Opinion
B224314
11-14-2011
THE LOS ANGELES JEWISH HOME FOR THE AGING et al., Plaintiffs, Respondents, and Cross-Appellants, v. VALERIE WEST et al., Defendants, Appellants, and Cross-Respondents.
Ben Feuer; California Anti-Slapp Project, Mark Goldowitz and Paul Clifford, for Defendants, Appellants, and Cross-Respondents. Arent Fox, Jonathon E. Cohn, and Collin Seals, for Plaintiffs, Respondents, and Cross-Appellants.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Los Angeles County Super. Ct. No. LC088559
APPEAL from an order of the Superior Court of the County of Los Angeles, Michael Harwin, Judge. Affirmed.
Ben Feuer; California Anti-Slapp Project, Mark Goldowitz and Paul Clifford, for Defendants, Appellants, and Cross-Respondents.
Arent Fox, Jonathon E. Cohn, and Collin Seals, for Plaintiffs, Respondents, and Cross-Appellants.
INTRODUCTION
Plaintiffs, respondents, and cross-appellants Los Angeles Jewish Home for the Aging (the Home) and Nadine Roisman (Roisman) sued defendants, appellants, and cross-respondents Val West (daughter) and David Dizenfeld (Dizenfeld) alleging causes of action for trespass, intentional interference with contractual relations, civil harassment, and defamation arising out of the Home's Resident Admission Agreement with one of its residents, daughter's mother (mother) and related events. Defendants filed a special motion to strike the complaint pursuant to Code of Civil Procedure section 425.16,(SLAPP motion) which the trial court granted as to the defamation cause of action and denied as to the remaining three causes of action. Defendants appealed from the trial court's ruling denying their motion as to three causes of action, and plaintiffs cross-appealed from the ruling granting the motion on their defamation cause of action. Each of the parties also challenges the trial court's rulings on their respective evidentiary objections.
Plaintiffs, respondents, and cross-appellants are referred to collectively as plaintiffs.
Defendants, appellants, and cross-respondents are referred to collectively as defendants.
All further statutory references are to the Code of Civil Procedure unless otherwise indicated.
We hold that neither defendants nor plaintiffs demonstrated prejudice from the trial court's rulings on their evidentiary objections and that, in any event, plaintiffs did not appeal from the trial court's rulings on their objections. We further hold that the trial court did not err in its ruling on the special motion to strike. We therefore affirm that ruling in its entirety.
PROCEDURAL POSTURE
On February 10, 2010, plaintiffs filed their complaint against defendants asserting causes of action for trespass, intentional interference with contractual relations, civil harassment, and defamation. On February 26, 2010, the trial court issued a temporary restraining order against defendants. Prior to the hearing on the preliminary injunction, defendants filed their special motion to strike under section 425.16. Following briefing and a hearing, the trial court overruled the respective objections of the parties, denied the motion as to the trespass, interference with contract, and civil harassment causes of action and granted that motion as to the defamation cause of action. Defendants and plaintiffs filed timely notices of appeal and cross-appeal.
Plaintiffs' request and supplemental request for judicial notice are denied.
FACTUAL BACKGROUND
We set forth facts in great detail because this case involves the sufficiency of evidence in connection with a SLAPP motion.
A. Defendants' Evidence
1. Daughter's Declaration
When mother could no longer live on her own, she decided to live at the Home because, based on past experience, mother and daughter believed the Home would be an "honest, good place" for mother to live. On February 29, 2008, mother and daughter attended an admissions meeting with Home representatives Nuala Stellar and Irene Smith. They confirmed mother would be "self-sustaining" at the Home and able to use her retirement benefits, deducting reasonable co-pays from her rent. Stellar and Smith mentioned that most of the Home's residents paid "little rent," did not have both pension and social security benefits, and used government health care and drug benefits. They said mother was in a good position to use her private health insurance and pay rent. Stellar and Smith also said that mother did not require any government assistance to live at the Home, but recommended that mother obtain approval for Medi-Cal benefits in the event she needed it for skilled nursing later. The Home's representatives also explained that the state set the rental rates for the Home, so mother's income needed to be verified by the state through a Medi-Cal application submitted on mother's behalf by the Home. As a result, the Home required her mother to pay the private room rate for the first month.
Mother's mother had given the Home the family's "life savings" 24 years prior.
At the time mother was admitted to the Home, representatives told her that the Home provided residents with transportation to medical appointments. But after mother moved in, she was told that the Home would only provide transportation to appointments with physicians that had been referred by the Home's on-site physician, Dr. Osterweil. Daughter was told she would need to transport mother to any other appointments if she was using her private insurance.
A few weeks after mother moved into the Home, daughter noticed missing medications and scheduled a meeting with the director of nursing, Louise Miglin-Walsh.At the meeting, daughter reported that "Nurse Millie" was giving mother only one-half the prescribed dosage of one antibiotic. Walsh and daughter counted mother's medications and discovered some of her medications and supplies were missing. Walsh confirmed that missing medications and supplies had been a problem since mother arrived at the Home. Walsh promised to investigate the problem personally and report her findings to daughter, but she did not. According to daughter, "[a]ccountability of drugs, supplements, and supplies [was] an ongoing problem at the Home." In the most recent inventory in March 2010, some of mother's drugs were missing and Betsy Kelly, the director of nursing, omitted mother's insulin on a February 2010 inventory, an omission that daughter reported to the Department of Social Services. The Home also refused to provide daughter with receipts for drugs it received on behalf of mother.
Mother had designated daughter as mother's authorized representative and the "responsible person" for purposes of mother's dealings with the Home.
On June 23, 2008, mother telephoned daughter and reported that Home staff members approached her in the dining hall in front of fellow diners and asked her to sign a stack of confidential documents without providing her an opportunity to read them or makes copies of them. Daughter e-mailed Brett, the chief operating officer, Fielder and Roisman that date and requested copies of the documents mother had signed. Despite numerous requests, daughter did not receive copies of the documents until months later. When daughter reviewed the copies, she noticed that the top page was a Medi-Cal application, but under that page was another resident admission agreement that changed mother's rent calculation to a different amount without listing the amount, authorized the Home to open and read mother's mail, authorized the Home to take funds from mother's on-site bank account, and authorized the Home to divert mother's social security funds directly to the Home without her knowledge. Mother and daughter filed a complaint about the incident with the Department of Social Services.
Roisman, the Home's co plaintiff, was the executive director at the Home's Eisenberg Village residential care facility where mother resided.
In or about October 2008, daughter was standing in the hall while mother spoke to Rosario in the Home on-site bank. Mother walked out of the bank with a form, handed it to daughter, and explained that Rosario had asked her to sign a "change of address form on three prior occasions while covering the top portion of the form." Daughter reviewed the form and realized it was a Los Angeles Unified School District form requesting that mother's retirement pension checks be redirected from mother's checking account to the Home.
In an April 30, 2009, meeting with Home representatives Fielder, Roisman, Sherri Cunningham, and Nancy Autolino, the Home continued to refuse to allow mother and daughter to review the face sheet from mother's file. During the meeting, Roisman promised to investigate erroneous billings for medications that were ordered, but not given to mother. Also at the meeting, daughter attempted to provide Fielder and Roisman with a summary of drugs that were redundant and unnecessary that were allegedly purchased for mother under Medicare, Part D, but which were taken from mother's mail and never given to her. Fielder twice slid the documents back across the table without looking at them. Fielder also twice left the meeting saying he needed to call the Home's legal advisors.
Through May 2009, the Home ordered, received, and handled mother's medications. That May, however, daughter took over the task of ordering mother's medications. But the shipping address remained the Home; daughter did not receive mother's medications. Daughter was attempting to prevent the ordering of medications on incorrect benefit plans and to ensure that medications were ordered under mother's private health insurance plan. Despite daughter's efforts to reduce the amount of mother's medications that were being lost by the Home, employees of the Home continued to intercept mother's mail to retrieve medications. Daughter always ordered medications according to physician instructions and prescriptions. She had ensured that mother did not miss anything. Any accusations to the contrary were false.
On July 7, 2009, mother, daughter, and Dizenfeld met with attorney Jody Spiegel at Bet Tzedek Legal Services. Dizenfeld arranged the meeting at mother's request because mother wanted legal advice concerning her issues with the Home. Among other things, they discussed the resident admission agreement, erroneous Medicare, Part D, charges by the Home, seizure of private mail, missing drugs, and other issues. Spiegel advised them, gave them copies of code sections, and asked that she be kept apprised of mother's situation and any further developments. Spiegel also referred them to the state ombudsman, Hilda Estrada.
On July 13, 2009, mother, daughter, and Dizenfeld met with ombudsman Estrada and discussed the same issues they had discussed with Spiegel. On July 22, 2009, Estrada convened a meeting at the Home attended by mother, daughter, Dizenfeld, Fielder, Roisman, and nurse supervisor Ragovin. The group discussed the resident admission agreements, rent, Medicare, Part D, charges, missing drugs, mail seizures, identity theft, and lack of care. Estrada asked to review mother's file but, initially, it did not contain any resident admission agreement. After two hours, the original resident admission agreement was provided, but not the second agreement that staff had mother sign in the dining hall on June 23, 2008. And the face sheet for mother's file was not made available for the meeting. Daughter suspected that the face sheet was the source of "identity theft" based on calls she received from off-site vendors informing her that someone had "been using her mother's identity to order services like medical imaging."
On December 8, 2009, daughter took mother to an offsite medical appointment where daughter obtained a copy of the face sheet for the Home's file on mother. Daughter believed the face sheet had been distributed to on-and off-site vendors and Home staff for almost two years without mother's authorization or consent. The face sheet also contained information about daughter and her ex-husband. When daughter subsequently obtained a copy of the face sheet from the Home, it had been altered and was different than the copy that had been distributed.
On January 10, 2010, mother had flu-like symptoms, did not go to her evening glucose check, and was not answering her telephone. Mother called the front desk at the Home and asked for someone to check on mother. It took an hour for a nurse to check mother's glucose and it was 302. Daughter was worried because she had been advised that anything over 250 was a cause for concern. The nurse refused to call mother's endocrinologist pursuant to his standing written order and instead paged the Home's physician, Dr. Osterweil. He recommended a couple of units of Lantis, a slow acting insulin. Daughter called mother's endocrinologist who informed her that Lantis was the wrong insulin and that mother needed a faster-acting insulin like Novalog. Daughter requested an ambulance for mother to take her to the emergency room. There, mother was given Humalog, an insulin similar to the one her endocrinologist had recommended, and was diagnosed as suffering from dehydration. Mother was admitted to the hospital and spent two days there.
