Burrill v. Nair

 

 

 

 

 

 

 

 

 

 

 

Filed 6/3/13  Burrill v. Nair CA3

 

 

 

 

 

 

NOT TO BE PUBLISHED

 

 

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opinion has not been certified for publication or ordered published for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.

 

 

 

 

IN THE COURT OF
APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE
DISTRICT

(Placer)

----

 

 

 
>

JANELLE BURRILL,                           Plaintiff and Respondent,               v.   JAYRAJ NAIR,                           Defendant and Appellant.

C068998   (Super. Ct. No. SCV28179)

            This
defamation action arises out of a contentious href="http://www.fearnotlaw.com/">custody dispute that has made its way to
this court five times.href="#_ftn1"
name="_ftnref1" title="">[1]  In the underlying case, Jayraj Nair
persistently fought court-ordered efforts to reunify his former wife, Bindu,
with their older son, Suraj.  (We refer
to defendant by his last name and to other members of the Nair family by their
first names for clarity.)  After the
couple separated, Suraj sided with his father and moved in with him.  Their younger son, Sujay, continued to live
with his mother.  Following dissolution
of the marriage, the family court awarded Nair and Bindu joint legal custody of
both sons and found the best interest of the children required joint physical
custody, but that Suraj’s estrangement from his mother required therapy before
that could happen.  (Nair II, supra,
C059661.) 

            Janelle
Burrill, Ph.D., was appointed to serve as reunification counselor to assist in
the reunification process.  After
Dr. Burrill filed a reunification report concluding Nair was emotionally
and psychologically abusing Suraj by, among other things, indoctrinating the
child to believe his mother was “evil and never loved him,” and she “kidnapped
Sujay and [was] holding him hostage,” and further opining Nair presented a
credible threat to the physical safety of Bindu and both of their sons, Suraj
was removed from Nair’s house and ultimately placed with his mother.  Thereafter, the family court issued a
domestic violence restraining order preventing Nair from contacting Bindu and
their two sons, except for short supervised visits.  We affirmed this order on appeal.  (Nair
III, supra, C061097 & C062004.) 

            In the
defamation lawsuit, Dr. Burrill alleges Nair made a number of defamatory
statements online and over the radio following the issuance of the
reunification report and removal of Suraj from his physical custody.href="#_ftn2" name="_ftnref2" title="">[2]  One of these statements, posted on CNN’s
iReport Website, accused Dr. Burrill of “criminal fraud and modern day
slavery using Parental Alienation SCAM, enslavement of children for $$$$$$ in
California.”  The posting continued:  “Corrupt Criminals like [Dr. Burrill]
and their good-ol-network are today’s ‘modern slave traders’ trading ‘children’
with vindictive retribution and for money.” 
The posting also accused Dr. Burrill of “child abuse” and “financial
extortion.”  In another statement, made
during an interview with Sacramento area radio station “KFBKnewstalk”
(http://www.kfbk.com/main.html, retrieved May 20, 2013), Nair claimed
Dr. Burrill “extorted money” from him. 
Nair further asserted: 
“[Dr. Burrill] does not have any license to practice psychology in
California.  She’s got a diploma from
some online mill.  And on top of it, she
makes DSM-[IV] diagnoses; she prescribed Benzodiazepine for my son.  A person who is not even a psychologist or
psychiatrist prescribing medication in California?  That’s illegal.” 

            Nair moved
to strike the defamation cause of action pursuant to Code of Civil Procedure
section 425.16, the anti-SLAPP statute.href="#_ftn3" name="_ftnref3" title="">[3]  The trial court denied the motion.  Nair appeals. 
The issues on appeal have been simplified by the fact that
Dr. Burrill concedes the defamation cause of action arises from protected
activity within the meaning of the anti-SLAPP statute.  Dr. Burrill also concedes that, as a
“limited purpose public figure,” in order to prevail on the merits, she “must
demonstrate not only the falsity of the statements at issue, but also that they
were published with ‘actual malice.’” 
After independently reviewing the trial court’s ruling, we conclude
Dr. Burrill has demonstrated a probability of prevailing on the merits of
her defamation cause of action and affirm the order denying the special motion
to strike. 

BACKGROUND

>Underlying
Custody Dispute

            In order to
place the defamation lawsuit and anti-SLAPP motion in context, we begin with an
overview of the underlying custody dispute between Nair and Bindu.  In doing so, we draw in part on our
unpublished opinions in Nair II, supra,
C059661, Nair III, supra, C061097 and
C062004, and Nair V, supra, C064566,
of which we have taken judicial notice. 

            Nair and
Bindu married in July 1995.  They
separated ten years later.  In the
meantime, Suraj and Sujay were born to the union.  At the time of separation, Suraj was nine
years old and Sujay was about a year and a half.  In February 2006, Bindu filed for a domestic
violence restraining order against Nair. 
Three weeks later, Nair filed a petition for dissolution of the
marriage.  The matters were consolidated
and the parties filed numerous motions regarding child custody and
visitation.  (Nair II, supra, C059661.) 

            In July
2006, the family court ordered Nair to pay child support for Suraj and
Sujay.  The following month, Suraj, then
ten years old, sided with his father and moved in with him.  Two-year-old Sujay remained with his mother.  (Nair
III, supra, C061097 & C062004.) 

            According
to Sharon Sloper, MFT, who prepared a report for the family court in September
2006, Suraj had a positive relationship with his mother prior to the
separation.  However, this relationship
began to deteriorate.  Sloper believed
that “‘Suraj’s behavior symptoms (not speaking to [Bindu] or calling her names,
refusing to cooperate with her or her side of the family, saying that he hates
her and that “there is nothing I like about her”) and his strong allegiance to
[Nair] (“there are so many things I love about him . . . there is nothing I
don’t like”) certainly indicate that Suraj may feel the need to please his
father or at least not express any care for his mother.’” 

            In November
2006, the family court entered a judgment of dissolution as to marital status
only.  In March 2007, counsel was appointed
to represent Suraj and Sujay.  The family
court allowed Suraj to remain with Nair. 
Sujay was allowed to remain with Bindu. 
(Nair II, supra, C059661.)  The same month, Gene Roeder, Ph.D., prepared
an evaluation report, in which he noted that Suraj stated:  “‘I just want to live with my dad and my
brother and be away from her [referring to his mother] and forget I ever knew
her.’”  The report noted Suraj refused to
be in the same room as Bindu and referred to his mother only as “‘her.’”  The report further noted Suraj repeated the
same phrases as Nair and refused to participate in any psychological testing
because he believed Dr. Roeder would use the results against him.  The report concluded that “‘Suraj presents
with the same level of hostility and expressing the same distortions [of
reality] as his father.  While there was
once a positive relationship between mother and son, and at the time of the
previous evaluation there was still evidence of some positive attachments,
there is now only utter disdain and contempt.’” 


