Mahaffa v. McGraw CA2/2

Filed 6/30/21 Mahaffa v. McGraw CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

KADEN MAHAFFA, B300108

Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. 19STCV04166)
v.

PHIL MCGRAW et al.,

Defendants and
Respondents.

APPEAL from a judgment of the Superior Court of Los
Angeles County, Holly J. Fujie, Judge. Affirmed.
Moneymaker & Stewart and Ryan Stewart for Plaintiff and
Appellant.
Jackson Walker, Charles L. Babcock, Nancy Hamilton;
Ford, Walker, Haggerty & Behar, Neil S. Tardiff and William C.
Haggerty for Defendants and Respondents.

******
 Appellant Kaden Mahaffa (appellant) appeals from an
order granting a special motion to strike her complaint pursuant
to Code of Civil Procedure section 425.16 (section 425.16) (anti-
SLAPP motion).1 Appellant initiated this action against
Dr. Phillip C. McGraw (McGraw); CBS Television Services, Inc.;
and Peteski Productions, Inc. (collectively respondents), after
appellant appeared as a guest on an episode of the nationally
syndicated television program Dr. Phil (CBS Television
Distribution) (the show). The trial court granted respondents’
anti-SLAPP motion on the grounds that the gravamen of
appellant’s complaint implicated respondents’ right to free speech
on a matter of public interest and that appellant failed to submit
evidence showing a probability that she would prevail on any of
her claims. We find no error and affirm the judgment.

FACTUAL BACKGROUND
Appellant is a resident of Nevada, an author and self-
proclaimed mental health professional. She is the author of The
Mama Trauma Justice Project and the House of Mirrors Theory.
Appellant purports to aid individuals with conditions such as
autism and posttraumatic stress disorder. Appellant also claims
that her social media accounts and Web site received little
attention prior to her appearance on the show. Appellant alleged
that she has struggled with mental health issues since she was a
child.
The show is a television daytime talk show, which claims to
provide “the most comprehensive forum on mental health issues

1 A special motion to strike under section 425.16 is also
known as an anti-SLAPP motion. (Ketchum v. Moses (2001) 24
Cal.4th 1122, 1130.)

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in the history of television.” McGraw is the host. “Using the
power of television, Dr. McGraw presents compelling stories
about real people with a variety of emotional and behavioral
problems, stripping away the shame and embarrassment that too
often keep people from seeking help.” On his Web site, McGraw
publicizes his “academic training and professional qualifications,”
including “a Doctoral degree in clinical psychology from the
University of North Texas, followed by a post-doctoral fellowship
in forensic psychology from the Wilmington Institute.” McGraw
was a licensed psychologist and practiced clinical psychology.
Appellant alleged that, “[b]y holding himself out as a world-
renowned mental health professional whose goal is to remove the
stigma associated with psychological disorders and demonstrate
their proper treatment,” he “suggests to potential guests of the
Dr. Phil Show that their appearances will be handled by a caring
physician who has their best interests at heart and will do them
no harm.”
Respondents solicit appellant to appear on the show
Appellant alleged that she was contacted by a television
producer representing the show who asked her to travel to Los
Angeles and appear on an episode scheduled for taping in
February 2017.2 The producer told appellant that the show
would be about the childhood abuse that appellant’s boyfriend,
Matthew, alleged he had suffered at the hands of his mother and
grandmother. The producer also informed appellant that the
purpose of her appearance would be to support Matthew as he

