California Court of Appeals, Third District, Placer
Pub. Order 6/20/13 (see end of opn.)
APPEAL from a judgment of the Superior Court of Placer County No. SCV28179, Colleen M. Nichols, J.
Law Office of Stephanie J. Finelli and Stephanie J. Finelli for Defendant and Appellant.
Freidberg & Parker, Edward Freidberg, Port J. Parker and Suzanne M. Alves for Plaintiff and Respondent.
This defamation action arises out of a contentious custody dispute that has made its way to this court five times. In the underlying case, Jayraj Nair persistently fought court-ordered efforts to reunify his former wife, Bindu, with their older son, Suraj. (We refer to defendant by his last name and to other members of the Nair family by their first names for clarity.) After the couple separated, Suraj sided with his father and moved in with him. Their younger son, Sujay, continued to live with his mother. Following dissolution of the marriage, the family court awarded Nair and Bindu joint legal custody of both sons and found the best interest of the children required joint physical custody, but that Suraj’s estrangement from his mother required therapy before that could happen. (Nair II, supra, C059661.)
Janelle Burrill, Ph.D., was appointed to serve as reunification counselor to assist in the reunification process. After Dr. Burrill filed a reunification report concluding Nair was emotionally and psychologically abusing Suraj by, among other things, indoctrinating the child to believe his mother was “evil and never loved him, ” and she “kidnapped Sujay and [was] holding him hostage, ” and further opining Nair presented a credible threat to the physical safety of Bindu and both of their sons, Suraj was removed from Nair’s house and ultimately placed with his mother. Thereafter, the family court issued a domestic violence restraining order preventing Nair from contacting Bindu and their two sons, except for short supervised visits. We affirmed this order on appeal. (Nair III, supra, C061097 & C062004.)
In the defamation lawsuit, Dr. Burrill alleges Nair made a number of defamatory statements online and over the radio following the issuance of the reunification report and removal of Suraj from his physical custody. One of these statements, posted on CNN’s iReport Website, accused Dr. Burrill of “criminal fraud and modern day slavery using Parental Alienation SCAM, enslavement of children for $$$$$$ in California.” The posting continued: “Corrupt Criminals like [Dr. Burrill] and their good-ol-network are today’s ‘modern slave traders’ trading ‘children’ with vindictive retribution and for money.” The posting also accused Dr. Burrill of “child abuse” and “financial extortion.” In another statement, made during an interview with Sacramento area radio station “KFBKnewstalk” (http://www.kfbk.com/main.html, retrieved May 20, 2013), Nair claimed Dr. Burrill “extorted money” from him. Nair further asserted: “[Dr. Burrill] does not have any license to practice psychology in California. She’s got a diploma from some online mill. And on top of it, she makes DSM-[IV] diagnoses; she prescribed Benzodiazepine for my son. A person who is not even a psychologist or psychiatrist prescribing medication in California? That’s illegal.”
Nair moved to strike the defamation cause of action pursuant to Code of Civil Procedure section 425.16, the anti-SLAPP statute. The trial court denied the motion. Nair appeals. The issues on appeal have been simplified by the fact that Dr. Burrill concedes the defamation cause of action arises from protected activity within the meaning of the anti-SLAPP statute. Dr. Burrill also concedes that, as a “limited purpose public figure, ” in order to prevail on the merits, she “must demonstrate not only the falsity of the statements at issue, but also that they were published with ‘actual malice.’” After independently reviewing the trial court’s ruling, we conclude Dr. Burrill has demonstrated a probability of prevailing on the merits of her defamation cause of action and affirm the order denying the special motion to strike.
Underlying Custody Dispute
In order to place the defamation lawsuit and anti-SLAPP motion in context, we begin with an overview of the underlying custody dispute between Nair and Bindu. In doing so, we draw in part on our unpublished opinions in Nair II, supra, C059661, Nair III, supra, C061097 and C062004, and Nair V, supra, C064566, of which we have taken judicial notice.