            In
September 2007, Nair sought a restraining order against Bindu’s father,
alleging sexual molestation and harassment of Suraj and Sujay.  (Nair
II, supra, C059661.)  The same month, James Brentt, Ph.D., prepared
an evaluation report that also noted Suraj’s alignment with Nair and alienation
from Bindu. 

            In February
2008, trial was held on issues of custody and visitation.  The family court also heard Nair’s request
for a restraining order against Bindu’s father. 
(Nair II, supra, C059661.)  The following month, the family court issued
a written ruling that awarded Nair and Bindu joint legal custody and found the
long-term best interests of Suraj and Sujay would require joint physical
custody, but Suraj’s estrangement from Bindu required therapy before that could
happen.  A two-tier visitation schedule
was also provided.  (Nair II, supra, C059661.)  A separate order issued that denied Nair’s
request for a restraining order against Bindu’s father due to an absence of
evidence. 

            In May 2008,
Nair filed an order to show cause seeking 50 percent physical custody of
Sujay and further seeking child support from Bindu for Suraj.  The same month, Bindu filed a number of
orders to show cause seeking (1) supervised visits between Nair and Sujay,
(2) no contact between Suraj and Sujay until a therapist was appointed for
Sujay, (3) removal of Suraj from Nair’s physical custody, and (4) an
order preventing Nair from contacting her. 
The family court ordered the requested supervised visits between Nair
and Sujay and also ordered no contact between Suraj and Sujay until a therapist
was appointed for Sujay.  (>Nair II, supra, C059661; >Nair III, supra, C061097 &
C062004.) 

            In June
2008, the family court substituted therapists for the children and confirmed
the orders issued the previous month. 
The following month, the family court confirmed the previous visitation
orders, again substituted therapists, and ordered Nair not to contact Bindu.  (Nair
II, supra, C059661.) 

            In August
2008, the family court awarded Bindu $75,000 in attorney fees pursuant to
Family Code section 271, subdivision (a), “based upon [Nair’s] conduct which
frustrated the policy of the law to promote settlement of litigation and reduce
the costs of litigation.”  The court
explained the ruling was “based in large part on [Nair’s] repeated attempts to
frustrate both the spirit and the letter of the Court’s rulings with which he
disagrees.  For example, . . .
the attempts of the Court to start the reunification process between [Suraj] and
[Bindu] has been frustrated by [Nair’s] disputes with the proposed counselors
either by refusing to pay for the counseling or lodging complaints about the
counselors’ behavior with professional review boards.”  (Nair
II, supra, C059661.)  Indeed, during a previous hearing, Nair
accused one of Suraj’s appointed therapists, David Chervick, MFT, of accepting
“$2,000 as a bribe” to render an unfavorable opinion.  The family court discounted this accusation
as “outrageous.” 

            We affirmed
the June and July 2008 custody, visitation, and no-contact orders, as well as
the August 2008 attorney fee award in Nair
II, supra, C059661. 

            Following
the attorney fee award, Nair moved to disqualify Commissioner Dirk Amara from
presiding over the case, asserting that Commissioner Amara made “prejudicial
and biased rulings” because of “overt prejudice, covert racism/discrimination
and [his] vindictive retribution towards [Nair].”  The motion was denied based on Nair’s failure
to offer specific facts in support of the allegations.

            In December
2008, the family court denied Nair’s request for child support and continued
his obligation to pay child support to Bindu, “finding that ‘to the extent
[Bindu] is not exercising her 50% parenting time with [Suraj], this is due
solely to [Nair’s] misconduct in alienating [Suraj] from his mother and failing
to take all necessary steps to reunify [Suraj] with his mother consistent with
the [sic] all parenting orders in
effect.’”  (Nair III, supra, C061097
& C062004.) 

            We affirmed
this ruling in Nair III, supra,
C061097 and C062004). 

>Appointment
of Dr. Burrill

            In October
2008, the family court appointed Dr. Burrill to act as Suraj’s therapist
“to facilitate the reunification process” between Suraj and his mother.  Two weeks later, Nair signed a fee agreement
charging $150 per hour for Dr. Burrill’s services as Suraj’s
therapist.  On the face of the agreement,
in reference to a paragraph requiring payment for “telephone consultations”
with “collateral contacts” and another paragraph providing for costs and
attorney fees in the event litigation was required to enforce the agreement,
Nair wrote, “will require prior authorization.” 
This notation was not made in reference to the paragraph requiring payment
for “reports” and “other professional services.”  However, below his signature, Nair
wrote:  “Conditional:  Pls [sic]
get pre-auth for every charge.”  The same
day Nair signed the fee agreement, Dr. Burrill met with Suraj for an
intake appointment.  Two weeks later, she
had another counseling appointment with Suraj and also met with Nair. 

            On
December 2, 2008, Dr. Burrill met with Suraj a third time.  The next day, she sent Nair a letter stating
she had been appointed “to act as reunification therapist, for Suraj and Bindu,
not as Suraj’s individual therapist,” and her “fee for reunification
therapy is $165.00 per hour, with a $1,500.00 retainer used for report
preparation and contact with collateral sources.”  The letter attached a new fee agreement reflecting
these terms.  The letter also attached
invoices for services rendered, reflecting an unpaid balance of $2,352.50
(mostly for report preparation and document review) that would be reduced by
$752.50 as a “professional courtesy,” for a total unpaid balance of $1,600.  The invoices also reflected that Suraj paid
for two of his appointments with his own money. 


            On
December 15, 2008, Dr. Burrill sent Nair a letter again requesting
that he sign the new fee agreement and demanding payment of $4,642.50,
reflecting an outstanding balance of $2,977.50, plus $1,500 for the retainer,
plus $165 for the next scheduled appointment. 


            On
December 29, 2008, Suraj sent Dr. Burrill an e-mail stating he had no
need for her “so-called expertise” and would not be meeting with her “ever
again.”  The same day, Nair sent
Dr. Burrill an e-mail confirming he had paid only $300 of her outstanding
bill, along with another $300 Suraj paid “from his personal chess prize
monies.”  Nair refused to pay for any of
Dr. Burrill’s other services, explaining that these services were not
“pre-authorized by father.”  Nair also
objected to the new fee agreement and stated: 
“Please review the terms of the financial agreement (signed 10/15/2008)
so there is no confusion and additional fodder for unscrupulous lawyers.  I hope that you will maintain your
professional ethics and integrity and not give us a repeat of David Cherwick [>sic] like response of accepting bribes
from the abusing party and making erroneous recommendations to destroy my
boys.” 

