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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA
EMAD G. TADROS, Plaintiff and Appellant, v. STEPHEN DOYNE, Defendant and Respondent.
(Super. Ct. No. 37-2008-00093885CU-BT-CTL)
APPEAL from a judgment of the Superior Court of San Diego County, Jay M. Bloom, Judge. Affirmed.
This appeal arises from Dr. Stephen Doyne's role as an Evidence Code section 730 custody evaluator in disputed child custody proceedings between Dr. Emad Tadros and his former girlfriend. After Dr. Doyne made a custody recommendation that Dr. Tadros considered unsatisfactory, Dr. Tadros filed a lawsuit against Dr. Doyne, alleging various factual claims, including: (1) Dr. Doyne misrepresented his professional credentials; and (2) Dr. Doyne breached contractual and legal duties by discussing the case at a
mandatory continuing education seminar for Evidence Code section 730 child custody evaluators. Dr. Tadros asserted four causes of action: breach of contract, negligence, fraud, and a statutory unfair competition claim. Dr. Doyne responded by filing an anti-SLAPP motion, contending each of the causes of action arose from constitutionally protected petitioning and/or free speech activity, and Dr. Tadros would be unable to prevail on his claims. (See Code Civ. Proc., § 425.16.)1 After numerous continuances and a new judge was substituted in the action, the trial court denied Dr. Tadros's motion to permit him to engage in discovery, granted the anti-SLAPP motion, and entered a judgment dismissing Dr. Tadros's complaint. Under the mandatory anti-SLAPP attorney fees provision, the court ordered Dr. Tadros to pay attorney fees of $80,000, about one-half the amount requested by Dr. Doyne. (§ 425.16(c).) On appeal, Dr. Tadros raises numerous challenges to the court's rulings. We affirm. Dr. Tadros's claims against Dr. Doyne are subject to the anti-SLAPP statute because each claim arises, at least in part, from Dr. Doyne's statements made in connection with an issue under consideration by a judicial body (the family court). (§ 425.16(e)(2).) We reject Dr. Tadros's argument that this case falls within various exceptions to the anti-SLAPP statute, including for cases brought "solely in the public interest" and for claims based on commercial speech. (§ 425.17(b), (c).) We additionally conclude Dr. Tadros did not meet his burden to show a probability of prevailing on any viable legal theory. We reject Dr. Tadros's additional appellate arguments, including that 1 Statutory references are to the Code of Civil Procedure unless otherwise specified. For ease of reference, the word subdivision will be omitted from citations in this opinion. 2
the court erred by refusing to grant a continuance for discovery and awarding attorney fees, and that Dr. Tadros's due process rights were violated because the trial judge was biased. FACTUAL AND PROCEDURAL BACKGROUND A. Background Facts We state the background facts in the light most favorable to Dr. Tadros, the party opposing the anti-SLAPP motion. Dr. Tadros is a board certified psychiatrist. In April 2005, Dr. Tadros was involved in family court proceedings with his former girlfriend (Mother) regarding custody of their infant child. Dr. Tadros asked for an independent custody evaluation, and the court permitted the parties to select their own evaluator under Evidence Code section 730.2 Mother's attorney "strongly recommended" Dr. Doyne. After an initial telephone interview with Dr. Doyne, Dr. Tadros scheduled an appointment at Dr. Doyne's offices. During this appointment, Dr. Tadros "looked at [Dr. Doyne's] office walls" and "noticed many impressive and professional looking frames." Dr. Doyne discussed the services he offered as a custody evaluator, and reassured Dr. Tadros he was board certified in forensic psychology and the evaluation would be
2 Evidence Code section 730 states: "When it appears to the court, at any time before or during the trial of an action, that expert evidence is or may be required by the court or by any party to the action, the court on its own motion or on motion of any party may appoint one or more experts to investigate, to render a report as may be ordered by the court, and to testify as an expert at the trial of the action relative to the fact or matter as to which the expert evidence is or may be required." 3
confidential. Dr. Tadros "trusted and relied upon Doyne's representations about his credentials and about confidentiality, and on that basis [he] entered into an agreement with Doyne for him to be the custody evaluator." On April 28, 2005, Dr. Tadros signed a contract retaining Dr. Doyne. The contract stated: "In a custody evaluation, the normal patient-doctor privileged information is waived. Thus, information given in this process is not held confidential. . . . As a court ordered assessment, this information is subject to disclosure to the courts and/or discovery by your ex-spouse through their counsel." (Italics added.) The contract provided that the parties would pay the costs of the evaluation. Six months later, on September 30, 2005, Dr. Doyne submitted the written custody evaluation to the parties and to the court. Dr. Doyne signed the report, as "Stephen E. Doyne, Ph.D.," a "Clinical Psychologist" and "Diplomate American College of Forensic Examiners." In a cover letter, Doyne suggested the parents keep the results confidential, and stated he was available to consult with each parent to review the results of the evaluation. At a custody hearing held several days later, the court adopted Dr. Doyne's recommendations, but asked Dr. Doyne to clarify issues regarding his visitation recommendations. Shortly after, Dr. Doyne wrote a letter to Dr. Tadros and Mother providing the requested information. At the conclusion of the letter, Dr. Doyne included his regular signature block: "Stephen E. Doyne, Ph.D.," a "Clinical Psychologist" and "Diplomate American College of Forensic Examiners."
Later that day, Dr. Tadros wrote a letter to Dr. Doyne asking whether Dr. Doyne would perform further observations of the parents and child and consider changing his recommendation. Several weeks later, on October 24, 2005, Dr. Tadros wrote a lengthy letter to Dr. Doyne, strongly criticizing Dr. Doyne's methods of analysis and custody recommendation, and requesting that Dr. Doyne reimburse him for his payments made for the evaluation.3 Dr. Tadros thereafter requested that Dr. Doyne release all of his notes and psychological tests performed on each parent. Although Dr. Doyne agreed (and did) release the information with respect to Dr. Tadros, Dr. Doyne expressed unwillingness to release the information about Mother without a court order because Mother objected to the release of her information. After Dr. Tadros continued to request the records, on October 11, 2006, Dr. Doyne informed Dr. Tadros that his involvement in the case concluded with his September 2005 report, and asked that Dr. Tadros terminate his communications with him. At the conclusion of this letter, Dr. Doyne's signature block was different from his prior (and future) letters. In addition to identifying himself as "Stephen E. Doyne, PhD." and a "Clinical Psychologist," the signature block stated "Diplomate American College of Forensic Psychologists," instead of "Diplomate American College of Forensic Examiners." (Italics added.) Dr. Tadros later served Dr. Doyne with a subpoena for the production of records pertaining to his psychological evaluations of the parents. In January 2007, Dr. Doyne 3 Dr. Tadros states this letter was not sent until February 6, 2006. Our analysis of the appellate issues does not depend on the precise date this letter was sent. 5
responded that because Mother was objecting to the production of her records, he "require[d] a Court order directing me to release [Mother's] records to comply with the subpoena." After many more letters between the parties and their attorneys, Dr. Tadros brought a motion to compel the production of the documents and also requested that Dr. Doyne produce his curriculum vitae (CV). After a hearing, the family law court (Judge Jeffrey Bostwick) found the documents were not subject to a confidentiality privilege and ordered the requested documents produced. The court refused to grant sanctions against Dr. Doyne, finding Dr. Doyne acted reasonably and was "understandably protective of what he believed were privileged records." However, the court ordered Dr. Doyne's counsel to pay Dr. Tadros's attorney fees, finding Dr. Doyne's counsel asserted a privilege "without any legal basis." Dr. Doyne then filed a writ petition in the Court of Appeal challenging the trial court's order granting Dr. Tadros's motion to compel. The California Association of Psychology Providers (CAPP) filed an amicus brief supporting Dr. Doyne's writ petition. In the amicus brief, CAPP did not identify the parties (other than in the required caption) or any facts pertaining to the custody dispute, and discussed only the legal issue pertaining to whether an Evidence Code section 730 custody evaluator is obligated to disclose a parent's psychological records over the parent's objection without a court order. This court summarily denied the writ petition. Dr. Doyne thereafter produced all of the requested documents and his CV. Dr. Doyne's CV is six single-spaced pages, and includes information on his education (e.g., 6
Ph.D. in 1972 from Vanderbilt University with a major in clinical psychology with special emphasis on children and families); honors and awards (e.g., nine separate awards including a 1999 induction to the La Jolla Academy of Medicine); presentations (34 separate presentations from 1986 through 2006); licenses (California licensed psychologist since 1974); and hospital affiliations (medical staff of Scripps Memorial Hospital in La Jolla from 1979 to the present). The final page also lists Dr. Doyne's teaching experience: "Adjunct Professor, University of San Diego School of Law" (USD School of Law); "Instructor, California School of Professional Psychology"; and "Instructor, University of California San Diego Extension" (UCSD). Shortly after this court denied his writ petition, on October 20, 2007, Dr. Doyne served as a speaker at the annual mandatory training for Evidence Code section 730 child custody evaluators. (See Cal. Rules of Court,4 rule 5.225(d).) The training took place at Alliant International University (Alliant University) with approximately 30 psychologists/custody evaluators attending the sessions. During his presentation, Dr. Doyne discussed Dr. Tadros's custody case in a hypothetical fashion without identifying the names of the parties to educate the evaluators regarding confidentiality issues. One of the psychologists in the audience, Dr. Robert Simon, who was previously familiar with Dr. Tadros's custody case, provided Dr. Tadros with a detailed letter summarizing Dr. Doyne's statements.
