Opinion
NOT TO BE PUBLISHED
San Mateo County Super. Ct. No. CIV453238
Siggins, J.
Defendants and appellants Osun Toki Banjoko and Youth and Family Services Inc. of Solano County unsuccessfully moved to strike a fraud cause of action pursuant to Code of Civil Procedure section 425.16 (commonly known as the anti-SLAPP statute) from plaintiffs’ original complaint. After plaintiffs filed a first amended complaint, appellants again unsuccessfully moved pursuant to section 425.16 to strike the fraud cause of action. They appeal from the denial of this second anti-SLAPP motion and raise both procedural and substantive arguments. We affirm.
All further statutory references are to the Code of Civil Procedure unless otherwise indicated.
“SLAPP” is an acronym for “Strategic Lawsuits Against Public Participation.” (Navellier v. Sletten (2002) 29 Cal.4th 82, 85, fn. 1.)
FACTUAL AND PROCEDURAL BACKGROUND
1. Appellants’ First Anti-SLAPP Motion
Plaintiffs James and Billie Malveaux successfully petitioned to adopt the child of Billie’s son after the court terminated the mother’s parental rights on the grounds she was unfit and had abandoned her child. Four years after the conclusion of those proceedings, plaintiffs filed this lawsuit against several defendants, including appellants Osun Toki Banjoko and Youth and Family Services, Inc. of Solano County (YFS).
Plaintiffs’ complaint designated a cause of action for fraud against appellants on theories of intentional or negligent misrepresentation and concealment. It was alleged, in pertinent part, that in or about February through September of 2003, Banjoko had falsely represented that he was a supervised intern and clinical therapist at YFS, and appellants had falsely represented that Banjoko had been providing therapy sessions to the child’s mother and that Banjoko needed to be heard and testify as an expert on the mother’s behalf at the family court proceedings that she was fit to be a parent. As to the concealment theory, the pertinent allegations were that appellants had concealed the true facts that (1) Banjoko was not a licensed therapist or psychologist, or an intern or clinical therapist at YFS; (2) Banjoko could not testify as an expert in the family court proceedings; and (3) the child’s mother was not a fit parent, and plaintiffs had suffered both economic and personal injury damages by justifiably relying on the concealment of the true facts.
Appellants moved to strike the fraud cause of action. Plaintiffs opposed. The trial court denied the motion in a written order. The court described the proper standard for adjudicating the motion: “ ‘Section 425.16 posits . . . a two-step process for determining whether an action is a SLAPP. First, the court decides whether the defendant has made a threshold showing that the challenged cause of action is one arising from protected activity. [Citation.] “A defendant meets this burden by demonstrating that the act underlying the plaintiff’s cause fits one of the categories spelled out in section 425.16, subdivision (e).” [Citation.] If the court finds that such a showing has been made, it must then determine whether the plaintiff has demonstrated a probability of prevailing on the claim.’ ”
The court concluded that appellants failed to establish that the fraud cause of action was based only on activity protected under section 425.16. The court explained: “Plaintiffs allege that Banjoko was an officious intermeddler in their efforts to adopt their grandson, and terminate the parental rights of [the child’s mother] (a convicted felon who killed [p]laintiffs’ son). Banjoko is alleged to be unlicensed, yet through the auspices of YFS was illegally practicing as a therapist for [the mother]. Banjoko took it upon himself to represent [the mother] at the parental termination proceedings—that were not attended nor contested by [the mother] or an attorney on her behalf at that point—to request a continuance, to advocate on her behalf, and to attack the propriety of granting adoption to [p]laintiffs. The motion to strike is based upon the allegations in the complaint referencing that Banjoko presented a letter to the [family court] advocating on behalf of [the child’s mother], appeared in [family] court to advocate as a representative of [the mother], [and] testified in [family] court allegedly as an expert (but was found not to be an expert) . . . . [¶] . . . [¶] The statements made in the letter, in the[family] court appearances, in the ‘expert’ testimony . . . fall within the first prong of [s]ection 425.16. . . . [¶] [However,] Banjoko’s unlawful practice of psychological therapy, and representations made suggesting that he was so qualified (until it was brought out in cross-examination at his ‘expert’ witness testimony that he is unlicensed and was acting without supervision of a licensed clinician), is conduct which is not protected or immune.”