When mother returned to the Home on January 12, 2010, daughter met with Roisman and Kelly and gave them a copy of the endocrinologist's orders that the nurse had not followed. Daughter asked them for an explanation and also asked Dr. Osterweil to conduct an investigation based on the events of January 10, 2010.
On January 19, 2010, mother dismissed Dr. Osterweil during a conference in which daughter participated. Mother told Dr. Osterweil that she was angry because the nurse told her that Dr. Osterweil had torn up the endocrinologist's orders, told the staff that he was taking over, and advised them to listen only to him. Mother informed Dr. Osterweil that her endocrinologist had always managed her diabetes and that she had private health insurance. Daughter previously had conversations with mother's former endocrinologist and he informed mother that no one at the Home listened to him; he could not work with Dr. Osterweil; and that because Home staff sent mother to appointments with him without "the meter, data or list of drugs," he no longer wanted to be mother's endocrinologist.
On January 26, 2010, daughter and Dizenfeld took mother to an appointment with her new endocrinologist and then to lunch. The new endocrinologist changed mother's insulin prescription and testing instructions, and wrote them on a prescription pad. Because daughter and Dizenfeld had been told by Fielder and Roisman to deal with Kelly, they took mother to meet with Kelly when they returned to the Home. They wanted to give Kelly the endocrinologist's orders, mother's notarized request to stop distributing the face sheet, and a power of attorney. Kelly's office door was open, she invited them in, and brought in a third chair. When Dizenfeld asked Kelly if Roisman could join the meeting, Kelly said Roisman was "off campus." The group discussed the face sheet and then Kelly went to make copies, while Dizenfeld went with Kelly's assistant to the records department. Kelly and Dizenfeld returned and the discussion continued. Suddenly, Roisman burst through the side door with a loud noise. Roisman picked up Kelly's telephone, called Fielder, and said, "They're here, you want me to go ahead and call the police?" She then called the police, reported that daughter and Dizenfeld were trespassing, and gave descriptions. Dizenfeld left immediately. Mother sat in the office "stunned." Roisman moved toward mother, "got down on her knees, put her hands on [mother's] legs and said something like, 'if your daughter doesn't leave, she will be taken away in police handcuffs.'" Then Roisman told mother that Roisman was always there for her and was her friend. Mother looked at daughter frightened and confused. Mother and daughter left the office suite, located Dizenfeld, and left the building "shaking their heads." Mother told daughter that Roisman was "creepy" and that she did not want Roisman to touch her again. Daughter explained that she lived across town, mother lived at the Home, it was a medical facility, and there was nothing daughter could do about the situation. At that time, daughter was unaware that "it was a set-up, a trap, so [the Home] could include a trespass cause of action in [its] future lawsuit."
On February 5, 2010, daughter informed Kelly that daughter had received a 90-pill supply of one of mother's medications. On February 8, 2010, Kelly e-mailed daughter to inform her that Kelly had ordered a seven-day supply of the same medication from Omnicare pharmacy. After confirming that mother's endocrinologist had not instructed Kelly to order the medicine through Omnicare, daughter called that pharmacy and was informed that Kelly had instructed the pharmacy not to call daughter about the order and that the medication had been prescribed using Dr. Osterweil's prescription form, even though Kelly knew weeks earlier that mother had terminated mother's relationship with Dr. Osterweil. Daughter received a bill for the medication ordered by Kelly, but mother never received the medication.
On February 12, 2010, daughter was informed that the Department of Social Services had, as part of its investigation of an administrative complaint against the Home filed by mother and daughter, issued the Home a deficiency citation for not having drug logs available. The next day, the Home filed its lawsuit against daughter and Dizenfeld.
Daughter attached to her declaration as exhibits A and B copies of two Department of Social Services' facility evaluation reports, one of which indicated that Kelly admitted that the Home had not properly documented at least one of mother's medications. Daughter also attached as exhibits C and D copies of two Department of Social Services complaint investigation reports, one of which indicated that mother's complaint about being asked to sign documents that daughter had not reviewed was substantiated, and the other of which indicated that mother's complaint that the Home had failed to give mother some of her medication was also substantiated.
According to daughter, the Home never resolved the issues involving Medicare, Part D, fraud and missing medications, and never provided theft reports or any reports of the Home's investigation of mother's complaints. Mother was concerned that because of the Home's erroneous Medicare, Part D, charges, she would lose her retirement benefits from the Los Angeles Unified School District. Mother was also concerned that the government would seek reimbursement from her of benefits for which it should not have paid.
At each of the meetings with the Home that daughter attended, mother made it clear that she wanted daughter or Dizenfeld present at all such meetings, and Fielder acknowledged the Home's understanding that mother did not want to meet with representatives of the Home alone. Daughter denied engaging in a campaign of harassment against anyone, and asserted instead that she had made necessary and legitimate complaints to the Home and appropriate governmental agencies.
Daughter confirmed that Dizenfeld was a family friend who tried to help mother resolve issues with the Home. Although Dizenfeld is an attorney—in an unrelated field—he did not advise the Home staff that he was representing mother as an attorney.
Daughter made the following complaints to various governmental agencies about the Home's treatment of mother: A December 18, 2009, written complaint to the State Department of Social Services regarding identity theft and missing drug issues with the Home; a November 6, 2009, written complaint to the U.S. Department of Health and Human Services regarding fraud and missing drug issues with the Home; at a February 8, 2010, meeting with a state deputy Attorney General and two special agents for the State Bureau of Medi-Cal Fraud and Elder Abuse daughter made an oral complaint of elder abuse issues that mother had with the Home; and a February 13, 2010, police report to the Los Angeles Police Department regarding identity theft and theft.
2. Dizenfeld's Declaration
At the time of the motion to strike, Dizenfeld was an entertainment and media attorney, a "TV consultant," and a "philanthropy media advocate" who was a family friend of mother and daughter. Among other things, Dizenfeld had helped organizations such as the Home with "media exposure in the community to aid them in their respective fund-raising efforts."
On July 2, 2008, mother and daughter asked Dizenfeld to attend a meeting at the Home as a family friend—not an attorney—to help resolve issues between mother and the Home. During the meeting, the Home's vice-president of fund development, Corey Slavin, "made a point of coming by to say hello to [Dizenfeld] and extended an open invitation to [Dizenfeld] to visit [the Home] anytime."
Because Dizenfeld had been involved in conflict resolution, he believed he could help mother "in getting [the Home] to abide by its contract with her, and to provide the care that was needed and expected." Therefore, he attended several meetings with daughter, mother, and representatives of the Home.
At an April 30, 2009, meeting with the Home's acting chief operating officer, Brett Fielder, daughter presented Fielder with evidence indicating possible "healthcare fraud" involving the Home. But Fielder slid the evidence back across the table twice, refusing to review the documentation daughter had provided. Fielder and Roisman promised on behalf of the Home that Roisman would conduct an investigation into the issues of healthcare fraud, missing drugs, identity theft, and lack of accountability. But neither Fielder nor Roisman wanted daughter's documentation relating to those issues. Dizenfeld asked Fielder for the name of and contact information for the Home's attorney, but Fielder refused to provide that information. On June 16, 2009, Dizenfeld sent an email to Roisman following up on the investigation. Roisman did not respond and apparently did not conduct the promised investigation or directly address and resolve the "abuses being suffered" by mother.
Because mother wanted legal advice concerning her relationship with the Home, she, daughter, and Dizenfeld met with attorney Spiegel who was the director of the nursing home advocacy project for Bet Tzedek Legal Services. Spiegel provided counsel to mother and asked to be advised of further developments.
On July 13, 2009, mother, daughter, and Dizenfeld met with Hilda Estrada, the regional manager for the long-term care ombudsman program, regarding mother's issues with the Home. On July 22, 2009, Estrada held a meeting at the Home's administrative offices attended by mother, daughter, Dizenfeld, Fielder, Roisman, and Ragovin, a nurse at the Home. Although mother requested that her entire file be brought to the meeting, the resident admission agreement and the face sheet that summarizes a resident's personal and medical information were missing from the file. Roisman left the meeting to obtain the agreement, but could not locate it. An agreement was provided over an hour later. During the meeting, Fielder admitted that Home staff had approached mother in the dining room and demanded that she sign a stack of documents without allowing mother or daughter to review them. Among the documents were forms that redirected mother's social security payments to the Home, allowed the Home to remove funds from mother's on-site bank account, and waived her mail privacy rights. Fielder apologized for the staffs behavior with regard to the forms. Also during the meeting, Ragovin and Roisman admitted intercepting mother's private mail without authorization.
At each meeting with the Home that Dizenfeld attended, mother stated that she did not want to meet with representatives of the Home without daughter or Dizenfeld being present. Nevertheless, on January 22, 2010, mother left Dizenfeld a voice message asking that he attend a meeting at the Home. Dizenfeld called mother back, but was unable to reach her. When Dizenfeld called Kelly, he was informed that mother was in Kelly's office meeting with Home staff. Dizenfeld asked to speak with mother, but Kelly hung-up the telephone.
On January 26, 2010, mother, daughter, and Dizenfeld returned to the Home from an appointment with mother's off-site physician. Mother's physician wanted mother to give his written instructions to the director of nursing. Mother, daughter, and Dizenfeld went to Kelly's office to give her the physician's written instructions, a notarized power of attorney appointing daughter as mother's agent, and a notarized copy of mother's instructions concerning confidential information on the face sheet of mother's file, as well as to arrange a time when they could meet with Kelly. As they entered the office suite to speak with Kelly's assistant, Dizenfeld saw Kelly alone in her office with the door open. Kelly invited them into her office and brought in a third chair so they all could be seated. When Dizenfeld asked if Roisman could join them, Kelly informed him that Roisman was "off-campus." Mother handed Kelly the physician's instructions, the power of attorney, and the instructions regarding mother's face sheet. As Kelly was making copies of the documents, Dizenfeld saw her using her cell phone. Dizenfeld then accompanied Kelly's assistant to the records department to review and copy mother's face sheet. Dizenfeld returned to the meeting and handed two copies of the face sheet to Kelly. Kelly allowed mother to review one of the copies, but refused to allow mother to keep the copy. As daughter was helping Kelly decipher the physician's handwriting, Roisman "burst through the door" from an outside hallway. Roisman picked up Kelly's telephone, called Fielder, and said, "They're here. I'll go ahead and call the police." Roisman then proceeded to call the police. Dizenfeld was alarmed because there was no basis for calling the police. He immediately left the suite before Roisman hung up the telephone.