All rule references are to the California Rules of Court unless otherwise specified. 7
According to Dr. Simon's letter, when Dr. Doyne spoke about the custody evaluation, he began the presentation by telling his fellow psychologists that one of them would end up with this case at some point, "using the analogy of there being a 'star' under the chair of one of the audience and that the person with the star would end up with the case." Dr. Doyne told the audience that in this case he sent his custody evaluation report to the court, rather than counsel, because he was worried about one of the parents who was " 'disordered' " and he did not wish for this parent to have access to the report. Dr. Doyne said the " 'disordered' " parent wrote a long series of letters pointing out the problems with the report and demanding a full refund of fees. Dr. Doyne also stated the " 'disordered' " parent began to inquire about Dr. Doyne's CV and his credentials and qualifications listed on the CV. Dr. Doyne also discussed in general terms the discovery dispute pertaining to the records, that the trial court ordered him to produce those records, and the Court of Appeal summarily rejected his writ petition challenging the court order. Dr. Doyne ended the presentation by noting that the " 'disordered' " parent is " 'going after' " him, including contacting Scripps Memorial Hospital with accusations against him. B. Complaint About one year later, in October 2008, Dr. Tadros filed a lawsuit against Dr. Doyne, alleging Dr. Doyne engaged in four categories of wrongful conduct. First, Dr. Tadros alleged Dr. Doyne misrepresented his professional credentials and/or practiced as a custody evaluator in Dr. Tadros's case "under false credentials." Specifically, Dr. Tadros alleged that Dr. Doyne improperly represented that he was a 8
"Diplomate of the College of Forensic Psychologists," when he actually was a "Diplomate of the College of Forensic Examiners." (Italics added.) Dr. Tadros further alleged Dr. Doyne's CV contains "false and misleading credentials," claiming: (1) Dr. Doyne's Diplomate status in the American College of Forensic Examiners and American Board of Forensic Examiners is misleading because they are "sham organization[s]"; and (2) Dr. Doyne's CV misrepresents his teaching experience because the identified educational institutions denied any record of Dr. Doyne teaching. Second, Dr. Tadros alleged that Dr. Doyne made two presentations in which he disclosed details of Dr. Tadros's custody litigation without Dr. Tadros's permission: (1) a presentation at a February 2007 San Diego County Bar Association continuing legal education forum; and (2) the October 2007 presentation for Evidence Code section 730 custody evaluators at Alliant University. Third, Dr. Tadros alleged that Dr. Doyne "gave the records on the Custody Action to the California Association of Psychology Providers ('CAPP') so they would file an Amicus Brief on the case." He alleged that CAPP then filed an amicus brief that identified Dr. Doyne's name and Dr. Tadros's name, and later posted the brief on the Internet with these identifications. Fourth, Dr. Tadros alleged that Dr. Doyne's preparation of the custody report was inadequate for various reasons, including that he never contacted the Mother's therapist; he "contacted [Dr. Tadros's] therapist only once"; and he "falsified the date of contacting" Dr. Tadros's therapist.
Based on these allegations, Dr. Tadros alleged four causes of action: violation of Business and Professions Code section 17200 (UCL claim), breach of contract, negligence, and fraud. Each of the causes of action was based on the first and fourth categories above — Dr. Doyne's alleged "falsifying his credentials" and Dr. Doyne's improprieties in preparing the custody report. Each cause of action (except the fraud claim) was also based on the second and third categories above: the disclosure of confidential information at the professional conferences and providing confidential information to amicus CAPP. With respect to damages, Dr. Tadros alleged that he and his son "have been and will continue to be immeasurably and irreparably harmed by Defendant's actions and by the publication of Defendant's name on the Internet regarding the Custody Action." Dr. Tadros sought injunctive relief and damages "in an amount to be proven at trial, but well over the $10,000.00 maximum for limited jurisdiction." Dr. Tadros also sought punitive damages and attorney fees. C. Anti-SLAPP Motion In December 2008, Dr. Doyne moved to strike the complaint under the antiSLAPP statute. (§ 425.16.) Dr. Doyne argued Dr. Tadros's claims arose from constitutionally protected free speech and petitioning activity in connection with the custody action and statements made in a public forum concerning an issue of public interest. Dr. Doyne also argued Dr. Tadros would be unable to establish a probability of prevailing for various reasons, including that Dr. Doyne's alleged wrongful conduct was
protected by the litigation and common interest privileges and judicial immunities. (See Civ. Code, § 47(b)(2), (c).) In support, Dr. Doyne submitted his own declaration in which he said he is a licensed psychologist; he has been licensed since 1974; he is on the panel of the San Diego County child custody evaluators; he has taught numerous child custody evaluator trainings throughout the state; he has performed custody evaluations for the court for 25 years; and he has completed about 3,000 to 4,000 custody evaluations. With respect to the CAPP records, Doyne stated that "I am a member of [CAPP]. . . . I felt that the issue raised by the decision of Judge Bostwick was of significant importance to the mental health community. Using public records, I briefed CAPP on the legal issues raised by the court's order. . . . I am informed and believe that CAPP's counsel was only provided documents contained in the record." With respect to his presentation on October 2007, Dr. Doyne stated: "I was invited to present at a mandatory continuing education seminar at Alliant University on updates in the law regarding child custody evaluations. . . . [¶] . . . The purpose of the seminar was to educate evaluators about relevant case law and how it affects the practices of child custody evaluations. All of the participants were psychologists who were on the panel of child custody evaluators in San Diego. As an invited presenter, I discussed two cases that are relevant regarding the law in child custody evaluations. . . . [N]one of the litigants in the cases I discussed were identified by name or sex. . . . [¶] The cases I discussed related to confidentiality issues. I provided a discussion regarding the challenges and threats to confidentiality of evaluations, which included reference to the 11
legal issues raised in the above-described motion to compel [and the decisions of the trial court] and the Court of Appeal. This litigation was discussed so that fellow psychologists would be aware of the change in the interpretation of the law. . . . That is the very purpose of these seminars; to update evaluators on current practices and relevant changes in the law. [¶] . . . As to Dr. Tadros' matter, I only gave the procedural facts. I did not give any personal information, such as diagnosis, identity, sex (I used the word 'parent' rather than 'father' or 'mother'), or the results of the evaluation. I informed the participants of the complaint to the licensing board. I did not state they were bad or good parents. I stated that one parent took me to task regarding the privilege issue. I also informed the participants that if you were to get a case like this, you need to know these issues, specifically regarding confidentiality, and this was something that I did not know prior to the motion [to compel]." Dr. Doyne also denied Dr. Tadros's allegations regarding the February 2007 bar association seminar, stating that he was "fairly certain" he did not mention anything regarding Dr. Tadros's case, and if he did, he would have "only give[n] the procedural facts" without providing any personal information. With respect to Dr. Tadros's claim that he misrepresented his Diplomate credentials, Dr. Doyne stated that since 1997 he has been a member of the American Board of Forensic Examiners and the American College of Forensic Examiners, an "independent, scientific, and professional association representing forensic examiners worldwide." In response to Dr. Tadros's allegations that he misrepresented that he was a "Diplomate of the American College of Forensic Psychologists," Dr. Doyne said this 12
identification was contained on one brief transmittal letter sent to Dr. Tadros after he had completed the custody evaluation and the identification was a clerical error made by a temporary typist after Dr. Doyne's long-time secretary had retired. With respect to Dr. Tadros's challenges to his claimed teaching positions, Dr. Doyne identified facts and presented some documentation supporting that he had served in an instructor position with each of the identified educational institutions, primarily in the 1970's. One of these teaching experiences was a one-day seminar for UCSD residential housing students. Dr. Doyne also denied Dr. Tadros's allegations that he did not timely speak with Dr. Tadros's therapist and that he never spoke with Mother's therapist. D. Dr. Tadros's Responses to Anti-SLAPP Motion In opposing the anti-SLAPP motion, Dr. Tadros argued Dr. Doyne failed to meet his burden to show the claims were subject to the anti-SLAPP statute because Dr. Doyne's alleged wrongful conduct was independent of the issues under consideration by the family court, and therefore did not fall within section 425.16(e)(1) or (e)(2). He also asserted the claims did not arise from an issue of public interest within the meaning of section 425.16(e)(3) or (e)(4). Dr. Tadros alternatively argued he met his burden to show a probability of prevailing on his claims because Dr. Doyne's asserted defenses (e.g., litigation privilege, common interest privilege, quasi-judicial immunity, statute of limitations) were inapplicable. He also argued the statutory UCL claim (Bus. & Prof. Code, § 17200) was meritorious because Dr. Doyne's alleged conduct in disclosing confidential information 13
and misrepresenting his professional credentials violated various statutes governing licensed psychologists. Additionally, Dr. Tadros summarily asserted that: "To the extent this action is brought on behalf [of the] general public . . . , it is exempt from the antiSLAPP statute because it meets the criteria under [section] 425.17(b)." To factually support his claims, Dr. Tadros presented evidence that portions of Dr. Doyne's CV pertaining to his teaching experience were not accurate. For example, he presented letters from USD School of Law and UCSD in which both institutions indicated they did not have a written record of Dr. Doyne teaching at their schools. He also presented several articles to support his claims that the "American College of Forensic Examiners" and the "American Board of Forensic Examiners" are "sham organizations" that provide "fake diplomas for a price."5 With respect to his allegation that Dr. Doyne disclosed confidential information, Dr. Tadros relied on the letter from Dr. Simon (detailed above) pertaining to Dr. Doyne's comments at the October 2007 continuing education seminar.6 Dr. Tadros also submitted his declaration stating that he "learned from attorney Andrew Miller" that Dr. Doyne
