Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County, Victor H. Person, Judge, Los Angeles County Super. Ct. No. BC345618.
Law Offices of Robert E. Canny and Robert E. Canny for Plaintiff and Appellant.
Demler, Armstrong & Rowland, Robert Armstrong; Greines, Martin, Stein & Richland, Robert A. Olson, and Cynthia E. Tobisman for Defendant and Respondent Melody Sternoff Meyers.
Lewis Brisbois Bisgaard & Smith, Roy G. Weatherup, Bartley L. Becker, and Allison A. Arabian for Defendants and Respondents Frumeh Labow and Mindy Goldberg.
Brown, Brown & Klass, Delos E. Brown, and John J. Stumreiter for Defendant and Respondent Rosario DeJesus Carter.
Linda A. Paquette, in pro. per., for Defendant and Respondent.
SUZUKAWA, J.
In this action for wrongful death, intentional infliction of emotional distress, and conversion, the trial court dismissed plaintiff’s complaint after sustaining all five defendants’ demurrers without leave to amend. It also granted two of the defendants’ special motions to strike under Code of Civil Procedure section 425.16, commonly referred to as the “anti-SLAPP statute.”
All further undesignated statutory references are to the Code of Civil Procedure.
On appeal, plaintiff contends that the anti-SLAPP statute is inapplicable because the claims do not arise from the exercise of free speech or the right of petition, and that the demurrers were erroneously sustained without leave to amend. We reject his contentions except as to the granting of the special motion to strike the conversion claim against defendant Melody Sternoff Meyers. The order granting Meyers’s anti-SLAPP motion is reversed as to the conversion claim and affirmed as to the remaining claims. In all other respects, the judgment is affirmed.
BACKGROUND
Plaintiff Anthony K. Selvage and defendant Meyers are half siblings. They are the residual beneficiaries under the trust of their mother, the late Ennid Zamboni Sternoff. In 1988, the probate court imposed a conservatorship over Sternoff’s person, which lasted until her death at the age of 90 on January 7, 2004. According to Sternoff’s death certificate, the cause of death was “Acute Coronary Occlusion.”
We take judicial notice of the certified copy of Sternoff’s death certificate under Evidence Code sections 452 and 459. “Any birth, fetal death, death, or marriage record that was registered within a period of one year from the date of the event under the provisions of this part, or any copy of the record or part thereof, properly certified by the State Registrar, local registrar, or county recorder, is prima facie evidence in all courts and places of the facts stated therein.” (Health & Saf. Code, § 103550.) “Evidence of a writing made as a record of a birth, fetal death, death, or marriage is not made inadmissible by the hearsay rule if the maker was required by law to file the writing in a designated public office and the writing was made and filed as required by law.” (Evid. Code, § 1281.)
Following Sternoff’s death, Selvage filed this lawsuit for wrongful death and intentional infliction of emotional distress against Meyers and others who had assisted his mother before her death: Sternoff’s court-appointed professional conservator Frumeh Labow and her assistant Mindy Goldberg, Sternoff’s court-appointed Probate Volunteer Panel (PVP) Attorney Linda Paquette, and Sternoff’s live-in caregiver Rosario Carter. Selvage alleges that defendants conspired to abuse, isolate, and mistreat Sternoff, who died as a result of their unlawful actions and neglect. Selvage also alleges that Meyers and Carter converted his mother’s personal belongings.
The following allegations and quotations are taken from the operative pleading, the first amended complaint (FAC).
I. General Allegations
In 1996, Sternoff was hospitalized for alcohol withdrawal symptoms. Sternoff disliked Selvage’s opposition to her drinking and, through her trustee, the late Sherry Fulkerson, “opposed treatment for . . . alcoholism and sought Conservatorship to prevent [Selvage’s] interventions.” In 1998, the probate court appointed Fulkerson as Sternoff’s conservator. The probate court also granted Selvage and Meyers access to Sternoff’s medical records.
Meyers, who previously was estranged from Sternoff, reconciled with her in 1999. Following Fulkerson’s death in 1999, the probate court appointed Labow to succeed Fulkerson as Sternoff’s conservator. Labow, who served as conservator until Sternoff’s death, was aware that Meyers was involved in Sternoff’s affairs.
In December 2002, Sternoff was hospitalized for a heart attack. In March 2003, she was again hospitalized “for severe abdominal pain,” which “was diagnosed [as] a suspected pancreatic pseudocyst that was beginning to block her pancreatic and bile ducts, as well as a bladder mass.”
During Sternoff’s hospitalizations, Meyers “spent extensive time with” Sternoff and lived in Sternoff’s home. Selvage, on the other hand, “was prevented from much direct communication with his mother or her doctors during these illnesses. [Meyers] told [Selvage] that the doctors were unable to help their mother because of her advanced age and that they did not recommend intervention.”
Meyers placed Sternoff “on hospice services.” In April 2003, Selvage and his daughter visited Sternoff, “and found her in terrible condition and extreme discomfort. She was helpless, weak, and yellow in color, with sores all over her body, curled in a fetal position. Her digestive juices, instead of digesting food were digesting her own body from the inside out.” On April 28, 2003, Selvage’s wife, Laura Moire, M.D., visited Sternoff “and questioned why no intervention could be done to relieve her suffering.” Dr. Moire spoke with Sternoff’s gastroenterologist, Dr. Elson, and learned that Dr. Elson “and his colleagues had spent hours pleading with Defendant Meyers to intervene on [Sternoff’s] behalf. [Meyers, who] claimed that she had [a] durable Power of Attorney, declined all their recommendations, despite clearance from cardiology.”
Selvage and Dr. Moire complained to the probate court that defendants were committing “elder[] abuse, physical and financial,” against Sternoff. In response to their letter of complaint, the probate court appointed Paquette as Sternoff’s PVP attorney and directed that Paquette investigate Selvage’s complaints.
Paquette met with Selvage, who repeated his allegations against defendants and “requested that [Dr. Moire] coordinate a campaign to intervene on [Sternoff’s] behalf and comfort while [Sternoff’s] life was still salvageable. These complaints/requests resulted in a successful endoscopic placement of a small tube (stent) in [Sternoff’s] common bile duct, restoring the normal flow of her bile and pancreatic juices.”
Having become “[c]oncerned and troubled by the discovery of Melody Meyer[s]’s neglectful and harmful actions[, Selvage] sought to obtain his mother’s medical records, including those from her private physician, Dr. Follette (long[] withheld by the efforts of Defendant Frumeh Labow).” On June 1, 2003, Selvage discovered in Dr. Follette’s records a “Durable Power of Attorney for Health [Care] for his mother, [which] named [Selvage] as the successor upon the death of Sherry Fulkerson (who died in 1999).” Selvage also discovered a document by Dr. Elson, which stated: “‘I spent a long time on the phone, with pt.’s daughter outlining the problem list options for diagnostic work up. She can’t decide about whether to consent to ERCP at this time. She is coming to visit next Tues. 3/11. I explained that her mother may worsen or even die because of the delay. She understands and understands the procedural risks also.’”
Selvage, who “has always cared deeply for the welfare and safety of his mother,” sent Paquette a December 8, 2003 signed statement (attached as Exhibit 1 to the FAC and exhibit 2 to the opening brief). The December 8 statement alleged that Sternoff was being denied proper medical care and requested that Selvage be given control of Sternoff’s health care pursuant to the durable power of attorney (found by Selvage in Dr. Follette’s records on June 1, 2003) naming Selvage as Fulkerson’s successor.
Sternoff died on January 7, 2004.
II. The Complaint
On January 9, 2006, Selvage filed this lawsuit against Meyers, Labow, Goldberg, Paquette, and Carter. The complaint alleged a claim against Meyers for conversion of Sternoff’s personal property. In addition, it alleged claims for wrongful death and intentional infliction of emotional distress against all defendants. The complaint did not disclose the cause of death nor did it mention that the cause of death stated on the death certificate, which was signed by Dr. Follette, was “Acute Coronary Occlusion.”
