Judge: H. Jay Ford, III, Case: 22SMCV01309, Date: 2023-01-12 Tentative Ruling

Case Number: 22SMCV01309    Hearing Date: January 12, 2023    Dept: O

  Case Name:  Kang v. Varughese, et al.

SUBJECT:                SLAPP MOTION

MOVING PARTY:   Defendant Jason Varughese

RESP. PARTY:         Plaintiff Grace Kang

TENTATIVE RULING

            Defendant Varughese’s SLAPP Motion is DENIED. 

            Plaintiff’s RJN is GRANTED.  Plaintiff’s evidentiary objections are OVERRULED as to ¶4 of Varughese’s Declaration and SUSTAINED as to ¶¶5-9 of the Varughese Declaration. Plaintiff’s evidentiary objections to ¶¶3-5 of the Poulter Declaration are SUSTAINED.  Defendant’s objections to Grace Kang’s declaration (# 1-4) are SUSTAINED the objection to the declaration of B. Brogan (#5) is OVERRULLED.

“Litigation of an anti-SLAPP motion involves a two-step process. First, the moving defendant bears the burden of establishing that the challenged allegations or claims arise from protected activity in which the defendant has engaged.  Second, for each claim that does arise from protected activity, the plaintiff must show the claim has “at least ‘minimal merit.  If the plaintiff cannot make this showing, the court will strike the claim.”  Bonni v. St. Joseph Health System (2021) 11 Cal.5th 995, 1009 (where moving party seeks to strike an entire cause of action alleging multiple factual bases, court does not determine whether 1^st prong is met based on “gravamen” test but must determine whether each factual bases supplies the element of claim or merely provides context). 

I.  1^st step of SLAPP satisfied by concession

            Plaintiff concedes that Defendant satisfies the first step of SLAPP.  Plaintiff’s complaint arises from protected conduct under CCP §425.16(e)(1) and (2).

II.  Plaintiff satisfies her burden on 2^nd step of SLAPP

“Precisely because the statute (1) permits early intervention in lawsuits alleging unmeritorious causes of action that implicate free speech concerns, and (2) limits opportunity to conduct discovery, the plaintiff's burden of establishing a probability of prevailing is not high: We do not weigh credibility, nor do we evaluate the weight of the evidence. Instead, we accept as true all evidence favorable to the plaintiff and assess the defendant's evidence only to determine if it defeats the plaintiff's submission as a matter of law.  Only a cause of action that lacks ‘even minimal merit' constitutes SLAPP.”  Overstock.com, Inc. v. Gradient Analytics, Inc. (2007) 151 Cal.App.4th 688, 699.  “In order to establish a probability of prevailing on a cause of action in the context of an anti-SLAPP motion, a plaintiff must state and substantiate a legally sufficient claim.”  La Jolla Group II v. Bruce (2012) 211 Cal.App.4th 461, 470. 

“The second prong of the statute deals with whether the plaintiff has “demonstrated a probability of prevailing on the claim.  Under section 425.16, subdivision (b)(2), the superior court, in making these determinations, considers ‘the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based.’ For purposes of an anti-SLAPP motion, the court considers the pleadings and evidence submitted by both sides, but does not weigh credibility or compare the weight of the evidence. Rather, the court's responsibility is to accept as true the evidence favorable to the plaintiff.  A plaintiff need only establish that his or her claim has minimal merit to avoid being stricken as a SLAPP.  With these descriptions in mind, we will not strike a cause of action under the anti-SLAPP statute unless it lacks even minimal merit.”  Ralphs Grocery Co. v. Victory Consultants, Inc. (2017) 17 Cal.App.5th 245, 261.

The “probability of prevailing” is tested by the same standard governing a motion for summary judgment, nonsuit, or directed verdict.  Thus, in opposing a SLAPP motion, it is plaintiff's burden to make a prima facie showing of facts that would support a judgment in plaintiff's favor.”  Taus v. Loftus (2007) 40 Cal.4th 683, 714 (a “summary-judgment-like procedure”). 

            Plaintiff satisfies her burden on the second step of SLAPP.  Plaintiff establishes the probable validity of her causes of action for violation of Penal Code §11172(a) and IIED.