            On
December 31, 2008, Nair sent Dr. Burrill another e-mail stating he
spoke with Suraj regarding future counseling sessions and Suraj “made it very
clear” that “any reunification and counselling [sic] is history.”  He
continued:  “[Suraj] believes that
[Sujay] is held hostage and he does not negotiate with hostage takers.”  Nair closed the letter with:  “Please communicate in writing so there is no
confusion, misrepresentation or crumbs for unscrupulous lawyers.”  The same day, Sujay had an appointment with
his therapist, Jacqueline Parker, MFT, during which he stated that both Nair
and Suraj had said “bad words” about Bindu and also that they wanted to kill
her.  According to Parker, “Sujay was
very serious when he made this statement.” 


            On
January 5, 2009, Nair sent Dr. Burrill another e-mail stating:  “[U]nless Suraj is willing to participate in
sessions, I will not be physically forcing Suraj to meet with you.  If anything changes, I will call you and
support this process 75000%.  [¶]  Please do not use this email for charging
more $$$ or as fodder for your good friend, the prejudicial Amara, his good old
network or any of the unscrupulous lawyers on leashes.” 

            On
January 8, 2009, Dr. Burrill sent an e-mail to Nair’s attorney
informing her that she “intend[ed] to continue the reunification process
ordered by the Court” and expected Suraj to be at her office for his next
appointment the following week.  The same
day, Nair sent an e-mail to Dr. Burrill again refusing to “force” Suraj to
meet with her.  He continued:  “Pls [sic]
feel free to advise unscrupulous lawyers and their masters with great details,
give fodder to the prejudicial Amara however, a common sense better than expert
feedback is that therapy will only be relevant or useful with a willing
participant.  Take it for what it is
worth but a better approach would be to initiate 50/50 custody plan tomorrow
and enable sibling contact and win Suraj over over-time [sic].  If you continue to
pursue your money making schemes, covert racism and ongoing misconduct I will
follow up with the appropriate oversight agencies and the media knowing very
well that the prejudicial Amara is a good friend of yours.”  He concluded the e-mail:  “Feel free to put this email in evidence as
you plan to do and I assure you that I will stand up for my children, protect
them and stand up against greed, racism and prejudice of the good old *****
network.  Its [sic] unfortunate that my children, family, community now feel that
Amara and his friends like you represent the Klan operating without hoods in
black robes instead of white.  I came to
this country without any parasites 15 years ago thinking slavery was abolished
here.” 

>California
Board of Behavioral Sciences (BBS)> Complaint

            On
January 30, 2009, Nair filed a complaint against Dr. Burrill with the
BBS, alleging Dr. Burrill violated the rules of professional conduct by
(1) intentionally or recklessly causing physical or emotional harm to
Suraj, and (2) failing to disclose the fee to be charged for her services
prior to commencement of treatment.  In the
complaint, Nair claimed Dr. Burrill threatened “to issue a prejudicial
& biased ‘great report’ to the court unless [he] compl[ied] with her demand
to pay her $4642.50.”  The complaint
further alleged:  “[Dr. Burrill]
asserted that Commissioner Amara who appointed her as the therapist for Suraj
is a good friend and often calls her up. 
[Dr. Burrill] elaborated on her connections with the court and its
network, threatened me of consequences if I do not submit to her demands.  I have detailed notes from the session and
the context was very hostile and threatening, specific quotes from
[Dr. Burrill] during the session follow - 
[¶]  a. â€˜You will loose [>sic] all custody, I can make things
happen for you’ - implying pay me and my network will work for you.  [¶] 
b. â€˜Why, How did you come to this country?’ - implying go back to
your country, you don’t belong here. 
[¶]  c. â€˜I know Amara very
well and we are good friends - He often calls me’ - implying that if you don’t
do what I ask you to do, Amara will continue to harm you and your kids [>sic] 
[¶]  d. â€˜You better follow
the system and my rules’ - implying we will harm you and your kind.  [¶] 
e. â€˜I know everyone in this system’ - implying that you cannot
protect yourself.” 

            The
complaint then purported to quote Dr. Burrill’s statements made to Suraj
during his first appointment: 
“a. â€˜You will never see your brother’ - threat to minor wrt [>sic] breaking sibling relationship and
contact.  [¶]  b. â€˜Your father fights everybody, he
fights the court, the therapist, anything he comes across’ - implying his
father is a bad person, a fighter [sic]  [¶] 
c. â€˜Your father thinks he knows everything, more than me, more than
the court’ - implying that your father is misguided and wrong  [¶] 
d. â€˜Why, does your father think so highly of himself that he will
not do supervised visitation with [Sujay]’ - implying father is an ego-maniac [>sic] 
[¶]  e. â€˜Your father does not
love his son, he does not love you either’ - asserts father does not love his
own son Sujay.  [¶]  f. â€˜You think you know it all - this
system is crap?’ - implies that you think like your father [>sic]” 


>The
Reunification Report

            On
February 6, 2009, Dr. Burrill submitted a 30-page reunification
report.  Among other things,
Dr. Burrill recommended Bindu be given sole legal and physical custody of
Suraj, with an order preventing Nair from contacting Bindu and the
children.  She noted:  “I would not make such a recommendation
unless I was certain this was Suraj’s only chance at normalcy.  The emotional and psychological and potential
for physical abuse by Father against Suraj places Suraj at serious risk for
permanent harm.  Alienation by Father
against Mother was noted back in September 2006, by [Sharon Sloper], MFT,
only one month after Mother and [Suraj’s] last contact.  Several mental health professionals have
noted the same observations as [Sloper], including Dr. James Brentt and
Dr. Gene Roeder, yet nothing has been implemented to assist Suraj nor
change this situation, rather it has worsened. 
Father will never comply with court orders.  The emotional and psychological abuse by
Father [of Suraj] has only worsened.” 

            For
purposes of this opinion, we need not set forth in detail each example of
emotional and psychological abuse Dr. Burrill noted in her report.  The following examples will suffice:

            (1) â€œFather
has told Suraj that Mother kidnapped Sujay and is holding him hostage (just
like she did when she held Suraj for 41 days.) 
Father believes it is minor Suraj who is responsible for setting Sujay
free from Mother.  As a reminder of this
responsibility, Father sets the table with a full place setting for Sujay,
which they all look at throughout the meal. 
This is very serious emotional abuse.” 


            (2) â€œ[Suraj]
repeated many of the negative statements made by Father in his
appointment.  Suraj blames Mother for
many things, including that she ‘kidnapped’ him and took his younger brother,
Sujay, who she now holds ‘hostage.’ 
Additionally, Suraj is extremely negative about the Court, and legal and
mental health professionals.  He referred
to therapist David Chervick, MFT as ‘a scumbag.’  Suraj stated, ‘So far, he’s [David Chervick]
got $1,000 . . . .’  Suraj stated,
‘There’s no one good in this system.’  He
is only willing to continue with this Therapist if I am able to get him more
time to spend with his brother at Father’s home.  Suraj reported he has had no contact with
Sujay since May 10, 2008.  Suraj
stated that his father will not have supervised visits ‘ever’ with
[Sujay]; why should he?  Suraj believes
that if I want to help, then it is up to me to obtain what his father wants;
otherwise he’ll never be back.” 