Paquette moved to strike the complaint under the anti-SLAPP statute, contending that the claims against her had arisen solely from her protected petition activities and statements as Sternoff’s PVP attorney in the conservatorship action. Paquette and Meyers also demurred to the complaint, contending that it failed to state a cause of action.
On August 22, 2006, the trial court denied without prejudice Paquette’s special motion to strike, stating that it was impossible to determine whether the anti-SLAPP statute even applied to the complaint, given its lack of factual allegations. For similar reasons, the trial court sustained the demurrers with leave to amend.
On September 6, 2006, Selvage filed the FAC that is the subject of this appeal. The FAC alleged claims against all defendants for wrongful death and intentional infliction of emotional distress, and, as to Meyers and Carter, conversion of Sternoff’s personal property.
A. Wrongful Death
The FAC, like the original complaint, does not disclose the cause of death or mention that the cause of death according to the death certificate was “Acute Coronary Occlusion.” The FAC concludes that defendants caused Sternoff’s death by: (1) isolating Sternoff from Selvage and his family; (2) withholding a necessary thyroid medication and medical care; (3) providing excessive quantities of alcohol; (4) concealing the durable power of attorney document (found in Dr. Follette’s files) that named Selvage as Fulkerson’s successor; (5) delaying for six months the treatment for Sternoff’s bile duct condition; (6) withholding from the probate court Selvage’s December 8, 2003 signed statement (exhibit 1 to the complaint) in which he requested to manage Sternoff’s health care under the durable power of attorney document (found in Dr. Follette’s files) naming him as Fulkerson’s successor; and (7) breaching their fiduciary duties to Sternoff.
The FAC alleges that defendants had wrongfully isolated Sternoff from Selvage “and his wife and family and from her psychiatrist who was treating at her home for depression and alcoholism.” By isolating Sternoff, “[d]efendants shortened [Sternoff’s] life and caused her and [Selvage] pain.” “Defendants even hired security guards to keep [Sternoff] isolated. Defendant Carter repeatedly locked [Selvage] and his family and the psychiatrist out of [Sternoff’s] residence although [Sternoff] could plainly be heard calling out to them for help.”
The FAC alleges that when Sternoff was hospitalized for a heart attack in December 2002, Meyers, having lied to Sternoff’s doctors about having a power of attorney, “then denied [Sternoff] life and heart preserving recommended medical care.” Meyers allegedly “refused any intervention save an aspirin in the ER, refused ‘optimal treatment,’ with the full knowledge that she was refusing the most beneficial recommendations.” In addition, based on Sternoff’s elevated thyroid test, the FAC alleges that defendants must have withheld Sternoff’s necessary thyroid medicine “and possibly all her other meds.”
The FAC alleges that Sternoff was an alcoholic who, through Fulkerson, resisted Selvage’s interventions and instituted conservatorship proceedings in order to continue drinking. Defendants allegedly supplied Sternoff with “up to a fifth of Glenlivet scotch daily . . . in direct contravention of her physicians[’] orders to limit her consumption to a few ounces daily.” Sternoff’s excessive consumption of alcohol “substantially shorten[ed Sternoff’s] life span by years and caused [her] enormous suffering and pain.”
The FAC alleges that on June 1, 2003, Selvage found a durable power of attorney in Dr. Follette’s records that named Selvage as Fulkerson’s successor. Allegedly, by preventing Selvage “from seeing the medical records, [defendants] concealed the existence of this document from [Selvage] and prevented him from obtaining necessary medical care for his mother, who the co-conspirators were letting die in great pain and filth caused by her suppurating body sores.”
The FAC alleges that “the six month delay in medically treating [Sternoff] for this condition of her bile duct . . . substantially shorten[ed Sternoff’s] life span by years and caused [Sternoff] enormous suffering and pain.” In addition, Dr. Elson allegedly had warned Meyers that postponing a “diagnostic workup” might cause Sternoff to “worsen or even die because of the delay.”
The FAC alleges that Paquette wrongfully withheld Selvage’s December 8, 2003 signed statement (exhibit 1 to the FAC) from the probate court “in order to whitewash the acts complained of therein and continue the manipulation, control and abuse of [Sternoff] by [Paquette’s] co-conspirators, . . . resulting in the eventual death of [Sternoff] and the injuries to [Selvage] and [Sternoff’s] estate. Defendants’ failure and refusal to perform their fiduciary duties to [Sternoff] seriously damaged [Sternoff] and [Selvage].”
The FAC alleges that Paquette breached her fiduciary duty to Sternoff by threatening to seek a restraining order against Dr. Moire. “On one occasion, Dr. Moire called the police to investigate the abuse. The police did question the sedated [Sternoff]. Defendants denied abuse and Goldber[g], Labow and Paquette not only whitewashed the complaint but Paquette on behalf of herself and the other Defendants threatened to seek out restraining orders against Dr. Moire if she ever again attempted to carryout her mandated duty under the [Welfare and Institutions Code] without the consent of these Defendants. This latter act, documented in writing by Paquette is a felony and done [in direct] contravention of fiduciary duty to [Sternoff].”
The FAC alleges that defendants’ actions were “malicious in that they were designed to cause injury to [Sternoff] and to [Selvage] and were carried [out] with a reckless, willful and conscious disregard for the rights of [Sternoff] and [Selvage], were oppressive and despicable because said acts were so contemptible and patently fraudulent that they would be looked down upon and despised by ordinary decent people and thus mandate the award of damages for pain and suffering of [Sternoff, and] punitive damages . . . in order to make them examples in the public eye and thus to discourage future conduct by the Defendants . . . .”
B. Intentional Infliction of Emotional Distress
Based on the wrongful death allegations, Selvage also seeks damages for intentional infliction of emotional distress. The FAC alleges that the “aforesaid conduct and acts of Defendants and each of them was outrageous, unprivileged conduct. The Defendants and each of them intended to cause [Selvage] to suffer emotional distress. [Selvage] suffered severe emotional distress as a result of said conduct and acts.”
In particular, the FAC states that Selvage became obsessed “over the hurt to [Sternoff that Selvage] could have prevented had the Defendants not concealed the power of attorney for health care that his mother named him in.” “The said extreme and outrageous conduct and acts of the Defendants and their willful abandonment of their solemn fiduciary duties to [Sternoff] go beyond all possible bounds of decency so as to be atrocious and utterly intolerable in a civilized community and would cause an average member in the community to immediately react in outrage.”
C. Conversion
Selvage also accuses Meyers and Carter of having converted Sternoff’s personal property, thereby depriving Selvage his full share of Sternoff’s estate. According to Sternoff’s marital agreement, will, and trust (the latter two documents were attached as exhibits to the FAC), Selvage was to inherit 25 percent of Sternoff’s estate and Meyers was to inherit 75 percent. Allegedly, Meyers and Carter converted Sternoff’s furniture worth in excess of $100,000, jewelry and clothing worth in excess of $100,000, an automobile, and personal bank accounts containing $248,608.
The FAC states that according to Sternoff’s marital settlement agreement, Sternoff was not to make a new will or dispose of her personal property outside of her will and trust. In alleged contravention of that agreement, Meyers “made two new codicils to [Sternoff's] will appointing herself as the estate representative and attempting to leave to herself the furniture and other personalty” that was taken from the estate.
III. Trial Court Proceedings
Paquette and Meyers filed separate special motions to strike the FAC under the anti-SLAPP statute. Additionally, all five defendants demurred to the FAC on the ground that it failed to state a cause of action. The trial court addressed the motions and demurrers in the following chronological order.
A. Paquette’s Special Motion to Strike
Paquette contended that the FAC’s allegations arose solely from her protected activities covered by the anti-SLAPP statute, in that the allegations are: (1) identical to those made and rejected as unfounded by the probate court in Sternoff’s conservatorship proceedings; and (2) based on Paquette’s protected activities and communications in the conservatorship proceedings as Sternoff’s court-appointed PVP attorney.
