Barker v. Fox & Assocs.

• Decision Date: 10 September 2015
• Docket Number: A142373
• Citation: 240 Cal.App.4th 333,192 Cal.Rptr.3d 511
• Court: California Court of Appeals Court of Appeals
• Parties: Alexander BARKER, Plaintiff and Respondent, v. FOX & ASSOCIATES et al., Defendants and Appellants

240 Cal.App.4th 333

192 Cal.Rptr.3d 511

Alexander BARKER, Plaintiff and Respondent

v.FOX & ASSOCIATES et al., Defendants and Appellants

A142373

Court of Appeal, First District, Division 2, California.

Filed September 10, 2015

For Defendant and Appellant: Lewis Brisbois Bisgaard & Smith, Reuben B. Jacobson, San Francisco, Jeffry A. Miller, and Brittany H. Bartold, San Diego.

For Defendant and Appellant, Deborah Wagner: Beyers Costin Simon, Bob Haroche, Santa Rosa and Suzanne K. Babb.

For Plaintiff and Respondent: Law Offices Of Freeman & Freeman, Rebecca J. Freeman, Matthew C. Freeman, Santa Rosa, and Molly A. Gilardi.

Opinion

Richman, J.Alexander Barker sued three defendants for defamation and intentional and negligent infliction of emotional distress. Defendants filed an anti-SLAPP motion to dismiss. The trial court denied the motion, concluding that Barker had met his burden under step two of the anti-SLAPP analysis. We review the issue de novo, and conclude otherwise, that Barker has not met his burden to show that his complaint is legally sufficient and supported by a sufficient prima facie showing to support a favorable judgment. We thus reverse.

BACKGROUND

The Factual Setting

An understanding of the factual background predating Barker's complaint is necessary to put the matter in context, and we begin with that background.

Allison McBride (Allison), an elderly woman, suffered from dementia for many years. Allison had two daughters, Lucy McBride Olsen (Olsen) and Cameron Volker (Volker).¹

For several years, a dedicated team of paid caregivers—described by Olsen as “loving friends who knew [Allison] and cared for her deeply”—tended to Allison's care; the team was called “Allison's Angels.” As described in Barker's brief, Diane Senia, a longtime friend of Allison “for many years had undertaken the role of arranging Allison's nursing care. [Citation.] Over a thirteen plus year relationship, Ms. Senia gained substantial knowledge concerning Allison's care. [Citation.] In fact, Ms. Senia has authored two manuals on the subject, including a manual entitled Allison's Angels Handbook, which details how to properly care for Allison, including hygiene protocol.” Barker was one of Allison's Angels who cared for Allison for some three and one-half years. Nancy Barker (Nancy), Barker's mother, was another.

At some point, a rift developed between Allison's daughters, who could not agree on all aspects of their mother's care. They agreed to submit to voluntary mediation, the upshot of which was an agreement to the appointment of a conservator. And on November 14, 2012, the Sonoma County Superior Court entered an “Order on Stipulation and Agreement” appointing Deborah L. Wagner (Wagner) conservator of the person and estate of Allison. That order provided in part as follows: “Ms. Wagner shall provide Cameron McBride Volker and Lucy McBride Olsen with weekly reports regarding the health and care of Allison Burns McBride, which reports shall address issues relating to the previous week and events and appointments upcoming in the next week. Mrs. McBride's residence and caregiving arrangement as of October 16, 2012, shall not be changed so long as such residence and care plan is in the best interest of Mrs. McBride, as determined by the Conservator of the Person.”

Wagner retained many, if not all, of Allison's Angels, including Barker and Nancy. But Wagner also made a number of changes to Allison's care, including, for example, recommending that caregivers move into Allison's home during their shifts because she needed closer monitoring as her health deteriorated. Wagner also began paying Allison's caregivers legitimately and reporting their wages as employees.

One other thing Wagner did was to hire Cheryl Fox (Fox) to act as Allison's case manager. Fox is a registered nurse and the president and CEO of Fox & Associates, which employs nurses and health care professionals to provide case management and advocacy services for homebound clients.

The significance—and effect—of Wagner's practices was the subject of disagreement, and we quote from two of the declarations filed below. As Wagner put it: Barker “was part of a team of caregivers already in place, and caring for Ms. McBride, when I was appointed conservator. His mother, Nancy Barker, was also one of Ms. McBride's caregivers. None of the caregivers were nurses. In fact, these individuals were friends and associates in the community that Ms. McBride's relatives had assembled to provide round the clock care for her. They all cared about Ms. McBride and felt close to her, and I wanted them to be able to continue working for Ms. McBride if it served her best interests.

