Judge Randolph M. Hammock, Case Number: 24STCV05917, Date: 2024-08-12 Tentative Ruling

Judge: Randolph M. Hammock, Case: 24STCV05917, Date: 2024-08-12 Tentative Ruling

Plaintiff is now in a romantic relationship with Ava. Plaintiff alleges that Defendant, in response to Plaintiff’s relationship with her granddaughter, has made defamatory statements against Plaintiff, “which included unfounded accusations of pedophilia, incest, and predatory behavior.” Plaintiff now brings this action against Defendant for (1) defamation (libel per se), (2) defamation (slander), (3) defamation (trade libel), (4) invasion of privacy (false light), (5) intentional interference with prospective economic advantage, (6) negligent interference with prospective economic advantage, (7) intentional infliction of emotional distress, (8) negligent infliction of emotional distress.

“The anti-SLAPP procedures are designed to shield a defendant’s constitutionally protected conduct from the undue burden of frivolous litigation.” (Baral v. Schnitt (2016) 1 Cal.5th 376, 393.) “The anti-SLAPP statute does not insulate defendants from any liability for claims arising from the protected rights of petition or speech. It only provides a procedure for weeding out, at an early stage, meritless claims arising from protected activity.” (Id. at 384.)

“Resolution of an anti-SLAPP motion involves two steps. First, the defendant must establish that the challenged claim arises from activity protected by section 425.16. If the defendant makes the required showing, the burden shifts to the plaintiff to demonstrate the merit of the claim by establishing a probability of success.” (Baral, supra, 1 Cal.5th at 384, citation omitted.) The California Supreme Court has “described this second step as a ‘summary-judgment-like procedure.’ The court does not weigh evidence or resolve conflicting factual claims. Its inquiry is limited to whether the plaintiff has stated a legally sufficient claim and made a prima facie factual showing sufficient to sustain a favorable judgment. It accepts the plaintiff’s evidence as true, and evaluates the defendant’s showing only to determine if it defeats the plaintiff’s claim as a matter of law. ‘[C]laims with the requisite minimal merit may proceed.’” (Id. at 384-385 [citations omitted].) The anti-SLAPP motion need not address what the complaint alleges is an entire cause of action, and may seek to strike only those portions which describe protected activity. (Id. at 395-396.)

Defendant Frances Tinsley is Jennifer Kappelman’s mother, and the grandmother of both Ava and Plaintiff’s daughter. (Id. ¶¶ 14, 15.) When Plaintiff and Ava started dating, Defendant allegedly “commenced making defamatory statements against [Plaintiff], which included unfounded accusations of pedophilia, incest, and predatory behavior.” (Id. ¶ 16.) Plaintiff alleges these statements were made to both Plaintiff’s daughter and Ava, “and disseminated to others within the community.” (Id.)

In addition, Plaintiff alleges that Defendant “intentionally interfer[ed] with [Plaintiff’s] parental rights” by “falsely assert[ing] that [Plaintiff] posed a threat to the well-being of” his daughter. (Id. ¶ 17.) This has allowed Defendant to “manipulate and influence a twelve-year-old to harbor unwarranted fear toward her own father.” (Id.) Plaintiff, “profoundly affected by these actions, is now grappling with emotional distress and depression.” (Id.)

It appears that these allegations underly each and every cause of action in the Complaint. (See Compl. ¶ 20 [“Tinsley has made baseless and egregious statements”]; ¶ 32 [“Tinsley orally uttered communications to Colgan’s daughter, his current girlfriend, family members, and others within the community”]; ¶ 39 [“Tinsley has made baseless and egregious statements”); ¶ 49 [“Tinsley disseminated false allegations”); ¶ 60 “Tinsley intentionally disseminated false allegations”]; ¶ 68 “Tinsley’s negligent disseminated false allegations”]; ¶ 75 [“Tinsley intentionally disseminated false allegations”]; and ¶ 83 [“Tinsley negligently disseminated false allegations”].)