1. Paquette’s Supporting Evidence
In support of her motion, Paquette submitted her May 27, 2003 report (initial report) to the probate court in which she had found no evidence of wrongdoing by defendants. In accepting Paquette’s initial report, the probate court stated that because of Paquette’s “thorough investigation of the various allegations,” “[n]o further action” was required, and no “further ex parte communications in this matter [would be allowed]. All future proceedings must be within the context of properly noticed petitions filed with this court.”
Paquette also submitted her November 12, 2003 report to the probate court (PVP report), which further absolved Meyers and Labow of any wrongdoing. According to the PVP report, there was no evidence of a conspiracy to abuse or withhold medical care from Sternoff, who, pursuant to her wishes and with her doctor’s approval, was receiving hospice care and comfort-providing measures only, including a small amount of alcohol on a daily basis. Paquette found no evidence that Sternoff was prevented from seeing Selvage and his family. On the contrary, the PVP report found that Sternoff desired to be protected, through the conservatorship proceedings, from Selvage’s unscheduled, lengthy, and upsetting visits. The PVP report stated that Paquette had warned Selvage’s wife, Dr. Moire, to stop making unfounded elder abuse complaints to agencies uninvolved in the probate court proceedings because the unfounded complaints were abusive and disturbing to Sternoff. The PVP report stated that Paquette had told Dr. Moire that a restraining order would be sought if necessary. The PVP report concluded: “I found no evidence supporting the complaints raised by son Tony [Selvage] and his wife, Dr. Laura [Moire]. It is my conclusion that Melody [Meyers] is innocent of wrongdoing and that the conservator [Labow] is acting appropriately.”
With regard to Selvage’s concern that Sternoff was not receiving proper medical care for her bile duct condition, the PVP report stated: “Son Tony stated he wants his mother to be ‘well and alive.’ I discussed bluntly with him the fact that his mother is dying. He responded that we are all dying. I reminded him that his mother, unlike the rest of us, has liver disease and is under hospice care. I discussed with him the process of medical decision making, his mother’s desire for comfort measures only, her wish to avoid further hospitalization and her wish to die at home. We discussed the internal placement of a st[e]nt which his wife, Dr. Laura, believed would relieve [Sternoff] of stomach discomfort and itching. This was rejected earlier by doctors as too invasive given [Sternoff’s] age and health.”
The PVP report stated that Sternoff, upon reading “a copy of Tony [Selvage] and Dr. Laura’s [Dr. Moire] letter to Judge Stoever . . . dismissed its contents as nonsense. She stated that Dr. Laura was not a person she would choose to have in her life, but she accepted her out of love for son Tony. She stated that she loves her family, but that they are sometimes too much for her. She tires easily due to her age and failing health. She resents the attempts by Tony and Dr. Laura to stop her drinking. It is none of their business, in her opinion. She said she did not want to hurt any of her family by disagreeing with them, or asking them to leave when she is too tired to continue a visit. She prefers to state her true wishes to a third person, with the intention that her wishes are followed.” (Fns. omitted.)
According to the PVP report, “On a Sunday evening, 10 pm on 9/21/03, [Sternoff] was woken from sleep by two LAPD officers responding to still another complaint of elder abuse by Dr. Laura. By letter dated 10/26/03, Dr. Laura was warned that the event she caused was abusive and disturbing to [Sternoff]. [Record citation omitted.] She was warned that a restraining order would be obtained if she again caused a similarly disturbing event. Dr. Laura was directed to make future complaints to the conservator, the court’s probate investigator or myself.”
Based on the above evidence, Paquette argued that the claims in this lawsuit arose solely from her protected activities and communications in the conservatorship action, and that Selvage must make a prima facie showing, by admissible and competent evidence, of a reasonable probability of prevailing on the merits at trial. (§ 425.16, subd. (b).)
Paquette’s declaration in support of the special motion to strike attested to the following: The “complaints made by [Selvage] herein in this conspiracy for wrongful death and emotional distress, are the same complaints he and his doctor wife made in the conservatorship proceeding. . . . I investigated the matter. I reviewed the court file, interviewed my client, Mrs. Sternoff, and interviewed and corresponded with her children, daughter-in-law, conservator, caregivers, doctor and Adult Protective Services. . . . In written reports I stated my findings. Mrs. Sternoff’s wishes were well expressed and clearly stated. They included a desire to be protected from her son’s demand to terminate her daily enjoyment of a modest afternoon cocktail. Her drinking habits were monitored by her long time attending physician. I concluded the son’s complaints were without merit. . . . My client, the decedent herein, was also adamant in her desire to be protected from the unyielding, unsolicited opinions of her son and his doctor wife as to her care and lifestyle. . . . My client further stated that she wished to limit her son’s visits, because he was too overbearing for her, given her age and infirmity. She told me she did not want to be the one saying that his visits should be of short duration. She wanted others to do that for her. The conservatorship was motivated, in large part, by her desire to have a conservator stand between her and her son, who at one point, I was told, had hammered shut her liquor cabinet . . . . My report, filed 11/12/03, is attached hereto as Exhibit B. This 54 page report, including exhibits, summarizes my activities as court appointed counsel. It includes [Selvage’s] initial complaint letter and my findings and conclusions. . . . I took actions consistent with my client’s wishes. This was not satisfactory to [Selvage], as his mother’s wishes were inconsistent with his. He attempted to force himself into her life by making the same complaints to Adult Protective Services and the L.A. Police Department. Each investigated and concluded there was no merit in the complaint. . . . Complaints made to the LA Police Department were particularly harassing to my client, the decedent herein. Then LAPD was required to investigate immediately — causing them in one instance to force the ailing Mrs. Sternoff out of a restful sleep after 10 PM in the evening. . . . I concluded that [Selvage] was unable to accept his mother’s obviously impending death and counseled him to accept and face the reality that his mother was dying, knew she was dying and wished to be left to die in peace, without further medical procedures. This was also reported in my report to the court in the conservatorship proceeding.”
2. Selvage’s Opposition
In opposition to Paquette’s special motion to strike, Selvage submitted the declaration of his wife, Dr. Moire. Essentially, Dr. Moire reiterated the allegations of the FAC. Although Dr. Moire concluded that Sternoff’s death was caused by defendants’ wrongful acts and omissions, she did not describe Sternoff’s death or provide any factual information regarding the cause of death.
Dr. Moire stated in part that “Paquette, with the knowledge and cooperation of her alleged co-conspirators, Meyers, Labow, Goldberg and Carter suppressed [Selvage’s December 2003 signed statement] (Exhibit ‘1’) from the Probate Court in order to whitewash the acts complained of therein and continue the manipulation, control and abuse of [Sternoff] by her co-conspirators, as herein alleged resulting in the eventual death of [Sternoff] and the injuries to Plaintiff and [Sternoff’s] estate. I am of the professional opinion that as a proximate result of the Defendants’ wrongful acts, fraud, willful negligence, neglect and abuse [Sternoff] died on January 7, 2004. During the conservancy of [Sternoff] the Defendants failed and refused to diligently inform Plaintiff of her deteriorating health and condition and tried to conceal this from him and myself. [¶] It is my professional opinion that the six month delay in medically treating [Sternoff] for the of [sic] her bile duct substantially shortened [Sternoff’s] life span by years and caused her enormous suffering and pain. This was further exacerbated by the Defendants supplying up to a fifth of Glenlivet scotch daily to [Sternoff] in direct contravention of her physicians[’] orders to limit her consumption to a few ounces daily. [¶] It is my professional opinion that the Defendants shortened [Sternoff’s] life and caused her and the Plaintiff pain and suffering by keeping Plaintiff and myself, and his daughter[,] herself a qualified health care practitioner, and [Sternoff’s] psychiatrist, who was treating [Sternoff] at her home for depression and alcoholism, from seeing and communicating with [Sternoff]. Defendants even hired security guards to keep [Sternoff] isolated. Defendant Carter repeatedly locked Plaintiff and his family, including myself, and the psychiatrist out of [Sternoff’s] residence although [Sternoff] could plainly be heard calling out for help. On one occasion, I called the police to investigate the abuse. The police did question a sedated [Sternoff]. Defendants denied abuse and Goldberg, Labow and Paquette not only whitewashed my complaint but Paquette on behalf of herself and the other Defendants threatened to seek out restraining orders against me if she ever again attempted to carryout her mandated duty under the W&I code without the consent of these Defendants. I believe that this latter act, documented in writing by Paquette is a felony and done [in direct] contravention of her fiduciary duty to [Sternoff].”
