Opinion
B298790
11-01-2021
MAUREEN OKWUOSA, Plaintiff and Appellant, v. STEPHANIE VERNON, Defendant and Respondent.
Maureen U. Okwuosa, in pro. per., for Plaintiff and Appellant. Morris & Stone, LLP, and Aaron P. Morris, for Defendant and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County No. 18TRCV00125, Deirdre Hill, Judge. Affirmed.
Maureen U. Okwuosa, in pro. per., for Plaintiff and Appellant.
Morris & Stone, LLP, and Aaron P. Morris, for Defendant and Respondent.
IBARRA, J. [*]
INTRODUCTION
Civil Code section 47, subdivision (b), provides a litigation privilege that bars civil liability for any communication made in a judicial proceeding, with a few enumerated exceptions. The purpose of the privilege is to encourage access to justice, open communication and zealous advocacy. Penal Code section 11172, subdivision (a), also generally provides immunity from liability for any report of child abuse under the Child Abuse and Neglect Reporting Act (Act). The purpose of the Act is to increase reporting of suspected child abuse to authorities. But section 11172, subdivision (a), exposes to liability anyone who makes a voluntary and knowing or reckless false report under the Act.
Undesignated statutory references are to the Penal Code.
Does section 11172, subdivision (a), override the litigation privilege of Civil Code section 47, subdivision (b), and expose to liability anyone who makes a voluntary and knowing or reckless false allegation of child abuse?
No. Section 11172, subdivision (a), only covers an allegation of child abuse if a report is made under the Act, meaning made to a mandated reporter or designated agency. So, section 11172, subdivision (a), only overrides the litigation privilege of Civil Code section 47, subdivision (b), and exposes to liability a voluntary reporter who knowingly or recklessly makes a false child abuse report to a mandated reporter or designated agency.
We affirm the trial court's order granting the special motion to strike under Code of Civil Procedure section 425.16.
FACTUAL AND PROCEDURAL BACKGROUND
Maureen Okwuosa sued Stephanie Pulliam (née Vernon), alleging Stephanie falsely accused Okwuosa of abusing Stephanie's children. According to Okwuosa, Stephanie made these false accusations in court documents and to Stephanie's counsel, the children's appointed counsel and the police. Stephanie filed a special motion to strike under Code of Civil Procedure section 425.16. She argued her statements were protected conduct and covered by the litigation privilege of Civil Code section 47. Okwuosa countered section 11172 overrode the litigation privilege. The trial court granted Stephanie's motion.
According to her complaint, Okwuosa, who appears in pro. per., is an attorney who practices "family law, labor and employment, criminal law, and civil litigation."
We refer to individuals by their first names for clarity when necessary.
A. Stephanie and William Married, Had Children, Then Dissolved Their Marriage
Stephanie and William Pulliam married in October 2005 and had two daughters: M.P. in July 2007 and P.P. in November 2011. Stephanie and William dissolved their marriage in February 2016. Under their child custody and visitation order, Stephanie had primary custody of the children, and William had custody on Tuesday evenings and alternating weekends.
William began dating Okwuosa in March 2017 and introduced Okwuosa to his children in June 2017. In November 2017, William and Okwuosa became engaged. William moved into a new house in January 2018. Okwuosa often spent time at William's new home but did not move in until September 2018. In February 2018, William told M.P. about his plan to marry Okwuosa. Shortly after, Stephanie canceled several of William's weekend visits with the children, and only P.P. participated in William's Tuesday evening visits. Stephanie told William that M.P. refused to visit him because of Okwuosa's presence in his home.
B. Stephanie Accused Okwuosa of Child Abuse in Custody Proceedings
In May 2018, William received a call from the children's school informing him the children had not attended school for approximately one week. William learned Stephanie had moved and intended to withdraw the children from their current school. William successfully moved ex parte to compel Stephanie to comply with the existing visitation order, re-enroll the children in their current school and disclose their whereabouts.
That month, Stephanie petitioned to reduce William's visits with the children, arguing Okwuosa was "verbally abusive to [Stephanie and William's] children, has hit [their] youngest child, is left alone with [their] children, and [William] fails to protect [them]." Stephanie requested that William's weekend visits be discontinued, that his Tuesday night visits be shortened to accommodate the children's bedtime and that Okwuosa "not . . . be present at all during visit[s]." In her declaration, Stephanie said M.P. "showed stress and anxiety on days she knew she was supposed to have a visit [with William] and started refusing weekend visits."
In June 2018, William filed a petition to modify the custody and visitation order to increase his time with the children.
That month, Stephanie filed a responsive declaration. Stephanie said William had moved in with Okwuosa in January 2018. In February 2018, "[M.P.] began showing signs of distress and anxiety when it was time to visit [William]" and "stated that after they moved in with [Okwuosa], [Okwuosa] became very mean, bossy, yelled at [M.P.] and [P.P.] all the time and spanked [P.P.] because she wet herself." Stephanie said M.P. "repeated on many occasions that she no longer wanted [to visit William's home] nor did she want [P.P.] to go by herself because she was . . . scared that [Okwuosa] would do something else to [P.P.]." Stephanie said that Okwuosa had "verbally and physically abused" her and William's children and that she did not want the children "to live in a home where they will be verbally and physical[ly] abused by" Okwuosa. In July 2018, Stephanie filed a memorandum opposing William's petition and arguing Okwuosa had "verbally and physically abused" Stephanie and William's children.
