Selvage v. Meyers

Filed 9/24/08 Selvage v. Meyers CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FOUR

APPEAL from a judgment of the Superior Court of Los Angeles County, Victor H. Person, Judge. Affirmed in part; reversed in part.

Law Offices of Robert E. Canny and Robert E. Canny for Plaintiff and Appellant.

Demler, Armstrong & Rowland, Robert Armstrong; Greines, Martin, Stein & Richland, Robert A. Olson, and Cynthia E. Tobisman for Defendant and Respondent Melody Sternoff Meyers.

Lewis Brisbois Bisgaard & Smith, Roy G. Weatherup, Bartley L. Becker, and Allison A. Arabian for Defendants and Respondents Frumeh Labow and Mindy Goldberg.

Brown, Brown & Klass, Delos E. Brown, and John J. Stumreiter for Defendant and Respondent Rosario DeJesus Carter.

Linda A. Paquette, in pro. per., for Defendant and Respondent.

In this action for wrongful death, intentional infliction of emotional distress, and conversion, the trial court dismissed plaintiffs complaint after sustaining all five defendants demurrers without leave to amend. It also granted two of the defendants special motions to strike under Code of Civil Procedure section 425.16, commonly referred to as the anti-SLAPP statute.[1]

On appeal, plaintiff contends that the anti-SLAPP statute is inapplicable because the claims do not arise from the exercise of free speech or the right of petition, and that the demurrers were erroneously sustained without leave to amend. We reject his contentions except as to the granting of the special motion to strike the conversion claim against defendant Melody Sternoff Meyers. The order granting Meyerss anti-SLAPP motion is reversed as to the conversion claim and affirmed as to the remaining claims. In all other respects, the judgment is affirmed.

BACKGROUND

Plaintiff Anthony K. Selvage and defendant Meyers are half siblings. They are the residual beneficiaries under the trust of their mother, the late Ennid Zamboni Sternoff. In 1988, the probate court imposed a conservatorship over Sternoffs person, which lasted until her death at the age of 90 on January 7, 2004. According to Sternoffs death certificate, the cause of death was Acute Coronary Occlusion.[2]

Following Sternoffs death, Selvage filed this lawsuit for wrongful death and intentional infliction of emotional distress against Meyers and others who had assisted his mother before her death: Sternoffs court-appointed professional conservator Frumeh Labow and her assistant Mindy Goldberg, Sternoffs court-appointed Probate Volunteer Panel (PVP) Attorney Linda Paquette, and Sternoffs live-in caregiver Rosario Carter. Selvage alleges that defendants conspired to abuse, isolate, and mistreat Sternoff, who died as a result of their unlawful actions and neglect. Selvage also alleges that Meyers and Carter converted his mothers personal belongings.

The following allegations and quotations are taken from the operative pleading, the first amended complaint (FAC).

I. General Allegations

In 1996, Sternoff was hospitalized for alcohol withdrawal symptoms. Sternoff disliked Selvages opposition to her drinking and, through her trustee, the late Sherry Fulkerson, opposed treatment for . . . alcoholism and sought Conservatorship to prevent [Selvages] interventions. In 1998, the probate court appointed Fulkerson as Sternoffs conservator. The probate court also granted Selvage and Meyers access to Sternoffs medical records.

Meyers, who previously was estranged from Sternoff, reconciled with her in 1999. Following Fulkersons death in 1999, the probate court appointed Labow to succeed Fulkerson as Sternoffs conservator. Labow, who served as conservator until Sternoffs death, was aware that Meyers was involved in Sternoffs affairs.

In December 2002, Sternoff was hospitalized for a heart attack. In March 2003, she was again hospitalized for severe abdominal pain, which was diagnosed [as] a suspected pancreatic pseudocyst that was beginning to block her pancreatic and bile ducts, as well as a bladder mass.

During Sternoffs hospitalizations, Meyers spent extensive time with Sternoff and lived in Sternoffs home. Selvage, on the other hand, was prevented from much direct communication with his mother or her doctors during these illnesses. [Meyers] told [Selvage] that the doctors were unable to help their mother because of her advanced age and that they did not recommend intervention.

Meyers placed Sternoff on hospice services. In April 2003, Selvage and his daughter visited Sternoff, and found her in terrible condition and extreme discomfort. She was helpless, weak, and yellow in color, with sores all over her body, curled in a fetal position. Her digestive juices, instead of digesting food were digesting her own body from the inside out. On April 28, 2003, Selvages wife, Laura Moire, M.D., visited Sternoff and questioned why no intervention could be done to relieve her suffering. Dr. Moire spoke with Sternoffs gastroenterologist, Dr. Elson, and learned that Dr. Elson and his colleagues had spent hours pleading with Defendant Meyers to intervene on [Sternoffs] behalf. [Meyers, who] claimed that she had [a] durable Power of Attorney, declined all their recommendations, despite clearance from cardiology.

Selvage and Dr. Moire complained to the probate court that defendants were committing elder[] abuse, physical and financial, against Sternoff. In response to their letter of complaint, the probate court appointed Paquette as Sternoffs PVP attorney and directed that Paquette investigate Selvages complaints.

Paquette met with Selvage, who repeated his allegations against defendants and requested that [Dr. Moire] coordinate a campaign to intervene on [Sternoffs] behalf and comfort while [Sternoffs] life was still salvageable. These complaints/requests resulted in a successful endoscopic placement of a small tube (stent) in [Sternoffs] common bile duct, restoring the normal flow of her bile and pancreatic juices.