            (3) â€œFather
stated to me in front of Suraj that she [Mother] wanted Suraj placed with a
third party.  Suraj then repeated this to
me when alone with me.” 

            (4) â€œ[Father]
has told Suraj his mother is evil and never loved him.  Worst of all, there is a potential that
Father or Suraj could harm Mother, themselves, or Sujay.  Minor Sujay reported to his therapist,
Jacqueline Parker on December 31, 2008, ‘My dad and my brother say bad
words about my mom’ [pause] ‘and say to kill my mom’ [pause] ‘just that’s a
joke that they want to kill my mom.’” 
Parker reported Sujay was “very serious.” 

            (5) â€œWhen
Suraj was through with each session, he then insisted that he be the one to >pay me ($150) for the hour because,
‘I am the one who caused this and I want to pay for what I have done.’” 

            Dr. Burrill
also offered an opinion on Nair’s psychological behaviors:  “grandiosity ([Suraj] attends Stanford;
[Father] went to MIT, [I am head of Intel], taunts the court, mother, child),
exhibits rapid flight of ideas, rapid speech, which loses meaning as he cannot
remain focused or on topic; he cannot respond rationally and calmly to
questions, and yet is intelligent, but his reality and judgment is distorted;
he is easily irritated and frustrated, which is frightening to his children and
others.  He has no empathy for his
children, has sociopathic behaviors (disregard for courts, children, others’
rights and well-being), unpredictability, and rage.”  Dr. Burrill further noted Bindu
“confided previously that [Nair] was emotionally and physically violent,” and
concluded:  “I have witnessed behaviors
of the person Mother and [Suraj] lived with and they are not normal and anyone
could be at risk who gets in his way.  Father
presents a serious risk of physical harm to Mother and to minor Suraj and
probably Sujay, if he has contact. 
After all [sic] Father has
told both Minors, mom is to be killed.” 

>The
Domestic Violence Restraining Order

            On
February 10, 2009, an ex parte hearing was held on Bindu’s request for
emergency orders to prevent contact with her and Suraj by Nair.  The next day, the family court issued a
temporary restraining order and scheduled a hearing on a domestic violence
restraining order for the following month. 
While Nair was being served with the temporary restraining order during
a court hearing, Suraj was removed from his father’s home in handcuffs and
placed in the Sutter Center for Psychiatry in Sacramento.  Suraj remained at the psychiatric facility
until March 3, 2009, when he was released to his mother.  (Nair
III, supra, C061097 & C062004.) 

            On
March 10, 2009, Nair and Bindu attended a hearing on the domestic violence
restraining order.  Bindu testified that
Nair was physically abusive toward her in 1996 and 1997 and he had kicked Suraj
during this time period.  Bindu also
reported that Sujay told his therapist Nair threatened to kill or hurt her.  During cross-examination by Nair (acting in
pro per), Bindu testified:  “You have
emotionally abused Suraj even when we were together in the marriage to take
sides.  Bad-mouthed mom, mom’s
family.  Made him tell lies about --
during the evaluation about physical and sexual abuse [by the maternal
grandfather].  You have not taken him to
counseling as was recommended by every counselor, five or six that have been in
this case.”  (Nair III, supra, C061097 & C062004.)  Dr. Burrill also testified during the
hearing.  She testified that she believed
Nair remained a threat to Bindu’s safety, lacked impulse control, suffered
unstable moods, lacked empathy, and exhibited sociopathic behaviors.  The reunification report was also introduced
into evidence.  (Nair III, supra, C061097 & C062004.) 

            On
March 25, 2009, the requested domestic violence restraining order was
issued prohibiting Nair from having any contact with Bindu or Suraj for one
year.  Nair was allowed supervised
visitation with Sujay.  An attachment to
the restraining order notes:  “The
evidence on which the court relies is contained in the reports of
Dr. Burrill and the comments of other court-appointed therapists in this
case, as well as the following evidence: 
testimony of Kelly Graham regarding [Suraj’s] extreme reaction to [his
mother’s] presences on [his] school campus; evidence of [Nair] not fully
complying with court orders reflecting lack of commitment to engage in the
counseling and reunification program laid out by the court; evidence of
[Nair’s] desire to control things by taking [Suraj] to an unauthorized
therapist, by using [Nair’s] own doctor for a psychiatric evaluation instead of
relying on neutral court evaluators, by extremely inappropriate conduct in
having [Suraj] pay for his own counseling sessions, and by evidence that [Nair]
has not undertaken any supervised visitations with [Sujay].”  (Nair V,
supra, C064566.) 

            We affirmed
the validity of the restraining order in Nair
III, supra, C061097 and C062004. 

>Discovery
Seeking to Discredit Dr. Burrill

            While
Nair’s appeal challenging the restraining order was pending, he sought to
conduct discovery aimed primarily at discrediting Dr. Burrill.  To this end, Nair filed motions to remove
Dr. Burrill as Suraj’s reunification therapist, require Dr. Burrill
to answer certain questions at deposition and produce certain documents, impose
sanctions on Dr. Burrill, and compel release of a recording Suraj
surreptitiously made of his December 2, 2008, therapy session.  Nair further sought orders requiring Suraj to
submit to a psychological evaluation and appointing counsel for the minor.  Bindu opposed the motions and filed a number
of her own, including motions to stay all further discovery related to the
domestic violence restraining order and to strike an improperly noticed
deposition of Robert Blanco, M.D., Suraj’s treating psychiatrist at the
psychiatric facility.  Following a
hearing on October 27, 2009, the family court denied Nair’s discovery
motions and granted Bindu’s motions. 
Among other things, the family court struck Dr. Blanco’s deposition
and sealed the recording of Suraj’s therapy session with Dr. Burrill.  (Nair V,
supra, C064566.) 

            We affirmed
the order denying Nair’s discovery motions in Nair V, supra, C064566. 