2 The producer, who was not named in appellant’s complaint,
was later identified only as “Mike.”

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confronted his alleged abusers. Appellant alleges that she relied
on these statements in agreeing to appear on the show.
During a series of preshow telephone interviews, text
messages, and taped segments, appellant disclosed that she had
a history of mental illness. She also purported to have various
supernatural powers, including an ability to communicate with
the dead, read minds, see with X-ray vision, and intuitively write
ancient languages. Appellant said she developed these powers
after she “died seven times” and was brought back to life to be a
“messenger for God.”
On two occasions before appearing on the show, appellant
signed releases. On February 5, 2017, prior to traveling to Los
Angeles to appear on the show, appellant signed the first release.
She signed the second one on February 8, 2017, the day the show
was taped. The two releases were substantially similar. By
signing the agreement, appellant specifically acknowledged that
she had “no pre-existing mental or medical condition that would
increase the risk of injury to myself or others as a result of my
participation in the Series.” She further acknowledged her
understanding that the show was a “ ‘talk show’ format
discussion about topics of public interest and concern and that, by
its nature, the Series includes heated discussions, commentary
and remarks.” Appellant acknowledged that she had been “told
the general intended subject matter of the Episode, but have been
made no promises regarding the specific content thereof.”
Appellant further agreed:
“I covenant and agree not to sue Producer, Peteski
Productions, Inc., Dr. Phillip C. McGraw and/or their
respective distributors, partners, joint venturers,
successors, heirs, . . . for any loss, claims or injuries of
every kind and nature which I may now have, or may

4
 hereafter acquire, arising out of or in connection with
the Episode including, without limitation: (a) any
claims, demands and causes of action for . . . infliction
of emotional distress or any other tort in connection
therewith; (b) because I do not like the manner in
which Producer granted and/or used my name, voice,
appearance, or Personal Information in the Episode
(or derivative works); . . . (d) because I do not like the
questions, responses or outcome of the Episode; and
(e) because Producer did not fully disclose the subject
matter of the Episode or the identity of other guests
appearing on the Episode.”
Appellant acknowledged that “no promises have been made
to me other than as set forth herein, and I have not relied on any
representations or other statements that are not contained
herein.” Appellant acknowledged and agreed that “this
Agreement . . . constitutes a complete and binding agreement
between Producer and me. I agree to submit exclusively to the
jurisdiction of a court of competent jurisdiction located within the
county of Los Angeles, State of California and agree that the
California Rules of Civil Procedure, including, without limitation,
CCP ANTI-SLAPP section 425.16 shall apply to any legal
proceedings.”
The alleged misrepresentations
Appellant alleged that respondents’ producer pretended to
believe appellant’s claims of having psychic and supernatural
powers. This producer told appellant that she could use her
psychic powers to help McGraw with matters unrelated to her
participation in the show. Appellant alleged that the producer
told her that after she appeared live to discuss her boyfriend’s
alleged childhood trauma, she would have the opportunity to
work alongside McGraw as he treated children with repressed

5
memories of abuse, since she had the unique ability to read
people’s minds and use X-ray vision to see their injuries.
Appellant alleged that the producer “manipulated” her and
further confused her perceptions of fantasy and reality.
In the preshow taping, respondents obtained preshow
footage of appellant making the following statements:
1. “I died fifteen years ago and when I woke up I had
psychic abilities. God sent me back with a mission and some
gifts.”
2. “I can speak French. I can write the Bengali alphabet. I
can understand any foreign language.”
3. “I have an effect on metal. So, like, if I think things
that, um, God doesn’t want me to think about, he’ll like, bend my
metal.”
4. “The craziest thing that I know how to do is, I can hear
what people think before they speak.”
5. “At nighttime, I have X-ray visions. I can [see] where
people’s old broken bones—I can see, basically, the light of their
skeleton.”
6. “I also see spirits . . . I usually feel a presence behind
me, like right now . . . .”
Appellant claims that as a clinical psychologist, McGraw
“was acutely aware” that appellant’s purported supernatural
powers were actually delusions symptomatic of mental illness.
Thus, appellant alleged, the television producer’s promises to
appellant were knowingly false, and McGraw plainly had no
intention of associating with her. Appellant states that while
respondents’ ruse was obvious to those who do not suffer from
mental illness, she was a vulnerable woman who fell victim to
them and relied on them in agreeing to appear on the show.