Having become [c]oncerned and troubled by the discovery of Melody Meyer[s]s neglectful and harmful actions[, Selvage] sought to obtain his mothers medical records, including those from her private physician, Dr. Follette (long[] withheld by the efforts of Defendant Frumeh Labow). On June 1, 2003, Selvage discovered in Dr. Follettes records a Durable Power of Attorney for Health [Care] for his mother, [which] named [Selvage] as the successor upon the death of Sherry Fulkerson (who died in 1999). Selvage also discovered a document by Dr. Elson, which stated: I spent a long time on the phone, with pt.s daughter outlining the problem list options for diagnostic work up. She cant decide about whether to consent to ERCP at this time. She is coming to visit next Tues. 3/11. I explained that her mother may worsen or even die because of the delay. She understands and understands the procedural risks also.

Selvage, who has always cared deeply for the welfare and safety of his mother, sent Paquette a December 8, 2003 signed statement (attached as Exhibit 1 to the FAC and exhibit 2 to the opening brief). The December 8 statement alleged that Sternoff was being denied proper medical care and requested that Selvage be given control of Sternoffs health care pursuant to the durable power of attorney (found by Selvage in Dr. Follettes records on June 1, 2003) naming Selvage as Fulkersons successor.

Sternoff died on January 7, 2004.

II. The Complaint

On January 9, 2006, Selvage filed this lawsuit against Meyers, Labow, Goldberg, Paquette, and Carter. The complaint alleged a claim against Meyers for conversion of Sternoffs personal property. In addition, it alleged claims for wrongful death and intentional infliction of emotional distress against all defendants. The complaint did not disclose the cause of death nor did it mention that the cause of death stated on the death certificate, which was signed by Dr. Follette, was Acute Coronary Occlusion.

Paquette moved to strike the complaint under the anti-SLAPP statute, contending that the claims against her had arisen solely from her protected petition activities and statements as Sternoffs PVP attorney in the conservatorship action. Paquette and Meyers also demurred to the complaint, contending that it failed to state a cause of action.

On August 22, 2006, the trial court denied without prejudice Paquettes special motion to strike, stating that it was impossible to determine whether the anti-SLAPP statute even applied to the complaint, given its lack of factual allegations. For similar reasons, the trial court sustained the demurrers with leave to amend.

On September 6, 2006, Selvage filed the FAC that is the subject of this appeal. The FAC alleged claims against all defendants for wrongful death and intentional infliction of emotional distress, and, as to Meyers and Carter, conversion of Sternoffs personal property.

A. Wrongful Death

The FAC, like the original complaint, does not disclose the cause of death or mention that the cause of death according to the death certificate was Acute Coronary Occlusion. The FAC concludes that defendants caused Sternoffs death by: (1) isolating Sternoff from Selvage and his family;[3](2) withholding a necessary thyroid medication and medical care;[4](3) providing excessive quantities of alcohol;[5](4) concealing the durable power of attorney document (found in Dr. Follettes files) that named Selvage as Fulkersons successor;[6](5) delaying for six months the treatment for Sternoffs bile duct condition;[7](6) withholding from the probate court Selvages December 8, 2003 signed statement (exhibit 1 to the complaint) in which he requested to manage Sternoffs health care under the durable power of attorney document (found in Dr. Follettes files) naming him as Fulkersons successor;[8]and (7) breaching their fiduciary duties to Sternoff.[9]

The FAC alleges that defendants actions were malicious in that they were designed to cause injury to [Sternoff] and to [Selvage] and were carried [out] with a reckless, willful and conscious disregard for the rights of [Sternoff] and [Selvage], were oppressive and despicable because said acts were so contemptible and patently fraudulent that they would be looked down upon and despised by ordinary decent people and thus mandate the award of damages for pain and suffering of [Sternoff, and] punitive damages . . . in order to make them examples in the public eye and thus to discourage future conduct by the Defendants . . . .

B. Intentional Infliction of Emotional Distress

Based on the wrongful death allegations, Selvage also seeks damages for intentional infliction of emotional distress. The FAC alleges that the aforesaid conduct and acts of Defendants and each of them was outrageous, unprivileged conduct. The Defendants and each of them intended to cause [Selvage] to suffer emotional distress. [Selvage] suffered severe emotional distress as a result of said conduct and acts.

In particular, the FAC states that Selvage became obsessed over the hurt to [Sternoff that Selvage] could have prevented had the Defendants not concealed the power of attorney for health care that his mother named him in. The said extreme and outrageous conduct and acts of the Defendants and their willful abandonment of their solemn fiduciary duties to [Sternoff] go beyond all possible bounds of decency so as to be atrocious and utterly intolerable in a civilized community and would cause an average member in the community to immediately react in outrage.

C. Conversion

Selvage also accuses Meyers and Carter of having converted Sternoffs personal property, thereby depriving Selvage his full share of Sternoffs estate. According to Sternoffs marital agreement, will, and trust (the latter two documents were attached as exhibits to the FAC), Selvage was to inherit 25 percent of Sternoffs estate and Meyers was to inherit 75 percent. Allegedly, Meyers and Carter converted Sternoffs furniture worth in excess of $100,000, jewelry and clothing worth in excess of $100,000, an automobile, and personal bank accounts containing $248,608.

The FAC states that according to Sternoffs marital settlement agreement, Sternoff was not to make a new will or dispose of her personal property outside of her will and trust. In alleged contravention of that agreement, Meyers made two new codicils to [Sternoffs] will appointing herself as the estate representative and attempting to leave to herself the furniture and other personalty that was taken from the estate.

III. Trial Court Proceedings

Paquette and Meyers filed separate special motions to strike the FAC under the anti-SLAPP statute. Additionally, all five defendants demurred to the FAC on the ground that it failed to state a cause of action. The trial court addressed the motions and demurrers in the following chronological order.