To satisfy the first prong of the two-prong test, a movant defendant must demonstrate that the act or acts of which the plaintiff complains were taken ‘in furtherance of the defendant’s right of petition or free speech under the United States or California Constitution in connection with a public as defined in the statute. (Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67; see City of Cotati v. Cashman (2002) 29 Cal.4th 69, 78 [“[i]n 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”].) Section 425.16 expressly “defines the types of claims that are subject to the anti-SLAPP procedures…as these terms are defined in subdivision (e)(1)-(4) of the statute.” (City of Cotati v. Cashman (2002) 29 Cal. 4th 69, 75–76.)

Defendant argues the conduct here is protected under the second category of subdivision (e), as “any written or oral statement or writing made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official proceeding authorized by law.” (CCP § 425.16(e)(2).) More specifically, Defendant contends her statements regarding Plaintiff were made “in connection with” the Custody Action and the Dependency Action. While the particulars of these legal proceedings have not been revealed, it appears that each relate to the custody of Plaintiff’s 13-year-old daughter.

In opposition, Plaintiff argues that “Defendant does not (and cannot) state anywhere within her motion how her statements of alleged pedophilia are related to the issues within the Custody or Dependency Action.” (Opp. 7: 21-22.) Plaintiff notes that the statements at issue preceded the Dependency Action, which was initiated in February or March of 2024. (Colgan Decl. ¶ 25.) Plaintiff also suggests that “the causes of action that Defendant seeks to strike do not arise from the allegedly protected speech,” but instead, “are mere evidence of Defendant’s misconduct.” (Opp. 10: 14-16.) Finally, Plaintiff argues that “targeted harassment,” such as calling someone a pedophile, “falls outside of First Amendment protection.” (Opp. 10: 20-22.)

In the first prong, “the court is not limited to examining the allegations of the complaint alone but rather considers the pleadings and the factual material submitted in connection with the special motion to strike.” (Contreras v. Dowling (2016) 5 Cal. App. 5th 394, 413; CCP § 425.16, subd. (b)(2) [the court, “in making its determination [whether the plaintiff's cause of action is subject to an anti-SLAPP motion], shall consider the pleadings and supporting and opposing affidavits stating the facts on which the liability or defense is based”].) “[A] plaintiff cannot avoid operation of the anti-SLAPP statute by attempting, through artifices of pleading, to characterize an action as a ‘garden variety’ tort or contract claim when in fact the claim is predicated on protected speech or conduct.” (Contreras, supra, 5 Cal. App. 5th at 408.)

Defendant states in her declaration that in texts with her granddaughter, Ava, Defendant “raised Doe-1’s well being,” as her “primary concern…was to protect Doe 1, because I considered it to be extremely damaging to Doe 1 to be in a household where her father was sleeping with her half-sister.” (Tinsely Decl. ¶ 16.) Defendant continues that “[a]ll of the statements [she has] made about David’s actions and conduct were addressing the issue of David’s sexual relationship with Ava, and the impact of that relationship on Doe 1.” (Tinsley Decl. ¶ 21.) She asserts that at “[a]t the time [she] made these statements [she] understood that they all related to issues in consideration in the Custody Action and the Dependency Action.” (Id.)

It is self-evident that whether Plaintiff is a pedophile or engages in incest or predatory behavior might be highly relevant in a custody or dependency proceeding involving his biological daughter. Here, however, there are no allegations or evidence that the conduct at issue by the Complaint actually had any “connection with” those proceedings. Instead, challenged conduct was a familial dispute between Plaintiff, Defendant, and Ava, independent from the Custody and Dependency Actions. Statements made solely between Defendant and Ava or Defendant and A had no impact or influence on the Custody or Dependency action. While these conversations may have mirrored issues raised in the legal proceedings—such as the general suitability or safety of the home—there is nothing to suggest they played any role in those proceedings.

This conclusion might be different if, as Defendant suggests, liability was based on statements Defendant actually made in the Dependency action, or to social workers and attorneys working on the Dependency Action. Those statements would clearly fall within subdivision (e)(2) as statements made “in connection with” with an issue under consideration a judicial body. (CCP § 425.16(e)(2).) But that is not the Complaint at issue.