3. Ruling
On November 16, 2006, the trial court granted Paquette’s special motion to strike and awarded her statutory attorney fees in an undetermined amount. The trial court held that the FAC contains “essentially no factual allegations against Paquette. Plaintiff’s only allegations against Paquette are that she was a court-appointed ‘PVP attorney,’ appointed to represent the decedent; at some point in time, she allegedly ‘suppressed’ a document from the Probate Court; and ‘threatened’ to obtain restraining orders. [¶] Clearly, all of these actions fall within the ambit of CCP §425.16(e)(1) & (2), protecting written or oral statements or writings made before a judicial or other official proceeding; and written or oral statements or writings made in connection with issues under consideration or review by a judicial body or other official proceeding. [¶] Plaintiff makes no attempt to establish a probability of success on his claims.”
B. Paquette’s Demurrer
Also on November 16, 2006, the court sustained Paquette’s general demurrer to the FAC without leave to amend. The trial court stated: “Plaintiff doesn’t allege a single fact to show that Paquette caused his mother’s death. There isn’t a single allegation that she did anything to the decedent. Plaintiff doesn’t even allege how his mother died, let alone any facts which could possibly support a conclusion that these actions (whatever they were) caused her death. [¶] The second cause of action for intentional infliction of emotional distress also fails to state a claim. There are literally no allegations of any type of conduct, ‘so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.’ (Cochran v. Cochran[] (1998) 65 Cal.App.4th 488, 496.”
C. Other Demurrers
Similarly, the trial court also sustained, without leave to amend, the general demurrers of Labow and Goldberg on November 30, 2006, and Meyers and Carter on December 7, 2006. With regard to the claim for conversion against Meyers and Carter, the trial court added: “Finally, Plaintiff fails to allege that either Meyers or Carter converted anything. Plaintiff hasn’t alleged that there was any tangible property that he had an immediate right to possess, nor has he alleged any act of conversion. He has not even identified the specific property that was allegedly converted.”
D. Meyers’s Special Motion to Strike
Meyers filed a special motion to strike the complaint on the grounds that this action “is really another method utilized by Selvage and his wife, Dr. Laura Moire, to punish [Meyers], Selvage’s half sister, for disagreeing with Selvage’s various proposals and participation in the conservatorship proceedings regarding [Sternoff], and the subsequent probate proceedings. Meyers had every right to file the various documents that she did in the conservatorship and probate proceedings, and also to contest Selvage’s actions during those proceedings. Selvage’s attack against Meyers in this lawsuit resulting from Meyers’ participation in the conservatorship and probate proceedings is prohibited by the anti-SLAPP statute[.]” “Meyers denies all of the claims of Selvage and contends that this frivolous and malicious lawsuit was brought solely as an effort to circumvent the no-contest clause of Sternoff’s trust as well as challenge the probate and conservatorship proceedings. In particular, the allegations of abuse and control over the medical care of Sternoff are completely unfounded given that the court ordered the appointment of various conservators whose responsibility was to arrange medical care and make medical decisions for Sternoff.”
1. Meyers’s Supporting Evidence
Meyers presented evidence from both the conservatorship and probate proceedings in support of her contention that this action: (1) involves identical allegations made and rejected as unfounded by the probate court in Sternoff’s conservatorship proceedings; and (2) arises from Meyers’s protected activities and communications in the conservatorship and probate proceedings. Meyers contended that the principal thrust of Selvage’s lawsuit was to punish her involvement in Sternoff’s conservatorship proceedings, which was initiated because of Sternoff’s desire to be protected from Selvage’s unwelcome interventions and visits, without terminating all contact. Meyers presented evidence to show that decisions regarding access to her mother and medical care were made by her mother’s conservator.
For example, Meyers stated, with supporting record citations, that “Selvage has a history of contentious relations with the decedent and her court-appointed caregiver. While she was alive, Sternoff expressed her numerous problems with Selvage. For example, Stephen Read, M.D., in his report submitted for the conservatorship proceedings, wrote: ‘Mrs. Sternoff reports that at this time she and Tony are always in conflict; e.g. she was very upset when he called earlier this week to say he was coming for an impromptu visit. She forbade him to stay in her home. She blames Tony for the difficulties that led to the hospitalizations.’ [¶] Medically, Mrs. Sternoff sees James Follette, MD in Santa Monica (although several other physicians have been involved in her care at UCLA, Mrs. Sternoff is adamant that she will not return to see any of them as an extension of her antagonism with Tony.) [¶] . . . Medications are dispensed by Rose, a full-time live-in caregiver, who provided the above list and indicated that Mrs. Sternoff is fully compliant with the medications. Hospitalizations at UCLA May 13-15 and May 21-27 were involuntary; Mrs. Sternoff’s view is that they were precipitated by arguments with her son, who then called ‘police.’ Admission notes convey her account the same way.’ [Record citations omitted.]” In addition, a prior PVP attorney (William Christian) reported that, “‘Apparently, the present mental capacity and condition of the proposed conservatee cause substantial disruption to her routine and nervousness as a result of discussions and encounters with her son. The difficulty in this relationship, and the desire of the petitioner to reduce adversarial or upsetting encounters, prompted the filing of this Petition.’ [Record citation omitted.] ‘. . . [T]he goal at this time is not to prohibit interaction between family members, but to provide a guardian of the person who has the authority to terminate upsetting discussions or prevent visits which would create these types of difficulties.’ [Record citation omitted.]”
Meyers contended that she had no “control over the medical care of Sternoff, but rather, the conservators had such responsibility and authority pursuant to court orders. [Record citations omitted.] Meyers also did not prevent Sternoff from receiving certain medical care. In fact, evidence shows that Sternoff herself did not want certain medical procedures, as she did not want to be hospitalized but rather, wanted to die at home peacefully. [Record citations omitted.] Again, it was the conservator that had the authority to make medical decisions on behalf of Sternoff. Selvage and his wife for whatever reason failed or refused to accept Sternoff’s decisions on how to handle her medical care in light of her advanced age and terminally ill condition, as well as that of the numerous medical professionals caring for Sternoff, leading to the numerous disagreements with practically everyone involved, the conservators, doctors, Meyers, and PVP attorneys. Moreover, evidence strongly suggests that Sternoff herself blamed Selvage for much of her physical and mental problems. [Record citations omitted.] As a result, Selvage will be unable to prove that Meyers had anything to do with the alleged wrongful death of Sternoff.”
In addition, Meyers contended that Selvage was trying to punish her for participating in Sternoff’s probate proceedings. The evidence established that in February 2004, Meyers had petitioned to probate Sternoff’s lost will and be appointed as executor. According to Sternoff’s March 8, 2003 and July 31, 2003 codicils, Sternoff had bequeathed 75 percent of the total value of her tangible property to Meyers and 25 percent to Selvage, and bequeathed specific personal items to Meyers. In April 2004, Meyers, having found the original will, petitioned to probate the original will and codicils. Selvage objected to the April 12 petition, arguing that the property listed in the will and codicils belonged to the trust and that legal proceedings regarding the will and trust were pending in Washington. Selvage also contended that Meyers had exercised fraud and undue influence over Sternoff in order to receive substantial assets belonging to the trust and that Meyers had a conflict of interest that precluded her from representing the estate.
On January 27, 2006, Meyers withdrew without prejudice her petition to probate the March 8, 2003 and July 31, 2003 codicils. The probate court appointed Mellon Trust of California as personal representative of Sternoff’s estate and administrator of her will.
2. Selvage’s Opposition
The trial court rejected Selvage’s opposition to Meyers’s special motion to strike as untimely.