A. Paquettes Special Motion to Strike

Paquette contended that the FACs allegations arose solely from her protected activities covered by the anti-SLAPP statute, in that the allegations are: (1) identical to those made and rejected as unfounded by the probate court in Sternoffs conservatorship proceedings; and (2) based on Paquettes protected activities and communications in the conservatorship proceedings as Sternoffs court-appointed PVP attorney.

1. Paquettes Supporting Evidence

In support of her motion, Paquette submitted her May 27, 2003 report (initial report) to the probate court in which she had found no evidence of wrongdoing by defendants. In accepting Paquettes initial report, the probate court stated that because of Paquettes thorough investigation of the various allegations, [n]o further action was required, and no further ex parte communications in this matter [would be allowed]. All future proceedings must be within the context of properly noticed petitions filed with this court.

Paquette also submitted her November 12, 2003 report to the probate court (PVP report), which further absolved Meyers and Labow of any wrongdoing. According to the PVP report, there was no evidence of a conspiracy to abuse or withhold medical care from Sternoff, who, pursuant to her wishes and with her doctors approval, was receiving hospice care and comfort-providing measures only, including a small amount of alcohol on a daily basis.[10] Paquette found no evidence that Sternoff was prevented from seeing Selvage and his family. On the contrary, the PVP report found that Sternoff desired to be protected, through the conservatorship proceedings, from Selvages unscheduled, lengthy, and upsetting visits.[11] The PVP report stated that Paquette had warned Selvages wife, Dr. Moire, to stop making unfounded elder abuse complaints to agencies uninvolved in the probate court proceedings because the unfounded complaints were abusive and disturbing to Sternoff.[12] The PVP report stated that Paquette had told Dr. Moire that a restraining order would be sought if necessary. The PVP report concluded: I found no evidence supporting the complaints raised by son Tony [Selvage] and his wife, Dr. Laura [Moire]. It is my conclusion that Melody [Meyers] is innocent of wrongdoing and that the conservator [Labow] is acting appropriately.

Based on the above evidence, Paquette argued that the claims in this lawsuit arose solely from her protected activities and communications in the conservatorship action,[13]and that Selvage must make a prima facie showing, by admissible and competent evidence, of a reasonable probability of prevailing on the merits at trial. ( 425.16, subd. (b).)

2. Selvages Opposition

In opposition to Paquettes special motion to strike, Selvage submitted the declaration of his wife, Dr. Moire. Essentially, Dr. Moire reiterated the allegations of the FAC. Although Dr. Moire concluded that Sternoffs death was caused by defendants wrongful acts and omissions, she did not describe Sternoffs death or provide any factual information regarding the cause of death.[14]

3. Ruling

On November 16, 2006, the trial court granted Paquettes special motion to strike and awarded her statutory attorney fees in an undetermined amount. The trial court held that the FAC contains essentially no factual allegations against Paquette. Plaintiffs only allegations against Paquette are that she was a court-appointed PVP attorney, appointed to represent the decedent; at some point in time, she allegedly suppressed a document from the Probate Court; and threatened to obtain restraining orders. [] Clearly, all of these actions fall within the ambit of CCP 425.16(e)(1) & (2), protecting written or oral statements or writings made before a judicial or other official proceeding; and written or oral statements or writings made in connection with issues under consideration or review by a judicial body or other official proceeding. [] Plaintiff makes no attempt to establish a probability of success on his claims.

B. Paquettes Demurrer

Also on November 16, 2006, the court sustained Paquettes general demurrer to the FAC without leave to amend. The trial court stated: Plaintiff doesnt allege a single fact to show that Paquette caused his mothers death. There isnt a single allegation that she did anything to the decedent. Plaintiff doesnt even allege how his mother died, let alone any facts which could possibly support a conclusion that these actions (whatever they were) caused her death. [] The second cause of action for intentional infliction of emotional distress also fails to state a claim. There are literally no allegations of any type of conduct, so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community. (Cochran v. Cochran[] (1998) 65 Cal.App.4th 488, 496.

C. Other Demurrers

Similarly, the trial court also sustained, without leave to amend, the general demurrers of Labow and Goldberg on November 30, 2006, and Meyers and Carter on December 7, 2006. With regard to the claim for conversion against Meyers and Carter, the trial court added: Finally, Plaintiff fails to allege that either Meyers or Carter converted anything. Plaintiff hasnt alleged that there was any tangible property that he had an immediate right to possess, nor has he alleged any act of conversion. He has not even identified the specific property that was allegedly converted.

D. Meyerss Special Motion to Strike

Meyers filed a special motion to strike the complaint on the grounds that this action is really another method utilized by Selvage and his wife, Dr. Laura Moire, to punish [Meyers], Selvages half sister, for disagreeing with Selvages various proposals and participation in the conservatorship proceedings regarding [Sternoff], and the subsequent probate proceedings. Meyers had every right to file the various documents that she did in the conservatorship and probate proceedings, and also to contest Selvages actions during those proceedings. Selvages attack against Meyers in this lawsuit resulting from Meyers participation in the conservatorship and probate proceedings is prohibited by the anti-SLAPP statute[.] Meyers denies all of the claims of Selvage and contends that this frivolous and malicious lawsuit was brought solely as an effort to circumvent the no-contest clause of Sternoffs trust as well as challenge the probate and conservatorship proceedings. In particular, the allegations of abuse and control over the medical care of Sternoff are completely unfounded given that the court ordered the appointment of various conservators whose responsibility was to arrange medical care and make medical decisions for Sternoff.

