Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. AD020569
Mihara, Acting P.J.
Defendants Susan E. and D.P. appeal from the trial court’s denial of their special motion to strike plaintiff Carla M.’s first amended complaint and petition. Defendants’ motion to strike was brought pursuant to Code of Civil Procedure section 425.16, the anti-SLAPP (strategic lawsuit against public participation) statute. The amended complaint, which alleges fraud and constructive fraud, seeks to rescind defendants’ adoption of P.P. and to reestablish plaintiff’s parental rights. Defendants contend that the amended complaint falls within the statute because the causes of action arise from defendants’ right to petition. Specifically, defendants argue that the amended complaint is based on defendants’ statements and writings “made before” a “judicial proceeding” or “in connection with an issue under consideration or review by” a “judicial body, or . . . official proceeding authorized by law.” (§ 425.16, subd. (e)(1), (2).) Accordingly, defendants claim the court erred in denying the special motion to strike. We disagree, and affirm the trial court’s order.
All further statutory references are to the Code of Civil Procedure unless otherwise noted.
I. Background
Plaintiff gave birth to P. in January 2004. Plaintiff’s then-husband, Charlie, is P.’s biological father. Prior to P.’s birth, plaintiff and Charlie decided to place P. with an adoptive family. The Independent Adoption Center (IAC), a private placement agency, coordinated the adoption, and plaintiff and Charlie selected defendants to be the prospective adoptive parents. The two couples communicated by telephone and e-mail and visited each other in-person prior to P.’s birth. They developed a friendly relationship, and participated in a television show entitled “Adoption Stories” for the Discovery Health Channel.
In November 2003, the parties met to discuss adoption specifics. Pam Steele of IAC mediated the discussion. In the course of the discussion, the parties signed a document entitled “Independent Adoption Center Preliminary Open Adoption Agreement” (hereinafter “Preliminary Agreement”). The introduction to the document states: “We all understand that: [¶] This is not a legally binding document, except in California where it is legally binding when filed with the court, along with the Contact After Adoption Agreement Form, at the time of the finalization of the adoption.” This is an apparent reference to Family Code section 8616.5 which provides that, at the time of the adoption decree, the court may grant post-adoption privileges pursuant to an agreement between the parties. (See generally Fam. Code, §§ 8616.5, subds. (a), (c), 8714, subd. (c).) A mandatory Judicial Council form entitled Contact After Adoption Agreement is submitted in such circumstances. (See Judicial Council Forms, form ADOPT-310; see also Fam. Code, § 8714, subd. (c).)
The introduction in the Preliminary Agreement additionally notes that the document “is designed to explore the possibilities of open adoption and encourage cooperation[,]” that the document represents “an informal understanding” between the birth parents and adoptive parents, and that the parties’ “needs are subject to change and therefore [the] document may need updating from time to time.” The end of the document further states: “UNDERSTANDING – CALIFORNIA ONLY: We understand we can make informal changes in these plans when we all agree (for example, to increase communications) but that this Agreement cannot be changed to decrease visitation, contact, and information sharing except in writing, signed by all parties, and preferably filed with the court. [¶] The adoptive parents understand that the agreement is binding and can be enforced by the court. [¶] . . . [¶] This agreement will be effective when all parties have signed below. This Agreement becomes legally binding after a ruling of the court at the time the adoption is finalized.”
The parties left much of the Preliminary Agreement blank, but completed the section entitled “Contact, Communication, and Visits.” This section provides that the adoptive parents shall send photographs twice a year (after the first year) upon request, that both the birth parents and the adoptive parents may initiate telephone contact, and that the parties will facilitate a minimum of one annual visit between the birth parents and the child. All parties signed and dated the Preliminary Agreement on November 16, 2003.
Shortly after P.’s birth, plaintiff and Charlie relinquished their parental rights to IAC for the designated purpose of adoption by defendants. P. was placed in defendants’ home in February 2004 under the supervision of IAC. IAC submitted a final report to Santa Clara County Superior Court on August 5, 2004, consenting to the adoption and recommending that it be granted. There is no indication that either the Preliminary Agreement or a Contact After Adoption Agreement form (Judicial Council Forms, form ADOPT-310) was submitted for the court’s review. On September 15, 2004, the superior court entered an adoption order, having found the adoption to be in P.’s best interests. The court did not grant post-adoption contact privileges pursuant to Family Code section 8616.5.