3. Ruling
On December 12, 2006, the trial court granted Meyers’s request to take judicial notice of records from Sternoff’s conservatorship and probate proceedings. The trial court granted Meyers’s special motion to strike and awarded her statutory attorney fees in an undetermined amount.
The trial court held “that this case is not about the supposed wrongful death of Plaintiff’s mother, but merely an action arising out of Plaintiff’s dissatisfaction with the Probate proceeding concerning his mother’s estate. [¶] Despite having been given leave to amend, Plaintiff’s First Amended Complaint contains essentially no factual allegations against Meyers, apart from her participation in the conservatorship and probate proceedings. Plaintiff’s only factual [allegations] against Meyers that are unrelated to the petitioning activity are that Meyers was the decedent’s daughter; lived with her or at her house while the decedent was hospitalized; and at some point in time she told Plaintiff that doctors were unable to help decedent because of her advanced age. [¶] Virtually every other allegation about Meyers relates to her participation in the conservatorship and probate proceedings. Clearly, all of these actions fall within the ambit of CCP Section 425.16(e)(1) & (2), protecting written or oral statements or writings made before a judicial or other official proceeding; and written or oral statements or writings made in connection with issues under consideration or review by a judicial body or other official proceeding. Plaintiff is seeking to impose liability on Meyers for her petitioning activity. [¶] Plaintiff makes no attempt to establish a probability of success on his claims. [¶] (1) The Court did not consider any of Plaintiff’s opposition documents, as they are all egregiously untimely. . . .”
E. Other Orders
The trial court entered orders of dismissal as to Carter on January 17, 2007, and as to Labow and Goldberg on February 7, 2007.
In addition, on February 7, 2007, the trial court dismissed the case as to defendants Mellon Trust of California and Mellon Trust of Washington, which were named as defendants in the FAC under section 382. Selvage has not appealed from the dismissal of the Mellon defendants, who are not parties to this appeal.
Also on February 7, 2007, the trial court entered orders establishing the amounts of the attorney fees awarded to Paquette and Meyers under the anti-SLAPP statute. On appeal, Selvage challenges only the validity but not the amounts of the fee awards.
F. This Appeal
On January 16, 2007, Selvage filed a notice of appeal from: (1) the orders granting the special motions to strike of Paquette (November 16, 2006) and Meyers (December 12, 2006) (§§ 425.16, subd. (i); 904.1, subd. (a)(13) [orders granting or denying special motions to strike are appealable]); and (2) the orders sustaining without leave to amend the demurrers of Paquette (November 16, 2006), Labow and Goldberg (November 30, 2006), and Meyers and Carter (December 7, 2006).
No appeal may be taken from an order sustaining a demurrer without leave to amend; the appeal must be taken from the dismissal of the complaint. (§ 904.1.) The January 16, 2007 notice of appeal was premature as to defendants Carter, Labow, and Goldberg, given that orders of dismissal were not entered until January 17 (Carter) and February 7, 2007 (Labow and Goldberg). At Selvage’s request, we will deem the premature notice of appeal to incorporate the subsequent orders of dismissal. (Hinman v. Department of Personnel Admin. (1985) 167 Cal.App.3d 516, 520.)
DISCUSSION
I. The Demurrers
Selvage contends that the orders sustaining the demurrers must be reversed or, alternatively, that leave to amend should be granted. We disagree.
“‘In reviewing the sufficiency of a complaint against a general demurrer, we are guided by long-settled rules. “We treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. [Citation.] We also consider matters which may be judicially noticed.” [Citation.] Further, we give the complaint a reasonable interpretation, reading it as a whole and its parts in their context. [Citation.] When a demurrer is sustained, we determine whether the complaint states facts sufficient to constitute a cause of action. [Citation.]’” (Blumhorst v. Jewish Family Services of Los Angeles (2005) 126 Cal.App.4th 993, 999.)
In ruling on a general demurrer, although we must accept as true all properly pleaded material facts, we need not accept as true mere contentions, deductions or conclusions of fact or law. (C & H Foods Co. v. Hartford Ins. Co. (1984) 163 Cal.App.3d 1055, 1062; Droz v. Pacific National Ins. Co. (1982) 138 Cal.App.3d 181, 183, fn. 1.) Moreover, we “will not close [our] eyes to situations where a complaint contains allegations of facts inconsistent with attached documents, or allegations contrary to facts which are judicially noticed. [Citations.] Thus, a pleading valid on its face may nevertheless be subject to demurrer when matters judicially noticed by the court render the complaint meritless.” (Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604.)
A. Wrongful Death
“Wrongful death is a statutorily created cause of action for pecuniary loss brought by heirs against a person who causes the death of another by a wrongful act or neglect. . . . It is a cause of action for the heir who recovers for the pecuniary loss suffered on account of the death of the relative. [Citation.] In any action for wrongful death resulting from negligence, the complaint must contain allegations as to all the elements of actionable negligence. (Potter v. Richards (1955) 132 Cal.App.2d 380, 385.) Negligence involves the violation of a legal duty imposed by statute, contract or otherwise, by the defendant to the person injured, e.g., the deceased in a wrongful death action. (Nally v. Grace Community Church (1988) 47 Cal.3d 278, 292.)” (Jacoves v. United Merchandising Corp. (1992) 9 Cal.App.4th 88, 105.)
The plaintiff in a negligence action must prove duty, breach, causation, and damages. (Macy’s California, Inc. v. Superior Court (1995) 41 Cal.App.4th 744, 748.) Causation is proven if the defendant’s breach of duty (negligent act or omission) was a substantial factor in bringing about the plaintiff’s harm. (Mitchell v. Gonzales (1991) 54 Cal.3d 1041, 1052.)
As the trial court correctly pointed out below, the claim for wrongful death is legally insufficient because it fails to allege any facts, as opposed to conclusions, regarding the cause of Sternoff’s death and fails to allege facts showing a causal relationship between defendants’ alleged wrongful conduct and her death. At most, the FAC alleges that Sternoff died on January 7, 2004, at over 80 years of age while under hospice care. Given the lack of any properly pleaded factual allegations regarding the cause of her death, we conclude the alleged wrongful acts—namely, that defendants prevented Sternoff from seeing Selvage and her psychiatrist, withheld medical care, delayed medical testing and treatment, withheld a thyroid medication, provided excessive amounts of alcohol, withheld a durable power of attorney document, and failed to deliver Selvage’s signed statement to the probate court—fail to allege a causal relationship with Sternoff’s death. Moreover, when viewed in light of the cause of death stated on the death certificate, acute coronary occlusion, we can discern no causal relationship between the alleged wrongful acts and Sternoff’s death. The FAC, accordingly, fails to state a claim for wrongful death because it fails to allege any facts showing that defendants’ wrongful acts were the proximate cause of Sternoff’s death. (See Potter v. Richards, supra, 132 Cal.App.2d at pp. 384-385 [the complaint, which failed to allege any facts regarding the proximate cause of the death of plaintiff’s wife, was insufficient to state a cause of action for wrongful death].)
Having determined that the complaint fails to state a cause of action for wrongful death, we turn to the question whether “there is a reasonable possibility that the defect can be cured by amendment: if it can be, the trial court has abused its discretion and we reverse; if not, there has been no abuse of discretion and we affirm. [Citations.] The burden of proving such reasonable possibility is squarely on the plaintiff.’ (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) ‘To meet [the] burden of showing abuse of discretion, the plaintiff must show how the complaint can be amended to state a cause of action. [Citation.] However, such a showing need not be made in the trial court so long as it is made to the reviewing court.’ (William S. Hart Union High School Dist. v. Regional Planning Com. (1991) 226 Cal.App.3d 1612, 1621.) ‘[W]e may affirm a trial court judgment on any basis presented by the record whether or not relied upon by the trial court.’ (Day v. Alta Bates Medical Center (2002) 98 Cal.App.4th 243, 252, fn. 1.)” (Blumhorst v. Jewish Family Services of Los Angeles, supra, 126 Cal.App.4th at p. 999.)