In addition to meeting with the Bet Tzedek attorney and the ombudsman about the ongoing disappearance of mother's drugs, mother, daughter, and Dizenfeld reported the issues to various government agencies, including the California Department of Social Services. Dizenfeld never told anyone at the Home he was representing mother as her attorney. Rather, he made it clear to representatives of the Home that although he was an attorney, he was acting as a friend of the family, not an attorney.
B. Plaintiffs' Evidence
1. Fielder
At the time of the hearing on the special motion to strike, Fielder was the chief operating officer of the Home which holds licenses for multiple facilities providing various levels of care at its "campuses" in Reseda, California. These facilities include Eisenberg Village residential care facility for the elderly (Eisenberg). Mentally alert, independently mobile residents generally capable of independent living (although some may require limited assistance with activities of daily living) may choose to live at Eisenberg in the residential care facility. Residents at such facilities are ambulatory, competent, and able to take care of themselves with minimal assistance with the activities of daily life. But if a resident's needs become too great to be addressed by staff of the residential care facility, as occurs with dementia or long-term debilitating illness, they may require a higher level of care offered by a skilled nursing facility where their needs can be met.
The residents at Eisenberg residential care facility have a great deal of control over their day-to-day lives. Residents are able to participate in a residents council that meets regularly to discuss matters of importance to residents and to communicate their needs and desires to the Home's administration. These meetings are regularly attended by residents, as well as by members of the Home's administration and members of the Los Angeles County ombudsman's office. The residents council serves as an important conduit of information between the residents and Eisenberg's administration. Issues raised in the council or by the ancillary committees are easily identified and dealt with by Eisenberg administration. The residents council and its committees are an integral part of life at Eisenberg and give the residents an opportunity to voice their opinion in a free and open forum. None of the allegations raised by defendants were raised with the residents council since the time mother was admitted to the Home.
Mother was admitted to Eisenberg in February 2008. Her financial circumstances were such that, upon admission, her sole medical coverage was a Blue Cross plan she obtained as part of her retirement benefits from the Los Angeles Unified School District. Mother originally paid market value for her room and board at Eisenberg, which was in excess of $2,500 per month at the time. At or soon after admission, mother applied for Medi-Cal and, as part of that application, for the federal medically needy only program. The Home accepts only three programs for those who want to live at the residential care facility at Eisenberg—private pay, the medically needy only program, and supplemental security income or SSI (Medi-Cal/Medicare). The medically needy only program is a federal program available to those whose income level is between $970 and $3,500 per month, but not low enough to qualify for the SSI program. Under the medically needy only program, rent is calculated as the resident's income, less $20 for personal expenses. The exact amount of the rent is recalculated by an income verification conducted in January of each year. Thus, each medically needy only program recipient at a facility will pay a different amount of rent, because each will have a different level of income.
Although the Home is not required to accept program recipients under the terms of its license, it does so in furtherance of its mission. At the time Fielder submitted his declaration, the Home had approximately 60 residents who were medically needy only program recipients, including mother. She qualified for the medically needy only program approximately four months after her admission. That qualification was retroactive as of the date of the application. The application for the program contains a checkbox for applicants who do not want to be enrolled in Medicare, Part D. This box was not checked on mother's application which was signed by daughter.
The application was attached to Fielder's declaration as exhibit 4, but that document does not appear to contain the referenced Medicare, Part D, checkbox.
As a private pay resident, mother had been paying the full rental amount at the Home. Because she qualified for the medically needy only program, however, she was eligible for a credit for the amount paid, over and above what she would have paid as a medically needy program resident, for the several months that elapsed between her application and her qualification for the program. To clarify her new status as a medically needy only resident and to enable the Home to begin processing her credit, the Home asked mother in June 2008 to execute a second admission agreement reflecting her medically needy only status. Mother's medically needy only status was then made retroactive to March 8, 2008, and she was credited for the private rent she paid that was in excess of the medically needy only rate. Because mother's income was too high for her to qualify for the Medi-Cal program, but not high enough to enable her to afford Eisenberg's full private pay rate indefinitely, the medically needy only program was beneficial to mother. It allowed her to live in a facility for which she could not otherwise qualify or afford. In addition, under the medically needy program, mother had the option to utilize the Medi-Cal program to obtain her prescription medications at "very very low" co-pays. Generally, the co-pays under the Medi-Cal program are approximately $1 to $3 per prescription, and cover most, if not all, of the same medications as under the Blue Cross plan. Had she elected to utilize the Medi-Cal benefits for which she qualified, co-pays for physician and hospital services would have been provided at little or no cost to mother.
In April 2009, almost a year after mother signed the second admission agreement, daughter raised a concern about the resident trust account and mail authorizations contained in that agreement. The Home promptly changed mother's mail preferences and ceased its efforts to redirect mother's income to the trust account. Moreover, funds deposited in the resident trust account do not go directly to the Home as daughter claims. They are held in trust as federal and state statutes and regulations require. The Home holds funds in trust accounts for more than 600 residents. These trust accounts are audited routinely during annual surveys by the state Departments of Public Health and Social Services.
The vast majority of Eisenberg medically needy only residents qualify for and receive Medi-Cal and Medicare, Part D, coverage, so their co-pays for physician visits and covered medications are a fraction of the co-pays required under most private pay insurers, including Blue Cross. Although mother qualified for this coverage, daughter insisted that mother remain with Blue Cross. According to Fielder, "this [was] unnecessary [because] the Medi-Cal coverage provided by the medically needy program provides the equivalent prescription benefit of the Blue Cross [plan] at a lesser cost." In Fielder's experience, "this [was] how virtually all [medically needy only program] beneficiaries wish[ed] to proceed, as it [was] by far the least expensive method."
Soon after the execution of the second admission agreement, daughter began demanding in meetings and e-mails a reduction in mother's rent. These demands were accompanied by rental payments that were substantially less than the full amount. The reduced payments were submitted with an explanation of the deductions mother had made. The deductions included drug purchases and co-pays, which were more costly under the Blue Cross plan, as well as co-pays for physician visits under the Blue Cross plan which would have been covered under the Medi-Cal benefit at 100%. There were also deductions for co-pays and bills for visits to specialists that were not ordered or referred by mother's primary care physician. In each instance, the Home informed daughter that these were not allowable deductions under the medically needy only program's rental calculation formula, and that they must be paid by mother. Daughter also claimed that she did not receive bills for the monthly rent and requested that the Home staff double-check her address, notwithstanding that the Home had sent all bills to the same address since mother's admission. And daughter would claim that mother's social security benefits had been reduced significantly without providing adequate documentation to support such claims of reduced income.
In addition to Fielder, several Home staff members, including Roisman and Nancy Autolino, had on multiple occasions explained to daughter the medically needy only program, the calculation of rent, the reason for mother's higher co-pays, and other issues relating to daughter's complaints about rent. It was daughter's insistence on the much more expensive Blue Cross insurance that caused most of mother's problems.
In July 2008, Fielder received a telephone call from Dizenfeld who told Fielder that he, Dizenfeld, was representing the family which Fielder understood to mean mother and daughter. Fielder attached as exhibit 9 to his declaration an April 27, 2009, e-mail from Dizenfeld in which Dizenfeld referred to mother in the subject line as a "client." Also, daughter had on multiple occasions referred to her "lawyer" and expressed concern over how much she was paying him for fees when they arranged meetings. Other than Dizenfeld, Fielder had not met with, been contacted by, or even been given the name of any other lawyer representing either mother or daughter.
According to Fielder, Eisenberg residents who do not self-administer their medications must have their medications centrally stored and logged. Nurses also keep records of the date and time medications were administered to each resident. If residents who do not self-administer maintain their own private store of medications, it compromises the integrity of the Home's records because any medication taken by a resident under such circumstances cannot be accurately entered into the records. Even if the resident reports self-administration to staff, it is difficult if not impossible to determine the dosage taken, or even which medications were taken. Because the Home is required to administer medications according to the plan of care developed by the resident's primary care physician, any unrecorded self-administration potentially compromises that obligation. Fielder attached as exhibit 12 to his declaration, e-mails from daughter in which she admitted to creating such a private store of medications for mother.
Concerning mother's admittance to the emergency room on January 10, 2010, the proper practice and procedure in such a situation was to contact the primary physician in charge of the resident's care. If that physician deems it appropriate, he or she may contact a specialist. The primary care physician assumes legal responsibility for all physician orders, including those of specialists. Therefore, when an order from a specialist is received, the primary care physician is asked to confirm it and from that point, the primary care physician becomes responsible for the order. According to Fielder, daughter prevented the Home from following proper protocol by implementing an intervention not authorized by the primary care physician. Fielder is informed and believes that on January 10, 2010, the Home did not receive any telephone call from mother's endocrinologist and did not receive any call from Dr. Osterweil changing any aspect of his original order regarding mother.
Subsequent to the incident on January 10, 2010, Fielder received a telephone call from Dr. Osterweil withdrawing as mother's physician. Fielder attached as exhibit 13 to his declaration an e-mail from Dr. Osterweil confirming his withdrawal. During a lunch meeting with Dr. Osterweil, Fielder asked him why he had resigned as mother's primary care physician. He explained that it was difficult to treat mother because daughter interferes with his orders regularly. Mother has seen three consecutive endocrinologists since her admission in 2008. One of those physicians agreed to act as mother's primary care physician after Dr. Osterweil resigned. From Fielder's experience, it was unusual for a specialist to act as a primary care physician at the Home.