During the first eight months of P.’s life, the couples communicated frequently. Shortly after P.’s adoption, however, the relationship between the parties deteriorated. Plaintiff became increasingly dissatisfied with the level of contact and communication allowed by defendants. Defendants continued to facilitate an annual visit between P. and plaintiff and provided photographs, but limited the number of telephone calls and e-mails.
On December 12, 2006, a month before P.’s third birthday, plaintiff filed a complaint and petition to set aside the adoption. The complaint alleged fraud and constructive fraud, and sought rescission of the adoption, establishment of plaintiff’s parental rights, compensatory and punitive damages, and attorney’s fees and costs. In response, defendants filed an anti-SLAPP special motion to strike the complaint pursuant to section 425.16. The day after the filing of the motion to strike, plaintiff filed a first amended complaint and petition. The amended complaint alleges fraud and constructive fraud and seeks rescission of the adoption, but does not seek damages.
The amended complaint alleges that the parties executed an open adoption agreement (the Preliminary Agreement), that defendants promised to file the Preliminary Agreement in the course of finalizing the adoption to establish an “‘open adoption,’” that defendants were therefore legally obligated to file the Preliminary Agreement, and that defendants failed to do so. Absent the promise of an open adoption, plaintiff would not have relinquished her parental rights. The amended complaint also alleges that defendants “breached their duty by not filing the Agreement and committed fraud upon the Court by misrepresenting to the Court the essential facts of [P.’s ] adoption.”
The only causes of action asserted are constructive fraud and fraud. There is no cause of action based on a breach of fiduciary duty.
In declarations supporting defendants’ special motion to strike, defendants state that they never intended to file the Preliminary Agreement with the court, that they informed IAC of this decision prior to the adoption, and that they never promised plaintiff that they would file the Preliminary Agreement. Defendants further state that plaintiff never requested that defendants file the Preliminary Agreement, and that plaintiff did not even mention a court-filed agreement regarding open adoption until more than two years after P.’s birth. According to defendants, Steele explained to all parties at the November 2003 meeting that the Preliminary Agreement was intended to reflect only current expectations regarding contact and that it “would not be an enforceable post[-]adoption contact agreement, which required a filing with the court.” Additionally, none of the parties ever signed the mandatory Judicial Council form, Contact After Adoption Agreement. This form requires the signature of each party who is to be bound by the agreement. (See Judicial Council Forms, form ADOPT-310 at p. 2.)
In plaintiff’s declaration in opposition to the motion to strike, plaintiff emphasizes the importance of an open adoption in her decision to relinquish her parental rights and in choosing defendants as adoptive parents. She states that the language in the Preliminary Agreement led her to believe it would be filed with the court and that defendants never stated otherwise. She also states that she did not know about the Judicial Council form, nor that it would have required her signature, until well after P.’s adoption. Plaintiff stresses that the contact documented in the Preliminary Agreement was just the minimum contemplated by the parties. She asserts that the parties had a “verbal agreement” for more extensive contact.
The parties agreed that the amended complaint should be considered the target of defendants’ special motion to strike. On June 21, 2007, the trial court denied defendants’ motion. The court explained its ruling as follows: “[Defendants’] special motion to strike is denied on the ground that the acts upon which this action is predicated are not protected under the anti-SLAPP statute. [Defendants] argued that this action is based upon statements that were made before or in connection with a judicial proceeding, namely the adoption proceeding, and therefore come within the ambit of C.C.P. § 425.16(e)(1) and (e)(2). Although court approval is required to finalize an independent adoption, the adoption is not a judicial proceeding and instead is essentially a contractual proceeding between private parties. ([In re] Johnson (1893) 98 Cal. 531, 538.) The Court acknowledges that [In re] Johnson is over a century old, and that the California Supreme Court’s assertion therein that the adoption of a child is not a judicial proceeding was made in the context of repealed Civil Code § 227. However, a review of the legislative history tracking the repeal of § 227 and subsequent enactments of adoption procedures illustrate that the precedential value of [In re] Johnson remains in tact [sic].”