We conclude that Selvage cannot amend the complaint to allege a causal link between Sternoff’s death and defendants’ alleged acts and omissions. We can discern no apparent causal relationship between the alleged acts or omissions and Sternoff’s death at age 90 from acute coronary occlusion, as stated in the death certificate. Selvage points to his wife’s declaration, attached as exhibit 1 to his opening brief, and claims it contains sufficient facts to cure the deficiencies in the FAC. We disagree. The declaration alleges no new facts to establish causation and is little more than a number of unsubstantiated conclusions.
Moreover, because Sternoff was the subject of a conservatorship action, her medical decisions were within the exclusive control of her court-appointed conservator. (Prob. Code, § 2355, subd. (a).) The probate court’s records and orders in the conservatorship action, of which the trial court took judicial notice below, showed that the disputed actions in this lawsuit were previously approved by the probate court in the conservatorship action as consistent with Sternoff’s best interests. Accordingly, we conclude that Selvage has failed to show there is a reasonable probability the FAC can be amended to state a claim for wrongful death.
The statute provides in relevant part: “If the conservatee has been adjudicated to lack the capacity to make health care decisions, the conservator has the exclusive authority to make health care decisions for the conservatee that the conservator in good faith based on medical advice determines to be necessary. The conservator shall make health care decisions for the conservatee in accordance with the conservatee’s individual health care instructions, if any, and other wishes to the extent known to the conservator. Otherwise, the conservator shall make the decision in accordance with the conservator’s determination of the conservatee’s best interest. In determining the conservatee’s best interest, the conservator shall consider the conservatee’s personal values to the extent known to the conservator. . . .” (Prob. Code, § 2355, subd. (a).)
B. Intentional Infliction of Emotional Distress
“The elements of a prima facie case for the tort of intentional infliction of emotional distress are: (1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress; (2) the plaintiff’s suffering severe or extreme emotional distress; (3) and actual and proximate causation of the emotional distress by the defendant’s outrageous conduct. (Fletcher v. Western National Life Ins. Co. (1970) 10 Cal.App.3d 376, 394; Alcorn v. Anbro Engineering, Inc. (1970) 2 Cal.3d 493, 497-499; State Rubbish etc. Assn. v. Siliznoff (1952) 38 Cal.2d 330, 336-339; 4 Witkin, Summary of Cal. Law (8th ed.) Torts, §§ 234-237, pp. 2515-2517.) ‘Whether treated as an element of the prima facie case or as a matter of defense, it must also appear that the defendants’ conduct was unprivileged.’ (Fletcher v. Western National Life Ins. Co., supra, 10 Cal.App.3d at p. 394; State Rubbish etc. Assn. v. Siliznoff, supra, 38 Cal.2d at p. 339; Rest.2d Torts, § 46, com. g.) Conduct to be outrageous must be so extreme as to exceed all bounds of that usually tolerated in a civilized community. (Alcorn v. Anbro Engineering, Inc., supra, 2 Cal.3d at p. 499, fn. 5; Fuentes v. Perez (1977) 66 Cal.App.3d 163, 170; Rest.2d Torts, § 46, com. d.)” (Cervantez v. J. C. Penney Co. (1979) 24 Cal.3d 579, 593.)
Selvage alleges that due to the unlawful acts that resulted in his mother’s wrongful death, he has suffered extreme emotional distress. Setting aside for the moment the absence of any factual allegations to support a causal connection between the alleged wrongful acts and Sternoff’s death, we note that the FAC also fails to allege that defendants’ actions were not privileged or that they were wrongfully directed at Selvage, whose unwelcome interventions were the motivating factor behind the conservatorship proceedings and orders.
“An action for intentional infliction of emotional distress exists only where the defendant’s conduct was not privileged. (State Rubbish Etc. Assn. v. Siliznoff (1952) 38 Cal.2d 330, 336-339; Fletcher v. Western National Life Ins. Co. (1970) . . . 10 Cal.App.3d 376, . . . 395 . . . .)” (Girard v. Ball (1981) 125 Cal.App.3d 772, 786-787.) “The defendant must have engaged in ‘conduct intended to inflict injury or engaged in with the realization that injury will result.’ ([Davidson v. City of Westminster (1982) 32 Cal.3d 197,] 210.) [¶] It is not enough that the conduct be intentional and outrageous. It must be conduct directed at the plaintiff . . . .” (Christensen v. Superior Court (1991) 54 Cal.3d 868, 903.)
As was plainly alleged in the FAC, Sternoff disliked Selvage’s opposition to her drinking and, through her trustee, the late Sherry Fulkerson, “opposed treatment for . . . alcoholism and sought Conservatorship to prevent [Selvage’s] interventions.” The probate court imposed the conservatorship over Sternoff’s person in large measure to protect her from Selvage’s interventions. The probate court adopted Paquette’s findings in both the initial report and the PVP report, and thereby rejected the same allegations that are being made in this litigation as meritless. Given that the conservatorship orders authorized defendants to intercede on Sternoff’s behalf to protect her from Selvage’s overbearing interventions, Selvage has failed to allege facts showing that their alleged wrongful acts and omissions were not privileged. Even though some of the alleged wrongful acts may have been directed at Selvage, he has failed to allege facts showing that they were not privileged or were wrongfully directed at him. Accordingly, we conclude that Selvage has failed to state a valid claim for intentional infliction of emotional distress. (Girard v. Ball, supra, 125 Cal.App.3d at pp. 786-787.)
The FAC must be read with the understanding that the physical changes that occur during the hospice care of a frail patient who is elderly and terminally ill are not viewed as medical emergencies that require unwanted and invasive interventions. Deciding whether to subject a vulnerable loved one to a medical procedure that, on the one hand, could alleviate discomfort, but, on the other hand, could create further complications, is never an easy decision. It is not uncommon for families in such difficult circumstances to disagree on the best course of action. In this case, by court order all medical decisions were placed in the exclusive hands of the conservator, who was privileged to decide the matter in Sternoff’s best interests. (Prob. Code, § 2355, subd. (a).)
Selvage’s allegation that Paquette committed a felony by threatening to seek a restraining order against Dr. Moire is nothing more than an unsupported legal conclusion. According to the conservatorship records, Dr. Moire made several unsubstantiated complaints to outside agencies unfamiliar with the conservatorship orders, which was upsetting to Sternoff because she had initiated the conservatorship proceedings in order to be free of such unwelcome interventions. Selvage has failed to allege any facts showing that Paquette’s attempt to dissuade Dr. Moire from making further unfounded complaints to outside agencies was wrongful.
Similarly, Selvage’s allegation that Paquette wrongfully withheld the durable power of attorney document found in Dr. Follette’s records is another unsupported legal conclusion. According to the FAC, when Selvage became concerned about Sternoff’s allegedly inadequate medical care, he reviewed Dr. Follette’s medical records and found the durable power of attorney document that he now claims was being withheld from him. The allegations are internally inconsistent in that, on the one hand, Selvage claims the document was wrongfully withheld from him, but, on the other hand, he concedes that it was available to him in Dr. Follette’s records.
Moreover, Selvage’s allegation that he was injured by the withholding of the durable power of attorney document must fail, as a matter of law, because the document was necessarily superseded by the probate court’s appointment of a conservator for his mother. According to Probate Code section 2355, subdivision (a), the conservator has the exclusive authority to make health care decisions for the conservatee. Any rights that Selvage may have had under the durable power of attorney document were necessarily extinguished when the probate court appointed a conservator for his mother. Selvage does not cite any authority to the contrary.
For the same reason, Selvage’s claim that he was injured by Paquette’s suppression of his December 8, 2003 statement (exhibit 1 to the FAC) is another unsupported legal conclusion. In his December 8 statement, Selvage sought to enforce the durable power of attorney document found in Dr. Follette’s records. Given our legal determination that the document was superseded by the appointment of a conservator for his mother, the alleged suppression of the December 8 statement could not have caused any injury to Selvage. Moreover, Paquette was not Selvage’s attorney and, therefore, had no obligation to act on his behalf by presenting either his December 8 statement or the durable power of attorney document to the probate court. In any event, nothing precluded Selvage from filing a noticed petition in accordance with the probate court’s June 9, 2003 mandate that “[a]ll future proceedings must be within the context of properly noticed petitions filed with this court.”