“5. To ensure a proper assessment of Ms. McBride's situation and proper ongoing care, I retained Fox & Associates to act as case manager for Ms. McBride. I was familiar with Fox & Associates prior to engaging them for Ms. McBride, and I felt (and feel) very confident that their professional knowledge, experience, and approach to home health care meets the best interests of Ms. McBride.

“6. Fox & Associates performed an initial needs and safety evaluation for Ms. McBride. They determined that she required nursing oversight, as none of the caregivers working for her had any background or training in nursing or home healthcare....”

Allison's daughter Olsen saw it this way:

“3. For many years, Diane Senia has helped me by organizing and training a team of caregivers (nicknamed the Angels by Diane) for my mother. The quality of care that has been provided by the angels is truly exceptional. My mother's care givers were not strangers but loving friends who knew and cared for her deeply. They worked so well as a team because they listened to one another and taught one another and had regular meetings to brainstorm together on how to best meet my mother's ever changing needs.

“4. Despite the fact that both Cameron and I were more than satisfied with our mother's caregivers and despite the fact that the Court ordered no change in the status of caregiving, Deborah Wagner decided that she would take shifts away from the current caregivers and fill those shifts with employees from Fox and Associates....

“5. Diane Senia and I tried to explain to Deborah Wagner and Cheryl Fox [that] Allison's best interests would be served by allowing Allison to be cared for by her existing care givers who all knew and loved Allison as Allison knew them and loved them. Both Diane Senia and I told Deborah and Cheryl that Allison can become combative with strangers. I explained that Allison has a history of fighting against new caregivers who are not properly and slowly trained and introduced. Our protocol previously for introducing new caregivers included extensive trainings, shadowings, short shifts to build up competence and a careful assessment of Allison's willingness to be cared for by a particular person.

“6. Despite the fact that Allison was both safe and happy with her existing caregivers, Deborah Wagner insisted on having shifts covered by employees from Fox and Associates.”

Suffice it to say that Wagner's entry into the picture caused some concern, and perhaps friction. And then came the incident leading to the litigation here: on June 21, 2013, while being tended to by Carly Newell, an employee of Fox, Allison “became combative and a quarrel resulted,” causing injuries to Allison.

On June 24, Olsen sent Wagner a lengthy e-mail which, as Olsen described it, expressed her “concern about the fact that [an Allison Angel] had arrived to find [Allison] covered with bruises and emotionally distraught.”

The next day, Olsen received a copy of an e-mail sent by Fox to Wagner, which e-mail provided in its entirety as follows:

“Good Afternoon,

“I made a site visit to see Allison at her home today with Deborah. Angel Nancy was caring for Allison who is in a great mood busy making beautiful cards.

“I took a look at Allison's arms that showed she had superficial bruising on both arms, that is in varied states of healing. There are no skin tears, that are apparent.

“Discussion with Nancy was quite good. We did some game planning on how to improve the current situation when new caregivers come on board, including Carly.

“As I understand, there was a list of items discussed with Alex prior to Carly's orientation. The expectation was that Alex would orient Carly to the fullest degree possible and address each of the items on the list. However, none of the items were addressed. Therefore for reasons not yet clear to me, Carly was placed in a situation ill prepared to fully understand and have knowledge to addressing Allison's needs.

“I am in the process of arranging for Carly to spend extended time this weekend with Patty, and next week with Nancy so that the orientation process is more fully completed to best serve Allison. Carly will then be covering the every other Sunday slot and back up as needed.”

There were six other “cc” recipients of Fox's e-mail besides Olsen: Allison's other daughter; Wagner's attorney; two employees of Fox & Associates; and two of Allison's Angels, one of whom was Nancy.

Fox's e-mail was sent at 4:23 p.m. on June 25.

At 8:17 p.m. that evening, Barker's mother, Nancy, sent an e-mail to Fox. It read as follows: “I find it pretty interesting that the person you are throwing under the bus is not CC'd on this email. Yes we had a cordial visit today from Deborah and Cheryl. And yes Allison was in a wonderful mood, because she was with someone that she has known and trusted and has built a relationship with for the past 5 years. I introduced our guests as ‘good friends' which helps Allison feel safe. [¶] What Carly doesn't have is a relationship and the trust of Allison as well as experience with her to know how to interact with Allison—That is something that only can happen in time. We have all tried to get Fox to understand this. Yet you still went ahead and put Carly in a position that no human could have handled. All at Allison's expense. [¶] I am most...