenile case.” Respondent maintained he used the documentary and videotaped matter for the sole purpose of formulating his opinions and testifying about those opinions at the juvenile case on or about June 2, 2005, in Judge Bender’s courtroom. Respondent further maintained he did not use the materials from E.C.’s counsel for any other purpose than formulating those opinions and testifying as to those opinions on or about June 2, 2005.
Facts of the Instant Civil Action
As noted above, appellant filed a second amended complaint for damages against respondent and Does 1through 50 on May 16, 2008. Appellant alleged in pertinent part:
“On or about May 2005, [respondent and other] defendants, and each of them, acted without [appellant’s] consent, without court order, and without a discovery request, to invade [appellant’s] right to privacy by illegally obtaining and possessing under false pretense [appellant’s] protected personally identifiable private health information. [Appellant’s] private health information consisted of a psychological evaluation, a Minnesota Multiphasic Personality Inventory test, and a Thematic Apperception test performed by an independent Doctor/Psychologist to whom a therapist client privilege existed. Defendants including [respondent] read, examined, and evaluated [appellant’s] protected private health information outside of judicial proceedings without the knowledge or written consent of [appellant] or [appellant’s] agents. Unknown to [appellant], [respondent and other] defendants disseminated [appellant’s] protected private health information to third and fourth parties for further reading, examining, evaluating, possessing, and rescoring, outside of judicial proceedings without court order, and without the knowledge or written consent of [appellant] or [appellant’s] agents. [Appellant] was not provided an opportunity to object to [respondent’s and other] defendant’s actions. [Respondent and other] [d]efendants, and each of them, were not authorized recipients of [appellant’s] medical information.”
On June 18, 2008, respondent filed a special motion to strike appellant’s second amended complaint (§ 425.16). Respondent asserted that appellant’s causes of action arose from protected activity, i.e., “specifically right of free speech in the context of an issue under judicial review and [respondent’s] opinions rendered pertaining to the psychological evaluations and reports as well as child exchange videos presented and exchanged in the juvenile case.” Respondent further asserted that appellant could not demonstrate a reasonable probability of prevailing on any of his causes of action because Civil Code section 47 provided an absolute privilege protecting statements made in the course of judicial proceedings.
On July 10, 2008, appellant filed written opposition to respondent’s motion to strike, noting in pertinent part:
“[Appellant] does not allege injury due to [respondent’s] communication during any judicial proceedings. [Appellant] does not complain of [respondent’s] hypothetical opinions during judicial proceedings. The gravamen of [appellant’s] complaint was stated factually as injuries and damages caused by [respondent’s] [extrajudicial] conduct of obtaining, possessing, and disseminating [appellant’s] personal mental health information without court order, knowledge of [appellant], nor written authorization from [appellant]. [Respondent] was an unauthorized recipient of [appellant’s] private protected mental health information and records.”
The court conducted a contested hearing on July 21, 2008, and granted the motion to strike, concluding the facts of the instant case were unable to “survive the strong language in Jacob B. versus County of Shasta [(2007) 40 Cal.4th 948], which is the most recent California Supreme Court case on the issue.” On July 28, 2008, the court filed a formal order granting respondent’s motion to strike the complaint “as a SLAPP action pursuant to … Section 425.16.”
DISCUSSION
A. Standard of Review
An appellate court reviews de novo the trial court’s order granting a section 425.16 special motion to strike. The appellate court considers the pleadings and supporting and opposing affidavits upon which the liability or defense is based. The reviewing court does not weigh credibility or compare the weight of the evidence. Rather, the reviewing court accepts as true the evidence favorable to the plaintiff and evaluates the defendant’s evidence to determine whether it has defeated that submitted by the plaintiff as a matter of law. (Freeman v. Schack (2007) 154 Cal.App.4th 719, 726-727.)
B. The Anti-SLAPP Statute
Section 425.16, subdivision (b)(1), provides:
“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.”