In her declaration in opposition to Stephanie's special motion to strike, Okwuosa said she officially moved in with William in September 2018.
The family court appointed Robert Waddell as counsel for the children in the ongoing custody dispute. Waddell conducted interviews and filed a statement of issues and contentions regarding the children's best interests. According to Waddell's statement, Stephanie told Waddell that M.P. stopped visiting William after she told Stephanie that Okwuosa hit P.P. In her responses to Waddell's Parent Questionnaire, Stephanie wrote that Okwuosa "hit [Stephanie and William's] daughter [P.P.], yells at both [their] daughters, is mean and bossy"; that William "neglect[ed]" and "failed to protect" the children; and that Stephanie "feared for [P.P.'s] safety" while [P.P.] was in Okwuosa's care and feared P.P. would "be unable to protect herself and . . . unable to communicate the abuse" to Stephanie.Waddell's statement proposed that Stephanie and William continue sharing joint custody of the children under the visitation schedule set at the time of their dissolution, that William and M.P. seek joint counseling, and that the court set a review hearing in six months to evaluate if William's custody and visitation time with the children should be increased.
P.P. has a speech development delay interfering with her ability to process and express language.
Stephanie filed a responsive declaration, reiterating that Okwuosa had abused her children and explaining that sending P.P., "who has special needs and cannot verbalize, alone to [William] for extended periods is dangerous, especially so since the issue of excessive discipline/abuse has yet to even be addressed." Stephanie also said that Okwuosa had pulled out one of P.P.'s loose teeth that was not ready to come out, causing P.P., who was emotional and crying when telling Stephanie about the incident, "a great deal of pain."
In a declaration in opposition to Stephanie's special motion to strike, William said P.P.'s loose tooth had fallen out while he was helping P.P. change her clothes; Okwuosa had not forcibly pulled out P.P.'s tooth.
C. Okwuosa Sued Stephanie Alleging Stephanie Had Falsely Accused Her of Child Abuse
In November 2018, Okwuosa filed a complaint against Stephanie for defamation, slander, libel, intentional and negligent infliction of emotional distress and violation of section 11172, subdivision (a). The complaint alleged Stephanie had "manufactured claims of child abuse [against Okwuosa] in filed court documents" and, when making these claims, Stephanie "knew with absolute certainty that [Okwuosa] had never harmed her children in any way." The complaint cited abuse accusations appearing in Stephanie's May, June and July 2018 and other filings in the family law court. The complaint alleged Stephanie repeated these same false accusations to the children's appointed counsel and her counsel in the custody proceedings, who in turn repeated the accusations in an email to William. The complaint also alleged that in July 2018, Stephanie falsely reported to the police that her daughter "was being physically abused by [Okwuosa] and demanded a 'welfare check' be conducted at [Okwuosa's] home." Stephanie's alleged claims of abuse in court filings, to attorneys in the custody proceedings and to the police collectively supported each of the complaint's causes of action.
Okwuosa was in the house alone when the police conducted a welfare check. P.P. was with William at his workplace. No arrest was made.
D. Stephanie Filed a Special Motion To Strike Okwuosa's Claims
In January 2019, Stephanie filed a special motion to strike all causes of action in Okwuosa's complaint under Code of Civil Procedure section 425.16. Stephanie argued all the claims were premised on statements and writings protected under that section: Stephanie's statements in judicial proceedings, Stephanie's statements to attorneys participating in the judicial proceedings and Stephanie's statements to the police. So, Okwuosa had the burden of establishing a probability of prevailing on her claims to survive the motion. But Stephanie contended Okwuosa could not meet that burden. Stephanie argued her statements in court filings and to attorneys were protected under the litigation privilege and did not constitute "reports" potentially subject to liability under section 11172. Stephanie argued her statements to the police were likewise privileged. Moreover, while admitting she requested the police conduct a welfare check on P.P. following a contentious custody exchange with William, Stephanie denied reporting any abuse to the police.
Okwuosa opposed the motion, arguing that section 11172, subdivision (a), overrides the litigation privilege provided under Civil Code section 47, subdivision (b), and that making a false police report is not protected activity under Code of Civil Procedure section 425.16. Moreover, Okwuosa argued she had established a probability of prevailing on the claims in her complaint. Okwuosa filed declarations from herself and William. They said Okwuosa had never physically harmed, yelled at or used any form of aggression towards William and Stephanie's children. They also said the police officers conducting the welfare check in July 2018 told Okwuosa and William the police were responding to a call from Stephanie that a child was being abused in the house.
E. The Trial Court Granted Stephanie's Motion
The trial court granted Stephanie's motion in its entirety and ordered Okwuosa's complaint dismissed with prejudice.
In its order, the court grouped Okwuosa's allegations of Stephanie's accusations into three categories: statements Stephanie made in court proceedings, statements Stephanie made to her counsel and the children's appointed counsel and statements Stephanie made to the police. The court found each category was protected under Code of Civil Procedure section 425.16. Stephanie's statements in judicial filings were "written or oral statements before a judicial proceeding." Stephanie's statements to her attorney and the children's attorney in connection with the custody proceedings were "written or oral statements in connection with an issue under consideration or review by a judicial body." And Stephanie's statements to the police were "written or oral statements in connection with an issue under consideration or review under an official proceeding authorized by law."