Nair and Bindu married in July 1995. They separated ten years later. In the meantime, Suraj and Sujay were born to the union. At the time of separation, Suraj was nine years old and Sujay was about a year and a half. In February 2006, Bindu filed for a domestic violence restraining order against Nair. Three weeks later, Nair filed a petition for dissolution of the marriage. The matters were consolidated and the parties filed numerous motions regarding child custody and visitation. (Nair II, supra, C059661.)
In July 2006, the family court ordered Nair to pay child support for Suraj and Sujay. The following month, Suraj, then ten years old, sided with his father and moved in with him. Two-year-old Sujay remained with his mother. (Nair III, supra, C061097 & C062004.)
According to Sharon Sloper, MFT, who prepared a report for the family court in September 2006, Suraj had a positive relationship with his mother prior to the separation. However, this relationship began to deteriorate. Sloper believed that “‘Suraj’s behavior symptoms (not speaking to [Bindu] or calling her names, refusing to cooperate with her or her side of the family, saying that he hates her and that “there is nothing I like about her”) and his strong allegiance to [Nair] (“there are so many things I love about him... there is nothing I don’t like”) certainly indicate that Suraj may feel the need to please his father or at least not express any care for his mother.’”
In November 2006, the family court entered a judgment of dissolution as to marital status only. In March 2007, counsel was appointed to represent Suraj and Sujay. The family court allowed Suraj to remain with Nair. Sujay was allowed to remain with Bindu. (Nair II, supra, C059661.) The same month, Gene Roeder, Ph.D., prepared an evaluation report, in which he noted that Suraj stated: “‘I just want to live with my dad and my brother and be away from her [referring to his mother] and forget I ever knew her.’” The report noted Suraj refused to be in the same room as Bindu and referred to his mother only as “‘her.’” The report further noted Suraj repeated the same phrases as Nair and refused to participate in any psychological testing because he believed Dr. Roeder would use the results against him. The report concluded that “‘Suraj presents with the same level of hostility and expressing the same distortions [of reality] as his father. While there was once a positive relationship between mother and son, and at the time of the previous evaluation there was still evidence of some positive attachments, there is now only utter disdain and contempt.’”
In September 2007, Nair sought a restraining order against Bindu’s father, alleging sexual molestation and harassment of Suraj and Sujay. (Nair II, supra, C059661.) The same month, James Brentt, Ph.D., prepared an evaluation report that also noted Suraj’s alignment with Nair and alienation from Bindu.
In February 2008, trial was held on issues of custody and visitation. The family court also heard Nair’s request for a restraining order against Bindu’s father. (Nair II, supra, C059661.) The following month, the family court issued a written ruling that awarded Nair and Bindu joint legal custody and found the long-term best interests of Suraj and Sujay would require joint physical custody, but Suraj’s estrangement from Bindu required therapy before that could happen. A two-tier visitation schedule was also provided. (Nair II, supra, C059661.) A separate order issued that denied Nair’s request for a restraining order against Bindu’s father due to an absence of evidence.
In May 2008, Nair filed an order to show cause seeking 50 percent physical custody of Sujay and further seeking child support from Bindu for Suraj. The same month, Bindu filed a number of orders to show cause seeking (1) supervised visits between Nair and Sujay, (2) no contact between Suraj and Sujay until a therapist was appointed for Sujay, (3) removal of Suraj from Nair’s physical custody, and (4) an order preventing Nair from contacting her. The family court ordered the requested supervised visits between Nair and Sujay and also ordered no contact between Suraj and Sujay until a therapist was appointed for Sujay. (Nair II, supra, C059661; Nair III, supra, C061097 & C062004.)
In June 2008, the family court substituted therapists for the children and confirmed the orders issued the previous month. The following month, the family court confirmed the previous visitation orders, again substituted therapists, and ordered Nair not to contact Bindu. (Nair II, supra, C059661.)