The court also determined that plaintiffs met their burden to establish a probability of prevailing on their fraud claim against appellants: “[Appellants] assert that the claim itself, even if supported by the facts stated in the complaint, is barred by the litigation privilege providing immunity pursuant to Civil Code section 47(b), in that a ‘privileged publication or broadcast is one made’ . . . ‘in any . . . judicial proceeding.’ That may be so. But the litigation privilege would not appear to bar the entirety of [p]laintiffs’ fraud claim, given that it is also based upon the conduct of Banjoko engaging in the unlicensed practice of psychotherapy and causing disruption of the parental termination proceedings—which had not even been opposed by [the child’s mother]—on the basis of being the psychotherapist and representative of [the mother]. [Citation.] Conduct is not subject to the litigation privilege.”
Appellants did not appeal this June 21, 2006, order.
2. Appellants’ Second Anti-SLAPP Motion
Sometime after the court’s ruling on their anti-SLAPP motion to strike, appellants moved under sections 435 and 436 to strike certain fraud allegations in plaintiffs’ original complaint. In response, on August 24, 2006, plaintiffs filed a first amended complaint on a Judicial Council form.
Plaintiffs again designated a fraud cause of action against appellants based upon the theories of intentional or negligent misrepresentation and concealment. As to the misrepresentation theory, it was alleged that appellants had falsely represented that Banjoko was: “[¶] 1. Authorized to represent the [child’s mother] in a court proceeding regarding the adoption of [the child] by the Malveauxs and the termination of [the mother’s] parental rights. [¶] 2. Properly licensed and qualified to testify on [the mother’s] and the Malveauxs’ fitness to be the guardians of [the child]. [¶] Banjoko represented that [the mother] was fit and that the Malveauxs were unfit to be the guardians of [the child].” According to plaintiffs, “[t]he truth” was that Banjoko was “[¶] 1. NOT authorized to represent the [child’s mother] in a court proceeding regarding the adoption of [the child] by the Malveauxs and the termination of [the mother’s] parental rights. [¶] 2. NOT properly licensed and qualified to testify on [the mother’s] and the Malveauxs’ fitness to be the guardians of [the child]. [¶] [The mother] was NOT fit and the Malveauxs were FIT to be the guardians of [the child].”
As to the concealment theory, plaintiffs alleged that appellants had concealed or suppressed the true facts that Banjoko was “[¶] 1. NOT authorized to represent the [child’s mother] in a court proceeding regarding the adoption of [the child] by the Malveauxs and the termination of [the mother’s] parental rights. [¶] 2. NOT properly licensed and qualified to testify on [the mother’s] and the Malveauxs’ fitness to be the guardians of [the child]. [¶] [The mother] was NOT fit and the Malveauxs were FIT to be the guardians of [the child].” It was then alleged that appellants concealed or suppressed these facts, which they were bound to disclose, by telling plaintiffs other facts to misled and prevent them from discovering the concealed or suppressed facts. “In justifiable reliance” upon appellants’ conduct, plaintiffs were induced (1) to retain an attorney to challenge appellants’ attempts to prevent their adoption of their grandson and termination of his mother’s rights; (2) to challenge his mother’s appeal of the order terminating her parental rights and granting the adoption petition; and (3) to retain an investigator to assist them. “Because of [their] reliance” upon appellants’ conduct, plaintiffs suffered loss of business opportunities, additional attorney’s fees and costs, investigation fees and costs, and sustained damages for emotional distress and injury to their reputations.
Appellants filed a second anti-SLAPP motion seeking to strike the fraud cause of action in the first amended complaint. Plaintiffs again opposed. In a written order, the court denied appellants’ second anti-SLAPP motion on the ground that it was a renewal of the previous anti-SLAPP motion and appellants had failed to comply with the requirements of section 1008. The court explained, in pertinent part: “The amendment of the complaint did not present any material change of legal theories or addition of facts and circumstances as to Banjoko and [YFS]—instead its purpose was to add a claim for fraud against two other defendants. It is based upon the same theory and the same transactions and acts as the original complaint. Accordingly, another special motion to strike is not well-taken.”