Having found Stephanie met her burden to establish the complaint arose from protected activity, the court noted the burden shifted to Okwuosa "to establish a probability of success on the merits." Central to the court's analysis at this stage was whether the litigation privilege in Civil Code section 47, subdivision (b), barred liability for Stephanie's alleged accusations. The court explained section 11172, subdivision (a), provides an exception to Civil Code section 47, subdivision (b)'s litigation privilege for certain voluntary reports of child abuse or neglect made by a reporter who knew the report was false or who made a false report with reckless disregard of the truth. The court construed section 11172, subdivision (a), as "provid[ing] an exception to [Civil Code section 47, subdivision (b)'s] absolute privilege if the [knowingly or recklessly made false child abuse report] (1) was made by a voluntary reporter; (2) outside a court proceeding; and (3) to a listed agency per [section] 11165.9 or a person mandated to report to a listed agency per [section] 11165.7."
Turning to the complaint, the court found Stephanie's child abuse accusations in the custody proceedings, including in Stephanie's court filings, were "clearly privileged" under Civil Code section 47, subdivision (b), and "not subject to the exception afforded by [section] 1172(a) [sic]." The court also found the abuse accusations Stephanie made to her counsel and the minors' counsel in the custody proceedings were likewise privileged under Civil Code section 47 and not within the section 11172 exception.
The court found Stephanie's alleged statements to the police fell "squarely within" section 11172, subdivision (a)'s exception to the litigation privilege.
However, Okwuosa still bore the burden of showing a probability of success on the merits based on Stephanie's alleged statements to the police. And the court found Okwuosa provided "no competent nor admissible evidence showing that [Stephanie] actually reported that [Okwuosa] was abusing either of the children." Stephanie objected, on the grounds of hearsay and lack of personal knowledge, to the statements in Okwuosa's and William's declarations that the police had told them that Stephanie told the police that one of the children was being abused. The court sustained Stephanie's objections.
DISCUSSION
The trial court properly granted Stephanie's special motion to strike Okwuosa's claims under Code of Civil Procedure section 425.16. Okwuosa concedes all her causes of action arise out of protected conduct.
Okwuosa argues the trial court erred in granting the motion because she met her burden of establishing a prima facie case for each claim. Specifically, she argues Stephanie's statements in the custody proceedings are not protected by the litigation privilege because section 11172, subdivision (a), overrides Civil Code section 47, subdivision (b), for all voluntary and knowing or reckless child abuse accusations. Okwuosa also argues statements in her and William's declarations-that the police officers said they were doing a welfare check at their home because Stephanie reported that P.P. was being abused there- were admissible because the statements were based on personal knowledge and not hearsay.
We disagree with Okwuosa's arguments.
At oral argument, Okwuosa acknowledged that if this court holds, as we do, that Stephanie's statements from prior court proceedings are protected by the litigation privilege and that the police statements in Okwuosa's and William's declarations are inadmissible hearsay, then Okwuosa cannot make a prima facie case on any claim against Stephanie.
A. Special Motion To Strike Under Code of Civil Procedure Section 425.16
Code of Civil Procedure section 425.16 authorizes a special motion to strike for the early dismissal of meritless claims arising from a defendant's right to petition or free speech: "The Legislature enacted Code of Civil Procedure section 425.16 to address so-called strategic lawsuits against public participation (SLAPP). [Citation.] This anti-SLAPP statute makes available a special motion to strike meritless claims early in litigation-but only if the claims arise from acts in furtherance of a person's 'right of petition or free speech under the United States Constitution or the California Constitution in connection with a public issue.'" (FilmOn.com Inc. v. DoubleVerify Inc. (2019) 7 Cal.5th 133, 139.)
(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. (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. (Code Civ. Proc., § 425.16, subd. (b).) Code of Civil Procedure section 425.16 provides in relevant part:
In ruling on a special motion to strike, the trial court engages in a two-step process. (Barry v. State Bar of California (2017) 2 Cal.5th 318, 321 (Barry); accord, Baral v. Schnitt (2016) 1 Cal.5th 376, 381 (Baral).)
"First, the defendant must establish that the challenged claim arises from activity protected by [Code of Civil Procedure] section 425.16. [Citation.] If the defendant makes the required showing, the burden shifts to the plaintiff to demonstrate the merit of the claim by establishing a probability of success." (Baral, supra, 1 Cal.5th at p. 384; accord, Park v. Board of Trustees of California State University (2017) 2 Cal.5th 1057, 1061 (Park); Barry, supra, 2 Cal.5th at p. 321.)
The second step requires a "'summary-judgment-like'" analysis. (Baral, supra, 1 Cal.5th at p. 384; see Taus v. Loftus (2007) 40 Cal.4th 683, 714.) The court "accepts the plaintiff's evidence as true"; it "does not weigh evidence or resolve conflicting factual claims. Its inquiry is limited to whether the plaintiff has stated a legally sufficient claim and made a prima facie factual showing sufficient to sustain a favorable judgment." (Baral, at pp. 384-385; see Barry, supra, 2 Cal.5th at p. 321.)