>Online
Postings

            In November
2009, the following posting was placed on the rightsformothers.com blog site
(spelling and grammatical errors reproduced verbatim):  “Janelle Burrill:  In Handcuffs By Christmas?  [¶]  >We can only hope!  We’ll have to find some more corrupt bastards
to go after (they are many to choose from). 
From ‘Expose Burrill’: 
[¶]  STAND UP AGAINST THE FRAUD
JANELLE BURRILL AND HER ATTORNEY JOHN O’DONNELL.  THEY CANNOT BURY REAL EVIDENCE.  THEY CANNOT SHUT OUT THE VICITMS.  OUR VOICES ARE BEING HEARD.  [¶] 
THE LIAR AND HER COHORTS ARE EXPOSED!! 
[¶]  The DCA [Department of
Consumer Affairs] Division of investigation is working hard for the last six
months.  [¶]  They have met with the victimized children
that Burrill abused,  [¶]  They have heard Burrill ― caught on
tape abusing, lying, threatening a child, 
[¶]  They have multiple court
transcripts of Burrill lying under oath, pathological liar,  [¶] 
They have heard from professionals that Burrill misrepresented and
blatantly lied about in court testimony. 
They have uncovered evidence of fraudulent conspiracy.  [¶] 
They have met with over a dozen victims and recorded their stories  [¶] 
They have uncovered evidence of financial fraud and evidence of $$$
corruption.  [¶]  The District Attorney’s office is now
involved.  All of Burrills cronies, friends
in her PAS [Parental Alienation Syndrome] cottage industry cannot bury real
evidence.  DCA Division of Investigation
will submit their findings to BBS and BBS will flush Janelle Burrill LCS
License 16216 and file formal accusation (public content) for prosecution
by Attorney Generals office.  [¶]  Once BBS actions go public in the next couple
of months, next steps of civil and criminal investigations and prosecution will
start!  This is the beginning of the end
to the corrupt LCS practice by Janelle Burrill. 
All her past reports and recommendations to the courts in her fraudulent
career will be thrown out.  Take the AG’s
report back to the courts once it is public to nullify any bull shit she filed
with the courts.” 

            Around the
same time, the following statements were posted on CNN’s iReport website
(spelling and grammatical errors reproduced verbatim):

            (1) â€œ>Allegation:  Janelle Burrill BBS LCS 16216 is the
Sacramento (PAS) proponent, perpetuates criminal fraud and Modern Day Slavery
using Parental Alienation SCAM, enslavement of children for $$$$$$ in
California.” 

            (2) â€œ>Allegation:  Loving Children ‘Enslaved’ by corrupt fraud,
millionaire Janelle Burrill working in Sacramento & Placer County Superior
Courts.” 

            (3) â€œCorrupt
criminals like Janelle Burrill and their good-ol-network are today’s ‘modern
slave traders’ trading ‘children’ with vindictive retribution and for
money.  This abhorrent trade of children,
is a calumny and a disgrace!” 

            (4) â€œ>California Attorney General, Sacramento
& Placer District Attorney’s - Its time to cooperate, investigate to bring
criminals like Janelle Burrill to justice and free the enslaved children.  Please protect California families and
children from corrupt social workers.” 


            (5) â€œ>Allegation:  Janelle Burrill conspired, fabricated DV
[domestic violence] allegations, enslaved & abused child, deliberately and
maliciously lied under oath to commit willfull perjury at Placer County
Superior Court.  Perpetuated a crime
against this family.  Pathological lying
for money, Larceny, Extortion & racketeering.” 

>Criminal
Complaint

            In August
2010, Nair filed a criminal complaint against Dr. Burrill with the
Sacramento and Roseville Police Departments and the Sacramento Division of the
Federal Bureau of Investigation.  The
complaint alleged that Dr. Burrill: 
(1) fraudulently misrepresented her credentials and qualifications;
(2) â€œverbally and emotionally abused Suraj” by (a) â€œeffecting
fraudulent . . . removal of [Suraj] from the home and family he loved
in handcuffs,” (b) â€œrecommending and forcibly holding him at Sutter
Psychiatry,” (c) â€œ[t]reating him ‘as a slave against his wishes . . . to
penalize Suraj for his courage - standing up and questioning [Dr. Burrill’s]
fraudulent expertise and credentials,” (d) â€œconspired and perpetrated malicious
abuse” by recommending a stop to Suraj’s activities of “[c]hess, [m]usic and
advanced Stanford education,” and (e) â€œconspired with her ex-supervisor
psychiatrist Janak Mehtani to effectuate/prescribe unnecessary and harmful
drugs on [Suraj],” specifically, Benzodiazepine; (3) filed false reports
and committed perjury; (4) engaged in “extortion and racketeering” by
(a) misrepresenting the fees charged for her services, (b) altering
the fee agreement after services began, (c) demanding $4,642 “for services
that were never listed or provided,” and (d) accepting bribes from Bindu;
and (5) obstructed justice. 

>KFBK
Interview and Neighborhood Flyer

            The same
day Nair filed the criminal complaint
against Dr. Burrill, he was interviewed by KFBK radio “newstalk.”  He claimed Dr. Burrill “committed
willful perjury” and “extorted money” from him. 
Nair continued:  “She wanted
$4,000.00 for services she never rendered to us.  Credential-wise, she does not have any license
to practice psychology in California. 
She’s got a diploma from some online mill.  And on top of it, she makes DSM-[IV]
diagnoses; she prescribed Benzodiazepine for my son.  A person who is not even a psychologist or
psychiatrist prescribing medication in California?  That’s illegal.”  Around the same time, a flyer was posted on
the front doors of houses in Dr. Burrill’s neighborhood.  The flyer advised:  “Neighbors . . . you might want to know
. . .  [¶]  That your neighbor @ 1107 Sand Bar Circle (Janelle
Burrill) is under investigation by the police and other agencies on fraud,
perjury and child abuse.  [¶]  She has been taking children away from their
primary parents and putting them in abusive homes.  [¶] 
Please keep your children safe and inform anyone you know that may go
through the family court system to NOT allow Janelle Burrill to be the
mediator.  [¶]  Google her name to see the victims and hear
their stories.” 

>The
Defamation Complaint

            In October
2010, Dr. Burrill filed a civil complaint against Nair, including a cause
of action for defamation.  The defamation
cause of action alleged the statements set forth above (i.e., those made in the
online postings, the radio interview, and the neighborhood flyer) “were
defamatory, published by [Nair], were false, unprivileged and exposed
[Dr. Burrill] to hatred, contempt, ridicule, disgrace and caused her to be
shunned and avoided by attorneys, potential clients, patients, the public and
by the courts, and [have] injured her profoundly in her occupation.” 

>The
Anti-SLAPP Motion

            In December
2010, Nair filed an anti-SLAPP motion seeking to strike the defamation cause of
action.  Nair argued this cause of action
arose from the exercise of his right to free speech within the meaning of the
anti-SLAPP statute.  He further argued
Dr. Burrill would not be able to show a probability of prevailing on the
merits because:  (1) she could not
produce any competent evidence he was the author of the statements made in the
online postings or the neighborhood flyer; (2) the allegedly defamatory
statements were either true or opinion; (3) these statements were also
privileged under Civil Code section 47, subdivision (d); and (4) Dr.
Burrill would not be able to establish actual malice by clear and convincing
evidence.  