After the January 20, 2010, incident, Fielder became concerned about the nature of the questions Dizenfeld was asking Home staff, as well as his practice of sending e-mails purportedly to confirm agreement that had not been reached. Fielder attached as exhibit 14 to his declaration an example of such an e-mail from Dizenfeld. Fielder asked Dizenfeld in a response e-mail to confirm whom he was representing and instructed him to contact the Home's outside counsel regarding legal issues. Dizenfeld did not confirm or deny whether he was representing mother. On January 15, 2010, Fielder instructed the Home's outside counsel to prepare a complaint against daughter and Dizenfeld, which complaint was completed and filed February 10, 2010.
Fielder asserted that defendants' accusations of credit card fraud and identity theft are "misleading in the extreme, and have been investigated by the Home to the extent possible with the usable documentation provided by defendants." Fielder explained to daughter and Dizenfeld that, in order to investigate their claims, the Home needed to review pharmacy shipping manifests which would contain exact information concerning drug shipments that could be reconciled against the Home's central log and mother's medication administration record. Daughter and Dizenfeld, however, provided the Home with mother's drug plan receipts that do not contain the prescription numbers or shipment dates needed to conduct an accurate audit. Although this explanation had been provided to daughter and Dizenfeld prior to the April 30, 2009, meeting, daughter again provided drug plan receipts. Fielder told her it was impossible to do an audit with these documents and slid the documents across the table to her. Daughter subsequently did provide the Home with a small sampling of shipping manifests which the Home used to investigate. The results of the investigation showed that the Home received all of the drugs identified in the shipping manifests, with the exception of one drug for which the Home offered to pay.
Although the Home will place orders for medications for residents such as mother, it does not have resident credit card numbers or payment information. Only in a very rare situation does the Home pay for resident medications. The residents pay for medications directly. Regarding the medication referenced in daughter's declaration at paragraph 22, Fielder authorized Kelly to pay for those medications as more fully set forth in Kelly's declaration.
The Home appealed the deficiencies issued by the Department of Social Services, did not admit making any errors, and expected that the deficiencies would be overturned. It was Fielder's understanding that the Department has decided not to assess any fines or penalties in connection with the alleged deficiencies.
2. Dr. Osterweil's Declaration
At the time of his declaration, Dr. Osterweil's area of practice was geriatric medicine. He was the primary care physician for mother during her stay at the Home. On January 21, 2010, he informed mother and the Home that he would be withdrawing as mother's primary care physician and terminating the physician-patient relationship as soon as mother found a replacement physician. Dr. Osterweil took that action because of daughter's continual interference with the plan of care he prescribed for mother. Daughter's interference with Dr. Osterweil's treatment of mother was the sole reason he withdrew as her primary physician.
3. Kelly's Declarations
a. In Support of Opposition to Motion to Strike
At the time of her declaration, Kelly was the director of nursing at the Home. Her duties included supervision of the approximately 200 nurses who worked at the Home's various facilities. She was responsible for the overall management of the nursing units, and the overall management, direction, and supervision of the nursing staff. Mother was not given the wrong food by the Home's nursing staff after she was discharged from the hospital following a glucose "spike" on January 10, 2010. Residential care facilities such as the Home are not skilled nursing facilities. Skilled nursing facility patients need constant supervision, and a high level of care and observation. Residential care facility residents are generally ambulatory, alert, and able to take care of the activities of day-to-day living by themselves. Eisenberg gives residents meals according to their physician's orders. Additional food is available upon request for patients who eat in the dining hall. For residents who take their meals in their rooms, additional food is available on a food trolley located at the nurse's station. If residents wish to supplement the meals provided by the Home, they may do so from the trolley. Residents can also travel to nearby restaurants. Although Eisenberg provides the food prescribed by the physician's plan of care, it does not confine or limit patients. Because residents of Eisenberg are competent and understand their physician's orders, they can make their own choices regarding whether to follow their physician's orders, including orders regarding their diet. Upon mother's discharge from the hospital following her glucose spike, her physician ordered a clear liquid diet. The Home's records reflect that mother was given that diet in the manner prescribed by her plan of care. Kelly was informed and believed that mother supplemented her liquid diet with white rice.
Regarding daughter's claim that daughter gave Kelly a copy of Dr. Handleman's orders on January 12, 2010, Kelly had no knowledge of such a document. Dr. Handleman, however, was not mother's primary care physician at the time. Any change in mother's plan of care, even by a specialist, must be confirmed by the primary care physician prior to implementation. That practice is necessary to ensure that physicians do not give conflicting orders regarding a resident's care. Based on Kelly's knowledge and experience, if a nurse did not follow a specialist's order that had not been confirmed by a primary care physician, that nurse would have acted properly. As of January 12, 2010, Dr. Osterweil was mother's physician. He was one of the leading geriatricians in Los Angeles, and Kelly never heard complaints from other physicians that they could not work with Dr. Osterweil.
On January 21, 2010, a nurse reported that mother had approached her upset that Dr. Osterweil had resigned as mother's physician. Kelly spoke to mother that day in the presence of Eisenberg's administrator, Chuck Hall. At that meeting, mother confirmed what the nurse had told Kelly, i.e., mother was upset over Dr. Osterweil's resignation and daughter's interference.
Regarding daughter's claim that Kelly made a duplicative purchase of one of mother's medications for which mother was billed, Kelly explained that mother's physician changed the dosage of one of her medications, prescribing that she take 1 mg. in the morning. But the medication on hand was a 4 mg., which, according to the pharmacist, could not be divided. Daughter nevertheless instructed the medication technician to divide the 4 mg. pill into fourths and was unwilling to pay for the prescription required. Kelly contacted Fielder who authorized her to make an emergency purchase of the medication in the correct dosage at the Home's expense. Kelly then ordered a short-term supply of the medication at the Home's expense from Omnicare, the pharmacy the Home used for all its purchases. She instructed Omnicare not to charge daughter, but did not tell the pharmacy not to contact daughter. Mother did not miss a single dose of the medication in issue. Since admission, mother had been on between 12 to 16 different medications, which included a double dose of one of the medications.
b. In support of OSC
Both Kelly and Roisman incorporated by reference in their declarations in opposition to the motion to strike their earlier declaration in support of the OSC.
During the two month period prior to making her declaration in support of plaintiffs' application for an OSC, Kelly was told by her nursing staff that daughter often intimidated and threatened staff, and interfered with mother's plan of care. Daughter was joined in her harassment efforts by Dizenfeld. The harassment interfered not only with mother's plan of care, but also the care of other residents by monopolizing staff and administrative time.
A normal blood sugar ranges from 80 to 120. On January 10, 2010, mother's glucose level spiked to 302. The Home had a standing physician order to check mother's glucose twice a day and to give insulin at 8:00 p.m. Mother was on the telephone with daughter when the nurse took mother's blood sugar reading. The nurse informed mother and daughter that pursuant to the orders of mother's physician, the nurse was going to give mother the insulin. Daughter ordered the nurse to call the physician, Dr. Osterweil, before giving the insulin, which the nurse did, and he told the nurse to give the insulin. Daughter instructed the nurse not to give the insulin, and stated that she was coming to the facility to take mother to the hospital. Due to daughter's interference, mother refused immediate treatment. Based on Kelly's experience, a delay in administering a medication such as insulin would place the patient at risk of injury.
Kelly explained that daughter also interfered with mother's plan of care by consistently delivering to mother medications of different dosages and brands than those prescribed by mother's physician. After delivering noncompliant medications, daughter then demanded that a nurse contact the physician to change the physician's orders to accommodate the medication daughter provided. Daughter's conduct interfered with mother's plan of care and disrupted her relationship with her physicians. On January 21, 2010, Dr. Osterweil informed the Home that he was withdrawing from treating mother due to daughter's interference.
On January 17, 2010, daughter and Dizenfeld demanded that the Home remove information from the face sheet for mother's file, even though much of the information on the sheet was required by law. Daughter and Dizenfeld presented Kelly with a document signed by mother authorizing the removal of "vital" information from the face sheet, including information that was required by law. Thereafter, Dizenfeld called Kelly and staff in the Home's medical records office on numerous occasions demanding immediate action on the face sheet issue. Dizenfeld's tone of voice and persistent demands were "very harassing." His frequent "rude and intimidating calls made it very difficult for [Kelly and the medical records staff to complete] assigned work."
On January 21, 2010, Dizenfeld called nurse Reyes requesting blood sugar information on mother. Although Reyes told him she could not give him any information pertaining to mother, he continued to call several more times requesting the information in an intimidating manner.
On January 22, 2010, Kelly met with mother and informed her that, pursuant to her signed request, the Home was removing certain information from the face sheet but that, due to regulatory requirements, the Home could not accommodate all of the removal requests. Mother agreed with that plan of action, and Kelly took steps to remove the agreed-upon material from mother's face sheet. That same day Kelly received a telephone call from Dizenfeld threatening legal action regarding mother and Kelly informed him that the Home was represented by legal counsel in all matters involving mother.
On January 26, 201 0, Dizenfeld, daughter, and mother walked into Kelly's assistant's office. Her assistant asked what they wanted and asked whether they had an appointment. Instead of responding, Dizenfeld, daughter, and mother "brushed quickly" by the assistant's desk, opened Kelly's office door, entered without knocking, and interrupted Kelly's work. Dizenfeld and daughter began making demands concerning mother's prescriptions and her face sheet. Kelly told Dizenfeld and daughter that they should make an appointment and that she would speak to them at the appropriate time. Kelly informed them that she had spoken to mother about the face sheet and the Home had been able to remove a few items. During the altercation, Roisman entered Kelly's office and attempted to persuade Dizenfeld and daughter to leave. When they refused, Kelly called Fielder who also asked Dizenfeld and daughter to leave due to their disruptive behavior, but they again refused. Roisman then informed the pair that she was calling the police, at which point Dizenfeld and daughter left Kelly's office.
Home policy allows residents who self-medicate to receive packages containing medications, which they store in a locked drawer in their rooms. Medication for patients who do not self-administer must be centrally stored. Whether a resident may self-administer is determined at admission, and then reviewed periodically thereafter, based principally on whether the resident is cognitively able to self-administer and whether his or her eyesight is good enough to enable him or her to read medications and prescriptions. Although mother's cognitive ability and eyesight would have enabled her to self-administer, daughter refused to allow mother to self-administer and mother acceded to daughter's demands. As a result, mother's medications had to be centrally stored. The Home, however, modified its policies and procedures concerning delivery of medications to accommodate mother and her family. Pursuant to this agreement, mother's medications would be opened in the presence of a Home representative and mother, after which the medication would be logged and centrally stored by Home staff.