Defendants filed a timely notice of appeal.
II. Discussion
A. Anti-SLAPP Statute Generally
In 1992, the Legislature enacted the anti-SLAPP statute, finding that “[i]t is in the public interest to encourage continued participation in matters of public significance, and . . . this participation should not be chilled through abuse of the judicial process.” (§ 425.16, subd. (a).) Section 425.16, subdivision (b)(1) states: “A cause of action against a person arising from any act of that person in furtherance of the person’s right of petition or free speech under the United States or California Constitution in connection with a public issue shall be subject to a special motion to strike, unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim.”
“Section 425.16, subdivision (b)(1), [thus] requires the trial court to engage in a two-step process when determining whether a defendant’s section 425.16 motion to strike should be granted. First, the court decides whether the defendant has made a threshold prima facie showing that the defendant’s acts, of which the plaintiff complains, were ones taken in furtherance of the defendant’s constitutional rights of petition or free speech in connection with a public issue. If the court finds that such a showing has been made, then the plaintiff will be required to demonstrate that there is a probability that the plaintiff will prevail on the claim. The defendant has the burden on the first issue, the threshold issue; the plaintiff has the burden on the second issue.” (Paul for Council v. Hanyecz (2001) 85 Cal.App.4th 1356, 1364 (Paul for Council), citations and internal quotation marks omitted, disapproved on another ground in Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 68, fn. 5.)
In assessing whether the defendant has demonstrated that the action is one arising from protected activity, the trial court must consider “the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based.” (§ 425.16, subd. (b)(2).) The trial court need not consider inferences arising from the pleadings, however. (ComputerXpress, Inc. v. Jackson (2001) 93 Cal.App.4th 993, 1001-1002.) “On appeal, the issues are reviewed de novo.” (Paul for Council, supra, 85 Cal.App.4th at p. 1364.)
Defendants contend that the amended complaint challenges statements made pursuant to their right to petition and therefore falls within the anti-SLAPP statute. Under the statute, an “‘act in furtherance of a person’s right of petition or free speech under the United States or California Constitution in connection with a public issue’ includes: (1) any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law; (2) 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; . . . .” (§ 425.16, subd. (e).) In the context of statements made in or in connection with an issue under consideration by an official proceeding, the moving party need not show that the underlying statement concerned an issue of public significance. (Briggs v. Eden Council for Hope and Opportunity (1999) 19 Cal.4th 1106, 1123 (Briggs), construing § 425.16, subd. (e)(1), (2).)
B. Nature of The Adoption Proceeding
Defendants contend that P.’s adoption, which culminated in approval of the adoption and an adoption decree by the Santa Clara County Superior Court pursuant to Family Code section 8714, is a “judicial” proceeding for purposes of section 425.16, subdivision (e). Plaintiff cites, in opposition, In re Johnson (1893)98 Cal. 531 (Johnson), the 1893 California Supreme Court case relied upon by the court below in denying defendants’ motion to strike. Plaintiff points, in particular, to the holding that an adoption proceeding, as governed by former Civil Code section 227, is not a “judicial proceeding.” (See Johnson, at p. 538.) In reply, defendants argue in the alternative that the court adoption proceeding is, at the least, an “official proceeding authorized by law.” (See § 425.16, subd. (e).) We provided plaintiff an opportunity to address this argument in supplemental briefing. We find, however, that we need not resolve this precise legal question to resolve the issue presented on appeal. Assuming that the adoption finalization proceeding before the court is either a “judicial” proceeding or an “official proceeding authorized by law,” we conclude that the gravamen of the amended complaint does not arise from protected activity.
In the interest of clarity, however, we first address whether the adoption proceedings that occurred prior to the filing of the adoption petition in superior court may also be considered an “official proceeding” within the meaning of section 425.16. This determination is relevant to the critical question in this case of whether the amended complaint involves acts made in furtherance of defendants’ right to petition.