            Dr. Burrill
opposed the motion.  She did not dispute
that the defamation cause of action arose from the exercise of Nair’s right to
free speech within the meaning of the anti-SLAPP statute.  Nor did she dispute that, as a limited
purpose public figure, she would be required to establish actual malice by
clear and convincing evidence in order to prevail on the merits of the
claim.  As mentioned, these points are
also conceded on appeal. 
Dr. Burrill did argue the anti-SLAPP motion should be denied
because her complaint was both legally sufficient and supported by a sufficient
prima facie showing of facts to sustain a favorable judgment.  Dr. Burrill argued that, in each of the
publications, Nair made false statements of fact, which were defamatory and
unprivileged, and he did so with actual malice. 


            With
respect to Nair’s authorship of the online postings, Dr. Burrill provided
evidence in the form of:  (1) an
admission Nair made during a deposition; (2) a declaration submitted by
Dr. Patrick Farrell, Chair of the Linguistics Department at the University
of California, Davis, stating he compared distinctive features of Nair’s
authenticated writings to those of the online postings and concluded the
likelihood of anyone else being the author “is virtually nil”; (3) a
declaration submitted by James Blanco, a forensic document examiner, also
identifying Nair as the author of the online postings based on eight
distinctive features of his writing; and (4) a declaration submitted by
Dr. Raphael Diaz, a statistician, concluding that based on five
distinctive features of Nair’s writing, the chances of finding more than one
person using these distinctive features is one in more than two billion. 

            The trial
court denied the motion.  With respect to
Nair’s authorship of the online postings, the trial court found
Dr. Burrill’s evidence “could ‘sustain a favorable judgment if the
evidence submitted by [her] is credited.’” 
The trial court also noted Nair did not dispute making the statements in
the radio interview.href="#_ftn4"
name="_ftnref4" title="">[4]  With respect to whether the statements were
false factual assertions or non-actionable opinion, the trial court found
Dr. Burrill “made a prima facie showing that she did not illegally
prescribe drugs, abuse children, enslave children, commit extortion, etc.”  In reaching this conclusion, the trial court
noted Dr. Burrill’s declaration in opposition to the motion, in which
she:  (1) denied extorting money
from Nair and explained the fee dispute described in detail above;
(2) denied prescribing medication to Suraj or anyone else; (3) denied
committing perjury; (4) denied committing child abuse against Suraj or any
other minor; and (5) denied accepting money to influence her custody
recommendations, which was asserted to be criminal fraud and child enslavement
in the CNN iReport posting.  The trial
court also explained:  “The allegations
are more than just ranting by a concerned parent or an aggrieved litigant on an
obscure blog.  The court must look at the
totality of the circumstances to determine whether [Dr. Burrill] met her
burden.  In light of all the allegations,
the court finds that [Nair’s] alleged statements cannot be construed as mere
opinion and hyperbole for purposes of the instant motion.  This question must ultimately be decided by
the trier of fact.” 

            The trial
court also found Dr. Burrill established a probability she could produce
clear and convincing evidence of actual malice at trial, explaining:  “[Dr. Burrill’s] evidence shows that [Nair]
appeared on the KFBK radio station and stated that [she] had illegally
prescribed medication for [Suraj], but that [she] had not done so.  The evidence further shows that [Nair]
harbored substantial anger and hostility toward [Dr. Burrill], failed to
investigate his allegations before publicizing them and knew that his
statements were false.  [Dr. Burrill] has
also offered sufficient evidence . . . of knowing falsity as to the statements
regarding extortion, enslavement, drugging [Suraj], prescribing drugs without a
license, commission of child abuse and similar statements.”  Finally, the trial court disagreed with
Nair’s assertion that the statements made during his radio interview were
protected by Civil Code section 47, subdivision (d). 

DISCUSSION

>I

>The
Anti-SLAPP Statute

            Section
425.16 provides in relevant part:  “A
cause of action against a person arising from any act of that person in
furtherance of the person’s right of petition or free speech under the United
States Constitution or the California Constitution in connection with a public
issue shall be subject to a special motion to strike, unless the court
determines that the plaintiff has established that there is a probability that
the plaintiff will prevail on the claim.” 
(§ 425.16, subd. (b)(1).) 
“[I]n applying the statute a court generally is required to engage in a
two-step process:  ‘First, the court
decides whether the defendant has made a threshold showing that the challenged
cause of action is one arising from protected activity. . . .  If the court finds such a showing has been
made, it then determines whether the plaintiff has demonstrated a probability
of prevailing on the claim.’”  (>Taus v. Loftus (2007) 40 Cal.4th 683,
712 (Taus), quoting >Equilon Enterprises v. Consumer Cause, Inc.
(2002) 29 Cal.4th 53, 67.) 

            Here, as
mentioned, Dr. Burrill concedes the defamation cause of action arises from
protected activity within the meaning of the anti-SLAPP statute.  Accordingly, we shall address only the second
step of the anti-SLAPP analysis.  We
decide this step of the analysis “on consideration of ‘the pleadings and
supporting and opposing affidavits stating the facts upon which the liability
or defense is based.’  (§ 425.16,
subd. (b).)  Looking at those affidavits,
‘[w]e 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.’  [Citation.]” 
(Grewal v. Jammu (2011) 191
Cal.App.4th 977, 989.)  This is because
the anti-SLAPP statute does not require the plaintiff “‘to prove the specified claim to the trial court’; rather, so as to not
deprive the plaintiff of a jury trial, the appropriate inquiry is whether the
plaintiff has stated and substantiated a legally sufficient claim.”  (Mann
v. Quality Old Time Service, Inc. (2004) 120 Cal.App.4th 90, 105 (>Mann).) 
“‘Put another way, 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.”’ 
[Citation.]”  (>Oasis West Realty, LLC v. Goldman (2011)
51 Cal.4th 811, 820 (Oasis).) 

            “If the
plaintiff ‘can show a probability of prevailing on any part of [his or her]> claim, the cause of action is not
meritless’ and will not be stricken; ‘once a plaintiff shows a probability of
prevailing on any part of [his or her] claim, the plaintiff >has established that [his or her] cause
of action has some merit and the entire cause of action stands.’”  (Oasis,
supra, 51 Cal.4th at p. 820, quoting >Mann, supra, 120 Cal.App.4th at p. 106.)