On February 23, 2010, Kelly instructed a nurse to ask mother whether a package she had received in the mail contained medications. When the nurse asked mother, daughter was on the telephone with mother, and daughter spoke threateningly to the nurse and instructed mother not to answer the nurse's questions. The nurse reported the incident to Kelly who then called daughter and informed her that they needed to know if the package mother received contained medication so it could be centrally stored. Daughter became verbally abusive, refused to divulge the contents of the package, refused to ask mother to tell Home staff the contents of the package, and threatened immediate legal action if staff approached mother about the issue. Daughter then said she was calling her attorney and hung up.
Daughter and Dizenfeld were a constant and disruptive presence at the Home. Their interference with mother's plan of care, their disregard for Home policies and procedures, and their abuse of staff strained Kelly's and staff's ability to provide the quality of care the Home is required by law to provide.
4. Roisman's Declarations
a. In Support of Opposition to Motion to Strike
At the time of her declaration, Roisman was the executive director of the Home's Eisenberg residential care facility. Based on Roisman's observations, mother was competent, ambulatory, and in full possession of all of her faculties.
On April 30, 2009, Roisman attended a meeting with Fielder, daughter, and Dizenfeld. At the meeting, daughter claimed there were irregularities with mother's medications. Daughter and Dizenfeld produced a folder of papers that they claimed proved the irregularities, but which apparently were bills from mother's insurance company. Fielder explained to both of them that the Home could not conduct an audit using those documents and that the Home needed shipping manifests from the pharmacy or some other documents showing the prescription number of the shipments and shipping dates. Daughter and Dizenfeld ignored this explanation and continued to insist that Fielder take the folder, which he pushed back across the table to them.
Roisman denied that the Home intercepted mother's mail. In an e-mail dated June 24, 2009, attached to Roisman's declaration, Roisman suggested a meeting with the ombudsman. At the meeting, the parties reached an agreement pursuant to which mother and daughter were to open all packages containing medications in the presence of a Home representative. This procedure became necessary because mother and daughter would open medications and remove some pills prior to delivering the medication to the nurse to enter in the centrally stored log.
Regarding daughter's claim that she gave Roisman a copy of Dr. Handleman's written orders on January 12, 2010, Roisman had no knowledge of the document to which daughter was referring, but Dr. Handleman was not mother's primary care physician at the time. Any change in the plan of care for mother, even if it came from her specialist, first had to be confirmed by her primary care physician before implementation. If a nurse refused to follow a specialist's order that had not been confirmed by the primary care physician, that nurse would not be subject to discipline.
As to the description of the incident of January 26, 2010, provided by daughter and Dizenfeld, Roisman denied ever putting her hands on mother or telling her the police were going to take daughter away in handcuffs. And, although she did kneel down in front of mother, she did so to apologize to her for all the confusion surrounding the refusal of daughter and Dizenfeld to leave the administrative offices.
b. In Support of OSC
Roisman had, on multiple occasions, been harassed at her workplace by daughter and Dizenfeld, and she observed their harassment of other employees. The harassment was in the form of multiple telephone calls, inappropriate and threatening language, threats of legal action, and harassing personal visits. Their harassment campaign escalated and became so aggressive, continuous, and disruptive that Roisman was fearful for her own safety and the safety of the Home's residents. Roisman was afraid that the behavior of daughter and Dizenfeld jeopardized her ability to discharge her obligations to the Home's residents.
Roisman had been confronted by daughter and Dizenfeld on several occasions, most recently on January 26, 2010. That day, while Roisman was in her office her assistant informed her that daughter and Dizenfeld had entered Kelly's office, without addressing the assistant and closed the door. Roisman and Kelly had offices that were connected by the assistant's office. Because Roisman was concerned for Kelly's safety, Roisman went to her office and was immediately confronted by daughter and Dizenfeld, and Dizenfeld raised his voice in a threatening manner. Roisman called Fielder, put him on the speaker phone, and Fielder asked daughter and Dizenfeld to leave, but they refused. When Roisman told Dizenfeld that she was calling the police, he told her she did not need to make that call, but still refused to leave. Roisman then called the police, and daughter and Dizenfeld left.
The January 26, 2010, incident frightened Roisman and, because it represented an escalation of her prior contacts with daughter and Dizenfeld, Roisman was concerned that their harassment would become progressively more disruptive. Dizenfeld was aggressive towards Roisman, spoke in a forceful voice, and constantly talked over others, not allowing them to speak. Roisman was scared and out of breath calling the police because she did not know what Dizenfeld and daughter would do at that moment and she was concerned about what they would do in the future.
C. Reply Evidence
1. Daughter's Supplemental Declaration
According to daughter, the Medi-Cal application for the medically needy only program that the Home presented to her was blank. She was coerced into signing it by a Home representative who promised that daughter would be given the opportunity to review and initial each page before it was submitted to the state, but daughter was not given the opportunity. The Home did not fill out the information in the form relating to mother's private insurance, which daughter believed was the cause of mother's enrollment in Medicare, part D, which is a violation of mother's retirement plan. Daughter explained her belief to Home representatives several times. Daughter did not see any box on the Medi-Cal application for declining enrollment in Medicare, Part D, and no one at the Home ever explained why mother was required to apply for Medi-Cal benefits to receive the medically needy only program rental rates. Mother did not want to use Medi-Cal benefits until such time as she needed skilled nursing services because she believed her private insurance was better. She also did not want to give up her retirement benefits and be "stuck" with Medi-Cal if the Home closed or she needed to move. She wanted the freedom to use doctors of her own choice.
Daughter made certain deductions from mother's rent payment because the Home representatives told her to do so. At some point, daughter stopped receiving monthly bills for rent, so daughter paid what she believed was due. Daughter was informed that once mother was approved for the medically needy only program, mother would be credited for amounts she paid in excess of the program rate, but the Home still had not made that adjustment.
Although the Home may not have had mother's credit card information, her pharmacy had that information so it could ship orders on mother's behalf to the Home. The Home would order redundant medications in mother's name from various plans, including through mother's retirement benefits, Medicare, Part D, and Omnicare. When the Home ordered medications through the retirement plan, mother's credit card would be charged. Some Omnicare charges were submitted under Medicare, Part D, of which mother was not a member, and others were charged to daughter. Between April 2008 and February 2009, mother and daughter repeatedly requested that the Home stop placing orders through Medicare, Part D, using mother's identity, including requests to Fielder and Roisman. The Home refused to stop until mother disenrolled. Daughter discovered drugs ordered in mother's name that did not belong to her. Daughter took over the ordering of mother's medications because the Home mishandled that obligation. Mother's retirement carrier, Omnicare, had a fraud alert on mother's account, and Omnicare would call daughter when an order was placed to ensure the medications were for mother and in the correct quantity. The Home also would order medications mother did not need and charge them to mother's trust account at the Home.
Daughter provided the information she was told was needed to investigate the Medicare, Part D, charges on April 30, 2009. Fielder refused to look at the folder, so he could not have known what was in it. Thereafter, daughter faxed the information, including prescription numbers and shipping dates to the Home on six different occasions.
Mother had only been a resident at the home for 20 days when daughter faxed an e-mail to the director of nursing describing missing drugs and supplies. The director promised that the missing drug problem would be resolved, but it never was.
Daughter attached as exhibits to her supplemental declaration copies of e-mails and letters she sent to the Home documenting her complaints about the various issues with mother's care. Daughter attached to her supplemental declaration a copy of Dr. Handleman's written instructions, which she had faxed to the Home in December 2009 and which she subsequently gave to Kelly and Roisman on January 12, 2010. According to mother's insurer, mother did not need a referral from a primary care physician to be treated by specialists like her endocrinologist. If the Home had a policy of not following specialists orders unless they were confirmed by the primary care physician, the Home should have explained that to mother and daughter. Daughter told Roisman and Kelly she was very upset by the Home's failure to follow Dr. Handleman's instructions which failure "nearly killed . . . mother." The Home became more hostile toward daughter after the incident, causing her to believe the Home was worried about ramifications.
Daughter was with mother the day mother returned to the Home from the January 10, 2010, hospitalization. The Home delivered oatmeal for breakfast, wheat toast for lunch, and a baked potato for dinner, which mother refused to eat. Daughter did not see mother obtain or eat rice.
Sometime prior to February 5, 2010, daughter informed Kelly that new one mg. tablets of one of mother's medications had been ordered. Daughter did not insist that the Home divide the four mg. tablets into quarters. The new order of one mg. tablets was expensive because of expedited delivery. Daughter confirmed delivery of that order and, on February 8, 2010, Kelly apologized for ordering unnecessary pills. Daughter was also concerned about Kelly using Dr. Osterweil's name to order the medication because the Home knew by then he was not mother's doctor. Kelly was not authorized to order drugs without consent. Mother was angry that Kelly did so, and considered the order identity theft.
On April 5, 2010, daughter received a call from Omnicare pharmacy informing her that someone from the Home was trying to use mother's account to order redundant calcium supplements. Daughter confirmed with the Home that mother had an ample supply of calcium supplements at the Home. Daughter also confirmed with mother's physician that someone had called his office for a fax prescription for calcium supplements, but he refused to do so.
2. Dizenfeld's Supplemental Declaration
Dizenfeld reiterated that during his two years of interacting with the Home on mother's behalf he was acting as a friend, not an attorney. He explained that his one email reference to mother as his client was a mistake.
3. Mother's Declaration
At the time of mother's declaration, she was an 86-year old retired Los Angeles Unified School District teacher. Mother's mother had "lived out her life" at the Home and mother planned to do the same. Mother moved to the Home, made friends, and had a sense of stability and home.
Once mother moved to the home, she asked daughter and Dizenfeld to be present at any meetings with the Home. Her hearing was "not the best," and sometimes she would become nervous, confused, and intimidated. Both daughter and Dizenfeld were better than she was at reading legal documents. Despite her requests to have daughter or Dizenfeld present, the Home staff has asked her to sign documents when neither was present. Mother signed a power of attorney to make it clear to the Home that she wanted daughter to handle mother's business with the Home.
