Opinion
2d Civil No. B206380
10-29-2008
RICHARD DAVID REGOS, Plaintiff and Appellant, v. VALERIE NICOLL, Defendant and Respondent.
Richard David Regos, in pro. per., for Plaintiff and Appellant. Wasserman, Comden & Casselman, Mark S. Gottlieb, Leonard J. Comden, for Defendant and Respondent, Valerie Nicoll.
Not to be Published
Appellant Richard David Regos, in pro. per., filed an action against his former spouse, respondent Valerie Nicoll, seeking damages for intentional infliction of emotional distress. His lawsuit is based on statements made by Nicoll to a custody evaluator during the course of family law proceedings. Nicoll filed a special motion to strike the complaint under Code of Civil Procedure section 425.16, the anti-SLAPP (strategic lawsuit against public participation) statute. The trial court granted the motion. We affirm.
All further statutory references are to the Code of Civil Procedure unless otherwise stated.
FACTS
The parties were married in 1994 and obtained a dissolution in 2003. They have a minor daughter. In 2003, Regos and Nicoll entered into mediation and came to an agreement regarding custody and visitation, which was approved by the court. As is pertinent to this appeal, the agreement provided that the parties would share joint physical and legal custody.
In January 2005, Regos obtained legal counsel for the purpose of modifying the custody arrangement. Regos expressed concern about the daycare facility their daughter attended. He claimed she was punched in the stomach, pushed to the ground, pinched, and sand was thrown at her. Regos proposed that she be enrolled in a different facility. He indicated that, if the matter could not be resolved amicably, he would move the court to modify the custody order.
In March 2005, Regos filed an order to show cause (OSC), requesting changes in custody, support, visitation and their daughters daycare facility. The court appointed a custody evaluator, Silvia Leidig, MSW, who submitted a custody evaluation to the court dated October 10, 2005. She stated that both parties had requested primary physical custody and disagreed as to what school their daughter should attend.
In the course of generating her report, Leidig interviewed both parents, various family members, therapists, and teachers at the daycare facility. She also visited each parents home to observe their interactions with the daughter. In her report, Leidig indicated that Nicoll had expressed concerns about Regoss mental stability. She told Leidig that Regos had once threatened to kill her and that he was arrested and placed on a Welfare and Institutions Code section 5150 hold. Regos acknowledged that he was arrested for threatening to kill Nicoll. He told Leidig that Nicoll had, during the marriage, swung knives at him and threatened to kill herself.
Leidig concluded that Regoss "history of psychological issues is relevant." She reported that he suffers from social anxiety and often feels victimized. He misreads social situations and is defensive or aggressive. His manner of presenting himself can be intimidating and startling. For example, the daycare facility reported that the mishaps the daughter experienced are customary when children play together. Regos reported the incidents as extreme and having serious potential harm for his daughter. Leidig believed that Regos unnecessarily interjects himself into his daughters activities. She recommended to the court that the daughter attend the school Nicoll had selected and made other suggestions concerning each parents custodial time.
In July 2007, Regos filed a tort action, in pro. per., against Nicoll, Leidig, the daycare center, a neighbor and Regoss former employer. Regos sought $500,000 in damages alleging, among other things, fraud, misrepresentation, concealment and intentional infliction of emotional distress. He alleged that, in December 2005, Nicoll began making false statements to the court and other third parties that violated his "[c]onstitutionally protected rights" and threatened his relationship with his daughter as well as his business and personal relationships. He alleged that Nicoll was abusive to him during the marriage, accused him of having affairs, pulled knives on him and threatened to cut off his penis while he slept. She allegedly caused him to lose his job.
Regos claimed that Leidig produced a severely biased report based on misinterpretation and false accusations. She attacked his mental health which caused him to suffer emotional and physical distress. He alleged that the other defendants conspired with Nicoll to deprive him of his custodial rights.
Nicoll filed a demurrer, which the trial court sustained with leave to amend. Regos filed a 20-page first amended complaint. It contained a series of detailed allegations concerning Nicolls alleged misconduct. Nicoll again demurred. The trial court sustained the demurrer with leave to amend only as to the first cause of action for intentional infliction of emotional distress.