Until the adoption proceeding is instituted in court, it is clear there is no judicial proceeding.
Our high court recently addressed the definition of an “official proceeding” in section 425.16. (See Kibler v. Northern Inyo County Local Hospital Dist. (2006) 39 Cal.4th 192, 197 (Kibler).) In Kibler, the court held that a “hospital’s peer review procedure qualifies as an official proceeding . . . because that procedure is required under Business and Professions Code section 805, et. seq.” (Kibler, at p. 199, internal quotation marks omitted.) Among other things the court noted that “the Business and Professions Code sets out a comprehensive scheme that incorporates the peer review process into the overall process for the licensure of California physicians” and that those decisions “resulting from peer review proceedings are subject to judicial review by administrative mandate.” (Kibler, at pp. 199-200.) Thus, the court concluded, the peer review decisions are comparable to those of a quasi-judicial public agency and constitute official proceedings within the meaning of section 425.16. (Kibler, at p. 200.) To hold otherwise would discourage participation in the peer review process due to the risk of harassing lawsuits. (Kibler, at p. 201.)
The amended complaint in this case is based on the interaction between the birth parents and the adoptive parents. Defendants point to no legal basis that suggests the negotiations between the two couples prior to P.’s birth were required by law, or that the completion of a preliminary agreement regarding contact and visitation is part of the required adoption process. The Family Code does not address the type of meeting that took place between plaintiff and defendants in November 2003, and does not mandate such a discussion or negotiation regarding adoption specifics between the two parties. While there may be an argument that the IAC acts as a quasi-governmental agency in regard to the explicit agency duties set forth in the Family Code (see, e.g., Family Code, §§ 8701 [agency must advise birth parents of right to request adoption information], 8704 [agency responsibilities relating to placement and removal of child]), those particular steps in the adoption process are not at issue. As defendants themselves note in their opening brief, in an agency adoption “[t]here is no agreement between the birthparents and adoptive parents, and potentially may never even be a meeting, or even an exchange of names between them.” Moreover, the informal proceedings prior to the initiation of the court adoption action are not subject to administrative or judicial review. (See, e.g., Olaes v. Nationwide Mutual Ins. Co. (2006) 135 Cal.App.4th 1501, 1509 (Olaes) [noting that the proceedings were not “reviewable by writ of mandate” in rejecting application of section 425.16].) Accordingly, we proceed with our analysis understanding that the only possible judicial or official proceeding is the court adoption finalization proceeding that concluded with the September 15, 2004 order of adoption.
C. Statements Made Before The Court or In Connection With An Issue Under Review In The Court Proceeding
We turn to the central question before this court: Whether defendants’ allegedly fraudulent statements were made (1) before the court, or (2) in connection with an issue under consideration or review in the court proceeding. (See generally § 425.16, subd. (e)(1), (2).)
The former possibility, derived from section 425.16, subdivision (e)(1), is readily resolved. The conduct that is the gravamen of this case is defendants’ representations, in the November meeting prior to P.’s birth, regarding the nature of the adoption; specifically, defendant’s promises to ensure a legally enforceable open adoption. Although the amended complaint refers to a fraud on the court, the key statements supporting the fraud causes of action are those made to plaintiff, months before the court proceeding, that induced her to go forward with the adoption. In the amended complaint and the supporting documents, the only alleged misrepresentation made in the actual court proceeding is one of omission—the failure to raise the issue of an open adoption and to formalize a commitment to a legally enforceable open adoption. Defendants’ failure to address the topic in the adoption proceeding is, in this context, merely further proof that defendants’ pre-adoption statements were fraudulent and that defendants never intended to formalize an open adoption. We thus conclude that the amended complaint is not based on “any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law.” (See § 425.16, subd. (e)(1), italics added.)
Subdivision (e)(2) of section 425.16 requires further analysis, but is likewise inapplicable. Defendants contend that plaintiff’s amended complaint targets statements made in connection with an issue under review or consideration by the court. However, defendants’ argument conflates all statements made about a judicial or official proceeding with those made in connection with an issue raised or considered in such a proceeding. We reject this application of section 425.16.