“As is true with summary judgment motions, the issues in an anti-SLAPP motion are framed by the pleadings.” [Citation]. Thus, the act or acts underlying a claim for purposes of an anti-SLAPP statute is determined from the plaintiffs’ allegations. [Citation]. Because the issues to be determined in an anti-SLAPP motion are framed by the pleadings, we will not ‘insert into a pleading claims for relief based on allegations of activities that plaintiffs simply have not identified .... It is not our role to engage in what would amount to a redrafting of [a] complaint in order to read that document as alleging conduct that supports a claim that has not in fact been specifically alleged, and then assess whether the pleading that we have essentially drafted could survive the anti-SLAPP motion directed at it.’” (Med. Marijuana, Inc. v. ProjectCBD.com (2020) 46 Cal. App. 5th 869, 883.)

As alleged in the Complaint, the defamatory statements at issue are those “made to [A], Ava, and disseminated to others within the community.” (Compl. ¶ 16.) While those affiliated with the Dependency Action could presumably be included as “others within the community,” there is little indication that is what Plaintiff intended. (See Premier Med. Mgmt. Sys., Inc. v. California Ins. Guarantee Assn. (2006) 136 Cal. App. 4th 464, 476 [“On review of an anti-SLAPP motion to strike…the standard is akin to that for summary judgment or judgment on the pleadings. We must take the complaint as it is”].)

Allegations of defamation pertaining to “others in the community” are simply too generalized to be actionable. There is no indication from the Complaint of who the “others” may be, much less what Defendant might have said to them. This court can construe this allegation as nothing more than an allegation providing nonactionable context to the complaint. “Allegations of protected activity that merely provide context, without supporting a claim for recovery, cannot be stricken under the anti-SLAPP statute.” (Baral, supra, 1 Cal.5th at p. 394.)

“To establish a probability of prevailing, 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. For purposes of this inquiry, the trial court considers the pleadings and evidentiary submissions of both the plaintiff and the defendant; though the court does not weigh the credibility or comparative probative strength of competing evidence, it should grant the motion if, as a matter of law, the defendant’s evidence supporting the motion defeats the plaintiff’s attempt to establish evidentiary support for the claim. In making this assessment it is the court’s responsibility…to accept as true the evidence favorable to the plaintiff […]. The plaintiff need only establish that his or her claim has minimal merit to avoid being stricken as a SLAPP.” (Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260, 291.)

The elements of a defamation claim are (1) a publication that is (2) false, (3) defamatory, (4) unprivileged, and (5) has a natural tendency to injure or causes special damage.” (J-M Mfg. Co. v. Phillips & Cohen LLP (2016) 247 Cal. App. 4th 87, 97.) “A statement is defamatory when it tends ‘directly to injure [a person] in respect to [that person's] office, profession, trade or business, either by imputing to [the person] general disqualification in those respects which the office or other occupation peculiarly requires, or by imputing something with reference to [the person's] office, profession, trade, or business that has a natural tendency to lessen its profits.’ (Civ. Code, § 46, subd. 3.)” (McGarry v. University of San Diego (2007) 154 Cal.App.4th 97, 112.)

To reiterate, Plaintiff alleges that “[o]n or around August 2023, Tinsley commenced making defamatory statements against Colgan, which included unfounded accusations of pedophilia, incest, and predatory behavior,” and that “[t]hese statements were made to [A], Ava, and disseminated to others within the community.” (Compl. ¶ 16.) In addition, Plaintiff alleges that Defendant “falsely asserted that Colgan posed a threat to the well-being of [his daughter], intentionally interfering with Colgan's parental rights.” (Id. ¶ 17.)