Regos filed a second amended complaint in November 2007. He alleged that, based on Nicolls "shocking behavior[,] a biased and untruthful report was submitted to the courts without the proper evaluation of Plaintiff. Plaintiff was crushed with said report which threatened to deteriorate his relationship and bond [with his daughter] that he had worked so hard to create."
Nicoll demurred and filed a special motion to strike the second amended complaint. (§ 425.16.) She alleged that the claims against her arose from her right of petition and right of free speech and that Regoss action is barred by the litigation privilege. (Civ. Code § 47, subd. (b).) Nicoll requested that she be awarded attorneys fees as the prevailing party. (§ 425.16, subd. (c).) The trial court granted the motion and dismissed the action. Nicoll was awarded attorneys fees and the demurrer was taken off calendar as moot.
DISCUSSION
Anti-Slapp Statute
The anti-SLAPP statute was enacted "to provide a procedural remedy to dispose of lawsuits that are brought to chill the valid exercise of constitutional rights." (Rusheen v. Cohen (2006) 37 Cal.4th 1048, 1055-1056.) When a lawsuit is filed arising from a persons exercise of free speech, the trial court may strike any cause of action arising from any act of that person in furtherance of the persons right of petition for the redress of grievances or free speech. (§ 425.16, subds. (a) & (b)(1).) We review an order granting or denying a motion to strike de novo. (Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260, 269, fn. 3; Rusheen, at p. 1055.)
Ruling on an anti-SLAPP motion to strike is 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. . . . 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.)
A protected activity includes "any written or oral statement or writing made in connection with an issue under consideration or review by . . . a judicial body, or any other official proceeding authorized by law." (§ 425.16, subd. (e)(2).) "Only a cause of action that satisfies both prongs of the anti-SLAPP statute—i.e., that arises from protected speech or petitioning and lacks even minimal merit—is a SLAPP, subject to being stricken under the statute." (Navellier v. Sletten (2002) 29 Cal.4th 82, 89.)
Section 425.16, subdivision (e) provides that an "act in furtherance of a persons right of petition or free speech under the United States or California Constitution in connection with a public issue includes: (1) any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law; (2) any written or oral statement or writing made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official proceeding authorized by law; (3) any written or oral statement or writing made in a place open to the public or a public forum in connection with an issue of public interest; (4) or any other conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest."
In the case before us, Regos filed an OSC to modify the terms of the parties custody agreement. The court appointed a custody evaluator whose job it was to interview parents and make recommendations to the court. Based on her research, she drew conclusions and made suggestions which reflected unfavorably upon Regos. In response, he filed a civil action against Nicoll, accusing her of numerous acts of outrageous conduct.
Nicolls participation in the family law proceedings is a protected activity. Regoss lawsuit is a transparent attempt to punish Nicoll for her statements to Leidig, and to disrupt the proceedings. Courts view with disfavor civil actions "which are really nothing more than reruns of a family law case." (Neal v. Superior Court (2001) 90 Cal.App.4th 22, 25; see Bidna v. Rosen (1993) 19 Cal.App.4th 27, 32.) "Almost all events in family law litigation can be reframed as civil law actions if a litigant wants to be creative with various causes of action." (Neal, at p. 25.) Where a civil action is clearly duplicative of the family law action, the defendant may recover attorneys fees in family law court. (Id. at pp. 26-27; Askew v. Askew (1994) 22 Cal.App.4th 942, 966.) Under certain circumstances, a family law court may award sanctions following a meritless proceeding. (See Bidna, at p. 38.)
Regoss lawsuit is simply an attempt to relitigate the matter before the family law court. While it is clear that he is distressed by the contents of the report and the custody battle, Nicolls unfavorable opinion of him does not create a cause of action for intentional infliction of emotional distress. Regos has failed to meet the second prong of the anti-SLAPP statute because he has not demonstrated a probability of prevailing on the merits of his claim. (§ 425.16, subd. (b)(1).) We also conclude that Nicolls statements are protected by the litigation privilege because they were made in the course of a judicial proceedings to achieve the objects of the litigation. (Civ. Code, § 47, subd. (b); Blanchard v. DIRECTV, Inc. (2004) 123 Cal.App.4th 903, 919.)
The judgment of dismissal is affirmed. Costs on appeal are awarded to respondent.
We concur:
GILBERT, P.J.
YEGAN, J.