5 See Henderson, Expert Witness: Qualifications and Testimony in Scientific Evidence Review: Admissibility and Use of Expert Evidence in the Courtroom, Monograph No. 6 (Cwik & North, edit., 2003); Hansen, Expertise to GO (Jan./Feb. 2000) The Print; Hansen, See the Cat? See the Credentials? Psychologist's Scam Gets His Pet "Board-Certified," in ABA Journal Report (Oct. 25, 2002); MacDonald, The Making of an Expert Witness: It's in the Credentials, Wall Street Journal (Feb. 8, 1999). 6 Dr. Doyne objected to the letter on several grounds including that the letter was not contained in the form of a declaration signed under penalty of perjury. For purposes of this appeal, we treat the letter as if it were admissible. 14
"made a presentation on February 8, 2007 at a San Diego Bar Association Continuing Legal Education forum in which he described details of my custody case without my permission. Mr. Miller stated that he was able to tell that Doyne was outlining my case. The participants of the conference included professionals within my field." Dr. Tadros also opined in his declaration that Dr. Doyne's work was "poor and substandard" and that Dr. Doyne engaged in unethical practices such as improper billing and failing to timely communicate with Dr. Tadros's personal therapist. Dr. Tadros additionally stated that Dr. Doyne gave "private case information" to CAPP for purposes of CAPP's amicus brief and that a person conducting an Internet search could easily find the amicus brief on the Internet. In a separate motion, Dr. Tadros requested the court to provide him with additional time to conduct discovery to respond to the anti-SLAPP motion. E. Initial Tentative Ruling on Continuance Request and Anti-SLAPP Motion Superior Court Judge Joan Lewis, who was presiding over the matter at the time, issued a tentative ruling granting the anti-SLAPP motion, but stating the court would consider Dr. Tadros's arguments at the hearing with respect to "what precise discovery would be needed" to show a probability of prevailing on the merits. At the April 3, 2009 hearing, Dr. Tadros's counsel cited new authority on the issue of mixed causes of action and the court granted him additional time to brief this new authority. The court also indicated it would consider Dr. Tadros's request for a continuance to permit discovery and again asked counsel to identify the necessary discovery in light of the court's tentative ruling. 15
About six days later, Dr. Tadros personally (not his counsel) wrote an ex parte letter to Judge Lewis asking her to recuse herself from the case, asserting that she must have known Dr. Doyne because she served "at least three years at the San Diego Family Court ending in 2008" and "[t]herefore, it is inconceivable that you did not learn about Stephen Doyne . . . ." Dr. Tadros also expressed concern about the court's comments at the hearing regarding the merits of his case, and requested her recusal "to allow an impartial judge that had nothing to do with the San Diego Family Court to preside over this case . . . ." Shortly after, on April 17, Dr. Tadros's counsel filed a lengthy supplemental brief, addressing not only the specific issue for which the court requested briefing, but also supplementing his earlier response and raising new legal arguments. Although Dr. Tadros's counsel acknowledged these arguments were not raised in the initial opposition, he asked the court to exercise its discretion to consider the new issues. Dr. Tadros also presented additional evidence in the form of a declaration supporting his claim that Dr. Doyne never taught at USD School of Law. In his supplemental papers, Dr. Tadros also identified his requested discovery, including: (1) taking the depositions of Dr. Simon and Attorney Miller to determine the "specific information . . . disclosed by Doyne at the two CLE conferences"; (2) determining the "specific information" disclosed by Dr. Doyne to CAPP pertaining to CAPP's amicus brief; (3) taking the deposition of "Professor C. Hugh Friedman . . . as he is the only remaining Professor currently on faculty at USD that was teaching at the law school when it first opened up back in the 1960s to determine if Doyne ever taught at 16
USD"; and (4) obtaining information to determine whether Dr. Doyne "act[ed] with malice." Before the court issued a final ruling on the anti-SLAPP and continuance motions, in May 2009, Dr. Tadros filed a substitution of counsel form, notifying the court that he would be representing himself in the action. He then filed a formal motion seeking to disqualify Judge Lewis under section 170.3(c)(1). He argued that Judge Lewis's prior assignment as a family court judge, and her rulings, body language, and comments at the hearing created an appearance of impropriety. On June 5, Judge Lewis entered an order striking the disqualification request, finding no evidence or facts supporting a claim that she could not be impartial. However, after Dr. Tadros continued to file numerous additional papers seeking Judge Lewis's disqualification, on July 6, 2009, the case was reassigned to a new judge, Superior Court Judge Jay Bloom. F. Proceedings Before Judge Bloom Dr. Tadros then moved to transfer venue of the action, asserting that "an impartial trial cannot be held in San Diego County and no judge in San Diego County is qualified to hear this case." Dr. Tadros argued that Dr. Doyne is the most well-known custody evaluator in San Diego County, and was recently the subject of media attention, identifying an article in the San Diego Reader and a local television news segment, each of which discussed Dr. Tadros's claims questioning Dr. Doyne's credentials. Judge Bloom denied the change of venue motion on September 4, 2009. At the hearing, Judge
Bloom informed Dr. Tadros he had no prior knowledge of, or relationship with, Dr. Doyne and had never served in family court as an attorney or judge. Five days later, Dr. Tadros filed numerous supplemental materials in opposition to the anti-SLAPP motion and in support of his continuance motion for additional discovery. Most of the new information concerned materials from the Internet concerning various professional boards and the lack of professional guidelines to establish board certifications in various fields. On September 22, 2009, Dr. Tadros substituted the law firm of Aguirre, Morris & Severson (Aguirre law firm) as attorneys of record. About one month later, Dr. Tadros's attorneys filed a new memorandum of points and authorities in support of a motion for relief from the automatic discovery stay, which repeated many of the same arguments that had been previously asserted concerning the merits of the anti-SLAPP motion and the need for discovery. In response, Dr. Doyne noted these arguments had already been made in the previous briefings and submitted a declaration stating that Dr. Tadros has made it "very clear that his proclaimed purpose is to destroy me. He has followed me to unrelated hearings. He has started internet blogs in which he has posted materials and documents from this case on the internet and provided them to the media. Anyone who disagrees with him, he calls a 'pathological nut job. . . .' It is clear that the intent in engaging in this discovery is to obtain confidential information about me and publish it." On November 12, 2009, Dr. Tadros's new counsel filed a reply brief adding a new reason for the requested discovery: "[C]ounsel for Dr. Tadros has just recently appeared 18
in this matter. As outlined in the attached declaration, once the issues raised in the instant motion are resolved, counsel for plaintiff is planning to add various allegations concerning Dr. Doyne's business dealings with other family court litigants. The discovery sought in this matter will greatly assist Dr. Tadros' legal team in this effort." (Italics added.) In conjunction with this reply, Dr. Tadros filed the declaration of Christopher Morris, an attorney in the Aguirre law firm, stating that based on his law firm's investigation, he has discovered that numerous individuals "have expressed a great deal of concern regarding the function of the family court evaluators. They have detailed a 'pay to play' method of doing business in San Diego family courts by the family court evaluators. While these complaints deal with various family court evaluators, there were specific and pointed allegations made concerning the conduct of Dr. Doyne." Although Morris acknowledged that Dr. Tadros is "prohibited from amending his complaint in this matter due to the instant anti-SLAPP motion," he said that "once the issues in this motion are resolved, Dr. Tadros is planning to amend his complaint to add these additional allegations." In November 2009, the court (Judge Bloom) denied the motion for a continuance and/or to lift the anti-SLAPP discovery stay. About one week later Dr. Tadros submitted his supplemental declaration raising the issue that Dr. Doyne did not file certain Judicial Council forms required by the California Rules of Court as a prerequisite to the
appointment of a Evidence Code section 730 custody evaluator. (See rule 5.225.)7 He asserted these forms are particularly important because the San Diego Superior Court does not have a policy of verifying the credentials of Evidence Code section 730 custody evaluators independently retained by the parties. Dr. Tadros also requested the court to take notice of his entire custody file, including "the absence of form FL-325 or FL-326 in that file as required by [the California Rules of Court]." After a hearing, on December 14, 2009, Judge Bloom granted Dr. Doyne's antiSLAPP motion. The court found Dr. Doyne met his initial burden of demonstrating that the complaint arose out of acts in furtherance of the right of petition or free speech, and that Dr. Tadros did not show the claims arise from "commercial speech" under section 425.17(c) or from unprotected "illegal activity." The court also found Dr. Tadros did not meet his burden to show a probability of prevailing because Dr. Doyne's claimed wrongful conduct is "protected by the litigation and/or common interest privileges" and there was "no evidence presented that [Dr. Doyne] disclosed personal or confidential information about the custody case." The court also rejected Dr. Tadros's recent attempt to "expand the allegations beyond what has been pled."