In June 2008, Home staff came to the lunch table and told her to sign a stack of documents. Mother was "afraid not to cooperate." She was so upset she called daughter. Later she learned she had signed documents that authorized the Home to redirect her social security benefits, open her mail, and take money out of her on-site bank account. The documents also changed the rent without listing the amount.
In September 2009, mother saw a nurse at the Home with a package addressed to mother. The nurse admitted she took the package from the mailroom without mother's knowledge. Mother and daughter complained to the Home about this and other similar incidents.
On Many occasions, mother did not receive her medication before her meal as ordered. She told daughter about each such occasion.
Mother relied on daughter to help her file complaints against the Home with the state concerning the problems she was experiencing there. On July 7, 2009, daughter and Dizenfeld took mother to meet with attorney Spiegel at Bet Tzedek Legal Services. They discussed the problems mother was experiencing with the Home and, after counseling mother, Spiegel referred her to the state ombudsman Estrada, who arranged a July 22, 2009, meeting at the Home. In December 2009, mother asked daughter to assist her in filing a complaint with the Department of Social Services concerning missing drugs. In response, a representative of the Department met with mother at the Home.
On January 10, 2010, mother was vomiting and not even "keeping down water." Late that evening, daughter and Dizenfeld came to her room and told her she needed to see a doctor. Mother learned her blood sugar level was 302, but the Home nurse refused to follow written orders to page mother's endocrinologist if her sugar level rose above 250. Instead, the nurse paged Dr. Osterweil, who recommended four units of Lantus, but the nurse would not check that recommendation with mother's endocrinologist. Daughter paged the endocrinologist herself and he said Lantus was too slow acting and that mother needed Humalog or Novalog immediately, so mother went to the emergency room to seek help. The emergency room doctor said mother was dehydrated, and gave her the insulin her endocrinologist had recommended. Mother was admitted to the hospital for two days.
On mother's return to the Home, she had an appointment with Dr. Osterweil during which she gave him a copy of her endocrinologist's written orders and asked him to investigate why the Home nurses refuse to page her specialist. Daughter also gave a copy of the written orders to Roisman. Following mother's return to the Home, staff did not follow the hospital's dietary discharge orders requiring a clear liquid diet and then soft food causing mother abdominal pain.
Mother confirmed that Dr. Osterweil did not withdraw as her physician; she discharged him because he never contacted her concerning her request for an investigation and explanation of the January 10, 2010, incident. After that incident, "things [at the Home] got really scary. . . ." On January 22, 2010, mother met with Kelly and Hall against her will. Kelly wrenched mother's arm "on the cancer side" to make her attend the meeting. She called Dizenfeld and left a voicemail about the meeting. Mother later learned that Dizenfeld had called Kelly and she hung up on him. Mother did not understand any of the discussion at the meeting, but knew it took place after she gave the Home a letter asking it to stop distributing her face sheet which included personal identifying information.
On January 26, 2010, daughter and Dizenfeld took mother to meet her new endocrinologist. He changed mother's insulin and testing and wrote instructions. After the appointment, mother wanted to give the new physician's orders to Kelly. She was in her office and invited mother and daughter in. While they were in Kelly's office, Roisman came "bursting through the side door." Mother heard something about trespassing and police. Roisman knelt down, put her face close to mother's, and said if daughter did not leave, she would be taken away in police handcuffs. Roisman said she was mother's friend. When daughter, Dizenfeld, and mother left, mother was confused about what had happened. It did not make sense to mother.
The Home also began withholding medical information from mother and daughter, including an incident during which a nurse refused to give mother her glucose numbers, claiming her she had been instructed not to give mother or daughter anything. It was frustrating and upsetting to mother that the Home refused to give mother her own medical information.
DISCUSSION
A. Standard of Review
"'Review of an order granting or denying a motion to strike under section 425.16 is de novo. (Sylmar Air Conditioning v. Pueblo Contracting Services, Inc. (2004) 122 Cal.App.4th 1049, 1056 .) We consider "the pleadings, and supporting and opposing affidavits . . . upon which the liability or defense is based." (§ 425.16, subd. (b)(2).) However, we neither "weigh credibility [nor] compare the weight of the evidence. Rather, [we] accept as true the evidence favorable to the plaintiff [citation] and evaluate the defendant's evidence only to determine if it has defeated that submitted by the plaintiff as a matter of law." (HMS Capital, Inc. v. Lawyers Title Co. (2004) 118 Cal.App.4th 204, 212 .)' (Soukup v. Hafif [(2006)] 39 Cal.4th [260,] 269, fn. 3.)" (Flatley v. Mauro (2006) 39 Cal.4th 299, 325-326.)
B. Legal Principles
"In 1992, the Legislature enacted section 425.16, the anti-SLAPP statute, to provide for the early dismissal of unmeritorious claims filed to interfere with the valid exercise of the constitutional rights of freedom of speech and petition for the redress of grievances. (Martinez v. Metabolife Internat., Inc. (2003) 113 Cal.App.4th 181, 186 .) The Legislature authorized the filing of a special motion to strike such claims (§ 425.16, subds. (b)(1), (f)), and expressly provided that section 425.16 should 'be construed broadly.' (§ 425.16, subd. (a); see Briggs v. Eden Council for Hope & Opportunity (1999) 19 Cal.4th 1106, 1119 [81 Cal.Rptr.2d 471, 969 P.2d 564].) Such a motion requires a two-step process. First, the defendant must make a prima facie showing that the 'cause[s] of action . . . aris[e] from' the defendant's actions 'in furtherance of the [defendant's] right of . . . free speech . . . in connection with a public issue.' (§ 425.16, subd. (b)(1).) If a defendant meets this threshold showing, the plaintiff must establish 'a probability that the plaintiff will prevail on the claim[s].' (Ibid.)" (Club Members for an Honest Election v. Sierra Club (2008) 45 Cal.4th 309, 315-316.) To demonstrate a probability of prevailing, a plaintiff need only submit a prima facie showing of facts supporting the plaintiffs claim, and we consider that issue under a standard similar to that employed in determining nonsuit, directed verdict, or summary judgment motions. (Navellier v. Sletten (2002) 29 Cal.4th 82, 88-89; Paiva v. Nichols (2008) 168 Cal.App.4th 1007, 1016-1017.)
C. Analysis of Appeal
1. Trespass
Defendants contend that the trial court erred when it denied their motion to strike the trespass cause of action. They argue that claim was subject to section 425.16 because it was based on their exercise of their rights of free speech and petition in connection with an issue of public interest and that plaintiffs failed to show a probability of success on the merits.
Assuming without deciding that defendants satisfied the first prong of section 425.16 by showing that the trespass claim was based on their exercise of their rights of free speech and petition in connection with an issue of public interest, we conclude from our review of the plaintiffs' evidence that they nevertheless demonstrated a probability of success—i.e. a prima facie case—on the merits of their trespass claim. "One who is on the land of others without their consent and against their will, is a 'trespasser'. (Brown v. Boston & M. R. R., 73 N. H. 568 .) Also, 'Every wrongful entry upon land in the occupation or possession of the owner constitutes a trespass . . .'. (Triscony v. Brandenstein, 66 Cal. 514 .)" (MacLeod v. Fox West Coast T. Corp. (1937) 10 Cal.2d 383, 387.) "As Prosser and Keeton on Torts (5th ed. 1984) section 13, pages 73 [through] 74 explained, '[t]he intent required as a basis for liability as a trespasser is simply an intent to be at the place on the land where the trespass allegedly occurred. . . . The defendant is liable for an intentional entry although he has acted in good faith, under the mistaken belief, however reasonable, that he is committing no wrong.'" (Miller v. National Broadcasting Co. (1986) 187 Cal.App.3d 1463, 1480-1481.)
Defendants claim that they had a contractual and legal right to be in Kelly's office on the day of the January 26, 2010, incident. But the contract provides only that mother had a right "[t]o have visitors, including ombudsmen and advocacy representatives, permitted to visit privately during reasonable hours and without prior notice, provided that the rights of other residents are not infringed upon." (Italics added.) Plaintiffs' evidence is to the effect that daughter and Dizenfeld did not enter Kelly's office as part of a private visit with mother. According to Kelly, they entered through a closed door and without permission and, according to Roisman, her assistant saw them enter Kelly's "closed office" without addressing the assistant, much less requesting permission to enter. And, as for defendants' assertion that they had an unequivocal legal right to enter Kelly's office under the circumstances described in plaintiffs' evidence, they provide no citation to any such legal authority.
Defendants next contend that their evidence shows that, because they entered Kelly's office "peaceably," they had implied consent to be there. That assertion ignores Kelly's testimony that her door was closed when daughter and Dizenfeld entered her office unannounced. Thus, at best, there is a factual dispute on the consent issue that cannot be resolved on a special motion to strike.
Defendants also argue that their evidence shows that daughter and Dizenfeld left Kelly's office once consent to be present was revoked. But that argument again ignores plaintiffs' evidence that daughter and Dizenfeld were repeatedly asked to leave the office by Kelly, Roisman, and Fielder and that they repeatedly refused to leave until after the police had been called.
Defendants have not raised plaintiffs' failure to allege damages, which is a necessary element of the cause of action for trespass. (5 Witkin, Cal. Procedure (5th ed. 2008) Pleading, § 631, p. 65.) However, nominal damages are recoverable for a trespass upon real property. (Davidson v. Devine (1886) 70 Cal. 519, 520.) A motion to strike can be denied, with plaintiff being given the opportunity to amend. (See Nguyen-Lam v. Cao (2009) 171 Cal.App.4th 858, 869-870 [if the allegations of the complaint are inadequate, but the evidence submitted in connection with the anti-SLAPP motion demonstrates a probability that the plaintiff will prevail at trial, the trial court may grant the plaintiff leave to amend and deny the motion].) In any event, by not raising this pleading defect, defendants have forfeited the contentions as it relates to the probability of success.
2. Intentional Interference
Defendants maintain that their evidence on the intentional interference claim showed that they satisfied the first prong of section 425.16 and that defendants failed to carry their burden of demonstrating a probability of success on the merits of that claim. As was the case with the trespass claim, we can assume without deciding that defendants satisfied the first prong of section 425.16 by demonstrating that the intentional interference claim was based on an exercise of their rights of free speech and petition in connection with a public issue, because even if they satisfied that first prong, plaintiffs made a sufficient showing of a reasonable probability of success on that claim.