“The statute does not accord anti-SLAPP protection to suits arising from any act having any connection, however remote, with an official proceeding. The statements or writings in question must occur in connection with ‘an issue under consideration or review’ in the proceeding.” (Paul v. Friedman (2002) 95 Cal.App.4th 853, 866 (Paul).) Moreover, “it is not enough to show that the act occurred in connection with an official proceeding authorized by law. Defendant also must show that the cause of action arose from protected speech or petitioning the government for redress of a grievance.” (Garretson v. Post (2007) 156 Cal.App.4th 1508, 1524.) “The necessity of a connection to an issue under review in a proceeding, and not merely to a proceeding, is illustrated in People ex rel. 20th Century Ins. Co. v. Building Permit Consultants, Inc. [(2000) 86 Cal.App.4th 280].” (Paul, at p. 866.)
In People ex rel. 20th Century Ins. Co. v. Building Permit Consultants, Inc. (2000) 86 Cal.App.4th 280 (20th Century), the defendant company assisted property owners in compiling and preparing repair estimates relating to earthquake damage. (20th Century, at p. 282.) The estimates and related documents were submitted to the plaintiff insurance company for recovery. (Ibid.) If the property owners’ claims were rejected, an appraisal process or litigation ensued. (Ibid.) In its suit against the defendant, the plaintiff alleged that the defendant created false documents knowing that they would be presented in support of an insurance claim or lawsuit. The defendant claimed in its special motion to strike, that the reports were prepared in anticipation of litigation, and therefore should come within the anti-SLAPP statute. (20th Century, at p. 284.) The Court of Appeal rejected this argument. “While some of the reports eventually were used in official proceedings or litigation, they were not created ‘before,’ or ‘in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official proceeding authorized by law.’” (20th Century, at pp. 284-285.) In short, the contemplation of litigation (or, in this case, a court proceeding) does not invoke the protection of section 425.16; the issue must actually be under consideration or review by the court.
Although an open adoption agreement could have been a subject of the anticipated adoption proceeding in this case, it was not. The superior court did not consider any agreement between the parties regarding open adoption, nor did it address the subject of post-adoption communication or visitation in its order of adoption. Fraudulent statements made in private negotiations do not become an act of petition or an exercise of free speech due to the mere reference to, or surface connection with, the judicial system. In Paul, for instance, the plaintiff sued the attorney who represented the plaintiff’s former clients in an arbitration proceeding against the plaintiff. The plaintiff alleged the attorney “conducted an ‘investigation’ of [the plaintiff] that far exceeded the scope of permissible discovery or investigation in the arbitration and was unreasonably intrusive.” (Paul, supra, 95 Cal.App.4th at p. 857.) The court rejected application of section 425.16 to the plaintiff’s suit against the attorney, reasoning that the investigation issues were irrelevant to the arbitration and thus not actually under consideration in the proceeding. (Paul, at pp. 861, 866-868.) Likewise, any contact or visitation agreement was irrelevant to the court’s adoption proceeding in this case.
Plaintiff’s declaration further emphasizes the private nature of the conduct as plaintiff relies upon oral representations throughout the course of the parties’ pre-adoption relationship to support her fraud claims, not just the statements made in connection with the Preliminary Agreement. She points to statements made during casual conversation, including the filming of the Discovery Health Channel program.