In August 2008, the family court awarded Bindu $75, 000 in attorney fees pursuant to Family Code section 271, subdivision (a), “based upon [Nair’s] conduct which frustrated the policy of the law to promote settlement of litigation and reduce the costs of litigation.” The court explained the ruling was “based in large part on [Nair’s] repeated attempts to frustrate both the spirit and the letter of the Court’s rulings with which he disagrees. For example, ... the attempts of the Court to start the reunification process between [Suraj] and [Bindu] has been frustrated by [Nair’s] disputes with the proposed counselors either by refusing to pay for the counseling or lodging complaints about the counselors’ behavior with professional review boards.” (Nair II, supra, C059661.) Indeed, during a previous hearing, Nair accused one of Suraj’s appointed therapists, David Chervick, MFT, of accepting “$2, 000 as a bribe” to render an unfavorable opinion. The family court discounted this accusation as “outrageous.”
We affirmed the June and July 2008 custody, visitation, and no-contact orders, as well as the August 2008 attorney fee award in Nair II, supra, C059661.
Following the attorney fee award, Nair moved to disqualify Commissioner Dirk Amara from presiding over the case, asserting that Commissioner Amara made “prejudicial and biased rulings” because of “overt prejudice, covert racism/discrimination and [his] vindictive retribution towards [Nair].” The motion was denied based on Nair’s failure to offer specific facts in support of the allegations.
In December 2008, the family court denied Nair’s request for child support and continued his obligation to pay child support to Bindu, “finding that ‘to the extent [Bindu] is not exercising her 50% parenting time with [Suraj], this is due solely to [Nair’s] misconduct in alienating [Suraj] from his mother and failing to take all necessary steps to reunify [Suraj] with his mother consistent with the [sic] all parenting orders in effect.’” (Nair III, supra, C061097 & C062004.)
We affirmed this ruling in Nair III, supra, C061097 and C062004).
Appointment of Dr. Burrill
In October 2008, the family court appointed Dr. Burrill to act as Suraj’s therapist “to facilitate the reunification process” between Suraj and his mother. Two weeks later, Nair signed a fee agreement charging $150 per hour for Dr. Burrill’s services as Suraj’s therapist. On the face of the agreement, in reference to a paragraph requiring payment for “telephone consultations” with “collateral contacts” and another paragraph providing for costs and attorney fees in the event litigation was required to enforce the agreement, Nair wrote, “will require prior authorization.” This notation was not made in reference to the paragraph requiring payment for “reports” and “other professional services.” However, below his signature, Nair wrote: “Conditional: Pls [sic] get pre-auth for every charge.” The same day Nair signed the fee agreement, Dr. Burrill met with Suraj for an intake appointment. Two weeks later, she had another counseling appointment with Suraj and also met with Nair.
On December 2, 2008, Dr. Burrill met with Suraj a third time. The next day, she sent Nair a letter stating she had been appointed “to act as reunification therapist, for Suraj and Bindu, not as Suraj’s individual therapist, ” and her “fee for reunification therapy is $165.00 per hour, with a $1, 500.00 retainer used for report preparation and contact with collateral sources.” The letter attached a new fee agreement reflecting these terms. The letter also attached invoices for services rendered, reflecting an unpaid balance of $2, 352.50 (mostly for report preparation and document review) that would be reduced by $752.50 as a “professional courtesy, ” for a total unpaid balance of $1, 600. The invoices also reflected that Suraj paid for two of his appointments with his own money.
On December 15, 2008, Dr. Burrill sent Nair a letter again requesting that he sign the new fee agreement and demanding payment of $4, 642.50, reflecting an outstanding balance of $2, 977.50, plus $1, 500 for the retainer, plus $165 for the next scheduled appointment.
