Burrill v. Nair

• Decision Date: 02 October 2013
• Docket Number: C068998
• Citation: 217 Cal.App.4th 357,158 Cal.Rptr.3d 332
• Court: California Court of Appeals Court of Appeals
• Parties: Janelle BURRILL, Plaintiff and Respondent, v. Jayraj NAIR, Defendant and Appellant.

217 Cal.App.4th 357

158 Cal.Rptr.3d 332

Janelle BURRILL, Plaintiff and Respondent,

v.Jayraj NAIR, Defendant and Appellant.

C068998

Court of Appeal, Third District, California.

Filed June 3, 2013

Review Denied October 2, 2013

See 5 Witkin, Cal. Procedure (5th ed. 2008) Pleading, § 1025 et seq.

APPEAL from a judgment of the Superior Court of Placer County, Colleen M. Nichols, J. Affirmed. (Super. Ct. No. SCV28179)

Law Office of Stephanie J. Finelli and Stephanie J. Finelli, Sacramento, for Defendant and Appellant.

Freidberg & Parker, Edward Freidberg, Port J. Parker, Sacramento, and Suzanne M. Alves for Plaintiff and Respondent.

HOCH, J.

This defamation action arises out of a contentious custody dispute that has made its way to this court five times.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.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.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...