1. Meyerss Supporting Evidence

Meyers presented evidence from both the conservatorship and probate proceedings in support of her contention that this action: (1) involves identical allegations made and rejected as unfounded by the probate court in Sternoffs conservatorship proceedings; and (2) arises from Meyerss protected activities and communications in the conservatorship and probate proceedings. Meyers contended that the principal thrust of Selvages lawsuit was to punish her involvement in Sternoffs conservatorship proceedings, which was initiated because of Sternoffs desire to be protected from Selvages unwelcome interventions and visits, without terminating all contact.[15] Meyers presented evidence to show that decisions regarding access to her mother and medical care were made by her mothers conservator.[16]

In addition, Meyers contended that Selvage was trying to punish her for participating in Sternoffs probate proceedings. The evidence established that in February 2004, Meyers had petitioned to probate Sternoffs lost will and be appointed as executor. According to Sternoffs March 8, 2003 and July 31, 2003 codicils, Sternoff had bequeathed 75 percent of the total value of her tangible property to Meyers and 25 percent to Selvage, and bequeathed specific personal items to Meyers. In April 2004, Meyers, having found the original will, petitioned to probate the original will and codicils. Selvage objected to the April 12 petition, arguing that the property listed in the will and codicils belonged to the trust and that legal proceedings regarding the will and trust were pending in Washington. Selvage also contended that Meyers had exercised fraud and undue influence over Sternoff in order to receive substantial assets belonging to the trust and that Meyers had a conflict of interest that precluded her from representing the estate.

On January 27, 2006, Meyers withdrew without prejudice her petition to probate the March 8, 2003 and July 31, 2003 codicils. The probate court appointed Mellon Trust of California as personal representative of Sternoffs estate and administrator of her will.

2. Selvages Opposition

The trial court rejected Selvages opposition to Meyerss special motion to strike as untimely.

3. Ruling

On December 12, 2006, the trial court granted Meyerss request to take judicial notice of records from Sternoffs conservatorship and probate proceedings. The trial court granted Meyerss special motion to strike and awarded her statutory attorney fees in an undetermined amount.

The trial court held that this case is not about the supposed wrongful death of Plaintiffs mother, but merely an action arising out of Plaintiffs dissatisfaction with the Probate proceeding concerning his mothers estate. [] Despite having been given leave to amend, Plaintiffs First Amended Complaint contains essentially no factual allegations against Meyers, apart from her participation in the conservatorship and probate proceedings. Plaintiffs only factual [allegations] against Meyers that are unrelated to the petitioning activity are that Meyers was the decedents daughter; lived with her or at her house while the decedent was hospitalized; and at some point in time she told Plaintiff that doctors were unable to help decedent because of her advanced age. [] Virtually every other allegation about Meyers relates to her participation in the conservatorship and probate proceedings. Clearly, all of these actions fall within the ambit of CCP Section 425.16(e)(1) & (2), protecting written or oral statements or writings made before a judicial or other official proceeding; and written or oral statements or writings made in connection with issues under consideration or review by a judicial body or other official proceeding. Plaintiff is seeking to impose liability on Meyers for her petitioning activity. [] Plaintiff makes no attempt to establish a probability of success on his claims. [] (1) The Court did not consider any of Plaintiffs opposition documents, as they are all egregiously untimely. . . .

E. Other Orders

The trial court entered orders of dismissal as to Carter on January 17, 2007, and as to Labow and Goldberg on February 7, 2007.[17]

Also on February 7, 2007, the trial court entered orders establishing the amounts of the attorney fees awarded to Paquette and Meyers under the anti-SLAPP statute. On appeal, Selvage challenges only the validity but not the amounts of the fee awards.

F. This Appeal

On January 16, 2007, Selvage filed a notice of appeal from: (1) the orders granting the special motions to strike of Paquette (November 16, 2006) and Meyers (December 12, 2006) ( 425.16, subd. (i); 904.1, subd. (a)(13) [orders granting or denying special motions to strike are appealable]); and (2) the orders sustaining without leave to amend the demurrers of Paquette (November 16, 2006), Labow and Goldberg (November 30, 2006), and Meyers and Carter (December 7, 2006).[18]

DISCUSSION

I. The Demurrers

Selvage contends that the orders sustaining the demurrers must be reversed or, alternatively, that leave to amend should be granted. We disagree.

In reviewing the sufficiency of a complaint against a general demurrer, we are guided by long-settled rules. We treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. [Citation.] We also consider matters which may be judicially noticed. [Citation.] Further, we give the complaint a reasonable interpretation, reading it as a whole and its parts in their context. [Citation.] When a demurrer is sustained, we determine whether the complaint states facts sufficient to constitute a cause of action. [Citation.] (Blumhorst v. Jewish Family Services of Los Angeles (2005) 126 Cal.App.4th 993, 999.)

In ruling on a general demurrer, although we must accept as true all properly pleaded material facts, we need not accept as true mere contentions, deductions or conclusions of fact or law. (C & H Foods Co. v. Hartford Ins. Co. (1984) 163 Cal.App.3d 1055, 1062; Droz v. Pacific National Ins. Co. (1982) 138 Cal.App.3d 181, 183, fn. 1.) Moreover, we will not close [our] eyes to situations where a complaint contains allegations of facts inconsistent with attached documents, or allegations contrary to facts which are judicially noticed. [Citations.] Thus, a pleading valid on its face may nevertheless be subject to demurrer when matters judicially noticed by the court render the complaint meritless. (Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604.)