"[I]n California, the law is settled that 'a stranger to a contract may be liable in tort for intentionally interfering with the performance of the contract.' (Pacific Gas & Electric Co. v. Bear Stearns & Co. (1990) 50 Cal.3d 1118, 1126 [270 Cal.Rptr. 1, 791 P.2d 587], and cases cited.) To prevail on a cause of action for intentional interference with contractual relations, a plaintiff must plead and prove (1) the existence of a valid contract between the plaintiff and a third party; (2) the defendant's knowledge of that contract; (3) the defendant's intentional acts designed to induce a breach or disruption of the contractual relationship; (4) actual breach or disruption of the contractual relationship; and (5) resulting damage. (Ibid.) To establish the claim, the plaintiff need not prove that a defendant acted with the primary purpose of disrupting the contract, but must show the defendant's knowledge that the interference was certain or substantially certain to occur as a result of his or her action. (Quelimane Co. v. Stewart Title Guaranty Co. (1998) 19 Cal.4th 26, 56 [77 Cal.Rptr.2d 709, 960 P.2d 513].)" (Reeves v. Hanlon (2004) 33 Cal.4th 1140, 1148.)
Defendants contend that the complaint does not allege an actual breach or disruption of the contractual relationship between the Home and mother. But regardless of what the complaint alleges (it is subject to amendment), plaintiffs' evidence shows a significant disruption in that relationship. (See Nguyen-Lam v. Cao, supra, 171 Cal.App.4th at pp. 868-873 .) For example, that evidence shows that daughter disrupted the Home's ability to discharge its contractual obligation to administer mother's medications by bringing private stores of medications to mother's room and by opening drug shipments and removing pills before delivering them to a nurse for central storage. Similarly, plaintiffs' evidence demonstrated that on the night of mother's glucose spike, daughter and Dizenfeld interfered with the Home's ability to discharge its contractual obligation to follow mother's established plan of care by countermanding and otherwise circumventing the orders of mother's primary care physician by calling her specialist and removing mother from the Home.
Defendants also argue they were mother's agents who could not be liable for interfering with mother's contract with the Home, citing Mintz v. Blue Cross of California (2009) 172 Cal.App.4th 1594. As defendants view the evidence, it is undisputed they were clearly authorized by mother to act on her behalf in all matters arising out of her contract with the Home.
"An agent is one who represents another, called the principal, in dealings with third persons. Such representation is called agency." (Civ. Code, § 2295 .) "An agency is either actual or ostensible." (Id., § 2298.) An agency is actual when the agent is really employed by the principal." (Id., § 2299.) An actual agency is typically created by an express contract or authorization. (3 Witkin, Summary of Cal. Law (10th ed. 2005) Agency and Employment, § 92, p. 139.) But an agency relationship is ordinarily shown by evidence of the acts of the parties and their oral and written communications. (Magnecomp Corp. v. Athene Co. (1989) 209 Cal.App.3d 526, 536.) And an agency relationship may be established by circumstantial evidence. (van't Rood v. County of Santa Clara (2003) 113 Cal.App.4th 549, 573.) An agency is not established by merely offering assistance or making suggestions. (Violette v. Shoup (1993) 16 Cal.App.4th 611, 620.) A number of factors have been considered by courts in determining the existence of an agency relationship, including "the right of the principal to control the activities of the agent, the agent's right to exercise discretion, and the payment of compensation, but the primary test is the intention of the parties. " (2 Miller & Starr, Cal. Real Estate (3d ed. 2000) Agency, § 3.5, p. 19.)
Plaintiffs' evidence shows that, unlike the contract at issue in Mintz v. Blue Cross of California, supra, 172 Cal.App.4th at page 1604, which contract expressly appointed the defendant as the agent for one of the contracting parties, mother's contract with the Home did not appoint daughter as mother's general agent; it appointed daughter as an agent under a durable power of attorney for health care only. Although daughter was assisting mother on a regular basis with mother's dealings with the Home, and Dizenfeld occasionally provided assistance, any such assistance was provided in the defendants' respective capacities as a close family member and a close family friend. In addition, mother testified only that she wanted defendants to be present at meetings with the Home because she was hard of hearing, sometimes nervous and confused, and in need of help reading legal documents, and plaintiffs evidence showed that she was competent, ambulatory, and "in full possession of all of her faculties," i.e., capable of independent living. These facts suggest that mother may have wanted assistance or advice in her dealings with the Home, but that she retained significant control over activities of daily living.
Dizenfeld insisted that he was acting as a friend and not in the capacity of an attorney.
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Moreover, there is no evidence of a formal agency relationship between mother and either defendant concerning her dealings with the Home, other than declaration testimony that mother signed a power of attorney to "handle her business with [the Home]." But that document apparently was not executed until January 26, 2010, well after most of the incidents of interference had occurred, and because that document was not included in the record, the scope of the power of attorney is unclear. Prior to the execution of that document, the evidence that defendants were agents of mother fully authorized to act on her behalf is ambiguous, at best, and does not demonstrate the existence of an agency as a matter of law. Absent case law holding that a close family member or friend of a contracting party, based on that relationship alone, is privileged to interfere with that party's contract with another, the issue of agency is a factual matter that cannot be determined on the record presented.
Defendants' further contend that allowing the Home to sue an advocate for the elderly for interference with contract will effectively "chill" such advocacy. In making this argument, defendants ask us to determine whether the policies favoring advocacy for the elderly outweigh the policies underlying the tort of intentional interference with contract. This public policy argument is not supported by citation to any case law or statutory authority. Thus, there is sufficient evidence of interference to justify denying the motion to strike as to the interference with contract cause of action.
3. Civil Harassment
Defendants argue that because the Home is an artificial entity and not a natural person, it cannot maintain a claim based on civil harassment under section 527.6. Defendants further contend that (i) their alleged conduct toward Roisman served a legitimate purpose; (ii) Roisman had no evidence that she suffered substantial emotional distress; (iii) their alleged conduct was constitutionally protected activity; and (iv) allowing an employee of a residential care facility to sue a resident's advocate for harassment will chill advocacy for the elderly.
Section 527.6, subdivisions (a) and (b) provide: "(a) A person who has suffered harassment as defined in subdivision (b) may seek a temporary restraining order and an injunction prohibiting harassment as provided in this section. [¶] (b) For the purposes of this section, 'harassment' is unlawful violence, a credible threat of violence, or a knowing and willful course of conduct directed at a specific person that seriously alarms, annoys, or harasses the person, and that serves no legitimate purpose. The course of conduct must be such as would cause a reasonable person to suffer substantial emotional distress, and must actually cause substantial emotional distress to the plaintiff." Subdivision (b)(3) defines a willful "'course of conduct'" as: "a pattern of conduct composed of a series of acts over a period of time, however short, evidencing a continuity of purpose, including following or stalking an individual, making harassing telephone calls to an individual, or sending harassing correspondence to an individual by any means, including, but not limited to, the use of public or private mails, interoffice mail, fax, or computer e-mail. Constitutionally protected activity is not included within the meaning of 'course of conduct.'"
In support of their argument that the Home cannot maintain a claim based on harassment under section 527.6, defendants cite to Diamond View Limited v. Herz (1986) 180 Cal.App.3d 612, 619, and argue that under that case, only natural persons can maintain a claim for harassment under section 527.6
Although we agree with defendants that the Home has not demonstrated a probability of success on the merits on its civil harassment claim, to prevail on the SLAPP motion as to that claim defendants must first demonstrate that all of their alleged harassing conduct toward the Home was in furtherance of defendants' rights of free speech in connection with a public issue. Some of defendants' alleged harassing conduct was arguably related to free speech, but some of that conduct was not. For example, paragraph 23 of the complaint alleged that daughter intentionally interfered with the plan of care the Home was providing mother. If true, those allegations would constitute conduct outside the protections afforded free speech. Moreover, even if daughter's alleged conduct in this regard was protected speech, it was not undertaken in connection with a public issue, but rather in connection with mother's individual medical care—i.e., a personal and private issue. Similarly, paragraph 24 alleges that Dizenfeld telephoned Home employee Kelly on numerous occasions and demanded that the Home remove information from the face sheet for mother's file, information that the Home was required by law to record on the face sheet. Demanding that the Home violate applicable law in numerous, harassing telephone calls cannot fairly be characterized as protected speech, nor can it be connected to a public issue.
Because at least some of the alleged harassing conduct does not implicate protected speech or a public issue, defendants failed to satisfy the first prong of the section 425.16, even though they satisfied the second prong by showing that the Home's civil harassment claim lacked legal merit. The trial court therefore correctly denied the special motion to strike the Home's civil harassment claim against defendants.
As for defendants' contentions concerning Roisman's claim against them under section 425.16, plaintiffs evidence constitutes a prima facie showing that defendants' alleged conduct did not serve a legitimate purpose. The conduct of defendants as described in the declarations of Kelly and Roisman supports an inference that defendants were attempting to obtain preferential treatment for mother at rates lower than she had contracted to pay.
Similarly, Roisman's declaration in support of plaintiffs' application for a temporary restraining order establishes that she suffered substantial emotional distress. According to Roisman, she had been harassed on multiple occasions by defendants, including multiple telephone calls during which defendants used threatening language and harassing personal visits. In addition, after the January 26, 2010, incident, Roisman was frightened, "scared and out of breath," and concerned that defendants' behavior would escalate. From that evidence, a trier of fact reasonably could conclude that Roisman suffered substantial emotional distress.
Plaintiffs' evidence also supports an inference that defendants' alleged conduct was not constitutionally protected. As discussed above, that evidence suggests that defendants were engaged in a continuous course of conduct designed, not to advance legitimately mother's interests, but to intimidate and harass plaintiffs into providing mother with preferential care and treatment at reduced rates. Roisman has submitted evidence that shows she has a prima facie case and therefore satisfies the second prong— probability of success.
For reasons similar to those discussed above in connection with the interference with contract claim, we reject defendants' public policy-based contention that allowing Roisman to pursue a harassment claim against defendants will chill legitimate advocacy on behalf of elders generally. Accordingly, we conclude that the trial court correctly denied the motion to strike as to the civil harassment cause of action against Roisman.