We conclude that “in the absence of an allegation of fact or facts showing that defendants negligently caused the death of [Selvage’s mother], there is no causal connection between any act of defendants and [Sternoff’s] illness. Hence, he has failed to state a cause of action” for intentional infliction of emotional distress. (Potter v. Richards, supra, 132 Cal.App.2d at p. 385.)
For the reasons discussed in part A above, we conclude that Selvage has failed to show there is a reasonable possibility that he can amend the FAC to cure the defects in his pleading.
C. Conversion
“Conversion is the wrongful exercise of dominion over the property of another. The elements of a conversion claim are: (1) the plaintiff’s ownership or right to possession of the property; (2) the defendant’s conversion by a wrongful act or disposition of property rights; and (3) damages.” (Burlesci v. Petersen (1998) 68 Cal.App.4th 1062, 1065.)
The trial court sustained the demurrers of Meyers and Carter to the claim for conversion on the ground that the FAC “fails to allege that either Meyers or Carter converted anything. Plaintiff hasn’t alleged that there was any tangible property that he had an immediate right to possess, nor has he alleged any act of conversion. He has not even identified the specific property that was allegedly converted.”
On appeal, Selvage does not dispute that the property at issue belonged to his mother. He argues, however, that he acquired standing to allege a claim for conversion “by joining Melon [sic] as involuntary plaintiffs. (Melon [sic] is the trustee of the trust and the executor of the estate of the decedent Ennid Sternoff Meyers.)” The Mellon defendants, however, were dismissed from the action and Selvage has not appealed from the order of dismissal. Accordingly, he has failed to show that he has standing to pursue a claim for the conversion of the property of another or that he can amend the FAC to cure this defect.
II. The Anti-Slapp Statute
Selvage contends that the trial court erroneously granted the special motions of Paquette and Meyers to strike the complaint under the anti-SLAPP statute.
“A SLAPP suit is a meritless lawsuit ‘filed primarily to chill the defendant’s exercise of First Amendment rights.’ (Wilcox v. Superior Court (1994) 27 Cal.App.4th 809, 815, fn. 2 [disapproved on other grounds in Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 68, fn. 5 (Equilon)].)” (Paul v. Friedman (2002) 95 Cal.App.4th 853, 861.) Having determined that this is a meritless lawsuit that fails to state a cause of action, we must determine whether it was filed primarily to chill Paquette’s and Meyers’s exercise of First Amendment rights. With regard to this issue, we note that the moving party defendants are not required to prove that the plaintiff’s subjective intent in filing this action was to chill their exercise of First Amendment rights. (Equilon, supra, 29 Cal.4th at pp. 61, 68.) “‘[T]he only thing the defendant needs to establish to invoke the [potential] protection of the SLAPP statute is that the challenged lawsuit arose from an act on the part of the defendant in furtherance of her right of petition or free speech. From that fact the court may [effectively] presume the purpose of the action was to chill the defendant’s exercise of First Amendment rights. It is then up to the plaintiff to rebut the presumption by showing a reasonable probability of success on the merits.’ (Fox Searchlight Pictures, Inc. v. Paladino [(2001)] 89 Cal.App.4th [294,] 307.)” (Equilon, at p. 61.)
id id IdIn 1999, the Supreme Court resolved a dispute among the intermediate appellate courts by construing subdivision (e) of section 425.16 to mean that any statement or writing “made in, or in connection with an issue under consideration or review by, an official proceeding or body” is protected by section 425.16, whether or not it involves a public issue. (Briggs v. Eden Council for Hope & Opportunity (1999) 19 Cal.4th 1106, 1113.) The same does not hold true, however, for “any other conduct in furtherance of” the exercise of the rights of petition or free speech, which by statute must bear some “connection with a public issue or an issue of public interest.” (§ 425.16., subd. (e)(4).)
Under section 425.16, the moving party “has the initial burden to show that the cause of action ‘aris[es] from [an] act . . . in furtherance of the [moving party’s] right of petition or free speech.’ ([§425.16, subd. (b)(1)]; Equilon, supra, 29 Cal.4th at p. 67.) Once that burden is met, the burden shifts to the opposing party to demonstrate the ‘probability that the plaintiff will prevail on the claim.’ (Code Civ. Proc., § 425.16, subd. (b)(1); Equilon, supra, 29 Cal.4th at p. 67.) ‘To satisfy this prong, the plaintiff must “state[] and substantiate[] a legally sufficient claim.” [Citation.] “Put another way, the plaintiff ‘must demonstrate that the complaint is both 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.’” [Citation.]’ (Jarrow Formulas, Inc. v. LaMarche (2003) 31 Cal.4th 728, 741, fn. omitted . . . .)” (Zamos v. Stroud (2004) 32 Cal.4th 958, 965.)
With regard to the moving party’s initial burden, the Supreme Court has explained that “the statutory phrase ‘cause of action . . . arising from’ means simply that the defendant’s act underlying the plaintiff’s cause of action must itself have been an act in furtherance of the right of petition or free speech. [Citation.] In the anti-SLAPP context, the critical point is whether the plaintiff’s cause of action itself was based on an act in furtherance of the defendant’s right of petition or free speech. [Citations.] ‘A defendant meets this burden by demonstrating that the act underlying the plaintiff’s cause fits one of the categories spelled out in section 425.16, subdivision (e). . . .’ [ Citations.]” (City of Cotati v. Cashman (2002) 29 Cal.4th 69, 78.) “In deciding whether the ‘arising from’ requirement is met, a court considers ‘the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based.’ (§ 425.16, subd. (b).)” (Id. at p. 79.) Our review of the trial court’s determination is de novo. (Kronemyer v. Internet Movie Database, Inc. (2007) 150 Cal.App.4th 941, 946.)
A. Paquette’s Special Motion to Strike
Selvage denies that he seeks to hold Paquette liable for “complying with a court order or reporting [her] activities and opinions to the court.” He contends that he seeks to hold Paquette liable for abusing the authority given to her by the probate court. He argues that the anti-SLAPP statute does not apply to the unlawful confinement, imprisonment, and death of his mother. He asserts that because Paquette wrongfully conspired “to isolate, abuse, chemically restrain and withhold necessary medications and medical treatment from decedent causing her psychological, physical and mental deterioration and her eventual death,” this suit does not arise from protected acts in furtherance of the right of petition or free speech.
In support of his position, Selvage cites Flatley v. Mauro (2006) 39 Cal.4th 299 (Flatley) and Paul for Council v. Hanyecz (2001) 85 Cal.App.4th 1356 (Paul) (disapproved on other grounds in Equilon, supra, 29 Cal.4th at p. 68, fn. 5). In Paul, plaintiff, an unsuccessful candidate for city council, sued defendants for illegal money laundering campaign activities. Defendants moved to strike the complaint under the anti-SLAPP statute, arguing that their money laundering activities were conducted in furtherance of their constitutionally protected right of free speech. (Paul, supra, 85 Cal.App.4th at pp. 1361-1362.) The appellate court reversed the order granting defendants’ special motion to strike, concluding that “defendants cannot meet their burden on the first step. . . . [T]he activity of which plaintiff complains—defendants’ campaign money laundering—was not a valid activity undertaken by defendants in furtherance of their constitutional right of free speech. This conclusion is established by the factual record before us and is not really disputed by the defendants. Indeed, defendants argue that they are entitled to the benefit of section 425.16 in spite of such illegality.” (Id. at p. 1365.)