"[A] trial court considers 'the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based' in evaluating the plaintiff's probability of success." (Barry, supra, 2 Cal.5th at p. 321; see Code Civ. Proc., § 425.16, subd. (b)(2).) A court "may consider affidavits, declarations and their equivalents if it is reasonably possible the proffered evidence set out in those statements will be admissible at trial." (Sweetwater Union High School Dist. v. Gilbane Building Co. (2019) 6 Cal.5th 931, 949 (Sweetwater).) And "[i]f an evidentiary objection is made, the plaintiff may attempt to cure the asserted defect or demonstrate the defect is curable." (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." (Navellier v. Sletten (2002) 29 Cal.4th 82, 89, italics omitted; accord, Oasis West Realty, LLC v. Goldman (2011) 51 Cal.4th 811, 820.)
B. Standard of Review
We review de novo an order granting or denying a special motion to strike under Code of Civil Procedure section 425.16. (Wilson v. Cable News Network, Inc. (2019) 7 Cal.5th 871, 884; accord, Sweetwater, supra, 6 Cal.5th at p. 940; Park, supra, 2 Cal.5th at p. 1067.) "That is, we independently determine whether the challenged cause or causes of action arise from protected activities, and if so whether the plaintiff has demonstrated a probability of prevailing on the claims." (Dwight R. v. Christy B. (2013) 212 Cal.App.4th 697, 710.)
"The trial court's evidentiary rulings at the second step of the anti-SLAPP analysis are generally reviewed for abuse of discretion." (Winslett v. 1811 27th Avenue, LLC (2018) 26 Cal.App.5th 239, 246.) But to the extent the second step involves a summary-judgment-like analysis, it is debatable whether the trial court's evidentiary rulings should be reviewed for abuse of discretion or de novo. (See generally Reid v. Google, Inc. (2010) 50 Cal.4th 512, 535 [explaining "[w]e need not decide generally whether a trial court's rulings on evidentiary objections based on papers alone in summary judgment proceedings are reviewed for abuse of discretion or reviewed de novo"].)
C. The Trial Court Properly Granted Stephanie's Special Motion To Strike Okwuosa's Claims
1. Okwuosa concedes all her claims arise out of protected conduct
On appeal, Okwuosa concedes that the statements alleged in her complaint's causes of action-Stephanie's statements in court filings, to attorneys during the custody proceedings and to the police-constitute protected activity under the Code of Civil Procedure section 425.16.
We agree. Stephanie's statements in court filings are "statement[s] . . . made before a . . . judicial proceeding." (Code Civ. Proc., § 425.16, subd. (e)(1); see Sipple v. Foundation for Nat. Progress (1999) 71 Cal.App.4th 226, 237.) Stephanie's statements to attorneys in the custody proceedings are "statement[s] . . . made in connection with an issue under consideration or review by a . . . judicial body." (Code Civ. Proc., § 425.16, subd. (e)(2); see Optional Capital, Inc. v. Akin Gump Strauss, Hauer & Feld LLP (2017) 18 Cal.App.5th 95, 113-115.) And Stephanie's statements to the police are "statement[s] . . . made in connection with an issue under consideration or review by a[n] . . . official proceeding authorized by law." (Code Civ. Proc., § 425.16, subd. (e)(2); see Siam v. Kizilbash (2005) 130 Cal.App.4th 1563, 1569-1570 (Siam).)
2. Okwuosa failed to establish she will likely prevail on any claim
a. Okwuosa cannot premise liability on Stephanie's statements in prior court proceedings
i. The litigation privilege under Civil Code section 47, subdivision (b)
Section 47, subdivision (b), provides a litigation privilege for communications made in a "judicial proceeding." (Civ. Code, § 47, subd. (b).) "'The usual formulation is that 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 [has] some connection or logical relation to the action.' [Citation.] The privilege 'is not limited to statements made during a trial or other proceedings, but may extend to steps taken prior thereto, or afterwards.'" (Action Apartment Assn., Inc. v. City of Santa Monica (2007) 41 Cal.4th 1232, 1241 (Action Apartment); accord, Jacob B. v. County of Shasta (2007) 40 Cal.4th 948, 956 (Jacob B.) [the litigation privilege "'protects litigants and other participants from being sued on the basis of communications they make in the context of family law proceedings'"].)
A privileged publication or broadcast is one made: . . . In any (1) legislative proceeding, (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) of Title 1 of Part 3 of the Code of Civil Procedure, except as follows: (1) An allegation or averment contained in any pleading or affidavit filed in an action for marital dissolution or legal separation made of or concerning a person by or against whom no affirmative relief is prayed in the action shall not be a privileged publication or broadcast as to the person making the allegation or averment within the meaning of this section unless the pleading is verified or affidavit sworn to, and is made without malice, by one having reasonable and probable cause for believing the truth of the allegation or averment and unless the allegation or averment is material and relevant to the issues in the action. . . . (5) This subdivision does not make privileged any communication between a person and a law enforcement agency in which the person makes a false report that another person has committed, or is in the act of committing, a criminal act or is engaged in an activity requiring law enforcement intervention, knowing that the report is false, or with reckless disregard for the truth or falsity of the report. Civil Code section 47, subdivision (b), provides in relevant part:
"'The purposes of [Civil Code] section 47, subdivision (b), are to afford litigants and witnesses free access to the courts without fear of being harassed subsequently by derivative tort actions, to encourage open channels of communication and zealous advocacy, to promote complete and truthful testimony, to give finality to judgments, and to avoid unending litigation.' [Citation.] Another purpose is to 'promote[ ] effective judicial proceedings' by encouraging full communication with the courts." (Jacob B., supra, 40 Cal.4th at p. 955.)