            A.  Penal Code §11172 is a valid cause of action

            Penal Code §11172(a) provides:  “No mandated [child abuse] reporter shall be civilly or criminally liable for any report required or authorized by this article,.... Any other person reporting a known or suspected instance of child abuse or neglect shall not incur civil or criminal liability as a result of any report authorized by this article unless it can be proven that a false report was made and the person knew that the report was false or was made with reckless disregard of the truth or falsity of the report, and any such person who makes a report of child abuse or neglect known to be false or with reckless disregard of the truth or falsity of the report is liable for any damages caused.” (Emphasis added.)

            “Thus, Penal Code section 11172(a) provides that those who knowingly or recklessly file false child abuse reports may be sued for a knowingly false report of abuse unless they are among the persons listed as mandatory reporters. A parent is not a mandatory reporter.”  Siam v. Kizilbash (2005) 130 Cal.App.4th 1563, 1574–1575. 

            In Siam, the plaintiff was the subject of false child abuse accusations made by the children’s father to school officials.  The plaintiff complaint alleged several common law tort claims and a statutory claim for  violation of Penal Code §11172(a).  The Court of Appeals analyzed the application of Penal Code section 11172(a) in the context of the plaintiff’s specific cause of action for violation of Section 1172(a).  The Court of Appeals found that the plaintiff satisfied his burden on the second step of SLAPP as to the plaintiff’s statutory cause of action for violation of Penal Code §11172 along with the plaintiff’s common law tort claims, except for malicious prosecution . Id. at 1581-1582 (“The sixth cause of action for violation of Penal Code §11172(a) requires evidence that defendant made knowingly false reports of child abuse ... The evidence is sufficient to permit the jury to find that defendant ... made knowingly false reports of child abuse...” Id. at 1581.  Likewise, the Court of Appeal recognized that the litigation privilege under Civil Code section 47(b) “does not protect defendant from liability imposed by Penal Code section 11172(a).” Id. at 1578 (emphasis added.)   “In short, plaintiff has demonstrated a probability of prevailing on his claims for ...violation of Penal Code section 11172.../” Id. at 1582. If not express, the Court of Appeals implicitly recognized a statutory claim for damages may be brought under Section 11172 against a person who knowingly or recklessly makes a false report of child abuse to a mandated reporter or designated agency unless they are among the persons listed as mandatory reporter.

            The Court acknowledges a potential split of authority on the issue of whether Penal Code §11172(a) creates a civil cause of action based on Chabak v. Monroy (2007) 154 Cal.App.4^th 1502.  The Court of Appeals in Chabak, however, acknowledged that resolution of the issue was unnecessary, rendering any discussion of it to be dicta.  See Chabak, supra, 154 Cal.App.4^th at 1511.  The Court in Chabak reasoned that the language regarding “liability” in Penal Code §11172(a) merely acknowledged that a plaintiff injured by a false child abuse report could recover any damages flowing therefrom based on existing theories of liability.  “By providing for recovery of any damages caused, it would appear the Legislature was anticipating recovery of damages under existing theories of liability, not creating a new theory of recovery.”  Id. at 1511. Defendant offers no other authority or analysis of why Penal Code §1172(a) does not create a private right of action.  Based on the language of Penal Code §11172(a), and the conclusions in Siam, and the Court finds a statutory claim for monetary damages may be brought under Section 11172 against a person who knowingly or recklessly makes a false report of child abuse to a mandated reporter or designated agency unless they are a mandatory reporter.

            B.  Plaintiff’s evidence satisfies all elements of a cause of action for violation of Penal Code §11172(a) and Intentional Infliction of Emotional Distress (IIED).

            The elements of a claim for violation of Penal Code §11172(a) are (1) making a knowingly false child abuse report or making such a report with reckless disregard of its truth; and (2) damages as a result of such a report.  See Penal Code §11172(a); Siam, supra, 130 Cal.App.4th at 1581.  Liability under Penal Code §11172(a) “is not limited to voluntary reporters made to the listed agencies but includes reports made to persons who are legally required to transmit such reports to the listed agencies.  To hold otherwise would essentially nullify the balance struck by the Legislature in determining when liability should attach.”  Siam, supra, 130 Cal.App.4^th at 1578. 