            Nair
disputes this principle of anti-SLAPP review. 
He argues that we may strike meritless portions of the defamation cause
of action even if we conclude Dr. Burrill has established a probability of
prevailing as to other portions of the cause of action.  In support of this argument, he relies on >Wallace v. McCubbin (2011) 196
Cal.App.4th 1169 (Wallace) and >Taus, supra, 40 Cal.4th 683.  >Wallace involved mixed causes of action,
i.e., causes of action “where the plaintiff has based liability on both
protected and unprotected activity.”  (>Wallace, supra, 196 Cal.App.4th at p. 1196.) 
Wallace explained mixed causes
of action arise from protected activity within the meaning of the anti-SLAPP
statute unless the protected activity is merely incidental to the unprotected
activity.  (Id. at p. 1187.)  Concluding
that the mixed causes of action at issue in Wallace
were subject to anti-SLAPP scrutiny, the Court of Appeal turned to the question
of “what a plaintiff must do to show a probability of prevailing” on such a
claim, explaining its reading of the statutory scheme would require the
plaintiff to “show a probability of prevailing on the assertion of liability
based on protected activity, and nothing else.” 
(Id. at pp. 1199-1200.)  Stated differently, the Court of Appeal’s
preferred rule would “require[] the plaintiff to demonstrate a probability of
prevailing on his or her attempt to base liability on protected activity, and
[would not] permit the plaintiff to proceed with a claim targeting protected
activity merely because the plaintiff may have also alleged a potentially
meritorious claim based on unprotected activity.”  (Id.
at p. 1202.) 

            The Court
of Appeal reasoned such a rule would be consistent with our Supreme Court’s
decision in Taus, >supra, 40 Cal.4th 683, a case that did
not involve mixed causes of action, explaining: 
“Given that a meritorious claim of protected activity could not save a
meritless claim of protected activity in Taus,
a meritorious claim of unprotected
activity should not be able to save a meritless assertion of protected activity
in a mixed cause of action.”  (>Wallace, supra, 196 Cal.App.4th at p. 1210.) 
However, as the Court of Appeal in Wallace
acknowledged, our Supreme Court implicitly overruled Taus in Oasis, >supra, 51 Cal.4th 811:  “Oasis
clearly holds that, where a cause of action (count) is based on protected
activity, the entire cause of action may proceed as long as the plaintiff shows
a probability of prevailing on at least one of the asserted bases for
liability.”  (Wallace, supra, 196
Cal.App.4th at p. 1211.)  While >Oasis, like Taus, did not involve mixed causes of action, the Court of Appeal
in Wallace nevertheless applied the
rule because “Oasis did not
explicitly limit the application of the Mann
rule to causes of action that were based solely on protected activity.”  (Id.
at p. 1212.)  Thus, Wallace applied the rule Nair argues we should decline to
apply. 

            Nair’s
position does find some support in City
of Colton v. Singletary (2012) 206 Cal.App.4th 751 (Singletary), in which the Court of Appeal held certain allegations
within two causes of action (for unfair business practices and injunctive relief)
relating to protected activity, i.e., filing a lawsuit in violation of Code of
Civil Procedure section 128.7, and concerning which the plaintiff did not show
a probability of prevailing on the merits, “may be parsed from the causes of
action and stricken, while the allegations related to non-protected activity
[i.e., bribery] may remain as part of the complaint.”  (Id.
at pp. 772-773.)  Singletary is distinguishable as that case involved mixed causes of
action.  We also disagree with the
decision.  As Justice Richli points out
in her concurring and dissenting opinion: “The SLAPP Act authorizes a trial
court to strike a ‘cause of action.’ 
[Citation.]  It ‘cannot be used to
strike particular allegations within a cause of action.  [Citation.]’ 
[Citations.]  This is implicit in
the gravamen test; otherwise, rather than determining the gravamen of a cause
of action [to determine whether a mixed cause of action is subject to
anti-SLAPP scrutiny], a court could simply strike any allegations based on
protected activity, while allowing allegations of unprotected activity to
stand.  [¶]  Nevertheless, the majority concludes that it
can and should strike isolated allegations, citing [Taus, supra, 40 Cal.4th
683].  Taus, however, does not support the majority’s position.”  (Singletary,
supra, 206 Cal.App.4th at pp. 792-793
[conc. & dis. opn. of Richli, J.].) 

            Justice
Richli continued:  “It is vital to
remember the procedural posture of Taus. 
The trial court granted the defendants’ SLAPP motion with respect to
some causes of action but denied it with respect to others, including causes of
action for invasion of privacy and for defamation.  [Citation.] 
[¶] The Court of Appeal
held that ‘the activities of defendants that gave rise to plaintiff’s action .
. . were acts in furtherance of defendants’ right of free speech for purposes
of the anti-SLAPP statute.’ 
[Citation.]  It then turned to
whether the plaintiff had established a probability of prevailing.  [Citation.] 
The Court of Appeal viewed the invasion of privacy cause of action as
‘potentially implicat[ing] . . . two distinct tort theories’ -- public
disclosure of private facts and intrusion into private matters.  [Citation.] 
It ruled that the plaintiff had shown a probability of prevailing:  [¶]  (1) On
her ‘public disclosure of private facts’ theory based on certain alleged
disclosures, but not others [citation]; 
[¶]  name="sp_4041_793">name="citeas((Cite_as:_206_Cal.App.4th_751,_*7">(2) On her ‘intrusion into
private matters’ theory based on certain alleged intrusions, but not others
[citation]; and  [¶]  (3) On her defamation cause of action based
on certain alleged statements, but not others [citation].  [¶]  It
concluded that, while most of the plaintiff’s ‘claims’ should have been
‘dismissed,’ certain ‘claims’ -- meaning certain causes of action, to the
extent that they were based on certain factual allegations -- ‘could go forward
. . . .’  [Citation.]  [¶] 
The Supreme Court held that the plaintiff showed a probability of
prevailing with respect to only one cause of action (for intrusion into private
matters), based on only one alleged intrusion (using intentional
misrepresentations to obtain personal information about the plaintiff).  [Citation.] 
[¶]  Significantly, however, the
court did not address the propriety of ‘dismissing’ particular allegations of
the complaint.  To the contrary, it
stated:  ‘[T]he Court of Appeal held that
plaintiff failed to establish such a probability of prevailing with regard to
the bulk of defendants’ conduct to which the complaint was directed, and
plaintiff did not seek review of the appellate court’s decision.  Accordingly, the claims found deficient by
the Court of Appeal are not before us.  The
issues before us are limited to those claims as to which the Court of Appeal
found that plaintiff adequately had established a prima facie case to avoid
dismissal under section 425.16.” 
[Citation.]  [¶]  Thus, it does not appear that
any party was arguing that the Court of Appeal’s approach was erroneous.  ‘“[I]t is axiomatic that cases are not
authority for propositions not considered.” 
[Citation.]’  [Citation.]  Had the Supreme Court really intended to
change the well-established rule that the SLAPP Act cannot be used to strike
particular allegations, surely it would have said it was doing so and explained
why.  At a minimum, it would have had to
justify taking such a step in the face of the plain language of the SLAPP
Act.”  (Singletary, supra, 206
Cal.App.4th at pp. 792-793 [conc. & dis. opn. of Richli, J.]; see also >Wallace, supra, 196 Cal.App.4th at pp. 1219 [conc. & dis. opn. of Jones,
J.] [“Taus never analyzed the
propriety of striking some, but not all, alleged wrongful acts supporting a
cause of action”].) 