Section 425.16, subdivision (e), provides:
“As used in this Section, ‘act in furtherance of a person’s 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 …; (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.…”
Statements, writings and pleadings in connection with civil litigation are covered by the anti-SLAPP statute and no additional showing that the litigated matter concerns a matter of public interest is required. (Briggs v. Eden Council for Hope & Opportunity (1999) 19 Cal.4th 1106, 1115.)
Section 425.16 establishes a two-step process for determining whether an action should be stricken as a SLAPP. First, the court must determine whether the defendant has made a threshold showing that the challenged cause of action arises from an act in furtherance of the right of petition or free speech in connection with a public issue. Second, the court must determine whether the plaintiff has demonstrated a probability of prevailing on the claim. If the defendant makes a threshold showing that the cause of action arises from an act in furtherance of the right of petition or free speech in connection with a public issue and the plaintiff fails to demonstrate a probability of prevailing, then the court must strike the cause of action (§ 425.16, subd. (b)(1)) and award the defendant “attorney’s fees and costs” (§ 425.16, subd. (c)). (Navellier v. Sletten (2002) 29 Cal.4th 82, 88.)
The Legislature enacted section 425.16 to prevent and deter “lawsuits [referred to as SLAPP’s] brought primarily to chill the valid exercise of the constitutional rights of freedom of speech and petition for the redress of grievances.” (§ 425.16, subd. (a).) Such lawsuits seek to deplete “the defendant’s energy” and drain “his or her resources” (Simmons v. Allstate Ins. Co. (2001) 92 Cal.App.4th 1068, 1074). By enacting section 425.16, the California Legislature sought “‘to prevent SLAPPs by ending them early and without great cost to the SLAPP target.’” (Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 65.) Section 425.16, therefore, establishes a procedure by which the trial court evaluates the merits of the lawsuit using a summary judgment-like procedure at an early stage of the litigation. (See Simmons v. Allstate Ins. Co., supra, at p. 1073.) In doing so, section 425.16 seeks to limit the costs of defending against such a lawsuit. (Varian Medical Systems, Inc. v. Delfino (2005) 35 Cal.4th 180, 192.) Section 425.16 is construed broadly to give litigants the freedom of access to the courts without fear of being harassed subsequently by derivative tort actions. (Rubin v. Green (1993) 4 Cal.4th 1187, 1194.)
A party who moves to strike must make a prima facie showing that the cause of action arises from his or her free speech activities. The burden then shifts to the plaintiff to establish a probability that he or she will prevail at trial. To do so, the plaintiff must state and substantiate a legally sufficient claim. (Freeman v. Schack, supra,154 Cal.App.4th at pp. 726-727.) Expressed another way, the opposing party must demonstrate the complaint is legally sufficient and supported by a sufficient prima facie showing of facts to sustain a favorable judgment if the evidence submitted by the plaintiff is credited. (Booker v. Rountree (2007) 155 Cal.App.4th 1366, 1370.) A plaintiff cannot rely on the allegations of the complaint, but must produce evidence that would be admissible at trial. (Christian Research Institute v. Alnor (2007) 148 Cal.App.4th 71, 80.) Unverified allegations in the pleadings or averments made on information and belief cannot make the showing. (Salma v. Capon (2008) 161 Cal.App.4th 1275, 1289.)
A mixed cause of action is subject to section 425.16 if at least one of the underlying acts is protected conduct, unless the allegations of protected conduct are simply incidental to the unprotected activity. A plaintiff cannot frustrate the purposes of section 425.16 through the pleading tactic of combining allegations of protected and unprotected activity under the label of a single cause of action. (Salma v. Capon, supra, 161 Cal.App.4th at pp. 1287-1288.) Communications preparatory to or in anticipation of the bringing of an action or other official proceeding are entitled to the benefits of section 425.16. (Rohde v. Wolf (2007) 154 Cal.App.4th 28, 35.)