On December 29, 2008, Suraj sent Dr. Burrill an e-mail stating he had no need for her “so-called expertise” and would not be meeting with her “ever again.” The same day, Nair sent Dr. Burrill an e-mail confirming he had paid only $300 of her outstanding bill, along with another $300 Suraj paid “from his personal chess prize monies.” Nair refused to pay for any of Dr. Burrill’s other services, explaining that these services were not “pre-authorized by father.” Nair also objected to the new fee agreement and stated: “Please review the terms of the financial agreement (signed 10/15/2008) so there is no confusion and additional fodder for unscrupulous lawyers. I hope that you will maintain your professional ethics and integrity and not give us a repeat of David Cherwick [sic] like response of accepting bribes from the abusing party and making erroneous recommendations to destroy my boys.”
On December 31, 2008, Nair sent Dr. Burrill another e-mail stating he spoke with Suraj regarding future counseling sessions and Suraj “made it very clear” that “any reunification and counselling [sic] is history.” He continued: “[Suraj] believes that [Sujay] is held hostage and he does not negotiate with hostage takers.” Nair closed the letter with: “Please communicate in writing so there is no confusion, misrepresentation or crumbs for unscrupulous lawyers.” The same day, Sujay had an appointment with his therapist, Jacqueline Parker, MFT, during which he stated that both Nair and Suraj had said “bad words” about Bindu and also that they wanted to kill her. According to Parker, “Sujay was very serious when he made this statement.”
On January 5, 2009, Nair sent Dr. Burrill another e-mail stating: “[U]nless Suraj is willing to participate in sessions, I will not be physically forcing Suraj to meet with you. If anything changes, I will call you and support this process 75000%. [¶] Please do not use this email for charging more $$$ or as fodder for your good friend, the prejudicial Amara, his good old network or any of the unscrupulous lawyers on leashes.”
On January 8, 2009, Dr. Burrill sent an e-mail to Nair’s attorney informing her that she “intend[ed] to continue the reunification process ordered by the Court” and expected Suraj to be at her office for his next appointment the following week. The same day, Nair sent an e-mail to Dr. Burrill again refusing to “force” Suraj to meet with her. He continued: “Pls [sic] feel free to advise unscrupulous lawyers and their masters with great details, give fodder to the prejudicial Amara however, a common sense better than expert feedback is that therapy will only be relevant or useful with a willing participant. Take it for what it is worth but a better approach would be to initiate 50/50 custody plan tomorrow and enable sibling contact and win Suraj over over-time [sic]. If you continue to pursue your money making schemes, covert racism and ongoing misconduct I will follow up with the appropriate oversight agencies and the media knowing very well that the prejudicial Amara is a good friend of yours.” He concluded the e-mail: “Feel free to put this email in evidence as you plan to do and I assure you that I will stand up for my children, protect them and stand up against greed, racism and prejudice of the good old ***** network. Its [sic] unfortunate that my children, family, community now feel that Amara and his friends like you represent the Klan operating without hoods in black robes instead of white. I came to this country without any parasites 15 years ago thinking slavery was abolished here.”
California Board of Behavioral Sciences (BBS) Complaint
On January 30, 2009, Nair filed a complaint against Dr. Burrill with the BBS, alleging Dr. Burrill violated the rules of professional conduct by (1) intentionally or recklessly causing physical or emotional harm to Suraj, and (2) failing to disclose the fee to be charged for her services prior to commencement of treatment. In the complaint, Nair claimed Dr. Burrill threatened “to issue a prejudicial & biased ‘great report’ to the court unless [he] compl[ied] with her demand to pay her $4642.50.” The complaint further alleged: “[Dr. Burrill] asserted that Commissioner Amara who appointed her as the therapist for Suraj is a good friend and often calls her up. [Dr. Burrill] elaborated on her connections with the court and its network, threatened me of consequences if I do not submit to her demands. I have detailed notes from the session and the context was very hostile and threatening, specific quotes from [Dr. Burrill] during the session follow - [¶] a. ‘You will loose [sic] all custody, I can make things happen for you’ - implying pay me and my network will work for you. [¶] b. ‘Why, How did you come to this country?’ - implying go back to your country, you don’t belong here. [¶] c. ‘I know Amara very well and we are good friends - He often calls me’ - implying that if you don’t do what I ask you to do, Amara will continue to harm you and your kids [sic] [¶] d. ‘You better follow the system and my rules’ - implying we will harm you and your kind. [¶] e. ‘I know everyone in this system’ - implying that you cannot protect yourself.”