            We agree
with Justice Richli’s assessment and respectfully disagree with the majority
opinion in Singletary, >supra, 206 Cal.App.4th 751.  Moreover, even if we were to agree with >Singletary’s characterization of >Taus, supra, 40 Cal.4th 683, we are bound to follow the more recent
Supreme Court case of Oasis, >supra, 51 Cal.4th 811.  Thus, if Dr. Burrill “‘can show a probability
of prevailing on any part of [>her]
claim, the cause of action is not meritless’ and will not be stricken . . .
.’”  (Oasis,
supra, 51 Cal.4th at p. 820.) 

            There is no
dispute that we must review the trial court’s ruling denying Nair’s anti-SLAPP
motion de novo.  (Mendoza v. Wichmann (2011) 194 Cal.App.4th 1430, 1447.)  Applying our independent judgment, we
conclude Dr. Burrill has demonstrated a probability of prevailing on her
defamation claim.  We turn to this
analysis now. 

>II

>Probability
of Prevailing on the Claim

            “‘Defamation
is an invasion of the interest in reputation. 
The tort involves the intentional publication of fact which is false,
unprivileged, and has a natural tendency to injure or which causes special
damage.’  [Citation.]”  (Gilbert
v. Sykes (2007) 147 Cal.App.4th 13, 27.) 
Defamation has two forms, libel and slander.  (Civ. Code, § 44.)  Defamatory publications that are made “by
writing, printing, picture, effigy, or other fixed representation to the eye,”
are considered libel.  (Civ. Code,
§ 45.)  Slander involves defamatory
publications that are “orally uttered,” and also includes “communications by
radio or any mechanical or other means.” 
(Civ. Code, § 46.) 

            Where a
libelous statement “is defamatory on its
face, it is said to be libelous per se, and actionable without proof of
special damage.  But if it is defamation >per quod, i.e., if the defamatory
character is not apparent on its face and requires an explanation of the
surrounding circumstances (the ‘innuendo’) to make its meaning clear, it is not
libelous per se, and is not actionable without pleading and proof of special
damages.”  (5 Witkin, Summary of
Cal. Law (10th ed. 2005) Torts, § 541, p. 794; see Civ. Code,
§ 45a.)  Similarly, certain
slanderous statements are considered slanderous per se, and actionable without
proof of special damage.  However, the
slander statute expressly limits slander per se to four categories of
defamatory statements, “including statements (1) charging the commission
of crime, or (2) tending directly to injure a plaintiff in respect to the
plaintiff’s [profession, trade, or] business by imputing something with
reference to the plaintiff’s [profession, trade, or] business that has a
natural tendency to lessen its profits.” 
(Mann, supra, 120 Cal.App.4th at pp. 106-107; see Civ. Code, §
46.)  And while libel per se is not so
limited, courts have held the foregoing categories of defamatory statements to
also constitute libel per se.  (See >Weinberg v. Feisel (2003) 110
Cal.App.4th 1122, 1127 [“false accusations of crime are libel per se”]; >Barnes-Hind, Inc. v. Superior Court
(1986) 181 Cal.App.3d 377, 385 [false accusations of “‘dishonesty or
questionable business methods’” are libel per se].) 

            Here,
Dr. Burrill sued Nair for both libel (the online postings and neighborhood
flyer) and slander (the radio interview). 
In defending against the anti-SLAPP motion below, Dr. Burrill did
not address the statements made in the neighborhood flyer.  And because she need not show a probability
of prevailing on each part of her defamation claim (see Oasis, supra, 51 Cal.4th
at p. 820), we shall not address those statements in this opinion.  For the same reason, we need not assess the
defamatory nature of each statement made in the online postings and radio
interview.  Instead, we discuss only
those statements accusing Dr. Burrill of extortion, prescribing medication
without a license, perjury, and selling child custody recommendations.  As we explain, these statements are
defamatory per se. 

>A.

>Defamatory
Nature of the Statements

            Defamation
requires the intentional publication of a false statement of fact that has a
natural tendency to injure the plaintiff’s reputation or that causes special
damage.  (Smith v. Maldonado (1999) 72 Cal.App.4th 637, 645; >Raghavan v. Boeing Co. (2005) 133
Cal.App.4th 1120, 1132.)  As mentioned, false statements
charging the commission of crime, or tending directly to injure a plaintiff in
respect to his or her profession by imputing dishonesty or questionable
professional conduct are defamatory per se. 
(See Mann, >supra, 120 Cal.App.4th at
pp. 106-107 [slander per se]; see also Weinberg
v. Feisel, supra, 110 Cal.App.4th
at p. 1127 [libel per se]; Barnes-Hind,
Inc. v. Superior Court, supra,
181 Cal.App.3d at p. 385 [libel per se].) 


            Among other
things, Nair’s rightsformothers.com blog post asserts investigators with the
Department of Consumer Affairs “have uncovered evidence of fraudulent
conspiracy.  [¶]  They have met with over a dozen victims and
recorded their stories  [¶]  They have uncovered evidence of financial
fraud and evidence of $$$ corruption. 
[¶]  The District Attorney’s
office is now involved.  All of
Burrill[’]s cronies, friends in her PAS [Parental Alienation Syndrome] cottage
industry cannot bury real evidence. . . . 
[¶]  . . .  This is the beginning of the end to the
corrupt LCS [sic] practice by Janelle
Burrill.  All her past reports and
recommendations to the courts in her fraudulent career will be thrown
out.” 

            Similarly,
Nair’s CNN iReport postings allege Dr. Burrill “perpetuates criminal fraud
and Modern Day Slavery using Parental Alienation SCAM, enslavement of children
for $$$$$$ in California.”  He
continues:  “Corrupt criminals like
Janelle Burrill and their good-ol-network are today’s ‘modern slave traders’
trading ‘children’ with vindictive retribution and for money.”  He further charges:  “Janelle Burrill conspired, fabricated DV
[domestic violence] allegations, enslaved & abused child[ren], deliberately
and maliciously lied under oath to commit willfull [sic] perjury at Placer County Superior Court.  Perpetuated a crime against this family.  Pathological lying for money, Larceny,
Extortion & racketeering.” 

            In Nair’s
interview with KFBK radio, he claimed Dr. Burrill “extorted money” from
him, explaining:  “She wanted $4,000.00
for services she never rendered to us.” 
He continued:  “Credential-wise,
she does not have any license to practice psychology in California.  She’s got a diploma from some online
mill.  And