1. Appellant has established that the cause of action arises from protected activity
Respondent was retained as an expert witness by the attorneys representing appellant’s ex-wife, E.C., in a juvenile court matter involving their son, A.C. Respondent was provided with psychological evaluations and reports as well as videotapes of A.C., E.C., and appellant for the purpose of rendering opinions in the juvenile case. Respondent used these materials for the purpose of offering opinions in the juvenile proceeding and for no other purpose. We agree with the trial court’s assessment that at all times respondent was acting within his capacity as a retained expert.
In determining whether respondent has made a threshold showing that the challenged cause of action is one arising from protected activity described in section 425.16, subdivision (e), we are not concerned with the litigation privilege contained in Civil Code section 47, subdivision (b). Instead, the first prong of the two-step process for determining whether an action is a SLAPP action is satisfied:
“… so long as the record does not show as a matter of law that [defendant’s] conduct had ‘no “connection or logical relation” to an action and [was] not made “to achieve the objects” of any litigation.’” (Birkner v. Lam (2007) 156 Cal.App.4th 275, 284, quoting Fuhrman v. California Satellite Systems (1986) 179 Cal.App.3d 408, 422, fn. 5, disapproved on another ground in Silberg v. Anderson (1990) 50 Cal.3d 205, 219.)
The cause of action asserted against respondent complains of conduct that was logically related to his retention as a trial expert and the opinions he formed in connection with that retention. His review of the psychological evaluations was necessary “‘to achieve the objects’” of the litigation. This falls within the protected activity defined by section 425.16, subdivisions (b)(1) and (e).
Appellant contends that respondent invaded “[appellant’s] right to privacy by illegally obtaining and possessing under false pretense [appellant’s] protected personally identifiable private health information.” While it is true that illegal activity is not constitutionally protected and, therefore, does not fall within the purview of section 425.16 unless the illegality is conceded by the defendant or is conclusively shown by the evidence, the question of the legitimacy of the defendant’s conduct cannot be resolved under the first-step analysis, but must be raised by the plaintiff in connection with his burden to show a probability of prevailing on the merits. (Flatley v. Mauro (2006) 39 Cal.4th 299, 316.) Respondent has not conceded that his conduct was illegal, and the record does not establish illegality as a matter of law. (See discussion about litigation privilege, post, at pp. 16-20.)
Appellant cites Susan S. v. Israels (1997) 55 Cal.App.4th 1290 (Susan S.) as support for his contention that respondent’s conduct in reading through these materials was not protected activity. In Susan S., the court held that a crime victim has a cause of action for invasion of her right to privacy against a defense attorney who, without authorization, reads and disseminates the victim’s confidential mental health records. Procedurally, the trial court sustained the defendant’s demurrers without leave to amend and the Court of Appeal reversed as to the cause of action for invasion of privacy. There was no anti-SLAPP motion under section 425.16. The appellate court noted that the victim did not place her mental health in issue by charging her assailant with sexual battery. The defense attorney subpoenaed her records, which mistakenly were sent directly to him. He read them, sent them to his defense psychiatrist and then used them in cross-examining the victim. The attorney completely sidestepped an approved court procedure to discover information from the victim’s mental health records. The appellate court held that the invasion of privacy took place when the defense attorney read all of the records and then transmitted them to the defense psychiatrist.
In Susan S., the defendant was an attorney who knowingly utilized personal mental health records sent to him in error that were not relevant or admissible. In the instant case, the subject records were relevant and admissible in the proceeding. In fact, the trial court received the two Caldwell reports and the two NCS Pearson/Butcher MMPI-2 reports into evidence. Here, respondent was retained as an expert witness and, as is customary, was asked to review records supplied to him by the retaining attorney. He did so and offered testimony in the case. There is nothing in the record indicating that the materials reviewed by respondent pertained to matters extraneous to the issues before the court. Thus, Susan S. is distinguishable from this case and does not support appellant’s position that the causes of action alleged against respondent do not arise from protected activity.