The complaint then purported to quote Dr. Burrill’s statements made to Suraj during his first appointment: “a. ‘You will never see your brother’ - threat to minor wrt [sic] breaking sibling relationship and contact. [¶] b. ‘Your father fights everybody, he fights the court, the therapist, anything he comes across’ - implying his father is a bad person, a fighter [sic] [¶] c. ‘Your father thinks he knows everything, more than me, more than the court’ - implying that your father is misguided and wrong [¶] d. ‘Why, does your father think so highly of himself that he will not do supervised visitation with [Sujay]’ - implying father is an ego-maniac [sic] [¶] e. ‘Your father does not love his son, he does not love you either’ - asserts father does not love his own son Sujay. [¶] f. ‘You think you know it all - this system is crap?’ - implies that you think like your father [sic]”
The Reunification Report
On February 6, 2009, Dr. Burrill submitted a 30-page reunification report. Among other things, Dr. Burrill recommended Bindu be given sole legal and physical custody of Suraj, with an order preventing Nair from contacting Bindu and the children. She noted: “I would not make such a recommendation unless I was certain this was Suraj’s only chance at normalcy. The emotional and psychological and potential for physical abuse by Father against Suraj places Suraj at serious risk for permanent harm. Alienation by Father against Mother was noted back in September 2006, by [Sharon Sloper], MFT, only one month after Mother and [Suraj’s] last contact. Several mental health professionals have noted the same observations as [Sloper], including Dr. James Brentt and Dr. Gene Roeder, yet nothing has been implemented to assist Suraj nor change this situation, rather it has worsened. Father will never comply with court orders. The emotional and psychological abuse by Father [of Suraj] has only worsened.”
For purposes of this opinion, we need not set forth in detail each example of emotional and psychological abuse Dr. Burrill noted in her report. The following examples will suffice:
(1) “Father has told Suraj that Mother kidnapped Sujay and is holding him hostage (just like she did when she held Suraj for 41 days.) Father believes it is minor Suraj who is responsible for setting Sujay free from Mother. As a reminder of this responsibility, Father sets the table with a full place setting for Sujay, which they all look at throughout the meal. This is very serious emotional abuse.”
(2) “[Suraj] repeated many of the negative statements made by Father in his appointment. Suraj blames Mother for many things, including that she ‘kidnapped’ him and took his younger brother, Sujay, who she now holds ‘hostage.’ Additionally, Suraj is extremely negative about the Court, and legal and mental health professionals. He referred to therapist David Chervick, MFT as ‘a scumbag.’ Suraj stated, ‘So far, he’s [David Chervick] got $1, 000....’ Suraj stated, ‘There’s no one good in this system.’ He is only willing to continue with this Therapist if I am able to get him more time to spend with his brother at Father’s home. Suraj reported he has had no contact with Sujay since May 10, 2008. Suraj stated that his father will not have supervised visits ‘ever’ with [Sujay]; why should he? Suraj believes that if I want to help, then it is up to me to obtain what his father wants; otherwise he’ll never be back.”
(3) “Father stated to me in front of Suraj that she [Mother] wanted Suraj placed with a third party. Suraj then repeated this to me when alone with me.”
(4) “[Father] has told Suraj his mother is evil and never loved him. Worst of all, there is a potential that Father or Suraj could harm Mother, themselves, or Sujay. Minor Sujay reported to his therapist, Jacqueline Parker on December 31, 2008, ‘My dad and my brother say bad words about my mom’ [pause] ‘and say to kill my mom’ [pause] ‘just that’s a joke that they want to kill my mom.’” Parker reported Sujay was “very serious.”
(5) “When Suraj was through with each session, he then insisted that he be the one to pay me ($150) for the hour because, ‘I am the one who caused this and I ...