D. Analysis of Cross-Appeal
The standard of review and the legal principles discussed above also apply to the Home's contentions on its cross-appeal from the trial court's order striking its defamation cause of action. According to the Home, defendants did not show that Dizenfeld's allegedly defamatory e-mail was based upon defendants' exercise of their rights of free speech and petition in connection with an issue of public interest and, in any event, the Home's evidence showed that it had a probability of success on its defamation claim.
1. Speech and Petition
The Home's first contention is based on the assertion that Dizenfeld's February 3, 2010, e-mail to Fielder—that accused the Home of withholding from mother her own medical information, such as her glucose testing information, and was copied to Bet Tzedek elder rights attorney Spiegel—was not in any way connected to defendants' exercise of their rights of free speech and petition and did not implicate an issue of public interest. According to the Home, there is no evidence that Spiegel was representing mother's legal interests in connection with her ongoing disputes with the Home, i.e., there was no nexus between the e-mail and its transmission to Spiegel and any ongoing or contemplated litigation with the Home as to which Spiegel was acting as mother's legal counsel. In addition, the Home argues that mother's personal disputes with the Home had no connection to an issue of public interest.
The Home's argument is based upon a reading of the evidence that is too narrow and does not take into account the reasonable inferences that can be drawn from that evidence. It is undisputed that seven months prior to the transmission of the e-mail in question, mother, daughter, and Dizenfeld all met with Spiegel to discuss mother's legal rights and remedies against the Home based on the ongoing disputes she was having with the Home. According to mother, daughter, and Dizenfeld, Spiegel counseled them at the meeting, presumably about mother's rights and remedies against the Home. Spiegel specifically asked to be informed of any further developments and arranged a meeting for them with the state ombudsman, presumably in an attempt to remedy the situation at the Home. When the e-mail sent to Spiegel seven months later is read in light of the earlier meeting, it supports a reasonable inference that the purpose of copying Spiegel with the e-mail was connected to mother's efforts to seek legal redress of her grievances with the Home by, inter alia, informing her counsel of a further development in the ongoing dispute. Viewed in that light, defendants' evidence supports a reasonable inference that the e-mail was part of an exercise of mother's rights to petition the courts or administrative agencies for redress. Because the evidence also supports an inference that mother's efforts to seek regulatory compliance at the Home based on, inter alia, Spiegel's advice, would also potentially benefit other residents, the e-mail in question was also sufficiently connected to an issue of public interest. Thus, the trial court did not err in ruling that section 425.16 applied to the Home's defamation claim.
2. Probability of Success
The Home's contention that it had demonstrated a probability of success on the merits of their defamation claim is based on its related assertion that because no litigation was reasonably contemplated by mother against the Home, its claim is not barred as a matter of law by the litigation privilege set forth in Civil Code section 47, subdivision (d). From plaintiffs' perspective, defendants' evidence fell short of showing that Spiegel was consulted in anticipation of litigation and, in any event, the seven months of inaction by Spiegel between her meeting with mother and Dizenfeld's e-mail shows conclusively that litigation was not reasonably contemplated at the time the e-mail was sent to Spiegel. But, because the evidence supports an inference that the e-mail was sent in anticipation of litigation against the Home, it is subject to the absolute litigation privilege set forth in Civil Code Section 47, subdivision (b).
"'The 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.' (Silberg v. Anderson (1990) 50 Cal.3d 205, 213 [266 Cal.Rptr. 638, 786 P.2d 365].) Additionally, the privilege promotes effective judicial proceedings by encouraging '"open channels of communication and the presentation of evidence"' without the external threat of liability (ibid.), and 'by encouraging attorneys to zealously protect their client's interests.' (Id. at p. 214.) 'Finally, in immunizing participants from liability for torts arising from communications made during judicial proceedings, the law places upon litigants the burden of exposing during trial the bias of witnesses and the falsity of evidence, thereby enhancing the finality of judgments and avoiding an unending roundelay of litigation, an evil far worse than an occasional unfair result.' (Ibid.)" (Flatley v. Mauro, supra, 39 Cal.4th at p. 321-322.)
"To accomplish these objectives, the 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 [7 Cal.Rptr.3d 803, 81 P.3d 244].) The litigation privilege has been applied in 'numerous cases' involving 'fraudulent communication or perjured testimony.' (Silberg v. Anderson, supra, 50 Cal.3d at p. 218; see, e.g., Home Ins. Co. v. Zurich Ins. Co. (2002) 96 Cal.App.4th 17, 20, 22-26 [attorney's misrepresentation of available insurance policy limits to induce the settlement of a lawsuit]; Doctors' Co. Ins. Services v. Superior Court (1990) 225 Cal.App.3d 1284, 1300 [subornation of perjury]; Carden v. Getzoff (1987) 190 Cal.App.3d 907, 915 [perjury]; Steiner v. Eikerling (1986) 181 Cal.App.3d 639, 642-643 [preparation of a forged will and presentation of it for probate]; O'Neil v. Cunningham (1981) 118 Cal.App.3d 466, 472-477 [attorney's letter sent in the course of judicial proceedings allegedly defaming his client].) The privilege has also been held to apply to 'statements made prior to the filing of a lawsuit.' (Hagberg v. California Federal Bank, supra, 32 Cal.4th at p. 361.)" (Flatley v. Mauro, supra, 39 Cal.4th at p. 322.)
Mother's meeting with Spiegel, when viewed in the context of her ongoing disputes with the Home, supports an inference that she was seeking advice from an attorney experienced in the rights of the elderly concerning potential redress of her grievances with the Home. Spiegel not only counseled mother on her rights, she specifically arranged a meeting with the state ombudsman to further assist mother in her ongoing efforts to seek redress and regulatory compliance at the Home. Therefore, the evidence suggest that at the time of the meeting with Spiegel, some form of litigation was under consideration. That Spiegel took no action in the next seven months does not necessarily establish that litigation was no longer under consideration at the time Dizenfeld sent his e-mail. To the contrary, the very act of informing elder rights attorney Spiegel of recent occurrences—which alleged occurrences the Home itself characterizes as accusations of license and regulatory violations—suggests that mother was considering her legal options against the Home at the time the e-mail was sent to Spiegel. Accordingly, the trial court correctly concluded that the Home could not show a probability of success on the defamation claim because it was barred as a matter of law by Civil Code section 47, subdivision (b).
E. Evidentiary Objections
Defendants argue that the trial court erred when it overruled their objections to plaintiffs' evidence in opposition to the motion to strike. According to defendants, most of their objections were well taken and should have been sustained by the trial court.
Even assuming that defendants are correct and the trial court erred in overruling some or even all of their objections, defendants do not argue, much less establish, that they suffered prejudice as a result of those rulings. "A judgment will only be reversed if the error at the trial court level resulted in a miscarriage of justice to the extent that a different result would have been probable without the error. (Cal. Const., art. VI, § 13; Code Civ. Proc., § 475; Evid. Code, §§ 353, 354; Pool v. City of Oakland (1986) 42 Cal.3d 1051, 1069 [232 Cal. Rptr. 528, 728 P.2d 1163].)" (Malibu Mountains Recreation, Inc. v. County of Los Angeles (1998) 67 Cal.App.4th 359, 372; see also Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs (The Rutter Group 2010) ¶¶ 8:285, p. 8-182 ["Trial court error does not automatically require reversal or modification of an appealed judgment or order. Appellate courts will reverse or modify only for 'prejudicial' (as opposed to 'harmless') error"].) Moreover, the appellant has the burden of affirmatively demonstrating prejudicial error. (Pool v. City of Oakland, supra, 42 Cal.3d at p. 1069.) And appellate courts will not "act as counsel for appellant by furnishing a legal argument as to how the trial court's ruling was prejudicial." (Century Surety Co. v. Polisso (2006) 139 Cal.App.4th 922, 963.)
Defendants do not argue how the trial court's challenged evidentiary rulings caused them prejudice or explain how a different result would have been probable had the asserted errors not occurred. They have therefore failed to satisfy their affirmative burden on appeal of demonstrating prejudicial error.
Plaintiffs' purported challenges to the trial court's rulings on their objections to defendants' evidence in support of the motion to strike suffer from the same deficiency— they do not contend, much less demonstrate, that those rulings caused them prejudice. In addition, it does not appear that plaintiffs cross-appealed from those rulings, as their cross-appellants' brief does not mention them and their respondents' brief makes only a general reference to the propriety of the trial court's ruling on their objections, without providing specific argument or citation to authority. We therefore cannot review them. (See Adoption of Alexander S. (1988) 44 Cal.3d 857, 864 [although other issues between the parties were properly before the court, the Court of Appeal had no jurisdiction to address appealable judgment when litigant did not file notice of appeal]; see also Van Beurden Ins. Services, Inc. v. Customized Worldwide Weather Ins. Agency, Inc. (1997) 15 Cal.4th 51, 56 [timely appeal from judgment is jurisdictional requirement].)
F. Attorney Fees and Costs Under Section 425.16, Subdivision (c)(1)
On the cross-appeal, defendants, for successfully securing a ruling striking plaintiffs' defamation claim, are entitled to their attorney fees reasonably incurred litigating that issue in the trial court and on appeal. (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1141-1142; Evans v. Unkow (1995) 38 Cal.App.4th 1490, 1499.) But the right to fees is a matter best addressed in the first instance by the trial court. (Mann v. Quality Old Time Service, Inc. (2006) 139 Cal.App.4th 328, 340; Moran v. Endres (2006) 135 Cal.App.4th 952, 954.) And how they may be apportioned is a matter that is best left in the good hands of the trial court. (Cal. Rules of Court, rule 3.1702(c); ComputerXpress, Inc. v. Jackson (2001) 93 Cal.App.4th 993, 1016-1020.)
DISPOSITION
The trial court's ruling on the special motion to strike is affirmed. The costs and attorney fees under section 425.16, subdivision (c)(1) are subject to allocation and apportionment as determined by the trial court based upon the results of the appeal and cross-appeal. Plaintiffs are awarded their costs incurred on the appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
MOSK, J. We concur:
TURNER, P. J.
ARMSTRONG, J.