2. Appellant has failed to demonstrate probability of prevailing because the litigation privilege defeats his claim
Civil Code section 47, subdivision (b), states in pertinent part:
“A privileged publication or broadcast is one made: [¶] … [¶]
“(b) In any … (2) judicial proceeding, (3) in any other official proceeding authorized by law, or (4) in the initiation or course of any other proceeding authorized by law and reviewable pursuant to Chapter 2 (commencing with Section 1084 [governing writs of mandate]) of Title 1 of Part 3 of the Code of Civil Procedure.…”
Code of Civil Procedure section 425.16 and Civil Code section 47, subdivision (b), are not coextensive even though they serve similar policy interests. (Neville v. Chudacoff (2008) 160 Cal.App.4th 1255, 1262-1263.) Nevertheless, the privilege in Civil Code section 47 is relevant to the second step in anti-SLAPP analysis because it may present a substantive defense the plaintiff must overcome to demonstrate a probability of prevailing. (Rohde v. Wolf, supra, 154 Cal.App.4th at p. 38.)
The litigation privilege of Civil Code section 47, subdivision (b), applies to any publication required or permitted by law in the course of a judicial proceeding to achieve the objects of the litigation. This is true even when the publication is made outside the courtroom and no function of the court or court officers is involved. The privilege applies to any communication (1) made in judicial or quasi-judicial proceedings; (2) by litigants or other participants authorized by law; (3) to achieve the objects of the litigation; and (4) that have some connection or logical relationship to the action. (Silberg v. Anderson, supra, 50 Cal.3d at p. 212; Jacob B. v. County of Shasta, supra, 40 Cal.4th at p. 955.)
The privilege protects only against communicative acts and not against noncommunicative acts Where a cause of action is based upon a communicative act, the litigation privilege extends to those noncommunicative actions that are necessarily related to that communicative act. The distinction between communicative and noncommunicative conduct hinges on the gravamen of the action. The key question is whether the injury allegedly resulted from an act that was essentially communicative. (Rusheen v. Cohen (2006) 37 Cal.4th 1048, 1058.) Communications preparatory to or in anticipation of the bringing of an action or other official proceeding are within the protection of the litigation privilege of Civil Code section 47, subdivision (b). (Rohde v. Wolf, supra, 154 Cal.App.4th at p. 35.) Aside from malicious prosecution, the litigation privilege bars all tort causes of action, including a cause of action based on California’s constitutional right to privacy (Cal. Const., art. I, § 1). (Jacob B. v. County of Shasta, supra, 40 Cal.4th at pp. 960-962.)
Appellant filed a declaration in opposition to respondent’s motion on July 15, 2008. In that pleading, appellant declared he did not authorize, consent to, or permit respondent to obtain, possess, or disseminate his private personal health information. Appellant further declared he was neither complaining of nor citing any acts pertaining to respondent’s testimony in Madera County Superior Court case No. BJP015618. Appellant lastly declared he was in juvenile court on June 2, 2005, and respondent “admitted that he obtained [appellant’s] confidential private personal health information, psychological evaluation and reports, and that he had sent the confidential MMPI-2 raw score testing data out to third and fourth parties to have it rescored and re-evaluated. [Respondent] admitted that he used the University of Minnesota NCS group to generate a new psychological profile called the Butcher Report.”
On appeal, appellant submits he is not challenging respondent’s protected activity of offering opinions and testifying in juvenile court. Rather, he filed the instant tort action against respondent “based upon [respondent’s] non-communicative conduct outside of court, his obtaining, possessing, reading, and disseminating [appellant’s] confidential medical records outside of judicial proceedings.” Appellant again relies upon the case of Susan S., supra, 55 Cal.App.4th 1290 in asserting this position.
At the July 21, 2008 contested hearing, the trial court acknowledged Susan S. as “probably the strongest case” in favor of appellant’s position. However, the court then properly distinguished the facts of the instant case from that of Susan S. In Susan S., the defense attorney mistakenly obtained the medical information and then intentionally used it in an unauthorized manner. In the instant case, respondent was at all times acting in his capacity as a retained expert for one of the parties to the litigation. Counsel for that party provided him with the relevant documents. Citing Jacob B. v. County of Shasta, supra, 40 Cal.4th 948, the court concluded: “[I]n a situation in which his only role is one in which he was retained as an expert and gave expert opinion based upon information provided to him … he could not be held liable under those circumstances.” Appellant pointed out he was not complaining about respondent’s testimony. Rather, he was complaining about “the [extrajudicial] activity of the illegally obtaining and possessing and disseminating [of appellant’s] information,” presumably to the University of Minnesota NCS Pearson group and Dr. Butcher.