As an alternate to its procedural ruling, the court denied appellants’ special motion to strike the fraud claim in the first amended complaint on the merits. The court liberally construed the allegations in the first amended complaint with a view toward achieving substantial justice between the parties (§ 452), and concluded the gravamen of the fraud claim was Banjoko’s conduct in inserting himself into the confidential family court proceeding by false representations of his authority and qualifications. Because appellants failed to produce any evidence that Banjoko was legally entitled or authorized to attend the confidential family court proceeding, the court found appellants had failed to meet their burden of showing that their alleged conduct was protected activity within the meaning of section 425.16. The trial court also took judicial notice of certain of its earlier rulings embodied in its June 21, 2006, order on the first anti-SLAPP motion to strike.
Appellants appeal from the court’s December 29, 2006, order denying their second anti-SLAPP motion.
DISCUSSION
“Resolution of an anti-SLAPP motion ‘requires the court to engage in a two-step process. First, the court decides whether the defendant has made a threshold showing that the challenged cause of action is one arising from protected activity. The moving defendant’s burden is to demonstrate that the act or acts of which the plaintiff complains were taken “in furtherance of the [defendant]’s right of petition or free speech under the United States or California Constitution in connection with a public issue,” as defined in the statute. (§ 425.16, subd. (b)(1).) If the court finds such a showing has been made, it then determines whether the plaintiff has demonstrated a probability of prevailing on the claim.’ (Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67.)” (Jarrow Formulas, Inc. v. LaMarche (2003) 31 Cal.4th 728, 733.) Our review of the trial court’s decision is de novo. (Flatley v. Mauro (2006) 39 Cal.4th 299, 325.)
In evaluating whether appellants met their burden on the first prong of the analysis, “the critical consideration is whether the cause of action is based on the defendant’s protected free speech or petitioning activity.” (Navellier v. Sletten, supra, 29 Cal.4th at p. 89.) “The anti-SLAPP statute’s definitional focus is not the form of the plaintiff’s cause of action but, rather, the defendant’s activity that gives rise to his or her asserted liability—and whether that activity constitutes protected speech or petitioning.” (Id. at p. 92.)
Appellants argue the trial court should have granted their second anti-SLAPP motion because their first motion was denied solely because the initial complaint contained allegations that Banjoko unlawfully practiced psychological therapy. Since those allegations were omitted from the first amended complaint, appellants say the remaining operative allegations concerned only Banjoko’s representations to the family court. Thus, the fraud cause of action was directed only at protected activity under section 425.16. Appellants’ argument is not persuasive because it is based upon a misreading of the trial court’s decision denying their first anti-SLAPP motion and both of plaintiffs’ complaints.
The ruling on appellants’ first anti-SLAPP motion was not solely due to the allegation of Banjoko’s unlawful practice of psychological therapy. The court also concluded that allegations that Banjoko represented he was qualified to practice psychological therapy was “conduct which [was] not protected or immune.” As the court later noted in its decision on the first motion, plaintiffs’ fraud cause of action was based not only on allegations of Banjoko’s illegal practice of psychotherapy, but also his conduct “causing disruption” of the family court proceeding. Our liberal construction of the allegations in the first amended complaint leads us to conclude that it makes no change affecting appellants’ First Amendment rights. The allegations are no different in substance than in the prior pleading. The gravamen of the allegations in the first amended complaint remained Banjoko’s false representations of his authority and qualifications to practice psychotherapy, and it would be a restrictive reading of the complaint to conclude those representations were made only in the legal proceeding.
To support their argument that there was no fraudulent conduct alleged in the first amended complaint, appellants ask us to consider an isolated portion of the oral argument on their second motion when plaintiff James Malveaux stated he was offended by Banjoko’s “testimony.” However, in doing so appellants ignore the remainder of Malveaux’s argument when he explained that the first amended complaint did not change the nature of his claims that were not limited to Banjoko’s family court testimony or representations to the family court.
In light of our conclusion that appellants failed to meet their burden under the first prong of analysis required under section 425.16, we do not address their arguments as to whether appellants met their burden under the second prong. Nor do we need to address any other arguments raised by appellants.
We express no opinion on whether plaintiffs will ultimately prevail on their fraud cause of action. We conclude only that affirmance is warranted because the fraud allegations in the first amended complaint are sufficiently broad to withstand appellants’ section 425.16 motion to strike that pleading.
DISPOSITION
The order filed on December 29, 2006, denying the special motion to strike the fraud cause of action against defendants Osun Toki Banjoko and Youth and Family Services Inc. of Solano County in the first amended complaint, is affirmed. Plaintiffs are awarded costs on this appeal.
We concur: Pollak, Acting P.J., Jenkins, J.