6
 Appellant claimed she had no idea that her own psychic
abilities would be raised during the show:
“No, one, including [the] TV Producer, ever sought or
obtained my agreement or consent to appear on the
[show] to discuss my mental health, history of mental
illness, or my belief that I had psychic abilities. [The]
TV Producer told [me] that the show would be about
Matthew’s abuse only. Based on our conversations, I
was led to believe that any discussion of my psychic
abilities would be privately with Dr. Phil after the
show, not during it.”
Appellant claims that she was told she was “required” to
sign certain legal documents prior to appearing onstage.
Appellant did not then know that the television producer had
misrepresented and concealed significant facts from her
regarding what would transpire on the show. Appellant therefore
followed the instructions and signed the “required” documents.
The show
Appellant asserts that during the show, McGraw ambushed
her with humiliating attacks on her delusional beliefs and
exposed her mental disability on live television. Appellant claims
that by the time the live portion of the show began, McGraw was
aware that appellant suffered from a debilitating mental
disorder.
The title of the live episode was “Brainwashing Con Artist
or Loving Girlfriend? Who is Matthew Dating?” (Dr. Phil (CBS
Television Distribution, Mar. 20, 2017).) The live episode began
with Matthew, his mother, and his grandmother on stage.
Matthew was described as a former Boy Scout who loved
anything outdoors, had a job, an apartment, and “was on the
right track to success.” His mother and grandmother claimed
that after he started dating appellant, “a woman 24 years older

7
than him,” his life deteriorated to the point where he was living
in an RV, not showering for weeks at a time and panhandling
money to survive. Matthew’s grandmother lamented that
appellant was “manipulating Matthew,” and she did not know
how to stop it.
During the show, Matthew’s mother and grandmother
alleged that appellant had kidnapped Matthew and then turned
him against his family. Appellant stated that she was
professionally treating Matthew for mental health issues
including sexual abuse problems that, she claimed, took place
during Matthew’s childhood with his mother and grandmother.
Before appellant made her entrance on stage, McGraw
played the preshow footage of appellant describing her purported
psychic abilities for the studio audience, in spite of his producer’s
alleged assurances to the contrary. McGraw then questioned
appellant about her delusional beliefs, asking for a spontaneous
demonstration of her supposed mind-reading abilities:
“McGraw: Can you tell me what I’m thinking
right now?
“[Laughter from audience]
“[Appellant]: Um, it’s not like one of those
things that happens, like, under pressure, like, I can’t
really do it on demand necessarily.
“McGraw: Take your time.
“[Laughter from audience]
“[Appellant]: OK, well it’s just like, it’s just
like, when the spirits show up, it’s not like I get to
just pick and say, ‘OK, you know, you want to talk to
your dead grandma’ or whatever. I don’t get to just
pick.

8
 “McGraw: I didn’t ask you to mediate with the
dead. I just asked you to tell me what I’m thinking.
“[Appellant]: I have no idea, honestly.
“McGraw: Well, but, you claim to be able to
read people’s minds!”
McGraw later asked appellant to demonstrate her X-ray
vision for the audience, with the same result.3
At other points in the show, McGraw directed his questions
regarding appellant’s mental status towards Matthew, asking:
“Matthew, do you think that it’s possible that
somewhere along her journey through life, that
[appellant] may have been damaged . . . and that this
may have in some way distorted her perceptions
somewhat? . . . Would you agree that some of her
perceptions seem to be a little inconsistent with
reality?”

3 “McGraw: Do you have X-ray vision?
“[Appellant]: Yeah, and I can also see, like, the
footprints of people who have been there before, like
spirits . . . .
“McGraw: I have a lot of broken bones. Can
you tell me where they are?
“[Appellant]: I am not in a good space right
now. I feel like I’m being totally attacked, and it’s
not—
“McGraw: No, you’re being questioned because
you’re making some claims, and if you make those
claims then you need to be prepared . . . well, you
need to be prepared to defend them.”