Because of these purposes, the privilege is considered so broad it bars civil perjury actions: "To further these purposes, the privilege has been broadly applied. It is absolute and applies regardless of malice. [Citations.] Indeed, the privilege extends even to civil actions based on perjury. [Citations.] '"The resulting lack of any really effective civil remedy against perjurers is simply part of the price that is paid for witnesses who are free from intimidation by the possibility of civil liability for what they say."'" (Jacob B., supra, 40 Cal.4th at pp. 955-956.)
Still, there are a handful of statutory exceptions to the litigation privilege. For example, the litigation privilege may not cover a statement about a third party filed in a marriage dissolution case unless other requirements are met. (Civ. Code, § 47, subd. (b)(1).) "This marital dissolution exception (sometimes called the 'divorce proviso' [citation]) applies unless the challenged statement is 'sworn to,' is material and relevant to the action, and the person making the statement does so without malice and with 'reasonable and probable cause' to believe the statement is true." (L.G. v. M.B. (2018) 25 Cal.App.5th 211, 214.)
The litigation privilege also does not apply to a knowingly false police report. (Civ. Code, § 47, subd. (b)(5).)
ii. Immunity and liability exposure for reporting child abuse under Penal Code section 11172, subdivision (a)
The Child Abuse and Neglect Reporting Act (section 11164 et seq.) provides "a comprehensive reporting scheme aimed toward increasing the likelihood that child abuse victims [will] be identified." (Ferraro v. Chadwick (1990) 221 Cal.App.3d 86, 90 (Ferraro).) "The Act requires persons in positions where abuse is likely to be detected to report promptly all suspected and known instances of child abuse to authorities for follow-up investigation." (Ibid.; accord, James W. v. Superior Court (1993) 17 Cal.App.4th 246, 253-254.)
The Act identifies over 40 separate categories of mandated reporters in section 11165.7. (§ 11165.7, subd. (a)(1)-(44).) A mandated reporter must report suspected child abuse or neglect to a designated agency under section 11165.9, specifically "any police or sheriff's department, not including a school district police or security department, county probation department, if designated by the county to receive such reports, or county welfare department." Notably, judicial officers, attorneys and parents are not mandated reporters but rather voluntary reporters under the Act.
The Act specifies when a reporter has immunity or is exposed to liability for a child abuse report under the Act. Section 11172, subdivision (a), provides absolute immunity for a mandated reporter and qualified immunity for a voluntary reporter under the Act. Specifically, a voluntary reporter who knowingly or recklessly makes a false report under the Act may be exposed to liability. (§ 11172, subd. (a).)
No mandated reporter shall be civilly or criminally liable for any report required or authorized by this article, and this immunity shall apply even if the mandated reporter acquired the knowledge or reasonable suspicion of child abuse or neglect outside of their professional capacity or outside the scope of their employment. Any other person reporting a known or suspected instance of child abuse or neglect shall not incur civil or criminal liability as a result of any report authorized by this article 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, and any person who makes a report of child abuse or neglect known to be false or with reckless disregard of the truth or falsity of the report is liable for any damages caused. Section 11172, subdivision (a), provides in relevant part:
iii. Penal Code section 11172, subdivision (a), only overrides the litigation privilege of Civil Code section 47, subdivision (b), for a voluntary reporter who knowingly or recklessly makes a false child abuse report under the Act
Section 11172, subdivision (a), only applies to a report under the Act, meaning a report to a mandated reporter or a designated agency.
The text of section 11172, subdivision (a), limits its scope.The subdivision provides absolute immunity for a mandated reporter for a "report required or authorized by this article." (§ 11172, subd. (a).) The subdivision also provides immunity for a voluntary reporter for a "report authorized by this article" unless the reporter makes a knowingly or recklessly false report, in which case the reporter is exposed to liability. (§ 11172, subd. (a).) A report "authorized by this article" means a report to a mandated reporter in section 11165.7 or a designated agency in section 11165.9. (See Siam, supra, 130 Cal.App.4th at p. 1578.) As a result, liability exposure is limited to a voluntary reporter who knowingly or recklessly makes a false child abuse report to a mandated reporter or designated agency. (Siam, at p. 1578.)
"When interpreting a statute our primary task is to determine the Legislature's intent. [Citation.] In doing so we turn first to the statutory language, since the words the Legislature chose are the best indicators of its intent." (Freedom Newspapers, Inc. v. Orange County Employees Retirement System (1993) 6 Cal.4th 821, 826.) But "[l]iteral construction should not prevail if it is contrary to the legislative intent apparent in the statute. The intent prevails over the letter, and the letter will, if possible, be so read as to conform to the spirit of the act." (Lungren v. Deukmejian (1988) 45 Cal.3d 727, 735.)
