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Dwight R v. Christy B

January 7, 2013

DWIGHT R., PLAINTIFF AND APPELLANT,
v.
CHRISTY B., DEFENDANT AND RESPONDENT.



APPEAL from the Superior Court of San Bernardino County. David Cohn, Judge. (Super.Ct.No. CIVDS1007327)

The opinion of the court was delivered by: King J.

CERTIFIED FOR PUBLICATION

OPINION

Affirmed.

I. INTRODUCTION

Plaintiff Dwight R. appeals from an order granting defendant Christy B.'s special motion to strike his third cause of action against Christy for conspiring with state actors to violate his and his two minor daughters' federal civil rights. (42 U.S.C. § 1983.)*fn1 We affirm the order striking the section 1983 claims as a strategic lawsuit against public participation or "SLAPP." (Code Civ. Proc. § 425.16.)

Christy is a licensed marriage and family therapist and mandated reporter of known or suspected child abuse or neglect. (Pen. Code, §§ 11165.7, subd. (a)(21), 11166.) In his complaint, Dwight alleges that Christy conspired with his former mother-in-law, L.S., and state actors, including several San Bernardino County social workers, to falsely accuse him of sexually abusing his five-year-old daughter R1. Dwight maintains that Christy unduly persuaded or "coached" R1 to draw illicit pictures of herself and Dwight in bed together, and made a knowingly false report that Dwight was sexually abusing R1.

Christy's alleged conspiracy with L.S. and the social workers occurred shortly after the family court allowed Dwight to have unsupervised visits with R1 and her younger sister, R2. Christy's mandated report resulted in an investigation by child protective services and juvenile dependency proceedings for the girls. The dependency proceedings were dismissed after the juvenile court found no evidence to support allegations against Dwight. (Welf. & Inst. Code, § 300.) Dwight claims that Christy's conspiracy with state actors deprived him and the girls of their federal constitutional rights to familial association and against unlawful seizure.

We conclude that the section 1983 claims are based on acts in furtherance of the rights of free speech or petition, specifically actions preparatory to or in anticipation of official proceedings, including an official investigation by child protective services and juvenile dependency proceedings. (Code Civ. Proc., § 425.16, subd. (e)(2).) We also conclude that Dwight did not demonstrate a probability of prevailing on the claims.

II. BACKGROUND

A. Facts and Procedural History

In September 2008, Dwight and his former wife N. initiated divorce proceedings. In November, they met separately with a family court mediator to work out a temporary agreement for custody and visitation rights to their two daughters, R1 and R2, then ages five and three, respectively. N. expressed no concern during the mediation that Dwight had sexually abused the girls, and the mediator's report of the mediation did not mention any concern of sexual abuse. Through the mediator, Dwight and N. agreed that N. would have temporary sole legal and physical custody of the girls, Dwight would visit the girls three days each week, and Dwight's parents would supervise the visits. The agreement did not have any provision for overnight visits.

During a second mediation on February 24, 2009, Dwight sought unsupervised overnight visits with the girls. At the time of the February 24 mediation, Dwight was living with his parents, was self-employed, and set his work schedule according to work availability. He believed his visits with the girls had been going well, and he did not wish to further impose on his parents to supervise the visits.

At the February 24 mediation, the mediator again spoke separately with Dwight and N. N. wanted the paternal grandparents to continue supervising the visits. She acknowledged that the girls were enjoying the visits and would likely enjoy overnight visits, but she believed the visits were going well only because the paternal grandparents were involved. She told the mediator she did not trust Dwight's judgment, but she expressed no concern that Dwight had or would sexually abuse the girls, and the mediator's February 24 report does not mention any concern of sexual abuse. Dwight and N. did not reach an agreement at the February 24 mediation, but the mediator recommended to the family court that Dwight have unsupervised visits with the girls, including overnight visits on alternating weekends.

During a March 16, 2009, order to show cause hearing in the family court, N. accused Dwight for the first time of sexually abusing the girls. The family court rejected the accusation as unfounded, and adopted the mediator's recommendation that Dwight have unsupervised visits, including overnight weekend visits. Even though the court authorized unsupervised visits, after the March 16 hearing Dwight made certain his parents were present during all of his visits with the girls as a precaution against N.'s false accusations of sexual abuse.

Dwight visited the girls on Tuesday and Thursday, March 17 and 19, 2009, in the presence of his parents. These daytime visits "went smoothly and uneventfully, without any problems." The first overnight visit took place on Friday, March 20, through Sunday, March 22, 2009, at the paternal grandparents' home. The girls had never before spent the night there, and the paternal grandparents were present throughout the visit.

Shortly after the March 20 to March 22 weekend visit, Dwight discovered that R1 had her first therapy session with Christy on Friday, March 20. Before March 20, neither R1 nor R2 had ever seen a therapist.

Dwight alleges that N. and her mother, L.S., arranged R1's March 20 therapy session with Christy. N. and the girls lived with L.S., and L.S. had for many years worked as a "professional paraeducator" for the Los Angeles County Office of Education, specializing in "extremely disturbed children," including victims of sexual abuse. Dwight alleges that L.S. had long-standing professional relationships with Christy and San Bernardino County social workers, and conspired with Christy and the social workers to falsely accuse Dwight of sexually abusing the girls. In their professional capacities, Christy, L.S., and the social workers are mandated reporters of suspected child abuse or neglect. (Pen. Code, §§ 11165.7, subd. (a)(9), (15), (21), 11166, subd. (a).)

As a licensed marriage and family therapist, Christy received client referrals from the San Bernardino County Superior Court. In a declaration in support of her anti-SLAPP motion, Christy claims that N. contacted her around February 2009 and expressed concern that R1 was exhibiting behavioral problems, including bed-wetting. Christy told N. that she did not typically work with families who were still working with the courts, but she would be willing to work with N. after the court finalized the girls' visitation schedule with Dwight. Around March 20, 2009, N. again contacted Christy, told her the visitation schedule had been settled with the family court, and that R1 was still exhibiting behavioral problems, including "acting clingy and whiny."

Christy acknowledges that she had her first therapy session with R1 on March 20, 2009. She claims that, in keeping with her custom and practice for new patients, she instructed R1 to draw pictures of "a tree, a house, herself and her favorite animal." This helped her connect with and learn more about the child. Christy claims that, "[b]ased on the pictures [R1] drew, as it pertained to her father's house and sleeping arrangements she shared with her father, and based upon my professional opinion, I had a reasonable suspicion that there may be sexual abuse."

Christy denies Dwight's allegations that she facilitated, instructed, or guided R1 "into making certain statements and drawings, to conjure up sexual abuse allegations" against Dwight. She also denies conspiring with anyone, including N., L.S., or any social workers, to violate Dwight's or the girls' federal civil rights. She claims the only action she took ...


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