First, Defendant argues her statements are privileged under the common interest privilege. The privilege, codified at Civil Code section 47(c) provides: “A privileged publication or broadcast is one made: [¶] ... [¶] (c) In a communication without malice, to a person interested therein, (1) by one who is also interested....” Thus, the privilege “extends a conditional privilege against defamatory statements made without malice on subjects of mutual interest.” (Hailstone v. Martinez (2008) 169 Cal. App. 4th 728, 739–40.) “[M]alice cannot be inferred from the communication itself.” (Id., citing Civil Code § 48.) “Moreover, the malice necessary to defeat a qualified privilege is ‘actual malice.’ Such malice is established by a showing that the publication was motivated by hatred or ill will toward the plaintiff or by a showing that the defendant lacked reasonable grounds for belief in the truth of the publication and therefore acted in reckless disregard of the plaintiff's rights.” (Hailstone, supra, 169 Cal. App. 4th at 740.)

In support of the privilege, Defendant contends that her “[s]tatements about Colgan’s behavior made to Ava, to Doe 1 and to family members are subject to the qualified interest privilege, since the statements are about a matter of common interest to the family – the propriety of Colgan’s sexual relationship with a person he considers his daughter, and the impact of that relationship on the well-being of Doe 1.” (Mtn. 12: 16-20.) The court can accept that position.

(Tinsley Decl. ¶ 22.)

Plaintiff, on the other hand, maintains that Defendant made her statements—“unfounded accusations of pedophilia, incest, and predatory behavior”—with actual malice, in an “effort to cause damage to [his] reputation, to [his] relationship, and [his] bond with [his] daughter.” (Colgan Decl. ¶¶ 7, 19.) These “defamatory and egregious statements,” Plaintiff asserts, “has led Tinsley to manipulate and influence a thirteen-year-old to harbor unwarranted fear toward her own father.” (Id. ¶ 22.)

It is settled that “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.” (Overstock.com, Inc. v. Gradient Analytics, Inc. (2007) 151 Cal. App. 4th 688, 699–700.)

b. Litigation Privilege

Next, Plaintiff argues that her statements made to social workers and attorneys in the dependency action are covered by the litigation privilege. [FN 1] “The litigation privilege, codified at Civil Code section 47, subdivision (b), provides that a ‘publication or broadcast’ made as part of a ‘judicial proceeding’ is privileged. This privilege is absolute in nature, applying ‘to all publications, irrespective of their maliciousness.’ [Citation.] ‘The usual formulation is that the privilege applies to any communication (1) made in judicial or quasi-judicial proceedings; (2) by litigants or other participants authorized by law; (3) to achieve the objects of the litigation; and (4) that [has] some connection or logical relation to the action.’” (Kenne v. Stennis (2014) 230 Cal. App. 4th 953, 964.) “[T]he privilege is ‘an “absolute” privilege, and it bars all tort causes of action except a claim of malicious prosecution.’ (Hagberg v. California Federal Bank (2004) 32 Cal.4th 350, 360; Kashian v. Harriman (2002) 98 Cal.App.4th 892, 926–927 [plaintiff must overcome litigation privilege to demonstrate a probability of prevailing under anti-SLAPP prong two].) “[T]he principal purpose of [Civil Code] section 47 [, subdivision (b) ] is to afford litigants and witnesses [citation] the utmost freedom of access to the courts without fear of being harassed subsequently by derivative tort actions.” (Id.) “The breadth of the litigation privilege cannot be understated.” (Finton Constr., Inc. v. Bidna & Keys, APLC (2015) 238 Cal. App. 4th 200, 212.) “Any doubt about whether the privilege applies is resolved in favor of applying it. [Citation.]” (Id.)

The court agrees that any statements made to social workers and attorneys in the Dependency action would be covered by the litigation privilege. However, Plaintiff does not challenge any such statements by his Complaint. As alleged in the Complaint, the defamatory statements at issue are those “made to [A], Ava, and disseminated to others within the community.” (Compl. ¶ 16.) While those affiliated with the Dependency Action could presumably be included as “others within the community,” there is little indication that is what Plaintiff intended. (See Premier Med. Mgmt. Sys., Inc. v. California Ins. Guarantee Assn. (2006) 136 Cal. App. 4th 464, 476 [“On review of an anti-SLAPP motion to strike…the standard is akin to that for summary judgment or judgment on the pleadings. We must take the complaint as it is”].)