9
 On another occasion, McGraw stated, “. . . I think
[appellant’s] confused, and I think she’s, um—I—I think she
needs to have some help . . . .”
Appellant admitted that in addition to being her patient,
she and Matthew had established a romantic relationship.
McGraw stated, “What the hell, lady? You—you’re sleeping with
your patient?”
Events after the show
Appellant claims that she was shocked by McGraw’s
“derisive” interrogation about her purported psychic powers
because she thought he believed that she had such powers and
that the subject would not be discussed until after the show. She
was humiliated by the way she was treated on the show.
Almost immediately thereafter, appellant suffered a mental
breakdown backstage:
“I was sobbing on the floor and tearing at my hair.
There were cameramen filming me, and when I told
them to get away, they got closer. The police showed
up, placed me in custody, and took me to a mental
health facility, where I was involuntarily committed
for five days.”
Since the show was broadcast on television and the
Internet, appellant claims that she has suffered public ridicule,
loss of employment, exacerbation of medical problems, and
suicidal ideation:
“My life has been a living hell after the show, and
that is directly related to the severe emotional
distress and mental anguish I suffered from being
ambushed on stage and made to look like a crazy
person on national television. I have often wanted to
kill myself. I have a heart condition, and the
aggravation and anxiety I have from the show has

10
 made it worse, to the point where it is physically
painful. . . . [¶] . . . I have been the target of online
threats and harassment from people who saw the
show . . . . They have called me a ‘psycho b*tch’ and
‘evil horrid c*nt’ who should ‘die,’ among other things.
People sometimes recognize me from the show
around town and will say insulting things to me.
This has made my life miserable.” Appellant alleged
generally that McGraw solicits mentally ill
psychiatric patients to be on his show, makes
knowingly false representations regarding the nature
and parameters of the show in order to convince
guests to participate, then surprises them with
embarrassing attacks on their diseased mental
states.
Respondents’ anti-SLAPP motion
On April 19, 2019, respondents filed an anti-SLAPP motion
to strike appellant’s complaint pursuant to section 425.16.
Respondents asserted that appellant’s action arose from
protected activity, as the acts of creating and broadcasting a
television show are in furtherance of the constitutional right of
free speech. Respondents further asserted that appellant could
not demonstrate a probability of prevailing on the merits of her
claims, because her claims were not cognizable and subject to
demurrer; were based on constitutionally protected speech; and
because appellant was a limited purpose public figure and had
voluntarily participated in a public controversy. Respondents
also argued that the releases signed by appellant barred her
claims since appellant’s express agreement not to sue operated to
discharge respondents from liability for the risks appellant
assumed.
On May 3, 2019, appellant filed her opposition, arguing
that the anti-SLAPP statute did not apply because respondents

11
did not establish a sufficient connection between the asserted
public interest and their alleged conduct. Appellant also argued
that the wrongful conduct described in the complaint was
directed specifically at appellant, and that appellant’s own
mental illness was not a subject of public interest. Appellant
filed a declaration in opposition to the motion repeating her
allegations from the complaint. She also filed declarations from
Jori Nunes and Kelly Jass, who previously appeared on different
episodes of the show and claimed similar treatment.
Respondents filed a reply and objections to the evidence
submitted by appellant. Appellant responded to the evidentiary
objections and filed a first amended complaint. The trial court
struck the amended complaint for the purposes of ruling on the
anti-SLAPP motion.
Trial court ruling
On May 17, 2019, the trial court overruled respondents’
evidentiary objections to the declaration of appellant but
sustained respondents’ evidentiary objections in their entirety
with respect to the declarations of Jori Nunes and Kelly Jass.
The trial court found that the respondents’ actions on
which appellant’s claims were based “were all done in connection
with creating, casting, and broadcasting a television show, which
is an exercise of free speech.” (Citing Tamkin v. CBS
Broadcasting, Inc. (2011) 193 Cal.App.4th 133, 143 (Tamkin).)
The court further found that appellant did not have a probability
of prevailing on any of her five causes of action. As to each cause
of action, the court found that appellant failed to state a prima
facie case. The court therefore granted respondents’ special
motion to strike and struck appellant’s complaint in its entirety.

