Barker v. Fox & Associates

Filed 9/10/15 CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION TWO

ALEXANDER BARKER, Plaintiff and Respondent, A142373 v. FOX & ASSOCIATES et al., (Sonoma County Super. Ct. No. SCV254608) Defendants and Appellants

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

1 We refer to some parties by first names, and others by last names, to be consistent with the briefing.

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 (Fox