Citing Navarro v. IHOP Properties, Inc. (2005) 134 Cal.App.4th 834 (Navarro), among others, defendants broadly contend that “representations concerning a party’s intended conduct in connection with a judicial proceeding are within [section ] 425.16.” However, defendants’ authorities involve litigation in progress at the time the subject representations were made. This difference is crucial to the applicability of section 425.16, subdivision (e). In Navarro, the challenged cause of action was based on allegedly false promises made during the negotiation of a stipulated judgment in a pending action. (Navarro, at pp. 837-838.) The court, following the reasoning of Dowling v. Zimmerman (2001) 85 Cal.App.4th 1400 (Dowling), found that section 425.16 applied to the statements made during the negotiation of the judgment. (Navarro, at p. 842.) In Dowling, the challenged conduct involved statements made in connection with an issue already under review by a judicial body. (Dowling, at p. 1420.) The plaintiff alleged infliction of emotional distress based on statements made in a letter sent by a former adversary’s counsel to an interested party regarding a dispute between the plaintiff and the former adversary that was the subject of a pending unlawful detainer action. (Dowling, at pp. 1409, 1418.) The plaintiff also challenged, in causes of action for defamation and misrepresentation, the attorney’s statements during the negotiation for a stipulated settlement in the unlawful detainer action. (Dowling, at p. 1418.) The court found that the attorney’s conduct in both instances fell within section 425.16. (Dowling, at p. 1420; see also Navellier v. Sletten (2002) 29 Cal.4th 82, 90 [plaintiffs challenged defendant’s negotiation and execution of release that settled a court action; the court found the negotiation and execution of the release fell within the protection of section 425.16, subdivision (e)(2)]; Sylmar Air Conditioning v. Pueblo Contracting Services, Inc. (2004) 122 Cal.App.4th 1049, 1059 [section 425.16 applied to fraud claim based on communications that were made in anticipation of cross-complaint after underlying lawsuit had been filed; the allegedly fraudulent statements addressed the same general issues regarding defective work as the underlying complaint].)
Here, in contrast, there was no court proceeding at the time of the allegedly false statements, plaintiff was not a party to the eventual court proceeding, and the subject of the alleged promises was not raised in court and was not subject to the court’s review. After the parties’ discussions, plaintiff relinquished her parental rights to IAC, which then joined with defendants to seek the court’s approval of the adoption. No open adoption agreement was filed in or considered by the court.
Finally, defendants argue summarily that plaintiff’s claims “arising from an adoption proceeding and a paper to be reviewed in that proceeding, are covered by the anti-SLAPP statute.” (See, e.g., Briggs, supra, 19 Cal.4th at p. 1115 [finding that the defendant’s statements and writings, which were made in the course of a government investigation or in connection with issues actually considered in civil litigation, fell within the statute].) The cases defendants cite in support of this argument are unpersuasive. Dove Audio, Inc. v. Rosenfeld, Meyer & Susman (1996) 47 Cal.App.4th 777, 780-781 (Dove), for example, involved communications by counsel to similarly aggrieved individuals that sought support for an anticipated petition to the state attorney general regarding the plaintiff’s allegedly unlawful conduct. The court found that the letter’s statements were preparatory to an official proceeding and, thus, were “in furtherance of [the defendant’s] constitutional right of petition” and “entitled to the benefits of section 425.16.” (Dove, at p. 784.) Private statements between birth parents and adoptive parents made in the course of an agency adoption are simply not analogous to a communication by counsel seeking support from like parties for a government investigation or litigious action. The challenged conduct in Dixon v. Superior Court (1994) 30 Cal.App.4th 733, 737-739 (Dixon) and in Mission Oaks Ranch, Ltd. v. County of Santa Barbara (1998) 65 Cal.App.4th 713, 728-729 (Mission Oaks), disapproved on other grounds in Briggs,has even less in common with the instant case. In each of these cases, the defendant’s statements were made in connection with an issue of public concern during an official environmental review process. Neither case analyzed the applicability of section 425, subdivision (e)(1) or (e)(2). (Dixon, at pp. 742-743; Mission Oaks, at p. 729.)
“While we are required to construe the [anti-SLAPP] statute broadly, we must also adhere to the express words and remain mindful of its purpose.” (Paul, supra, 95 Cal.App.4that p. 864.) A lawsuit seeking redress for allegedly fraudulent statements between private parties contemplating an agency adoption is not the type of “abuse of the judicial process” that the anti-SLAPP statute was intended to prevent. We find no error in the court’s denial of defendants’ special motion to strike.
III. Disposition
The trial court’s June 21, 2007 order denying defendants’ special motion to strike the first amended complaint and petition is affirmed.
WE CONCUR: McAdams, J., Duffy, J.