Okwuosa acknowledges statutory construction that renders any part of a statute meaningless or inoperative should be avoided. (See Kaanaana v. Barrett Business Services, Inc. (2021) 11 Cal.5th 158, 172). But Okwuosa's suggested interpretation of section 11172, subdivision (a)-that liability attaches to all voluntary and knowing or reckless false child abuse accusations regardless of to whom they are made-would render the statutory language "authorized by this article" superfluous. (See Ferraro, supra, 221 Cal.App.3d at pp. 92-93 [declining to render the phrase "or authorized" in section 11172, subdivision (a), "as surplusage," noting "[s]uch an interpretation would be contrary to established rules of statutory construction"].)
Similarly, legislative history shows that section 11172, subdivision (a), does not reach a child abuse accusation made during litigation unless it was a report made under the Act. Specifically, the history of Assembly Bill No. 3258 (1985-1986 Reg. Sess.) (AB 3258) demonstrates the Legislature's intent that section 11172, subdivision (a), only apply to a report under the Act. Before AB 3258, section 11172, subdivision (a), only excluded from immunity and exposed to liability a voluntary reporter who made a report under the Act and knew the report was false. After AB 3258 was signed into law on August 22, 1986, section 11172, subdivision (a), also excluded from immunity and exposed to liability a voluntary reporter who made a false report under the Act in reckless disregard of the truth. (Stats. 1986, ch. 553; see Krikorian v. Barry (1987) 196 Cal.App.3d 1211, 1217-1218.)
We grant Okwuosa's request. Judicial notice may be taken of "[o]fficial acts of [California's] legislative, executive, and judicial departments." (Evid. Code, § 452, subd. (c).) Okwuosa filed an unopposed request for judicial notice of exhibits documenting the legislative history of Assembly Bill No. 3258 (1985-1986 Reg. Sess.), which amended section 11172, subdivision (a).
Notably, when AB 3258 was introduced on February 18, 1986, the original version also proposed a new section to the Civil Code, section 48.8. The new section would have excluded defamation liability for all false and malicious child abuse accusations-not just reports under the Act covered by section 11172, subdivision (a)-from the privileges of Civil Code section 47:
SEC 1. Section 48.8 is added to the Civil Code to read:
48.8 Notwithstanding [Civil Code] section 47, the privileges set forth in that section shall be inapplicable to defamation consisting of an accusation of child abuse as specified by Section 11165 of the Penal Code if the accusation is made with malice and known to be false.
(Assem. Com. on Judiciary, Rep. on Assem. Bill No. 3258 (1985-1986 Reg. Sess.) as introduced Feb. 18, 1986, pp. 1-2.) The Legislative Counsel's Digest stated, "This bill would also provide that specified privileges are inapplicable to defamation consisting of an accusation of child abuse made with malice and known to be false." (Id. at p. 1.) But AB 3258 was amended on May 14, 1986. The amended version struck the new section and related Legislative Counsel's Digest description. The amended version did not exclude all false and malicious child abuse accusations from the litigation privilege of Civil Code section 47. (Assem. Com. on Judiciary, Rep. on Assem. Bill No. 3258 (1985-1986 Reg. Sess.) as amended May 14, 1986, p. 1.) And neither did the final amended statutory language of section 11172, subdivision (a), nor its description in the Legislative Counsel's Digest.
At oral argument, Okwuosa argued there is one sentence in the legislative history of AB 3258 that shows section 11172, subdivision (a), overrides the litigation privilege of Civil Code section 47, subdivision (b): "No exemption from liability would exist where such nonrequired false report is communicated in legislative, judicial or other official proceedings." (Assem. Com. on Judiciary, Republican analysis of Assem. Bill No. 3258 (1985-1986 Reg. Sess.) May 16, 1986.) She admitted the sentence does not specifically reference Civil Code section 47, subdivision (b). In addition, the sentence is not in the final version of AB 3258's statutory amendment to section 11172, subdivision (a), nor is the sentence in the final version's Legislative Counsel's Digest description. Rather, the sentence is in a one page "Assembly Judiciary Committee Republican Analysis" which mistakenly purports to refer to AB 3258 as amended on May 14, 1986. (Ibid.) But the sentence is unsupported by analysis, actually refers to the original AB 3258 before it was amended and contradicts the plain language of the statute as amended.
Finally, the few cases addressing the interplay between section 11172, subdivision (a), and Civil Code section 47, subdivision (b), demonstrate that section 11172, subdivision (a), does not cover an accusation of child abuse unless it is a report under the Act to a mandated reporter or a designated agency.
In Begier v. Strom (1996) 46 Cal.App.4th 877, 880, Begier sued his soon-to-be ex-wife, Strom, for making a voluntary false report to the police that Begier had molested the couple's child and for repeating the molestation accusation in the couple's marriage dissolution proceedings. The court of appeal found Strom's accusations, which were made within the dissolution proceedings, privileged: "There can be little doubt, as plaintiff himself seems to concede, that insofar as plaintiff alleges defendant made false accusations within the dissolution action, defendant's statements are privileged." (Id. at p. 882.) The court then addressed Strom's false police report of Begier's molestation and explained "the Child Abuse and Neglect Reporting Act imposes liability upon those who file a false report of child abuse and the act overrides a statutory privilege." (Id. at pp. 884-885.) The court concluded, "the 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)." (Id. at p. 885.) Notably, Strom's report to the police fell squarely within the scope of section 11172, subdivision (a), because it was a report under the Act-a report to a designated agency in section 11165.9.