7 At the time of Dr. Doyne's 2005 appointment, child custody evaluators were required to file forms pertaining to their qualifications before working on a custody evaluation, and each superior court in the state was required to develop local rules pertaining to child custody evaluators and to use certain forms to appoint child custody evaluators. (See former rule 5.225(k)(2), (l)(B).) These requirements continue to apply under the current version of the rules. (See rule 5.225(k)(2), (k)(5), (l)(1).) 20
G. Post-order Motions After the court granted the anti-SLAPP motion, Dr. Tadros began representing himself and moved to set aside the order, claiming his attorneys did not follow his instructions to focus on the litigation-privilege issue in his opposition papers. He also complained that his attorneys failed to file exhibits pertaining to the forms that Evidence Code section 730 evaluators are required to file under the California Rules of Court. While this motion was pending, in March 2010, Dr. Tadros filed a lengthy motion requesting the removal of Judge Bloom and a change of venue because he was "convinced" he could not get a fair trial in San Diego County. He argued the San Diego Superior Court has not required Evidence Code section 730 custody evaluators to complete mandatory Judicial Council forms, and therefore the entire bench, including Judge Bloom is conspiring to protect evaluators, and particularly Dr. Doyne. In support, he submitted the signatures of 92 individuals who stated they agreed that Dr. Tadros could not receive or obtain a fair and impartial trial before Judge Bloom or in any court in San Diego County. He also produced a September 29, 2009 letter from his former counsel, Michael Aguirre, to the presiding judge of the San Diego County Family Court (Judge Lorna Alksne) thanking her for taking action to ensure that custody evaluators in the future complete the required Judicial Council forms. Dr. Tadros also claimed that Judge Bloom was biased because he improperly acted as a settlement judge during a chambers conference. On March 18, 2010, Judge Bloom issued an order striking the disqualification motion because it disclosed no legal grounds for disqualification. Shortly after, Dr. 21
Tadros challenged this denial by filing a writ petition in the Court of Appeal. This court summarily denied the petition. The California Supreme Court then denied Dr. Tadros's petition for review of this order. Judge Bloom thereafter denied Dr. Tadros's motion to set aside the order granting the anti-SLAPP motion. The court also entered final judgment in favor of Dr. Doyne and awarded Dr. Doyne attorney fees of $80,000. DISCUSSION I. Anti-SLAPP Statute: Burdens and Standard of Review Under section 425.16, a court "shall" grant a defendant's motion to strike a cause of action "arising from" an act "in furtherance of" the defendant's constitutional petition or free speech rights unless the plaintiff establishes a probability of prevailing on the claim. (§ 425.16(b)(1).) The Legislature has mandated that courts construe this statute "broadly" in favor of the moving party. (§ 425.16(a).) In ruling on an anti-SLAPP motion, the trial court engages in a multistep process. First, the court must determine whether the defendant met its burden to show the challenged cause of action arises from constitutionally protected activity as defined in the statute. (Navellier v. Sletten (2002) 29 Cal.4th 82, 88 (Navellier).) If this burden is met and the plaintiff asserts its action and/or claim is exempt under the commercial speech or public interest exemptions set forth in section 425.17, the plaintiff then has the burden to show the applicability of these exemptions. (See Simpson Strong-Tie Co., Inc. v. Gore (2010) 49 Cal.4th 12, 22-26 (Simpson); Rivera v. First DataBank, Inc. (2010) 187 Cal.App.4th 709, 717 (Rivera).) If the plaintiff does not make this showing, the plaintiff 22
must then meet its burden to establish a probability of prevailing on the claim. (Navellier, supra, 29 Cal.4th at p. 88.) On appeal, we examine whether the parties satisfied their burdens under a de novo review standard. (See Simpson, supra, 49 Cal.4th at p. 26; Rusheen v. Cohen (2006) 37 Cal.4th 1048, 1055.) We are not bound by the court's findings and conduct an independent review of the entire record. (Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260, 269, fn. 3.) "If the trial court's decision is correct on any theory applicable to the case, we affirm the order regardless of the correctness of the grounds on which the lower court reached its conclusion." (Robles v. Chalilpoyil (2010) 181 Cal.App.4th 566, 573.) II. First Step: Did Claims Arise from Protected Activity? In determining whether a claim arises from protected activity, a court must "disregard the labeling of the claim . . . and instead 'examine the principal thrust or gravamen of a plaintiff's cause of action to determine whether the anti-SLAPP statute applies' and whether the trial court correctly ruled on the anti-SLAPP motion. [Citation.] We assess the principal thrust by identifying '[t]he allegedly wrongful and injuryproducing conduct . . . that provides the foundation for the claim.' [Citation.]" (Hylton v. Frank E. Rogozienski, Inc. (2009) 177 Cal.App.4th 1264, 1271-1272, italics added; see also Tuszynska v. Cunningham (2011) 199 Cal.App.4th 257, 269-270.) "The anti-SLAPP statute's definitional focus is [on] the defendant's activity that gives rise to his or her asserted liability—and whether that activity constitutes protected speech or petitioning." (Navellier, supra, 29 Cal.4th at p. 92.) 23
The anti-SLAPP statute identifies four categories of actions that are " 'in furtherance of' " a defendant's free speech or petition rights: "(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." (§ 425.16(e); see City of Cotati v. Cashman (2002) 29 Cal.4th 69, 78.) We conclude Dr. Tadros's complaint is subject to the anti-SLAPP statute under the second category because his claims arise from statements or writings made by Dr. Doyne "in connection with an issue under consideration by a . . . judicial body." (§ 425.16(e)(2).) Each of the causes of action alleged in Dr. Tadros's complaint is based, in part, on Dr. Tadros's allegation that Dr. Doyne misrepresented his professional credentials to obtain the work as an Evidence Code section 730 custody evaluator and to establish his qualifications to serve as a custody evaluator. Dr. Tadros claims he was injured because Dr. Doyne made false representations that he was qualified to properly conduct a psychological evaluation of the parties and evaluate the custody issues and provide a fair and accurate report of those issues. Because Dr. Doyne's alleged false statements about 24
his credentials were made in connection with the custody issues before the family court and these statements constituted the alleged wrongful and injury-producing conduct upon which each of Dr. Tadros's claims is grounded, each cause of action is subject to the antiSLAPP statute under section 425.16(e)(2). Similarly, each claim (except for the fraud claim) is based on Dr. Doyne's communication of alleged confidential information to CAPP for purposes of requesting CAPP to file an amicus brief on the discovery dispute in the custody proceedings. These communications were made in connection with the discovery issues before the family court and are thus subject to the anti-SLAPP statute. (§ 425.16(e)(2).) Each of Dr. Tadros's claims is also based on Dr. Doyne's alleged improprieties in preparing the custody report (i.e., misrepresenting the dates and/or scope of his contacts with the parents' therapists). Because these statements occurred " 'in connection with' " the custody matters pending before the family court, they are protected activities under section 425.16(e)(2). In arguing that the anti-SLAPP statute does not apply, Dr. Tadros does not specifically challenge these conclusions, but instead argues that the additional wrongful activities alleged in the complaint concerning Dr. Doyne's disclosures of confidential information at the February 2007 and October 2007 seminars were not protected under the statute because the statements were independent of the judicial proceeding and did not concern a public issue. However, even assuming Dr. Doyne's statements at the seminars were not protected, this does not affect our legal conclusion that each claim is subject to the anti25
SLAPP statute. Where, as here, each cause of action is based on several distinct factual circumstances, a defendant meets his burden to show a claim is subject to the anti-SLAPP statute if one of these factual circumstances supports the application of the statute, unless the protected conduct is " ' "merely incidental" ' " to other alleged unprotected conduct. (Peregrine Funding, Inc. v. Sheppard Mullin Richter & Hampton LLP (2005) 133 Cal.App.4th 658, 672; Mann v. Quality Old Time Service, Inc. (2004) 120 Cal.App.4th 90, 103.) In this case, the allegations based on Dr. Doyne's misrepresentation of his credentials formed a significant part of the factual allegations on each claim and were not incidental to any of the causes of action. Dr. Tadros also argues Dr. Doyne's alleged wrongful conduct was not subject to the anti-SLAPP statute because Dr. Doyne's activities were "illegal as a matter of law." In Flatley v. Mauro (2006) 39 Cal.4th 299 (Flatley), the California Supreme Court held the anti-SLAPP statute "does not protect activity that, because it is illegal, is not in furtherance of constitutionally protected speech or petition rights." (Id. at p. 324.) However, the court made clear this exception must be narrowly construed and applies only if the defendant concedes, or the evidence conclusively establishes, the defendant's alleged protected activities were illegal as a matter of law. (Id. at pp. 315-318, 320; see Cross v. Cooper (2011) 197 Cal.App.4th 357, 383-384.) Additionally, the Flatley rule has been strictly "limited to criminal conduct." (Fremont Reorganizing Corp. v. Faigin (2011) 198 Cal.App.4th 1153, 1169.) Dr. Tadros argues his claims fall within the Flatley rule because Dr. Doyne failed to adhere to the California Rules of Court procedures requiring a person retained as an 26
Evidence Code section 730 evaluator to file certain Judicial Council forms in a family law proceeding. Dr. Tadros maintains that Dr. Doyne's role as a private child custody evaluator was "unlawful" because the court failed to file Judicial Council form 327 before it appointed Dr. Doyne as a custody evaluator and Dr. Doyne failed to file Judicial Council form 326 within 10 days after his appointment. (See generally rule 5.525(k), (l).) However, Dr. Tadros's complaint does not identify these omissions as grounds for his causes of action. Moreover, even if Dr. Tadros had included these omissions as a basis for his claims, they do not create an exception to the anti-SLAPP statute under Flatley. The failure to file the Judicial Council forms was not criminal; it was a violation of a procedural rule applicable to a custody proceeding. (See Mendoza v. ADP Screening & Selection Services, Inc. (2010) 182 Cal.App.4th 1644, 1654 [in Flatley, "the Supreme Court's use of the phrase 'illegal' was intended to mean criminal, and not merely violative of a statute"].) Although the Rule of Court requiring the forms is an important tool for ensuring qualified custody evaluators, the remedy for the failure to file the required forms is to challenge the omission in the custody proceeding. We similarly reject Dr. Tadros's argument that Dr. Doyne engaged in "illegal activity" under Flatley because he allegedly made private medical disclosures in violation of federal medical privacy laws and he allegedly misrepresented his credentials on his CV. These factual allegations were vigorously disputed and are highly dissimilar from the conduct found to be constitutionally unprotected by the Flatley court and by courts applying the Flatley rule. (See Flatley, supra, 39 Cal.4th at pp. 325-333; Novartis