The litigation privilege protects only against communicative acts and not against noncommunicative acts. Nevertheless, where a cause of action is based upon a communicative act, the litigation privilege extends to those noncommunicative actions that are necessarily related to the communicative act. (Jacob B. v. County of Shasta, supra, 40 Cal.4th at pp. 956-957.) Here, appellant framed the allegations of his second amended complaint to focus upon the purported extrajudicial possession, dissemination, and circulation of his private health information. However, any noncommunicative possession and dissemination of appellant’s mental health information was necessarily integral to respondent’s communicative conduct as a retained expert witness for E.C. in the underlying juvenile dependency action. In California, experts may rely upon and testify as to the sources upon which they base their opinions, including hearsay of a type reasonably relied upon by professionals in the field. These rules apply to mental health professionals. Hearsay relied upon by experts in formulating their opinions is not testimonial because it is not offered for the truth of the facts stated but merely as the basis for the expert’s opinion. (People v. Cooper (2007) 148 Cal.App.4th 731, 747.)
In the underlying juvenile matter, the court received the two Caldwell Reports and the two NCS Pearson/Butcher MMPI-2 reports into evidence. Appellant’s counsel interposed an objection to the latter two reports without stating a basis for his objection. The situation challenged by appellant was clearly part of a judicial proceeding. (See Carden v. Getzoff (1987) 190 Cal.App.3d 907, 913.) A communication is immune from any tort liability if it has, as here, some relation to judicial proceedings. (Contemporary Services Corp. v. Staff Pro Inc. (2007) 152 Cal.App.4th 1043, 1055.)
To the extent any conduct was challenged as noncommunicative, such contention must be rejected. Appellant’s vigorous allegations of “unauthorized … dissemination, and disclosure of [his] personally identifiable protected private mental health information and records” were essentially euphemisms for the communication of outpatient mental health data set forth in the Caldwell Reports, the interpretation of such data by Dr. James Butcher and the staff of NCS Pearson, Inc., and the testimony of respondent as to the profiles, patterns, and critical items identified in those reports. The litigation privilege embraces not only courtroom testimony by witnesses, but also protects prior preparatory activity leading to such testimony. (Ramalingam v. Thompson (2007) 151 Cal.App.4th 491, 501.)
Even if “dissemination” and “disclosure” were somehow deemed “noncommunicative,” the instant factual situation presented a strong communicative element and “[a] mixed cause of action is subject to section 425.16 if at least one of the underlying acts is protected conduct, unless the allegations of protected conduct are merely incidental to the unprotected activity.” (Salma v. Capon, supra, 161 Cal.App.4th at p. 1287.) As noted above, a plaintiff cannot frustrate the purposes of section 425.16 through the pleading tactic of combining allegations of protected and unprotected activity under the label of a single cause of action. (Salma v. Capon, supra, at pp. 1287-1288.)
Appellant cannot demonstrate a reasonable probability of prevailing on any of the tort causes of action against respondent because of the application of the litigation privilege. The trial court properly struck appellant’s second amended complaint under section 425.16.
DISPOSITION
The trial court’s order granting the motion to strike and awarding costs and fees is affirmed. Costs on appeal are awarded to respondent.
WE CONCUR: Vartabedian, Acting P.J., Poochigian, J.
On November 16, 2007, appellant filed a notice of appeal from the June 10, 2005 dispositional order, a September 16, 2005 restraining order, and a September 18, 2007 custody order in the juvenile court case. On August 6, 2008, this court filed a per curiam opinion affirming the juvenile court’s orders terminating jurisdiction and determining custody and visitation rights.