In Siam, supra, 130 Cal.App.4th at p. 1568, Siam sued Kizilbash for making false reports to the police, school officials and "other people involved in the family law matter" that Siam had abused Kizilbash's children. The court of appeal explained section 11172, subdivision (a), "overrides" the litigation privilege of Civil Code section 47, subdivision (b). (Siam, at p. 1577.) The court held Kizilbash's false reports of child abuse to the police were not protected by the litigation privilege. Moreover, Kizilbash's false reports to school officials were also excepted from the litigation privilege: "the imposition of liability is not limited to voluntary reports made to the listed agencies [in section 11165.9] but includes reports made to persons who are legally required to transmit such reports to the listed agencies." (Id. at pp. 1577-1579.) Notably, Kizilbash's reports to school officials fell within section 11172, subdivision (a), because they were reports under the Act-reports to a mandated reporter identified in section 11165.7.
In Chabak v. Monroy (2007) 154 Cal.App.4th 1502, 1507-1508 (Chabak), Chabak, a physical therapist, sued Monroy, a client, for making a false police report that Chabak had inappropriately touched Monroy when Monroy was a minor. The court of appeal acknowledged "section 11172 created an exception to the litigation privilege" under Civil Code section 47. (Id. at p. 1515.) But the court concluded Monroy's false police report did not fall within the exception because "Civil Code section 47 is not superseded by Penal Code section 11172 when the victim reports he or she allegedly has been abused." (Id. at p. 1519.) The court explained section 11172 does not apply to a victim who files a false child abuse report: "The qualified immunity granted in section 11172, and the liability imposed for false reports of child abuse, are limited to 'any report authorized by' the Act. The reports 'authorized by' the Act are the reports made by mandated reporters or voluntary reporters who are reporting their observations. We do not think the Legislature intended to include the reports made by alleged victims of abuse as a report authorized by the Act." (Id. at p. 1516.) In other words, Monroy's police report did not fall within the scope of section 11172, subdivision (a), because it was not a report under the Act.
iv. Stephanie's statements in prior proceedings are not reports under the Act and are protected by the litigation privilege under Civil Code section 47, subdivision (b)
According to the trial court, Stephanie's statements in her child custody proceedings were "absolutely privileged."
We agree. Stephanie's statements in court documents are privileged under Civil Code section 47, subdivision (b), as communications in "judicial proceedings." Her statements to her counsel and her children's appointed counsel are privileged as communications "required or permitted by law in the course of a judicial proceeding to achieve the objects of the litigation." (Hagberg v. California Federal Bank (2004) 32 Cal.4th 350, 361, superseded by statute on other grounds as stated in Gonzales v. City of Los Angeles (C.D. Cal., Mar. 10, 2021, No. 220CV03519JGBMAA) 2021 WL 4442409, at *6.)
Stephanie's statements in court documents and to her counsel and her children's counsel are not reports under the Act because they were not reports to a mandated reporter under section 11165.7 or a designated agency under section 11165.9. So, section 11172, subdivision (a), does not apply. Meaning even if her statements were false accusations of child abuse, that subdivision would not override the litigation privilege.
Okwuosa relies on Family Code section 216 and California Rules of Court, rule 5.210, to argue that court personnel are required to report child abuse allegations in accordance with section 11165.9. But those authorities do not make the court or counsel mandated reporters under the Act. Rule 5.210 does not refer to the Act or section 11165.9, and Family Code section 216 only says, "This section shall not be construed to limit the responsibilities a mediator or evaluator may have as a mandated reporter pursuant to Section 11165.9 of the Penal Code." (Fam. Code, § 216, subd. (d), italics added.)
Owkuosa forfeited any argument that Stephanie's statements in the custody proceedings may not be covered by the litigation privilege because of the divorce proviso of Civil Code section 47, subdivision (b)(1). Okwuosa did not raise this issue in the trial court. (See People v. Financial Casualty & Surety, Inc. (2021) 64 Cal.App.5th 405, 416 [explaining defendant's failure to raise issue in trial court forfeited issue on appeal because plaintiff was deprived notice of need to develop record on issue].) And she did not properly raise the issue on appeal because she did not put it in a heading or sub-heading of a brief or support it with an argument as required by California Rule of Court, rule 8.204(a)(1)(B). (See Cox v. Griffin (2019) 34 Cal.App.5th 440, 453-454 [disregarding argument made in introduction because it "violates rule 8.204(a)(1)(B), which requires a brief to state each point 'under a separate heading or subheading'"]; W.S. v. S.T. (2018) 20 Cal.App.5th 132, 149, fn. 7 ["Issues not raised in the appellant's opening brief are deemed waived or abandoned"].)
Because Stephanie's statements in court documents and to counsel are not reports under the Act and are protected by the litigation privilege under Civil Code section 47, subdivision (b), Okwuosa cannot rely on the statements for her causes of action.