As the Supreme Court in Flatley explained, Paul stands for the proposition that “where either the defendant concedes the illegality of its conduct or the illegality is conclusively shown by the evidence, the [special] motion [to strike] must be denied. The rationale is that the defendants cannot make a threshold showing that the illegal conduct falls within the purview of the statute and promotes section 425.16’s purpose 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).)’ (Varian Medical Systems, Inc. v. Delfino [(2005)] 35 Cal.4th [180,] 192.) If, however, a factual dispute exists about the legitimacy of the defendant’s conduct, it cannot be resolved within the first step but must be raised by the plaintiff in connection with the plaintiff’s burden to show a probability of prevailing on the merits.” (Flatley, supra, 39 Cal.4th at p. 316.)
Unlike the defendants in Paul who conceded the illegality of their money laundering activities, Paquette denied any wrongdoing. She argued that the claims against her arose from her protected exercise of the rights of free speech and petition in the conservatorship proceedings, and she presented evidence in support of her position. (§ 425.16, subd. (e).) Accordingly, the legitimacy of Paquette’s conduct cannot be determined from the allegations of the FAC alone. Moreover, those allegations, as discussed above, are legally insufficient to state a claim against Paquette.
Paquette’s evidence showed that she was, at all times, simply performing her statutory duties as Sternoff’s PVP attorney by investigating Selvage’s complaints, ascertaining Sternoff’s wishes, and reporting her findings to the probate court. Selvage’s evidence, on the other hand, consisted of declarations that simply reiterated the FAC’s insufficient allegations. Neither Dr. Moire’s declaration nor Selvage’s December 8, 2003 statement explains how Sternoff died or mentions the cause of death stated on the death certificate. Both Selvage’s December 8, 2003 statement and Dr. Moire’s declaration are, like the FAC, internally inconsistent because, on the one hand, they purport to know the intimate details of Sternoff’s life and medical care, but, on the other hand, contend that they were locked out of Sternoff’s house and denied information regarding her condition and care.
Selvage further argues that because under section 425.16, subdivision (e)(4), “any other conduct” (as opposed to statements or writings) in furtherance of the exercise of the rights of petition or free speech must have some “connection with a public issue or an issue of public interest,” Paquette’s wrongful actions are not protected by section 425.16 because they were not connected with a public issue or an issue of public interest. The flaw in this argument, however, is that the FAC fails to allege any facts supporting a valid claim against Paquette (or any of the defendants) based on any negligent or wrongful conduct. As previously discussed, the FAC does not state a valid claim for wrongful death because it does not allege any facts linking the alleged wrongful acts or omissions with Sternoff’s death. Having eliminated the sham wrongful death allegations from the FAC, we are left with only protected statements and writings made in connection with issues before the probate court in the conservatorship action. Given Selvage’s failure to present any evidence to support his allegations, the record permits only one reasonable conclusion, which is that this “meritless lawsuit [was] ‘filed primarily to chill the defendant’s exercise of First Amendment rights.’ (Wilcox v. Superior Court (1994) 27 Cal.App.4th 809, 815, fn. 2.)” (Paul v. Friedman, supra, 95 Cal.App.4th at p. 861.)
B. Meyers’s Special Motion to Strike
Selvage contends that Meyers’s special motion to strike should have been denied as untimely. We disagree. According to section 425.16, subdivision (f), “[t]he special motion may be filed within 60 days of the service of the complaint or, in the court’s discretion, at any later time upon terms it deems proper. The motion shall be scheduled by the clerk of the court for a hearing not more than 30 days after the service of the motion unless the docket conditions of the court require a later hearing.” Selvage states in his opening brief that Meyers “was served the FAC by mail on September 9, 2006.” The service by mail extended the 60-day period by five calendar days. (§ 1013, subd. (a).) The motion, which was filed on November 13, 2006, was timely filed within 65 days of September 9 and was timely heard 29 days later on December 12, 2006.
Selvage further argues that the motion should have been denied because the FAC is directed at Meyers’s negligent and wrongful acts, as opposed to statements or writings, which had no connection with a public issue or issue of public interest. We reject this argument with regard to the claims for wrongful death and intentional infliction of emotional distress. Like Paquette, Meyers presented evidence of her numerous written and oral statements made either to the probate court (§ 425.16, subd. (e)(1)) or in connection with issues before the probate court (id., subd. (e)(2)) in the conservatorship action. The evidence, especially when viewed in light of the FAC’s sham allegations of wrongful death and intentional infliction of emotional distress, shifted the burden to Selvage to establish a reasonable probability of success on the merits. Selvage, who failed to present any timely opposition to Meyers’s motion, did not meet his burden. Given Selvage’s failure to present any evidence to support his allegations, the record permits only one reasonable conclusion, which is that the meritless claims for wrongful death and intentional infliction of emotional distress were “‘filed primarily to chill the defendant’s exercise of First Amendment rights.’ (Wilcox v. Superior Court (1994) 27 Cal.App.4th 809, 815, fn. 2.)” (Paul v. Friedman, supra, 95 Cal.App.4th at p. 861.)
The trial court granted Meyers’s request to take judicial notice of records from Sternoff’s conservatorship and probate proceedings. Selvage, whose opposition below was rejected by the trial court as untimely, contends on appeal that his hearsay objections were improperly overruled, given that “[n]either originals nor certified copies were provided.” Because Selvage failed to object in a timely manner below, however, he deprived Meyers of the opportunity to respond or cure any alleged defects, and denied the trial court an opportunity to consider the matter. Given that the objections were not litigated below, we will not consider them for the first time on appeal. (See Gonzalez v. County of Los Angeles (2004) 122 Cal.App.4th 1124, 1131 [an appellate court ordinarily will not consider claims made for the first time on appeal that could have been but were not presented to the trial court].)
As for the conversion claim, however, we reach a different result. Unlike the claims for wrongful death and intentional infliction of emotional distress, the evidence does not show that the conversion claim arose from Meyers’s protected exercise of the rights of petition or free speech in the conservatorship action. The disposition of Sternoff’s property was not at issue in the action regarding the conservatorship over Sternoff’s person.
Although Meyers also argued below that the conversion claim arose from her protected exercise of the rights of petition or free speech in the probate action regarding Sternoff’s will, the record is unclear as to the relationship, if any, between the conversion claim and the probate action. Assuming that the conversion claim was somehow injected into the probate action when Meyers petitioned to probate Sternoff’s codicils, it is no longer at issue because Meyers has withdrawn her petition.
Meyers offers no explanation as to how the conversion claim arose from her exercise of the rights of petition or free speech in the probate action and we are unable to identify such a relationship in the record. We therefore conclude that because Meyers failed to establish that the anti-SLAPP statute applies to the conversion claim, the burden never shifted to Selvage as to this claim.
We briefly discuss one remaining matter. Our partial reversal of the trial court’s grant of Meyers’s special motion to strike does not revive the action, given our determination that her demurrer was properly sustained without leave to amend. The only effect our decision has relates to the payment of attorney fees. We are aware that the trial court granted Meyers attorney fees in the amount of $2,695 (she requested $75,590.85 in attorney fees and costs). She appealed the award, and we later dismissed the appeal at her request. In another case, we may have remanded the matter for the trial court to reconsider the fee award in light of appellant’s partial success on appeal. To do so here and invite another round of litigation on a wholly collateral matter would do nothing more than waste precious judicial resources. (See Mann v. Quality Old Time Service, Inc. (2006) 139 Cal.App.4th 328, 346.) We have reviewed the record, and conclude the trial court’s attorney fee award requires no revision.
DISPOSITION
The order granting Meyers’s anti-SLAPP motion is reversed in part as to the conversion claim and affirmed in part as to the wrongful death and intentional infliction of emotional distress claims. The judgment is otherwise affirmed. Respondents Labow, Goldberg, Carter, and Pacquette are awarded their costs on appeal. Respondent Meyers is to bear her own costs.
We concur: EPSTEIN, P. J. MANELLA, J.
The PVP report further stated that Sternoff, “now 89, has liver disease. She is under hospice care and will likely die from this or related complications. It is her stated desire to die at home without further hospitalizations. [Sternoff] continues to enjoy a controlled amount of alcohol on a daily basis. To avoid withdrawal symptoms, the doctor has ordered that she have a minimum amount per day.”