A. Wrongful Death

Wrongful death is a statutorily created cause of action for pecuniary loss brought by heirs against a person who causes the death of another by a wrongful act or neglect. . . . It is a cause of action for the heir who recovers for the pecuniary loss suffered on account of the death of the relative. [Citation.] In any action for wrongful death resulting from negligence, the complaint must contain allegations as to all the elements of actionable negligence. (Potter v. Richards (1955) 132 Cal.App.2d 380, 385.) Negligence involves the violation of a legal duty imposed by statute, contract or otherwise, by the defendant to the person injured, e.g., the deceased in a wrongful death action. (Nally v. Grace Community Church (1988) 47 Cal.3d 278, 292.) (Jacoves v. United Merchandising Corp. (1992) 9 Cal.App.4th 88, 105.)

The plaintiff in a negligence action must prove duty, breach, causation, and damages. (Macys California, Inc. v. Superior Court (1995) 41 Cal.App.4th 744, 748.) Causation is proven if the defendants breach of duty (negligent act or omission) was a substantial factor in bringing about the plaintiffs harm. (Mitchell v. Gonzales (1991) 54 Cal.3d 1041, 1052.)

As the trial court correctly pointed out below, the claim for wrongful death is legally insufficient because it fails to allege any facts, as opposed to conclusions, regarding the cause of Sternoffs death and fails to allege facts showing a causal relationship between defendants alleged wrongful conduct and her death. At most, the FAC alleges that Sternoff died on January 7, 2004, at over 80 years of age while under hospice care. Given the lack of any properly pleaded factual allegations regarding the cause of her death, we conclude the alleged wrongful actsnamely, that defendants prevented Sternoff from seeing Selvage and her psychiatrist, withheld medical care, delayed medical testing and treatment, withheld a thyroid medication, provided excessive amounts of alcohol, withheld a durable power of attorney document, and failed to deliver Selvages signed statement to the probate courtfail to allege a causal relationship with Sternoffs death. Moreover, when viewed in light of the cause of death stated on the death certificate, acute coronary occlusion, we can discern no causal relationship between the alleged wrongful acts and Sternoffs death. The FAC, accordingly, fails to state a claim for wrongful death because it fails to allege any facts showing that defendants wrongful acts were the proximate cause of Sternoffs death. (See Potter v. Richards, supra, 132 Cal.App.2d at pp. 384-385 [the complaint, which failed to allege any facts regarding the proximate cause of the death of plaintiffs wife, was insufficient to state a cause of action for wrongful death].)

Having determined that the complaint fails to state a cause of action for wrongful death, we turn to the question whether there is a reasonable possibility that the defect can be cured by amendment: if it can be, the trial court has abused its discretion and we reverse; if not, there has been no abuse of discretion and we affirm. [Citations.] The burden of proving such reasonable possibility is squarely on the plaintiff. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) To meet [the] burden of showing abuse of discretion, the plaintiff must show how the complaint can be amended to state a cause of action. [Citation.] However, such a showing need not be made in the trial court so long as it is made to the reviewing court. (William S. Hart Union High School Dist. v. Regional Planning Com. (1991) 226 Cal.App.3d 1612, 1621.) [W]e may affirm a trial court judgment on any basis presented by the record whether or not relied upon by the trial court. (Day v. Alta Bates Medical Center (2002) 98 Cal.App.4th 243, 252, fn. 1.) (Blumhorst v. Jewish Family Services of Los Angeles, supra, 126 Cal.App.4th at p. 999.)

We conclude that Selvage cannot amend the complaint to allege a causal link between Sternoffs death and defendants alleged acts and omissions. We can discern no apparent causal relationship between the alleged acts or omissions and Sternoffs death at age 90 from acute coronary occlusion, as stated in the death certificate. Selvage points to his wifes declaration, attached as exhibit 1 to his opening brief, and claims it contains sufficient facts to cure the deficiencies in the FAC. We disagree. The declaration alleges no new facts to establish causation and is little more than a number of unsubstantiated conclusions.

Moreover, because Sternoff was the subject of a conservatorship action, her medical decisions were within the exclusive control of her court-appointed conservator. (Prob. Code, 2355, subd. (a).)[19] The probate courts records and orders in the conservatorship action, of which the trial court took judicial notice below, showed that the disputed actions in this lawsuit were previously approved by the probate court in the conservatorship action as consistent with Sternoffs best interests. Accordingly, we conclude that Selvage has failed to show there is a reasonable probability the FAC can be amended to state a claim for wrongful death.

B. Intentional Infliction of Emotional Distress

The elements of a prima facie case for the tort of intentional infliction of emotional distress are: (1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress; (2) the plaintiffs suffering severe or extreme emotional distress; (3) and actual and proximate causation of the emotional distress by the defendants outrageous conduct. (Fletcher v. Western National Life Ins. Co. (1970) 10 Cal.App.3d 376, 394; Alcorn v. Anbro Engineering, Inc. (1970) 2 Cal.3d 493, 497-499; State Rubbish etc. Assn. v. Siliznoff (1952) 38 Cal.2d 330, 336-339; 4 Witkin, Summary of Cal. Law (8th ed.) Torts, 234-237, pp. 2515-2517.) Whether treated as an element of the prima facie case or as a matter of defense, it must also appear that the defendants conduct was unprivileged. (Fletcher v. Western National Life Ins. Co., supra, 10 Cal.App.3d at p. 394; State Rubbish etc. Assn. v. Siliznoff, supra, 38 Cal.2d at p. 339; Rest.2d Torts, 46, com. g.) Conduct to be outrageous must be so extreme as to exceed all bounds of that usually tolerated in a civilized community. (Alcorn v. Anbro Engineering, Inc., supra, 2 Cal.3d at p. 499, fn. 5; Fuentes v. Perez (1977) 66 Cal.App.3d 163, 170; Rest.2d Torts,  46, com. d.) (Cervantez v. J. C. Penney Co. (1979) 24 Cal.3d 579, 593.)