And again, allegations of defamation pertaining to “others in the community” are simply too generalized to constitute actionable defamation. There is no indication from the Complaint of who the “others” may be, much less what Defendant might have said to them. This court can construe this allegation as nothing more than an allegation providing nonactionable context to the Complaint. “Allegations of protected activity that merely provide context, without supporting a claim for recovery, cannot be stricken under the anti-SLAPP statute.” (Baral, supra, 1 Cal.5th at p. 394.) Accordingly, the litigation privilege is inapplicable here.

“Though mere opinions are generally not actionable [citation] a statement of opinion that implies a false assertion of fact is actionable.” (Issa v. Applegate (2019) 31 Cal. App. 5th 689, 702; Ruiz v. Harbor View Community Assn. (2005) 134 Cal.App.4th 1456, 1471 [“An opinion ... is actionable only ‘ “if it could reasonably be understood as declaring or implying actual facts capable of being proved true or false” ’ ”].) Further, “it is not the literal truth or falsity of each word or detail used in a statement which determines whether or not it is defamatory; rather, the determinative question is whether the ‘gist or sting’ of the statement is true or false, benign or defamatory, in substance.” (Issa, supra, 31 Cal. App. 5th at 702; Summit Bank, supra, 206 Cal. App. 4th at 696 [“where an expression of opinion implies a false assertion of fact, the opinion can constitute actionable defamation”].)

In determining whether a statement declares or implies a provably false assertion of fact, courts apply the totality of the circumstances test. (Overhill Farms, Inc. v. Lopez (2010) 190 Cal. App. 4th 1248, 1261.) “Under the totality of the circumstances test, ‘[f]irst, the language of the statement is examined. For words to be defamatory, they must be understood in a defamatory sense.... [¶] Next, the context in which the statement was made must be considered.’ ” (Id. [citing (Franklin, 116 Cal.App.4th at 385.) “The ‘pertinent question’ is whether a ‘reasonable fact finder’ could conclude that the statements ‘as a whole, or any of its parts, directly made or sufficiently implied a false assertion of defamatory fact that tended to injure’ plaintiff's reputation.” (James v. San Jose Mercury News, Inc. (1993) 17 Cal.App.4th 1, 13.) “Whether challenged statements convey the requisite factual imputation is ordinarily a question of law for the court.” (Issa, supra, 31 Cal. App. 5th at 703.)

Predatory Behavior:
In texts with her granddaughter Ava, Defendant called Plaintiff a “predictor” [sic] [FN 2] and a “monster.” (Colgan Decl., Exh. A.) And while it does not appear that Defendant used the word “incest” in these texts, she did imply that Plaintiff’s relationship with Ava was incestual. She expressed disproval over the fact that Plaintiff is Ava’s sister’s father, stating: “You [Ava] are his step daughter.” (Colgan Decl., Exh. A; see id. [“Let’s be clear, you are having a sexual relationship with your sisters father who was also once your step father”].) These text messages are the only evidence of instances where Defendant made these “defamatory” statements, and therefore this court confines the analysis to those.

Here, words like “predator” and “monster” are not provably false assertions of fact. In this context, they are nothing more than emotionally charged rhetoric to Ava reflecting a dissatisfaction over the circumstances of Ava’s relationship to Plaintiff. (See ZL Techs., Inc. v. Does 1-7 (2017) 13 Cal. App. 5th 603, 624–25 [“courts must also consider the context of the allegedly defamatory statements, “ ‘examin[ing] the nature and full content of the particular communication, as well as the knowledge and understanding of the audience targeted by the publication.’ [Citation.]”].) For this reason, they are not actionable as defamation, and must be stricken.