The litigation privilege applies to the first five claims of Okwuosa's complaint. "[T]he litigation privilege bars all tort causes of action except malicious prosecution." (Jacob B., supra, 40 Cal.4th at p. 960; accord, Flatley v. Mauro (2006) 39 Cal.4th 299, 322.) Her first five claims sound in tort: defamation, which includes libel and slander (Action Apartment, supra, 41 Cal.4th at p. 1241; accord, Hartford Casualty Ins. Co. v. Swift Distribution, Inc. (2014) 59 Cal.4th 277, 289); intentional infliction of emotional distress (City of San Jose v. Operating Engineers Local Union No. 3 (2010) 49 Cal.4th 597, 608; accord, Harris v. City of Santa Monica (2013) 56 Cal.4th 203, 234); and negligent infliction of emotional distress, which "is a form of the tort of negligence" (Huggins v. Longs Drug Stores California, Inc. (1993) 6 Cal.4th 124, 129).
We need not decide if the litigation privilege applies to Okwuosa's sixth claim, which alleges a violation of section 11172, subdivision (a). To the extent that subdivision creates an independent theory of liability, liability is limited to a knowing or reckless false report made under the Act. (But see Chabak, supra, 154 Cal.App.4th at pp. 1510-1511 [questioning but not resolving whether the subdivision creates an independent theory of liability].) As discussed, the subdivision limits its scope to reports made under the Act.
b. Okwuosa failed to make a prima facie case that Stephanie made a false police report accusing Okwuosa of child abuse
According to the trial court, "There is no evidence that [Stephanie] actually told the police that [Okwuosa] was abusing the children."
We agree. The trial court did not err-under an abuse of discretion or de novo standard of review-in sustaining Stephanie's objections to statements in Okwuosa's and William's declarations that the police officers told them that Stephanie had reported child abuse to the police.
The court sustained Stephanie's objections based on hearsay (Evid. Code, § 1200) and lack of personal knowledge (Evid. Code, § 702) to paragraphs of Okwuosa's and William's declarations submitted in opposition to Stephanie's special motion to strike. In these paragraphs, Okwuosa and William said that the police conducted a welfare check at the house and informed them (Okwuosa personally and William by telephone) that the police were responding to a call from Stephanie that a child was being abused in the home.
Hearsay is "evidence of a statement that was made other than by a witness while testifying at the hearing and that is offered to prove the truth of the matter stated." (Evid. Code, § 1200, subd. (a).) Okwuosa's and William's declarations relayed statements made by the police officers that they were responding to Stephanie's child abuse report. As such, the police officers' statements are out-of-court statements offered for the truth of the matter asserted: i.e., that Stephanie reported child abuse to the police.
Owkuosa forfeited any argument that the police officers' statements were admissible despite being hearsay because she could present the evidence without hearsay at trial. (See Sweetwater, supra, 6 Cal.5th at p. 949 [holding "[i]f an evidentiary objection is made, the plaintiff may attempt to cure the asserted defect or demonstrate the defect is curable"]). For example, she could call as a witness the police officer whom Stephanie asked for a welfare check. But Okwuosa did not raise that argument in the trial court and does not raise it on appeal. (See People v. Financial Casualty & Surety, Inc., supra, 64 Cal.App.5th at p. 416; W.S. v. S.T., supra, 20 Cal.App.5th at p. 149, fn. 7.) In the trial court, Stephanie filed her evidentiary objections, but Okwuosa does not appear to have filed a response. And there is no transcript. (See Randall v. Mousseau (2016) 2 Cal.App.5th 929, 935 ["Failure to provide an adequate record on an issue requires that the issue be resolved against appellant."].)
Okwuosa contends the paragraphs relaying what the police officers said to her and William during the welfare check "were not offered to prove the truth of the matter asserted (i.e., that [Stephanie] reported to Torrance Police that [Okwuosa] was physically abusing [Stephanie]'s daughter)." Instead, Okwuosa contends these paragraphs were "offered to show notice and the effect on the hearer." Okwuosa does not elaborate, and we cannot see, how the notice and effect of the police officers' statements on her and William establish a prima facie case Stephanie made a false report of child abuse to the police.
Okwuosa also contends her declaration of what the police officers said to her during the welfare check was admissible under Evidence Code section 702 because Okwuosa's declaration came from her "personal knowledge--a knowledge gained from the exercise of her sense of hearing" what the officers said during the welfare check. Evidence Code section 702 says, "[T]he testimony of a witness concerning a particular matter is inadmissible unless he has personal knowledge of the matter," which "may be shown by any otherwise admissible evidence, including his own testimony." This section is not an exception to the hearsay rule. Inadmissible third party statements do not become admissible as a declarant's personal knowledge simply because the declarant heard those statements.
Finally, even without the paragraphs of Okwuosa's and William's declarations to which objections were sustained, Okwuosa contends the welfare check supported an inference that Stephanie made a false police report accusing Okwuosa of child abuse. That is not an inference but rather speculation. There are other reasons for a welfare check. For example, in her declaration, Stephanie denied any report of abuse but admitted she requested a welfare check because P.P. was stressed, William was upset at her custody exchange, and Okwuosa and William do not have schedules conducive to childcare.
In short, as Okwuosa acknowledged at oral argument, without Stephanie's statements from prior court proceedings and the police officers' statements in Okwuosa's and William's declarations, Okwuosa cannot make a prima facie case on any of her claims.
DISPOSITION
The order granting Stephanie's special motion to strike under Code of Civil Procedure section 425.16 is affirmed. Stephanie is entitled to costs on appeal.
We concur: SEGAL, Acting P. J., FEUER, J.
[*] Judge of the Santa Clara County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.