Vaccines & Diagnostics, Inc. v. Stop Huntingdon Animal Cruelty USA, Inc. (2006) 143 Cal.App.4th 1284, 1296-1297; Lam v. Ngo (2001) 91 Cal.App.4th 832, 851.) III. Section 425.17 Exemptions Dr. Tadros next argues the court erred in refusing to apply the section 425.17 "public interest" and "commercial speech" exemptions to the anti-SLAPP statute. "[T]he Legislature enacted section 425.17 to curb the 'disturbing abuse' of the antiSLAPP statute." (Club Members for an Honest Election v. Sierra Club (2008) 45 Cal.4th 309, 316 (Club Members).) Section 425.17 identifies two exceptions to the scope of the anti-SLAPP statute: public interest lawsuits (§ 425.17(b)) and commercial-speech based lawsuits (§ 425.17(c)). Because section 425.17 is an exception statute, it must be " 'narrowly construed.' " (Simpson, supra, 49 Cal.4th at p. 22; Club Members, supra, at pp. 316, 319.) A. Public Interest Exemption Dr. Tadros argues primarily that his lawsuit fell within the section 425.17(b) exemption, which provides: "Section 425.16 does not apply to any action brought solely in the public interest or on behalf of the general public if all of the following conditions exist: [¶] (1) The plaintiff does not seek any relief greater than or different from the relief sought for the general public or a class of which the plaintiff is a member . . . . [¶] (2) The action, if successful, would enforce an important right affecting the public interest, and would confer a significant benefit, whether pecuniary or nonpecuniary, on the general public or a large class of persons. [¶] (3) Private enforcement is necessary and
places a disproportionate financial burden on the plaintiff in relation to the plaintiff's stake in the matter." (Italics added.) Establishing a stringent test for this exemption, the California Supreme Court held the statute "applies only to actions brought 'solely in the public interest or on behalf of the general public.' Use of the term 'solely' expressly conveys the Legislative intent that section 425.17(b) not apply to an action that seeks a more narrow advantage for a particular plaintiff. . . . The statutory language of section 425.17(b) is unambiguous and bars a litigant seeking 'any' personal relief from relying on the section 425.17(b) exception." (Club Members, supra, 45 Cal.4th at pp. 316-317, italics added.) Thus, "[t]o qualify under section 425.17(b)'s exception, suits must be brought solely to secure [a] public benefit." (Id. at p. 318, italics in original.) Under the plain language of the statute, the plaintiff cannot have sought " 'any' relief greater than or different from the relief sought for the general public." (Ibid.) Moreover, because section 425.17(b) refers to "an action, as opposed to a cause of action," the lawsuit (and not simply a single claim) must be brought "solely in the public interest." (Id. at p. 320.) Dr. Tadros's lawsuit against Dr. Doyne does not fall within the section 425.17(b) exemption. Many (if not most) of the factual allegations concern Dr. Tadros's personal situation and pertain to alleged representations made specifically to him or about him. For example, he alleged that "Plaintiff and his son . . . have been and will continue to be immeasurably and irreparably harmed by" Dr. Doyne's actions, including Dr. Doyne's breach of the specific contract between the parties. Likewise, in the negligence action, Dr. Tadros alleged that Dr. Doyne owed a duty "to Plaintiff to not disclose confidential 29
information about the Custody Action without Plaintiff's consent, and to be honest and truthful about his credentials . . ." and that by "committing the aforementioned acts . . . [d]efendant breached his aforementioned duties to Plaintiff." (Italics added.) Based on these allegations, Dr. Tadros sought relief for himself that was "different from the relief sought for the general public." (Club Members, supra, 45 Cal.4th at p. 318.) Thus, the action was not solely on behalf of the general public. (Ibid.) Because Dr. Tadros had a personal stake in the litigation that was different from the rest of the public, the action was not one of "public interest," as the California Supreme Court has defined that phrase under section 425.17(b). In asserting that the case falls within the public interest exemption, Dr. Tadros relies on comments he made at a hearing on his motion for a change of venue in which he stated he was concerned Dr. Doyne was "ripping off families" and Dr. Tadros "want[s] to be a voice" for these people.8 However, when determining whether a case falls under section 425.16, we apply an objective analysis. The subjective reasons for filing the complaint "are ultimately beside the point" in determining whether the lawsuit arises from protected activity. (Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67; see Governor Gray Davis Com. v. American Taxpayers Alliance (2002) 102 Cal.App.4th 449, 457.) The same rule applies to the determination whether the section 425.17 exception applies. A plaintiff cannot trigger the exemption merely by claiming 8 He also cites his remarks made at a hearing occurring two months after the court entered final judgment and after he had already filed a notice of appeal from that judgment. This portion of the record is not properly before us. (See Vons Companies, Inc. v. Seabest Foods, Inc. (1996) 14 Cal.4th 434, 444, fn. 3.) 30
after the anti-SLAPP motion was filed that the real purpose in bringing the lawsuit was to help the public. Dr. Tadros additionally urges us to find his lawsuit was brought "solely in the public interest" based on documents showing that family law litigants in San Diego County generally have the responsibility to ensure a private child custody evaluator meets and/or exceeds the requisite legal qualifications. However, this lawsuit arose from a private dispute between Dr. Tadros and Dr. Doyne about Dr. Doyne's qualifications, the adequacy of his custody evaluation, and his alleged disclosure of confidential information about Dr. Tadros. While these claims can be connected to the broader and important issue of ensuring all private child custody evaluators are properly qualified and have filled out the proper forms, this was not the sole purpose of this lawsuit as it was pled in the complaint. Finally, Dr. Tadros argues the trial court erred because it did not expressly address the statutory public interest exemption in its order granting Dr. Doyne's anti-SLAPP motion. However, the content of the court's written order is not material to our analysis. Our review is de novo. We have independently examined Dr. Tadros's arguments under section 425.17(b) and determine the argument is not legally supported. B. Commercial Speech Exemption Dr. Tadros additionally argues Dr. Doyne's conference presentations and CV are "commercial speech" and thus exempt from the anti-SLAPP statute under section 425.17(c). However, because we have not based our conclusion concerning the anti-
SLAPP statute's applicability on the conference presentation allegations, we need not reach the issue whether there is an applicable exception with respect to those allegations. In any event, even if we were to reach the issue, we would find the commercial speech exception is inapplicable here. To meet his burden to establish this exception, Dr. Tadros was required to show: (1) Dr. Doyne was engaged primarily in the business of selling goods or services; (2) the cause of action arose from representations of fact about the goods or services; (3) the statement or conduct was made for the purpose of promoting Dr. Doyne's goods or services or in the course of delivering the goods or services; and (4) the intended audience for the statement or conduct was an actual or potential buyer or customer. (See § 425.17(c); Rivera, supra, 187 Cal.App.4th at pp. 717-718.) Dr. Tadros has not satisfied these elements. Dr. Doyne's statements at the continuing education conferences were not made to buyers or customers of his services, nor were the statements made primarily to advertise his profession; rather the purpose of the statements was to instruct other custody evaluators on issues relevant to their profession. Similarly, there was no showing Dr. Doyne's statements on his CV were primarily for advertising purposes. Dr. Tadros acknowledged he did not see the CV until after he retained Dr. Doyne's services, and Dr. Tadros presented no evidence showing Dr. Doyne regularly gave his CV to other prospective clients. IV. Probability of Prevailing Dr. Tadros next contends the court erred in concluding he did not meet his burden to establish a probability of prevailing on his claims. 32
A. Legal Standards To establish a probability of prevailing under section 425.16, a plaintiff must make a prima facie showing of facts that would, if proved at trial, support a judgment in the plaintiff's favor. (ComputerXpress, Inc. v. Jackson (2001) 93 Cal.App.4th 993, 1010 (ComputerXpress).) The plaintiff " ' "must demonstrate that the complaint is both legally sufficient and supported by a sufficient prima facie showing of facts to sustain a favorable judgment if the evidence submitted by the plaintiff is credited." ' " (Vargas v. City of Salinas (2009) 46 Cal.4th 1, 20.) In making this showing, the plaintiff cannot rely solely on the allegations in the complaint and must present evidence that would be admissible at trial. (ComputerXpress, supra, 93 Cal.App.4th at p. 1010; see Stewart v. Rolling Stone LLC (2010) 181 Cal.App.4th 664, 679.) However, the plaintiff's burden to show a "probability of prevailing is not high: We do not weigh credibility, nor do we evaluate the weight of the evidence. Instead, we accept as true all evidence favorable to the plaintiff and assess the defendant's evidence only to determine if it defeats the plaintiff's submission as a matter of law." (Overstock.com, Inc. v. Gradient Analytics, Inc. (2007) 151 Cal.App.4th 688, 699-700.) In deciding whether a prima facie case has been established, the court considers the pleading and evidentiary submissions of both parties. (Mann v. Quality Old Time Service, Inc., supra, 120 Cal.App.4th at p. 105.) A plaintiff meets his or her burden to show a probability of prevailing on a cause of action if any part of a claim has merit. (Id. at pp. 100, 106.)