Selvage alleges that due to the unlawful acts that resulted in his mothers wrongful death, he has suffered extreme emotional distress. Setting aside for the moment the absence of any factual allegations to support a causal connection between the alleged wrongful acts and Sternoffs death, we note that the FAC also fails to allege that defendants actions were not privileged or that they were wrongfully directed at Selvage, whose unwelcome interventions were the motivating factor behind the conservatorship proceedings and orders.

An action for intentional infliction of emotional distress exists only where the defendants conduct was not privileged. (State Rubbish Etc. Assn. v. Siliznoff (1952) 38 Cal.2d 330, 336-339; Fletcher v. Western National Life Ins. Co. (1970) . . . 10 Cal.App.3d 376, . . . 395 . . . .) (Girard v. Ball (1981) 125 Cal.App.3d 772, 786-787.) The defendant must have engaged in conduct intended to inflict injury or engaged in with the realization that injury will result. ([Davidson v. City of Westminster (1982) 32 Cal.3d 197,] 210.) [] It is not enough that the conduct be intentional and outrageous. It must be conduct directed at the plaintiff . . . . (Christensen v. Superior Court (1991) 54 Cal.3d 868, 903.)

As was plainly alleged in the FAC, Sternoff disliked Selvages opposition to her drinking and, through her trustee, the late Sherry Fulkerson, opposed treatment for . . . alcoholism and sought Conservatorship to prevent [Selvages] interventions. The probate court imposed the conservatorship over Sternoffs person in large measure to protect her from Selvages interventions. The probate court adopted Paquettes findings in both the initial report and the PVP report, and thereby rejected the same allegations that are being made in this litigation as meritless. Given that the conservatorship orders authorized defendants to intercede on Sternoffs behalf to protect her from Selvages overbearing interventions, Selvage has failed to allege facts showing that their alleged wrongful acts and omissions were not privileged. Even though some of the alleged wrongful acts may have been directed at Selvage, he has failed to allege facts showing that they were not privileged or were wrongfully directed at him. Accordingly, we conclude that Selvage has failed to state a valid claim for intentional infliction of emotional distress. (Girard v. Ball, supra, 125 Cal.App.3d at pp. 786-787.)

The FAC must be read with the understanding that the physical changes that occur during the hospice care of a frail patient who is elderly and terminally ill are not viewed as medical emergencies that require unwanted and invasive interventions. Deciding whether to subject a vulnerable loved one to a medical procedure that, on the one hand, could alleviate discomfort, but, on the other hand, could create further complications, is never an easy decision. It is not uncommon for families in such difficult circumstances to disagree on the best course of action. In this case, by court order all medical decisions were placed in the exclusive hands of the conservator, who was privileged to decide the matter in Sternoffs best interests. (Prob. Code, 2355, subd. (a).)

Selvages allegation that Paquette committed a felony by threatening to seek a restraining order against Dr. Moire is nothing more than an unsupported legal conclusion. According to the conservatorship records, Dr. Moire made several unsubstantiated complaints to outside agencies unfamiliar with the conservatorship orders, which was upsetting to Sternoff because she had initiated the conservatorship proceedings in order to be free of such unwelcome interventions. Selvage has failed to allege any facts showing that Paquettes attempt to dissuade Dr. Moire from making further unfounded complaints to outside agencies was wrongful.

Similarly, Selvages allegation that Paquette wrongfully withheld the durable power of attorney document found in Dr. Follettes records is another unsupported legal conclusion. According to the FAC, when Selvage became concerned about Sternoffs allegedly inadequate medical care, he reviewed Dr. Follettes medical records and found the durable power of attorney document that he now claims was being withheld from him. The allegations are internally inconsistent in that, on the one hand, Selvage claims the document was wrongfully withheld from him, but, on the other hand, he concedes that it was available to him in Dr. Follettes records.

Moreover, Selvages allegation that he was injured by the withholding of the durable power of attorney document must fail, as a matter of law, because the document was necessarily superseded by the probate courts appointment of a conservator for his mother. According to Probate Code section 2355, subdivision (a), the conservator has the exclusive authority to make health care decisions for the conservatee. Any rights that Selvage may have had under the durable power of attorney document were necessarily extinguished when the probate court appointed a conservator for his mother. Selvage does not cite any authority to the contrary.

For the same reason, Selvages claim that he was injured by Paquettes suppression of his December 8, 2003 statement (exhibit 1 to the FAC) is another unsupported legal conclusion. In his December 8 statement, Selvage sought to enforce the durable power of attorney document found in Dr. Follettes records. Given our legal determination that the document was superseded by the appointment of a conservator for his mother, the alleged suppression of the December 8 statement could not have caused any injury to Selvage. Moreover, Paquette was not Selvages attorney and, therefore, had no obligation to act on his behalf by presenting either his December 8 statement or the durable power of attorney document to the probate court. In any event, nothing precluded Selvage from filing a noticed petition in accordance with the probate courts June 9, 2003 mandate that [a]ll future proceedings must be within the context of properly noticed petitions filed with this court.

We conclude that in the absence of an allegation of fact or facts showing that defendants negligently caused the death of [Selvages mother], there is no causal connection between any act of defendants and [Sternoffs] illness. Hence, he has failed to state a cause of action for intentional infliction of emotional distress. (Potter v. Richards, supra, 132 Cal.App.2d at p. 385.)