            The elements of an IIED cause of action 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; and (3) actual and proximate causation of the emotional distress by the defendant's outrageous conduct.  See Smith v. BP Lubricants USA Inc. (2021) 64 Cal.App.5th 138, 147 (plaintiff alleged outrageous conduct based on three racially offensive statements made by defendant’s employee before 50 of plaintiff’s coworkers and 3 of his supervisors); Berkley v. Dowds (2007) 152 Cal.App.4th 518, 534 (affirming order sustaining demurrer to IIED cause of action without leave to amend based on failure to allege outrageous conduct).

            Plaintiff submits evidence that Defendant’s report of abuse to Angelika Bowles, the parenting instructor, was knowingly false or made with reckless disregard for the truth.  Plaintiff submits the deposition of Bowles, wherein she testifies that (1) she taught a parenting class attended by Defendant in June 2022; (2) she filed a child abuse report (SCAR report) as to Plaintiff’s and Defendant’s child on 6-16-22; (3) her report was based on discussions with Defendant on that date, and (4) she did not recall Defendant showing her any photos of the injuries but he referred to them during their conversations.  See Dec. of E. Rhow, Ex. 2, 23:14-17; 34:1-24. 

            Plaintiff testifies that she has never abused, neglected, hit, spanked, pinched or yelled at the child.  See Dec. of G. Kang in Opposition to SLAPP, ¶¶13-14.  Plaintiff testifies that the child did not have any bruises, abrasions or scratches on his face on 6-4-22, when Defendant picked the child up from Plaintiff’s home.  Id. at ¶8. 

            Plaintiff also submits the declaration of the child’s nanny, Brittany Brogan, who testifies that during the relevant time period (June 7, 2022), she did not observe any bruises, pinch marks, abrasions, scratches, cuts or scrapes on the child’s face or body, nor was he behaving oddly.  See Dec. of B. Brogan, ¶¶8-9.  Plaintiff’s evidence is sufficient to establish that there were no such bruises or injuries as reported by Defendant to the parenting instructor. 

            Plaintiff and Defendant are also in the midst of a contentious family law proceeding.  Plaintiff testifies that Defendant has made numerous false accusations of abuse, involving her and her family members.  See Dec. of G. Kang ISO of Motion to Strike, ¶¶4-7, 10.  Plaintiff testifies that Defendant has made numerous false and misleading statements regarding the investigation to third parties.  See Dec. of G. Kang in Opposition to SLAPP, ¶¶25-26. 

            A jury could conclude based on the evidence that Defendant knowingly made a false report of child abuse to a mandatory reporter, or that he made such a report with reckless disregard for the truth.  The evidence therefore is sufficient to establish the probable validity of Plaintiff’s allegation that (1) Defendant made the false report of child abuse knowing that it was false or with reckless disregard of its falsity, (2) he engaged in extreme and outrageous conduct and (3) he did so with the intention to cause emotional distress or with reckless disregard to the probable emotional distress that would result from his conduct.  The elements of a false report, extreme and outrageous conduct and the intention to cause or reckless disregard for probable emotion distress of the 1^st cause of action for violation of Penal Code §11172(a) and IIED are supported by prima facie evidence. 

            In addition, Plaintiff testifies to severe emotional injury and damage due to the false child abuse report and the ensuing investigation.  See Dec. of G. Kang in Opposition to SLAPP, ¶28.  Plaintiff also testifies that she was forced to miss work in order to cooperate with the investigations.  Id.  Plaintiff therefore presents prima facie evidence of damages flowing from the false child abuse report. 

            Plaintiff satisfies her burden on the second step of SLAPP. Defendant does not raise any defense that would bar Plaintiff’s claims as a matter of law.  Defendant disputes whether the report was false, whether the child did in fact have bruises, abrasions and scratches on his face and whether it was he or the instructor who suggested that the incident be reported.  See SLAPP Motion, Dec. of J. Varughese, ¶¶3-4, 8; Exs. 1.  Defendant submits a photo of the child allegedly taken on 6-4-22, which he claims shows a bruise on his face.  Id. at Ex. 1.  At best, Defendant’s evidence creates an issue of fact.  Defendant fails to establish that the action is barred as an issue of law, which he is required to do to order to defeat Plaintiff’s successful showing on the second step of SLAPP.  Defendant’s SLAPP motion is DENIED.