Under these principles, we review each of Dr. Tadros's factual theories to determine whether any of the claims establish a prima facie case on any of the alleged causes of action. Specifically we examine the following factual allegations set forth in the complaint to determine whether Dr. Tadros would be entitled to prevail on any asserted legal theory: (1) Dr. Doyne's alleged misrepresentations of his professional credentials; (2) Dr. Doyne's communications with CAPP; (3) Dr. Doyne's improprieties in preparing the custody report; and (4) Dr. Doyne's statements at the continuing education conferences. B. Analysis of Factual Grounds for Complaint 1. Alleged Misrepresentation of Credentials In his complaint, Dr. Tadros alleged that Dr. Doyne misrepresented his professional credentials pertaining to his qualifications to serve as an Evidence Code section 730 custody evaluator. We conclude Dr. Tadros did not show a probability of prevailing on these factual allegations because the claims are barred by the litigation privilege and, alternatively, there was no showing Dr. Doyne's misrepresentations caused any legally cognizable harm to Dr. Tadros. The litigation privilege is codified in Civil Code section 47(b)(2): "A privileged publication or broadcast is one made . . . [i]n any . . . judicial proceeding . . . ." This "privilege applies to any communication (1) made in judicial or quasi-judicial proceedings; (2) by litigants or other participants authorized by law; (3) to achieve the objects of the litigation; and (4) that have some connection or logical relation to the action. [Citations.]" (Silberg v. Anderson (1990) 50 Cal.3d 205, 212 (Silberg).) Under 34
the statute, " 'communications with "some relation" to judicial proceedings' are 'absolutely immune from tort liability' . . . [citation]. [The privilege] is not limited to statements made during a trial or other proceedings, but may extend to steps taken prior thereto, or afterwards. [Citation.]" (Rusheen v. Cohen, supra, 37 Cal.4th at p. 1057, italics added.) Further, the privilege bars all tort claims (except malicious prosecution) arising from the protected communications (Komarova v. National Credit Acceptance, Inc. (2009) 175 Cal.App.4th 324, 336-337), and it applies to statutory and constitutionally based claims (see Jacob B. v. County of Shasta (2007) 40 Cal.4th 948, 960-962 (Jacob B.)) and to breach of contract causes of action where its application " 'furthers the policies underlying the privilege' " (Feldman v. 1100 Park Lane Associates (2009) 160 Cal.App.4th 1467, 1486; see Laborde v. Aronson (2001) 92 Cal.App.4th 459, 461-465, disapproved on other grounds in Musaelian v. Adams (2009) 45 Cal.4th 512, 520). In this case, Dr. Doyne's alleged misconduct regarding his credentials arose from his services in performing psychological testing and evaluating custody issues in conjunction with the judicial proceedings in Dr. Tadros's family law custody case. Dr. Doyne's alleged false statements that he was a Diplomate in the "American College of Forensic Psychologists" and that he had previously been an instructor at certain educational institutions, and his claims to be a Diplomate in alleged "sham" organizations, occurred in connection with Dr. Doyne's retention as a custody evaluator in Dr. Tadros's custody litigation. Dr. Tadros and Mother agreed to have Dr. Doyne act as an Evidence Code section 730 evaluator in the family law proceedings and Dr. Tadros 35
thereafter brought claims against Dr. Doyne alleging that Dr. Doyne was not qualified to have performed the evaluation because he misrepresented his qualifications and/or acted under false credentials. Dr. Doyne's alleged improper communications regarding his credentials were made in the context of a judicial proceeding in which Dr. Doyne was an authorized participant. Because the communications arose from Dr. Doyne's role in the custody litigation, they are absolutely privileged. Numerous courts have similarly applied the privilege in situations where one spouse brings a lawsuit challenging the independence, qualifications, or conclusions of an independent expert who provided opinions or testimony in a prior family court litigation. (See Laborde v. Aronson, supra, 92 Cal.App.4th 459 [litigation privilege bars father's claims against Evidence Code section 730 evaluator in prior custody proceeding]; Gootee v. Lightner (1990) 224 Cal.App.3d 587 [father's claims against psychologist jointly retained to provide custody recommendations barred by litigation privilege]; Howard v. Drapkin (1990) 222 Cal.App.3d 843 [claims against psychologist jointly retained by parties for custody evaluation shielded from civil liability under litigation privilege and quasi-judicial immunity doctrines]; see also Silberg, supra, 50 Cal.3d at pp. 219-220.) Dr. Tadros argues the litigation privilege does not apply as a matter of law because neither Dr. Doyne nor the superior court filed the required Judicial Council forms before Dr. Doyne's appointment in the custody action. He argues that "by failing to be a prequalified expert and follow the mandatory [California Rules of Court] and complete the proper status before the court," Dr. Doyne "waived all rights and claims to the litigation privilege . . . ." 36
However, there is no legal basis supporting a waiver based on these allegations. Although the San Diego County Superior Court did not have a specific local rule in 2005 mandating the filing of these particular Judicial Council forms, the California Rules of Court did require these forms to be filed. There is nothing in the record showing that Dr. Tadros was precluded from raising the issue of the Judicial Council forms in his custody proceeding. The absence of the Judicial Council forms in the custody proceeding did not create a jurisdictional defect or establish a basis for creating an exception to the litigation privilege. A primary purpose of the litigation privilege is to place upon litigants the burden of challenging witnesses and exposing bias or the falsity of evidence in the proceeding in which the evidence is presented, " 'thereby enhancing the finality of judgments and avoiding an unending roundelay of litigation, an evil far worse than an occasional unfair result.' " (Flatley, supra, 39 Cal.4th at p. 322.) The privilege also seeks to afford litigants and witnesses "freedom of access to the courts without fear of being harassed subsequently by derivative tort actions." (Silberg, supra, 50 Cal.3d at p. 213.) These purposes apply with particular force in the family law arena. As the California Supreme Court recently observed, "when a court must make very difficult and critical decisions regarding child [custody and] visitation, it should receive the maximum amount of relevant information. Accordingly, '[c]ase law is clear that section 47(b) absolutely protects litigants and other participants from being sued on the basis of communications they make in the context of family law proceedings.' " (Jacob B., supra, 40 Cal.4th at p. 956.) 37
Applying the litigation privilege to each of Dr. Tadros's causes of action is consistent with these principles. Dr. Tadros alleges he was harmed because Dr. Doyne was not qualified to perform the custody evaluation based on his misrepresenting his credentials and/or that Dr. Tadros agreed to retain Dr. Doyne based on Dr. Doyne's misrepresentations. However, Dr. Tadros had every opportunity to litigate these issues in the custody proceeding. If Dr. Tadros believed the custody evaluation was not accurate because Dr. Doyne was unqualified or had misrepresented his credentials, Dr. Tadros could have raised these issues when Dr. Doyne submitted the custody report or in the months following the report's submission when Dr. Tadros allegedly learned of the true facts. Dr. Tadros could have challenged Dr. Doyne's recommendations in many ways, including by retaining his own expert or attempting to impeach Dr. Doyne's credibility by raising the issues of Dr. Doyne's diplomate status or teaching experience. The litigation privilege bars a family law litigant from challenging in a subsequent civil action the opinions or asserted qualifications of an independent or adverse expert witness.9 (See Gootee v. Lightner, supra, 224 Cal.App.3d at pp. 591-596.) We note further that there is no evidence in the record showing the failure to file the Judicial Council forms or the alleged false information on Dr. Doyne's CV or on his cover letter had any affect on the outcome of the custody case. Even assuming Dr. Doyne did not teach at the identified educational institutions or was a Diplomate of an
9 Although this rule does not extend to an action against the plaintiff's own expert witness (see Fremont Reorganizing Corp. v. Faigin, supra, 198 Cal.App.4th at p. 1173), here Dr. Doyne was retained by both parties as an independent expert. 38
organization that was not reputable, the undisputed record shows that Dr. Doyne was fully qualified to serve as a custody evaluator based on his professional credentials and experience that have never been challenged in this action. The Judicial Council forms would have merely confirmed Dr. Doyne's qualifications to serve as an Evidence Code section 730 custody evaluator. Additionally, the fact that some of the alleged misrepresentations occurred after Dr. Doyne submitted the custody report to the family court does not render the litigation privilege inapplicable. (See Rubin v. Green (1993) 4 Cal.4th 1187, 1193-1200; Ribas v. Clark (1985) 38 Cal.3d 355, 364-365.) At the time of the alleged misrepresentations, the custody proceedings were ongoing and the injury-producing conduct arose from Dr. Doyne's actions in connection with the custody issues. The privilege "is not limited to statements made during a trial . . . , but may extend to steps taken prior thereto, or afterwards. [Citation.]" (Rusheen v. Cohen, supra, 37 Cal.4th at p. 1057, italics added; see Chacon v. Litke (2010) 181 Cal.App.4th 1234, 1256.) To the extent Dr. Tadros argues that Dr. Doyne's alleged misrepresentations of his professional credentials were wholly unconnected to his custody litigation, Dr. Tadros did not meet his burden to show a probability of prevailing on this theory. Each cause of action — negligence, breach of contract, fraud, and the UCL claim — requires a showing of causation or reliance, and if Dr. Tadros's claims were based on a misrepresentation independent of the custody litigation, he did not show that he relied on the misrepresentation to his detriment and/or that it caused him to suffer any legally cognizable damages. (See Navellier v. Sletten (2003) 106 Cal.App.4th 763, 775, 776.) 39
In his appellate brief, Dr. Tadros argues that even if the misrepresentations did not directly affect his custody case, he could recover on his Business and Professions Code section 17200 (UCL) claim on behalf of others who may have been harmed by Dr. Doyne's alleged misrepresentations regarding his professional credentials. However, a private action for relief under the UCL can be brought only "by a person who has suffered injury in fact and has lost money or property as a result of the unfair competition." (Bus. & Prof. Code, § 17204; see Kwikset Corp. v. Superior Court (2011) 51 Cal.4th 310, 323.) Under this rule, Dr. Tadros cannot establish a probability of prevailing on the UCL claim by relying solely on claimed injuries to third parties. (See Kwikset, supra, 51 Cal.4th at p. 323; Stewart v. Rolling Stone LLC, supra, 181 Cal.App.4th at p. 690.) 2. Dr. Doyne's Communications with CAPP In his complaint, Dr. Tadros alleged that Dr. Doyne "gave the records of the custody action" to CAPP to allow the professional organization to file an amicus brief on the issues raised by Dr. Tadros's motion to compel. In opposition to the anti-SLAPP motion, Dr. Tadros presented evidence that CAPP filed an amicus brief in the writ proceedings identifying Dr. Doyne's and Dr. Tadros's names on the brief and presented evidence that this brief was later posted on the Internet. Dr. Tadros cannot recover on his causes of action based on these facts because the alleged wrongful conduct is similarly covered by the litigation privilege. (Civ. Code, § 47(b).) Because Dr. Doyne allegedly made the communications at a time when he was an authorized participant in the pending custody litigation and the communications 40