For the reasons discussed in part A above, we conclude that Selvage has failed to show there is a reasonable possibility that he can amend the FAC to cure the defects in his pleading.

C. Conversion

Conversion is the wrongful exercise of dominion over the property of another. The elements of a conversion claim are: (1) the plaintiffs ownership or right to possession of the property; (2) the defendants conversion by a wrongful act or disposition of property rights; and (3) damages. (Burlesci v. Petersen (1998) 68 Cal.App.4th 1062, 1065.)

The trial court sustained the demurrers of Meyers and Carter to the claim for conversion on the ground that the FAC fails to allege that either Meyers or Carter converted anything. Plaintiff hasnt alleged that there was any tangible property that he had an immediate right to possess, nor has he alleged any act of conversion. He has not even identified the specific property that was allegedly converted.

On appeal, Selvage does not dispute that the property at issue belonged to his mother. He argues, however, that he acquired standing to allege a claim for conversion by joining Melon [sic] as involuntary plaintiffs. (Melon [sic] is the trustee of the trust and the executor of the estate of the decedent Ennid Sternoff Meyers.) The Mellon defendants, however, were dismissed from the action and Selvage has not appealed from the order of dismissal. Accordingly, he has failed to show that he has standing to pursue a claim for the conversion of the property of another or that he can amend the FAC to cure this defect.

II. The Anti-Slapp Statute

Selvage contends that the trial court erroneously granted the special motions of Paquette and Meyers to strike the complaint under the anti-SLAPP statute.

A SLAPP suit is a meritless lawsuit filed primarily to chill the defendants exercise of First Amendment rights. (Wilcox v. Superior Court (1994) 27 Cal.App.4th 809, 815, fn. 2 [disapproved on other grounds in Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 68, fn. 5 (Equilon)].) (Paul v. Friedman (2002) 95 Cal.App.4th 853, 861.) Having determined that this is a meritless lawsuit that fails to state a cause of action, we must determine whether it was filed primarily to chill Paquettes and Meyerss exercise of First Amendment rights. With regard to this issue, we note that the moving party defendants are not required to prove that the plaintiffs subjective intent in filing this action was to chill their exercise of First Amendment rights. (Equilon, supra, 29 Cal.4th at pp. 61, 68.) [T]he only thing the defendant needs to establish to invoke the [potential] protection of the SLAPP statute is that the challenged lawsuit arose from an act on the part of the defendant in furtherance of her right of petition or free speech. From that fact the court may [effectively] presume the purpose of the action was to chill the defendants exercise of First Amendment rights. It is then up to the plaintiff to rebut the presumption by showing a reasonable probability of success on the merits. (Fox Searchlight Pictures, Inc. v. Paladino [(2001)] 89 Cal.App.4th [294,] 307.) (Equilon, at p. 61.)

Section 425.16, which is to be construed broadly ( 425.16, subd. (a)), provides in relevant part: A cause of action against a person arising from any act of that person in furtherance of the persons right of petition or free speech under the United States or 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).) Subdivision (e) of section 425.16 defines an act in furtherance of a persons right of petition or free speech in connection with a public issue to include: (1) any written or oral statement or writing made before a legislative, executive, judicial or other official proceeding ( 425.16, subd. (e)(1)); (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 other official proceeding (id., subd. (e)(2)); (3) any written or oral statement or writing made in a public place in connection with an issue of public interest (id., subd. (e)(3)); and (4) any other conduct in furtherance of the exercise of the rights of petition or free speech in connection with a public issue or an issue of public interest. (Id., subd. (e)(4).)

In 1999, the Supreme Court resolved a dispute among the intermediate appellate courts by construing subdivision (e) of section 425.16 to mean that any statement or writing made in, or in connection with an issue under consideration or review by, an official proceeding or body is protected by section 425.16, whether or not it involves a public issue. (Briggs v. Eden Council for Hope & Opportunity (1999) 19 Cal.4th 1106, 1113.) The same does not hold true, however, for any other conduct in furtherance of the exercise of the rights of petition or free speech, which by statute must bear some connection with a public issue or an issue of public interest. ( 425.16., subd. (e)(4).)

Under section 425.16, the moving party has the initial burden to show that the cause of action aris[es] from [an] act . . . in furtherance of the [moving partys] right of petition or free speech. ([425.16, subd. (b)(1)]; Equilon, supra, 29 Cal.4th at p. 67.) Once that burden is met, the burden shifts to the opposing party to demonstrate the probability that the plaintiff will prevail on the claim. (Code Civ. Proc., 425.16, subd. (b)(1); Equilon, supra, 29 Cal.4th at p. 67.) To satisfy this prong, the plaintiff must state[] and substantiate[] a legally sufficient claim. [Citation.] 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.] (Jarrow Formulas, Inc. v. LaMarche (2003) 31 Cal.4th 728, 741, fn. omitted . . . .) (Zamos v. Stroud (2004) 32 Cal.4th 958, 965.)

With regard to the moving partys initial burden, the Supreme Court has explained that the statutory phrase cause of action . . . arising from means simply that the defendants act underlying the plaintiffs cause of action must itself have been an act in furtherance of the right of petition or free speech. [Citation.] In the anti-SLAPP context, the critical point is whether the plaintiffs cause of action itself was basedon an act in furtherance of the defendants right of petition or free speech. [Citations.] A defendant meets this burden by demonstrating that the act underlying the plaintiffs cause fits one of the categories spelled out in section 425.16, subdivision (e). . . . [ Citations.] (City of Cotati v. Cashman (2002) 29 Cal.4th 69, 78.) In deciding whether the arising from requirement is met, a court considers the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based. ( 425.16, subd. (b).) (Id. at p. 79.) Our review of the trial courts determination is de novo. (Kronemyer v. Internet Movie Database, Inc. (2007) 150 Cal.App.4th 941, 946.)