Accusations of Incest:
As to the statements accusing Plaintiff of incest, the question becomes whether Defendant’s assertions that it was “wrong” for Plaintiff to have a sexual relationship with the sister of his daughter are actionable defamation. Defendant took issue with the fact that Plaintiff had been a “father figure” to Ava, going back to the time when he was in a romantic relationship with Ava’s mother. (Tinsley Decl. ¶ 5.) Indeed, Plaintiff himself remarked in a text message to Defendant that he considered Ava “as one of [his] own kids.” (Tinsely Decl., Exh. B.) On this background, the “gist or sting” of Defendant’s statements was that the relationship between Plaintiff and Ava was wrongful or immoral in part because its familial nature. (Issa v. Applegate (2019) 31 Cal. App. 5th 689, 702.)

With this context in mind, the court concludes that Defendant’s statements suggesting incest are also nonactionable opinion. It is undisputed that Ava and Plaintiff share no blood relation. Defendant, as Ava’s grandmother, knew this. Any suggestion by her that Plaintiff was engaging in incest was therefore hyperbole used to express disproval of the relationship—and not to suggest that Plaintiff was actually engaging in incest. Accordingly, allegations of incest would also to be stricken.

To be defamation, a publication must be made “to some third person who understands the defamatory meaning of the statement and its application to the person to whom reference is made.” (Sanchez v. Bezos (2022) 80 Cal. App. 5th 750, 763 [emphasis added].) Because Defendant’s statement made directly to Plaintiff that he was a pedophile was not published to a third party, it is not actionable as defamation. Accordingly, Plaintiff’s references in the Complaint to pedophilia are subject to be stricken.

Plaintiff alleges that Defendant’s statements have interfered with his “prospective economic advantage by damaging his professional reputation, hindering potential collaborations, and impacting his standing within the academic community.” (Compl. ¶ 61.) As a result of that interference, Plaintiff “has suffered economic harm, including potential loss of career opportunities, collaborations, and damage to his professional relationships.” (Id. ¶ 62.)

“Intentional interference with prospective economic advantage has five elements: (1) the existence, between the plaintiff and some third party, of an economic relationship that contains the probability of future economic benefit to the plaintiff; (2) the defendant's knowledge of the relationship; (3) intentionally wrongful acts designed to disrupt the relationship; (4) actual disruption of the relationship; and (5) economic harm proximately caused by the defendant's action.” (Roy Allan Slurry Seal, Inc. v. Am. Asphalt S., Inc. (2017) 2 Cal. 5th 505, 512.) The elements of negligent interference are essentially the same: “The difference between intentional interference and negligent interference with prospective economic advantage relates to the defendant's intent.” (Crown Imports, LLC v. Superior Court (2015) 223 Cal.App.4th 1395, 1404, fn. 10.)

(Colgan Decl. ¶ 23.)

Essentially every element of the claims are missing. Plaintiff has not identified with any particularity an economic relationship between him and another party that contains the probability of future economic benefit, and therefore, cannot establish a disruption of that relationship. Plaintiff has also not presented evidence that Defendant knew of any such relationship, much less that her conduct was “designed” to disrupt the relationship. [FN 3]

Therefore, Plaintiff cannot meet his burden to establish that these claims have minimal merit. Accordingly, the Fifth and Sixth Causes of Action are stricken.

In the Seventh and Eighth causes of action, Plaintiff alleges that Defendant either intentionally or negligently “disseminated false accusations of pedophilia, incest, and predatory behavior, creating a hostile environment that has emotionally harmed Colgan.” (Compl. ¶¶ 75, 83.) Plaintiff alleges that Tinsley's intentional or negligent “obstruction of Colgan's access to his daughter, [A], and interference in family relationships” has led to severe emotional distress. (Id. ¶¶ 76, 84.)

“A cause of action for intentional infliction of emotional distress exists when there is ‘(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. A defendant's conduct is ‘outrageous’ when it is so ‘extreme as to exceed all bounds of that usually tolerated in a civilized community. And the defendant's conduct must be ‘intended to inflict injury or engaged in with the realization that injury will result.’” (Hughes v. Pair (2009) 46 Cal.4th 1035, 1050-51, quoting Potter v. Firestone Tire & Rubber Co. (1993) 6 Cal.4th 965, 1001) (internal citations omitted). “Liability for intentional infliction of emotional distress ‘ “does not extend to mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities.” (Bock v. Hansen (2014) 225 Cal. App. 4th 215, 233.) Severe emotional distress means “ ‘emotional distress of such substantial quality or enduring quality that no reasonable [person] in civilized society should be expected to endure it.’” (Id.)