furthered the objects of the litigation, the communications fell within the scope of the litigation privilege. Moreover, Dr. Tadros made no factual showing that any confidential information was disclosed during discussions between Dr. Doyne and CAPP. CAPP's amicus brief is included in the record, and there is no information in the brief pertaining to the underlying custody dispute. The brief focused solely on the legal issue regarding the obligations of an Evidence Code section 730 custody evaluator in responding to a subpoena where one of the parties objects to the release of confidential information. CAPP's only reference to Dr. Tadros in the amicus brief is Dr. Tadros's name on the caption of the appellate court filing, which is not confidential. 3. Alleged Improprieties in Preparing Custody Report In his complaint, Dr. Tadros alleged that Dr. Doyne improperly prepared the custody report because he "never contacted the mother's therapist," "contacted [Dr. Tadros's] therapist only once," and "falsified the date of contacting [Dr. Tadros's] therapist." These allegations — challenging the Evidence Code section 730 custody report filed in the prior custody action — are barred by the litigation privilege. (See Laborde v. Aronson, supra, 92 Cal.App.4th at pp. 461-465; Gootee v. Lightner, supra, 224 Cal.App.3d at pp. 591-596; Howard v. Drapkin, supra, 222 Cal.App.3d at pp. 860864.) 4. Statements Made at Continuing Education Conferences In his complaint, Dr. Tadros alleged that Dr. Doyne made a presentation at the October 2007 mandatory continuing education conference for custody evaluators, mostly 41
from the San Diego area, in which he described details of the custody action without Dr. Tadros's permission. Dr. Tadros alleged, and presented evidence, that during the presentation, Dr. Doyne "used the details of [Dr. Tadros's] Custody Action as an example, without Plaintiff's permission," and "stated that Plaintiff is a 'disordered' parent who is 'going after' Defendant" and that "a metaphorical 'star' under his or her chair that would mark him or her as the professional to end up with the case." Dr. Tadros also alleged, and presented evidence, that a person who conducted an Internet search using the phrase "Stephen Doyne Court of Appeal San Diego" could have found CAPP's amicus brief with Dr. Tadros's name as a real party in interest in the caption of the brief. Dr. Tadros failed to establish a prima facie case based on these alleged facts because any such claim is barred by the qualified common-interest privilege. (Civ. Code, § 47(c)(1).) Under Civil Code section 47(c)(1), a communication is privileged if it is made "without malice, to a person interested therein . . . by one who is also interested." As recognized by the California Supreme Court, a statement made by a psychologist "at a professional conference attended by other mental health professionals and that was related to the subject of the conference . . . falls within the reach of this statutory common-interest privilege." (Taus v. Loftus (2007) 40 Cal.4th 683, 721 (Taus).) "This privilege protects good faith, well-intended communications serving significant interests." (Beroiz v. Wahl (2000) 84 Cal.App.4th 485, 493.) The defendant bears the initial burden of establishing the challenged statements were made on a privileged occasion, and thereafter the burden shifts to the plaintiff to establish the statements were made with malice. (Taus, supra, 40 Cal.4th at p. 721.) 42
The undisputed evidence shows Dr. Doyne made the challenged remarks at a conference held to provide continuing education to mental health professionals who perform Evidence Code section 730 custody evaluations. Thus, Dr. Doyne met his burden to show the remarks were made on a privileged occasion. (See Taus, supra, 40 Cal.4th at p. 721.) The burden then shifted to Dr. Tadros to establish malice. " ' "The malice necessary to defeat a qualified privilege is 'actual malice' which is established by a showing that the publication was motivated by hatred or ill will towards the plaintiff or by a showing that the defendant lacked reasonable grounds for belief in the truth of the publication and therefore acted in reckless disregard of the plaintiff's rights . . . ." ' " (Ibid.) In his anti-SLAPP opposition papers filed below, Dr. Tadros did not specifically argue, or produce any evidence showing, that Dr. Doyne acted with malice when speaking at the October 2007 conference. Moreover, on our independent review of the record, there is an insufficient factual basis to support a malice finding. The undisputed evidence shows Dr. Doyne spoke at the October 2007 conference after this court denied Dr. Tadros's writ petition pertaining to the order compelling the production of Mother's psychological evaluation records and after Dr. Doyne had terminated his participation in the custody proceedings. The statements were made to psychologists who served as child custody evaluators and who were required to attend under applicable court rules. The purpose of the conference was to educate these professionals about relevant law and how it affects their practices. Further, the undisputed evidence shows Dr. Doyne did not identify the parties' names or discuss the facts pertaining to his psychological evaluation 43
of the parties. The fact that one person in the audience recognized the facts of the discovery dispute as Dr. Tadros's case and thus connected Dr. Doyne's comments to Dr. Tadros is insufficient to show Dr. Doyne acted with ill will towards Dr. Tadros. As he did below, Dr. Tadros argues the common interest privilege is inapplicable because the privilege " 'only protects against defamation.' " (Italics omitted.) The argument is not supported by California law. Although the qualified privilege contained in Civil Code section 47(c) "is most commonly asserted in actions for defamation, it applies to virtually all other causes of action, except malicious prosecution, based upon publication of assertedly offensive material." (Begier v. Strom (1996) 46 Cal.App.4th 877, 882; see Soukup v. Law Offices of Herbert Hafif, supra, 39 Cal.4th at pp. 293-294.) Relying on Paul v. Friedman (2002) 95 Cal.App.4th 853, Dr. Tadros argues that Dr. Doyne's statements were not protected by the common-interest privilege because they violated Dr. Doyne's agreement to keep the psychological evaluation confidential. In Paul, the court found that statements made by an attorney in declarations submitted to the court containing information breaching the parties' confidentiality agreement were not protected by the litigation privilege. (Id. at pp. 868-869.) However, the reasoning underlying this holding is no longer valid after Jacob B., in which the California Supreme Court held the privilege applies to a breach of privacy claim, regardless whether the claim is based on statute, common law, or the state Constitution. (Jacob B., supra, 40 Cal.4th at pp. 960-962.) Moreover, even if the common-interest privilege is inapplicable to the statements made at the October 2007 seminar, there is no factual basis for concluding that Dr. Doyne 44
disclosed confidential information in breach of his professional duties or contractual obligations. Dr. Tadros retained Dr. Doyne as an independent expert, and thus there was no doctor-patient relationship between the two parties. Additionally, Dr. Tadros's contract with Dr. Doyne made clear that "information given in this process is not held confidential." Further, it is undisputed that Dr. Doyne did not disclose any of the details of the custody dispute at the seminar. Dr. Doyne's reference to an unidentified "disordered" parent who was "going after" him because he was unhappy with the custody recommendations was not information that Dr. Tadros privately disclosed to Dr. Doyne. Instead, these statements reflected Dr. Doyne's professional opinions based primarily on Dr. Tadros's actions after the custody recommendation had been made. Additionally, Dr. Tadros never brought a defamation claim against Dr. Doyne for statements made at the October 2007 seminar. Dr. Tadros also based his wrongful disclosure of confidential information claim on Dr. Doyne's alleged remarks at the February 2007 bar association seminar. However, there was no admissible evidence submitted regarding the content of these statements. Dr. Tadros's hearsay statements about what he was told by his former attorney are insufficient to support a prima facie case. (See ComputerXpress, supra, 93 Cal.App.4th at p. 1010.) Additionally, Dr. Doyne's statements at this seminar would be similarly barred by the common-interest privilege. V. Denial of Discovery Dr. Tadros next contends the court erred in denying his request to permit him to conduct discovery on the issues raised in Dr. Doyne's anti-SLAPP motion. 45
Despite the automatic stay of "[a]ll discovery proceedings" triggered by the filing of an anti-SLAPP motion, a trial court has discretion to allow the plaintiff, upon a showing of good cause, to conduct "specified discovery." (§ 425.16(g); Schroeder v. Irvine City Council (2002) 97 Cal.App.4th 174, 183.) Absent an abuse of discretion, an appellate court may not disturb the trial court's ruling on the discovery request. (Id. at p. 191.) We must affirm an order denying discovery unless the court " ' "exceeded the limits of legal discretion by making an arbitrary, capricious, or patently absurd determination." ' " (Tuchscher Development Enterprises, Inc. v. San Diego Unified Port Dist. (2003) 106 Cal.App.4th 1219, 1247.) The trial court here did not abuse its discretion. The court gave Dr. Tadros numerous opportunities to identify the discovery necessary to oppose the anti-SLAPP motion. However, after examining Dr. Tadros's arguments on this issue, the court correctly determined that none of the discovery sought by Dr. Tadros would have changed the outcome of the case, i.e., established the claims were not subject to the antiSLAPP statute and/or supported a finding that Dr. Tadros had a probability of prevailing on the merits of his claims. On appeal, Dr. Tadros argues he showed good cause by identifying the need to take the deposition of two witnesses: (1) Dr. Robert Simon who attended the October 2007 custody evaluators continuing education seminar and (2) Andrew Miller who attended a February 2007 bar association seminar. Dr. Tadros additionally states that it was necessary to determine the specific information CAPP received from Dr. Doyne in connection with CAPP's filing of an amicus brief in the custody action. 46
With respect to Dr. Simon, Dr. Tadros submitted a lengthy and detailed letter from Dr. Simon describing Dr. Doyne's remarks at the October 2007 seminar. Although Dr. Tadros suggested at one point in the proceedings that Dr. Simon was unwilling to provide additional information unless he was deposed, Dr. Tadros did not explain the nature of the additional information he expected to obtain from a deposition that would be helpful to his case. Thus, a showing of good cause was not made with respect to Dr. Simon. With respect to the deposition of Andrew Miller, Dr. Tadros claimed that Miller had attended a February 2007 continuing education seminar presented by the San Diego Bar County Association and that Dr. Doyne was one of the speakers at this seminar. Dr. Tadros stated in his declaration that during this presentation Dr. Doyne "described details of my custody case without my permission" and "Mr. Miller stated that he was able to tell that Doyne was outlining my case. The participants of the conference included professionals within my field." These statements do not show Miller had any specific information that would have helped Dr. Tadros's case. Moreover, the record shows Miller was Dr. Tadros's former attorney, and therefore Dr. Tadros could have presumably obtained a declaration or other relevant information from Miller other than in a formal deposition. A court is not required to permit discovery if it appears that the information is readily available through other sources or can be obtained through informal discovery. (The Garment Workers Center v. Superior Court (2004) 117 Cal.App.4th 1156, 1162.) With respect to Dr. Tadros's desire to obtain information from CAPP regarding whether Dr. Doyne disclosed any confidential facts to the CAPP organization during the 47
custody litigation, Dr. Tadros did not show this information would assist him in showing a probability of prevailing on the merits. Moreover, there is no showing Dr. Tadros was harmed by any disclosure to CAPP. CAPP's amicus brief discussed only the legal issue involving discovery of confidential records from an Evidence Code section 730 custody evaluator and did not disclose any alleged confidential information pertaining to the custody dispute. VI. Statement of Decision Dr. Tadros contends the court erred in failing to issue a statement of decision explaining its order granting the anti-SLAPP motion. However, section 425.16 does not require a statement of decision, and the statute mandating statements of decision does not apply to an order on a motion. (§ 632; see Lien v. Lucky United Properties Investment, Inc. (2008) 163 Cal.App.4th 620, 623-625.) Moreover, the court did issue a detailed order explaining the reasoning underlying its conclusions. After the hearing, the court entered a written order summarizing Dr. Tadros's allegations, the applicable legal standards, and the reasons for its conclusions. To the extent the court did not discuss each and every issue raised by Dr. Tadros, a more detailed explanation of the court's reasoning was unnecessary because our review is de novo and we have independently reviewed the entire record. VII. Denial of Disqualification Motion Dr. Tadros contends Judge Bloom erred in striking his disqualification motion.