A. Paquettes Special Motion to Strike

Selvage denies that he seeks to hold Paquette liable for complying with a court order or reporting [her] activities and opinions to the court. He contends that he seeks to hold Paquette liable for abusing the authority given to her by the probate court. He argues that the anti-SLAPP statute does not apply to the unlawful confinement, imprisonment, and death of his mother. He asserts that because Paquette wrongfully conspired to isolate, abuse, chemically restrain and withhold necessary medications and medical treatment from decedent causing her psychological, physical and mental deterioration and her eventual death, this suit does not arise from protected acts in furtherance of the right of petition or free speech.

In support of his position, Selvage cites Flatley v. Mauro (2006) 39 Cal.4th 299 (Flatley) and Paul for Council v. Hanyecz (2001) 85 Cal.App.4th 1356 (Paul) (disapproved on other grounds in Equilon, supra, 29 Cal.4th at p. 68, fn. 5). In Paul, plaintiff, an unsuccessful candidate for city council, sued defendants for illegal money laundering campaign activities. Defendants moved to strike the complaint under the anti-SLAPP statute, arguing that their money laundering activities were conducted in furtherance of their constitutionally protected right of free speech. (Paul, supra, 85 Cal.App.4th at pp. 1361-1362.) The appellate court reversed the order granting defendants special motion to strike, concluding that defendants cannot meet their burden on the first step. . . .  [T]he activity of which plaintiff complainsdefendants campaign money launderingwas not a valid activity undertaken by defendants in furtherance of their constitutional right of free speech. This conclusion is established by the factual record before us and is not really disputed by the defendants. Indeed, defendants argue that they are entitled to the benefit of section 425.16 in spite of such illegality. (Id. at p. 1365.)

As the Supreme Court in Flatley explained, Paul stands for the proposition that where either the defendant concedes the illegality of its conduct or the illegality is conclusively shown by the evidence, the [special] motion [to strike] must be denied. The rationale is that the defendants cannot make a threshold showing that the illegal conduct falls within the purview of the statute and promotes section 425.16s purpose to prevent and deter lawsuits [referred to as SLAPPs] brought primarily to chill the valid exercise of the constitutional rights of freedom of speech and petition for the redress of grievances. ( 425.16, subd. (a).) (Varian Medical Systems, Inc. v. Delfino [(2005)] 35 Cal.4th [180,] 192.) If, however, a factual dispute exists about the legitimacy of the defendants conduct, it cannot be resolved within the first step but must be raised by the plaintiff in connection with the plaintiffs burden to show a probability of prevailing on the merits. (Flatley, supra, 39 Cal.4th at p. 316.)

Unlike the defendants in Paul who conceded the illegality of their money laundering activities, Paquette denied any wrongdoing. She argued that the claims against her arose from her protected exercise of the rights of free speech and petition in the conservatorship proceedings, and she presented evidence in support of her position. ( 425.16, subd. (e).) Accordingly, the legitimacy of Paquettes conduct cannot be determined from the allegations of the FAC alone. Moreover, those allegations, as discussed above, are legally insufficient to state a claim against Paquette.

Paquettes evidence showed that she was, at all times, simply performing her statutory duties as Sternoffs PVP attorney by investigating Selvages complaints, ascertaining Sternoffs wishes, and reporting her findings to the probate court. Selvages evidence, on the other hand, consisted of declarations that simply reiterated the FACs insufficient allegations. Neither Dr. Moires declaration nor Selvages December 8, 2003 statement explains how Sternoff died or mentions the cause of death stated on the death certificate. Both Selvages December 8, 2003 statement and Dr. Moires declaration are, like the FAC, internally inconsistent because, on the one hand, they purport to know the intimate details of Sternoffs life and medical care, but, on the other hand, contend that they were locked out of Sternoffs house and denied information regarding her condition and care.

Selvage further argues that because under section 425.16, subdivision (e)(4), any other conduct (as opposed to statements or writings) in furtherance of the exercise of the rights of petition or free speech must have some connection with a public issue or an issue of public interest, Paquettes wrongful actions are not protected by section 425.16 because they were not connected with a public issue or an issue of public interest. The flaw in this argument, however, is that the FAC fails to allege any facts supporting a valid claim against Paquette (or any of the defendants) based on any negligent or wrongful conduct. As previously discussed, the FAC does not state a valid claim for wrongful death because it does not allege any facts linking the alleged wrongful acts or omissions with Sternoffs death. Having eliminated the sham wrongful death allegations from the FAC, we are left with only protected statements and writings made in connection with issues before the probate court in the conservatorship action. Given Selvages failure to present any evidence to support his allegations, the record permits only one reasonable conclusion, which is that this meritless lawsuit [was] filed primarily to chill the defendants exercise of First Amendment rights. (Wilcox v. Superior Court (1994) 27 Cal.App.4th 809, 815, fn. 2.) (Paul v. Friedman, supra, 95 Cal.App.4th at p. 861.)

B. Meyerss Special Motion to Strike

Selvage contends that Meyerss special motion to strike should have been denied as untimely. We disagree. According to section 425.16, subdivision (f), [t]he special motion may be filed within 60 days of the service of the complaint or, in the courts discretion, at any later time upon terms it deems proper. The motion shall be scheduled by the clerk of the court for a hearing not more than 30 days after the service of the motion unless the docket conditions of the court require a later hearing. Selvage states in his opening brief that Meyers was served the FAC by mail on Se