Plaintiff attests that the defamatory statements have caused Plaintiff’s daughter to “harbor unwarranted fear toward her own father,” and as a result, he is “grappling with emotional distress and depression.” (Colgan Decl. ¶ 22.)

Defendant argues that her conduct was not outrageous. She contends that her “statements of opinion about Colgan, viewed both individually and collectively in light of the facts, and for the purpose of protecting her granddaughters, do not rise to the level of ‘outrageous’ conduct.” (Mtn. 15: 15-17.)

In prong 2 of an anti-SLAPP motion, courts must consider whether the complained-of conduct is outrageous, “that is, beyond all bounds of reasonable decency.” (Comstock v. Aber (2012) 212 Cal. App. 4th 931, 954 [granting special motion to strike IIED claim where the complained of conduct was not “extreme and outrageous”].) “It is for the court to determine, in the first instance, whether the defendant's conduct may reasonably be regarded as so extreme and outrageous as to permit recovery, or whether it is necessarily so. Where reasonable men may differ, it is for the jury, subject to the control of the court, to determine whether, in the particular case, the conduct has been sufficiently extreme and outrageous to result in liability.” (Fuentes v. Perez (1977) 66 Cal. App. 3d 163, 172.)

As the grandmother to Ava and A, and as A’s occasional caretaker, there can be no doubt that Defendant had a vested interest in the relationship between Ava and Plaintiff. Based on the facts of the relationship, it was not extreme and outrageous for Defendant to make the statements she did. Are accusations of “pedophilia, incest, and predatory behavior” harsh and unfounded? Perhaps reasonable people could think so. But these accusations, viewed in context of the situation at issue, are not extreme and outrageous as to exceed all bounds of decency. Accordingly, the Seventh and Eighth Causes of Action would be ordered stricken.
.

FN 1 - It is noted, based on the moving papers and reply, that Defendant only argues for the application of the litigation privilege to the extent it applies to communications with social workers, attorneys, or court officers in the Dependency Action. (See Mtn. 13: 25-26; Reply 8: 8-10.) In other words, Defendant is not arguing that the litigation privilege applies to communications between her and Ava, Doe 1, or Plaintiff. This is notable because in prong 1, Defendant argues that all statements—including those made to Ava or Doe 1—were made “in connection with” the Custody or Dependency Actions. But Defendant abandons such a wide-reaching contention in Prong 2, instead arguing that the litigation privilege applies only to communications with social workers, attorneys, or court officers in the Dependency action. In determining what falls under section 425.16(e)(2), courts often look to the litigation privilege for guidance. Although the protected activity analysis under prong one and the litigation privilege under Civil Code section 47 are distinct, the litigation privilege helps “as an aid” in construing the scope of CCP 425.16, and “thus [the privilege] informs our analysis.” (Neville v. Chudacoff (2008) 160 Cal. App. 4th 1255, 1263; Flatley v. Mauro (2006) 39 Cal. 4th 299, 322–23 [“There is, of course, a relationship between the litigation privilege and the anti-SLAPP statute. Past decisions of this court and the Court of Appeal have looked to the litigation privilege as an aid in construing the scope of subdivision (e)(1) and (2) with respect to the first step of the two-step anti-SLAPP inquiry—that is, by examining the scope of the litigation privilege to determine whether a given communication falls within the ambit of subdivisions (e)(1) and (2)”].) In essence, this supports the court’s conclusion in prong one that the conduct at issue is not subject to anti-SLAPP protection.

FN 2 - Based on the context, it seems the parties reasonably understood this to be a misspelling of “predator,” and the court adopts that interpretation as well.

FN 3 - Ironically, the defamation at issue here was predominately a private matter. It involved only statements made between Defendant, Plaintiff, Ava, and “A.” It was Plaintiff who made this matter a public dispute by filing this lawsuit.