A. Factual Background Three months after the court granted Dr. Doyne's anti-SLAPP motion, Dr. Tadros filed a verified motion to disqualify Judge Bloom for cause under section 170.1(a)(6)(A)(iii), arguing "a person aware of the facts . . . might reasonably entertain a doubt that Judge Bloom would not be able to act impartially." In support, he submitted a petition, signed by 92 individuals, stating they did not believe Dr. Tadros could receive or obtain a fair and impartial trial before Judge Bloom or in any court in San Diego County. Dr. Tadros also supported his disqualification request based on facts showing the San Diego Superior Court did not previously require Evidence Code section 730 custody evaluators to complete mandatory Judicial Council forms. Based on these facts, Dr. Tadros argued the entire bench, including Judge Bloom, was conspiring to protect evaluators, and particularly Dr. Doyne. In this regard, Dr. Tadros produced a September 29, 2009 letter from former San Diego City Attorney Michael Aguirre to the Presiding Judge of the Family Court (Judge Lorna Alksne) thanking her for taking action to ensure that custody evaluators complete the required Judicial Council forms. Dr. Tadros also asserted that Judge Bloom was biased because he improperly acted as a settlement judge during a chambers conference before he ruled on the anti-SLAPP motion. Judge Bloom entered an order striking the disqualification motion, and Dr. Tadros challenged the order by filing a writ petition in the Court of Appeal. This court summarily denied the petition, and the California Supreme Court denied Dr. Tadros's petition for review.
B. Analysis " 'Under our statutory scheme, a petition for writ of mandate is the exclusive method of obtaining review of a denial of a judicial qualification motion.' [Citation.]" (People v. Freeman (2010) 47 Cal.4th 993, 1000 (Freeman).) The ruling is neither directly appealable nor reviewable on appeal from a subsequent final judgment. (See § 170.3(d); People v. Hull (1991) 1 Cal.4th 266, 276; In re Sheila B. (1993) 19 Cal.App.4th 187, 193-195.) Relying on People v. Brown (1993) 6 Cal.4th 322, Dr. Tadros argues he preserved his right to assert a constitutional due process rights violation based on Judge Bloom's alleged "bias." We agree that on appeal a party may raise the contention that the final judgment is constitutionally invalid under the due process clause because of judicial bias. (Id. at p. 335.) However, a party has a heavy burden to show a due process violation. (Freeman, supra, 47 Cal.4th at pp. 996, 1000-1005; see Caperton v. A. T. Massey Coal Co. (2009) 556 U.S. 868, __ [129 S.Ct. 2252, 2259]; People v. Cowan (2010) 50 Cal.4th 401, 455.) "[W]hile a showing of actual bias is not required for judicial disqualification under the due process clause, neither is the mere appearance of bias sufficient." (Freeman, supra, at p. 996.) Instead, the challenging party must show "based on an objective assessment of the circumstances in the particular case, . . . ' "the probability of actual bias on the part of the judge . . . [that] is too high to be constitutionally tolerable." ' " (Ibid.) Only the most " 'extreme facts' . . . require judicial disqualification on due process grounds." (Id. at p. 996.)
Dr. Tadros seeks to establish Judge Bloom's bias based on the fact that the San Diego Superior Court previously did not require Evidence Code section 730 evaluators to file required Judicial Council forms. In support, he cites to several pages of the reporter's transcript of the hearing on his motion to vacate the anti-SLAPP dismissal order. In this portion of the transcript, Dr. Tadros argued that on September 24, 2009, "a few days prior to [the court ruling on the change of venue motion], I'd contacted Mr. Aguirre, who is the San Diego past City Attorney, whistle-blower on government corruption. Mr. Michael Aguirre at that moment, carried more than one immediate phone contact with . . . Mr. Mike Roddy [executive officer of the San Diego Superior Court], and presiding family court judge, Lorna Alksne, where [Aguirre] requested that [the] California Rules of [Court] be immediately implemented for the public good. . . . Otherwise, a federal relief was going to be pursued. [¶] Within 72 hours of this phone call, the mandated California Rules of [Court] were implemented for the first time in the history of San Diego County, ever since 2001 where they have been always all along missing. Also the [court] started to file those FL326 backwards, which is a clear-cut violation and disrespect to the principle and spirit of what California Rules of the Court intended in the first place." This argument does not show Judge Bloom was biased. There is no showing Judge Bloom was involved in any decision pertaining to the policies of the San Diego Superior Court regarding the referenced Judicial Council forms. Moreover, Dr. Tadros makes no showing that his counsel could not have requested the forms to be filed in his custody action. Although the San Diego Superior Court may not have had a policy in 2005 of requiring the forms, a litigant had the right to raise the issue in any family law 51
proceeding. The fact that the Judicial Council forms were not filed in Dr. Tadros's underlying custody action does not show any form of bias on the part of Judge Bloom. Dr. Tadros also argues he "could never receive or obtain a fair and impartial hearing" before Judge Bloom because Judge Bloom has "close ties and connections" with other superior court judges who are "closely affiliated with the Family Law Court . . . ." This argument is speculative and conjectural. The fact that Judge Bloom had professional relationships with other judges who are "affiliated" with the family law court is too attenuated to suggest any possibility of bias. Dr. Tadros also argues bias existed based on comments made to him by his counsel after his counsel attended a chambers conference (on an unspecified date). Specifically, he cites to an argument he personally made to the trial court in which he claimed his attorney told him that "It's very bad, Emad. You are going to lose. The judge stated that you must settle or mediate or you are going to lose." The comment made by Dr. Tadros regarding something his counsel had told him does not show any form of bias. At the time of Judge Bloom's purported remarks, the parties had filed numerous documents and supporting materials. The court could reasonably comment on the validity of the arguments and such comments do not show any form of prohibited bias. Moreover, the record does not support that the court made the asserted statements. When Dr. Tadros raised this issue as a basis for establishing bias, the court responded that Dr. Tadros should have a discussion with his counsel about what was actually said during the chambers conference.
VIII. Amendment Throughout his appellate briefs Dr. Tadros suggests the court erred in not allowing him to amend his complaint after Dr. Doyne filed the anti-SLAPP motion. There was no error. A plaintiff cannot avoid an anti-SLAPP motion by amending the complaint before the hearing on the motion. Allowing a plaintiff to change the nature of the suit "would totally frustrate the Legislature's objective of providing a quick and inexpensive method for unmasking and dismissing such suits." (Sylmar Air Conditioning v. Pueblo Contracting Services, Inc. (2004) 122 Cal.App.4th 1049, 1056; see South Sutter, LLC v. LJ Sutter Partners, L.P. (2011) 193 Cal.App.4th 634, 666-667.) IX. Attorney Fees Dr. Tadros contends the court violated his due process rights when it refused to permit him to respond to Dr. Doyne's attorney fees motion. However, Tadros does not cite to any supporting evidence showing the court denied him the right to file an opposition to the motion. Moreover, by failing to summarize the underlying facts pertaining to the attorney fees motion and order, Dr. Tadros has waived his right to challenge any aspect of the order awarding attorney fees. (See Schmidlin v. City of Palo Alto (2007) 157 Cal.App.4th 728, 738.) In his appellate briefs, Dr. Tadros argues that his failure to properly oppose the motion should be excused because he was not represented by an attorney at that point in the litigation. However, unrepresented litigants are held to the same standards as attorneys. (Rappleyea v. Campbell (1994) 8 Cal.4th 975, 985; Kobayashi v. Superior Court (2009) 175 Cal.App.4th 536, 543.) Moreover, Dr. Tadros does not present any 53
information showing the result would have been different if he had submitted additional papers in opposition to the motion. A prevailing defendant on an anti-SLAPP motion is entitled to attorney fees as a matter of law. (§ 425.16(c).) The fee award is mandatory. (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1131.) Although only reasonable fees are recoverable, in this case the court considered the moving papers and awarded Dr. Doyne only about one-half of his claimed costs. The award was reasonable particularly given the myriad of motions and briefs filed by Dr. Tadros and his attorneys throughout the litigation. X. Amicus Briefs This court permitted the California Coalition for Families and Children to file an amicus curiae brief in support of Dr. Tadros. We have read the brief and have considered the arguments contained in the brief to the extent they are relevant and helpful in resolving the issues before us. We disregard portions of the brief that are duplicative of Dr. Tadros's appellate contentions, unsupported by legal or factual authority, or raise contentions beyond the scope of this case. Five months after filing his reply brief, Dr. Tadros filed a motion asking this court to accept a petition, which he prepared, as a "Public Amicus brief," containing statements and signatures of 47 members of the public who support his appeal. We decline to accept
the petition. The petition is untimely and does not meet the standards for an amicus brief.10 (See Rule 8.200(c).) DISPOSITION Judgment affirmed. Appellant to pay respondent's costs on appeal.
HALLER, J. WE CONCUR:
MCCONNELL, P. J.
10 Long after filing his reply brief, Dr. Tadros lodged documents with this court pertaining to a federal case filed by Dr. Tadros. These documents are not properly before us because they were not part of the record when the trial court ruled on the challenged orders. (See Vons Companies, Inc. v. Seabest Foods, Inc., supra, 14 Cal.4th at p. 444, fn. 3.) Further, they are not relevant to the legal issues before us in this appeal. 55