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Notice of appeal
On July 16, 2019, appellant filed a notice of appeal that the
clerk of the court erroneously rejected on the ground that it did
not conform to California Rules of Court, rule 2.100(c) and rule
2.256. On July 18, 2019, appellant’s counsel spoke with the e-
filing department supervisor and was informed that appellant’s
only recourse for the erroneous rejection was to file an ex parte
application seeking a corrective court order. On July 31, 2019,
appellant filed an ex parte application for an order directing the
filing of appellant’s notice of appeal nunc pro tunc to July 16,
2019. The trial court granted the application, and the notice of
appeal was deemed filed as of July 16, 2019.4

4 In a footnote, respondents note that In re Z.S. (2015) 235
Cal.App.4th 754 held that the consequences of a late-filed notice
of appeal are not remediable. At oral argument, this court was
informed that Z.S. has recently been disapproved by In re A.R.
(2021) 11 Cal.5th 234, which held that where a parent in a
juvenile dependency matter misses a deadline for appeal due to
attorney incompetence, the appropriate remedy is to allow the
appeal. These cases are irrelevant as the present matter does not
concern a late-filed notice of appeal. Instead, the trial court
implicitly found that—as appellant set forth in detail in her ex
parte application—the notice of appeal was, in fact, timely and
appropriately filed, and an error by the clerk of the court caused
the notice of appeal to be wrongly rejected. Respondents do not
argue that substantial evidence did not support the trial court’s
implicit factual determination that the notice of appeal was
timely and correctly filed. Therefore, we assume the trial court’s
order was correct, and the notice of appeal was timely.

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 DISCUSSION
I. The anti-SLAPP law
Section 425.16 provides, in 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).)
The statute defines the type of activity that is protected
under the statute: “As used in this section, ‘act in furtherance of
a person’s right of petition or free speech under the United States
or California Constitution in connection with a public issue’
includes: (1) any written or oral statement or writing made before
a legislative, executive, or judicial proceeding, or any other
official proceeding authorized by law, (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 any other official proceeding authorized by law, (3) any
written or oral statement or writing made in a place open to the
public or a public forum in connection with an issue of public
interest, or (4) any other conduct in furtherance of the exercise of
the constitutional right of petition or the constitutional right of
free speech in connection with a public issue or an issue of public
interest.” (§ 425.16, subd. (e).)
The fourth category “extends the protection of the anti-
SLAPP statute beyond actual instances of free speech to all
conduct in furtherance of the exercise of [the constitutional] right
[of petition or the constitutional right of free speech] in

14
connection with a public issue or issue of public interest.” (Ojjeh
v. Brown (2019) 43 Cal.App.5th 1027, 1036 (Ojjeh).) The “in
furtherance of” requirement must be construed broadly.
(Lieberman v. KCOP Television, Inc. (2003) 110 Cal.App.4th 156,
166.) “‘An act is in furtherance of the right of free speech if the
act helps to advance that right or assists in the exercise of that
right.’” (Ojjeh, supra, at p. 1039.) “The creation of a television
show is an exercise of free speech.” (Tamkin, supra, 193
Cal.App.4th at p. 143, citing Winter v. DC Comics (2003) 30
Cal.4th 881, 891-892.)
To determine whether a lawsuit or cause of action should
be disposed of under section 425.16, courts use a two-part test.
(Tamkin, supra, 193 Cal.App.4th at p. 142.) First, the moving
party has the initial burden of showing that the lawsuit or cause
of action “aris[es] from [an] act . . . in furtherance of [the moving
party’s] right of petition or free speech.” (§ 425.16, subd. (b)(1);
accord, Equilon Enterprises v. Consumer Cause, Inc. (2002) 29
Cal.4th 53, 67 (Equilon).) In determining whether the anti-
SLAPP statute applies, courts look to the gravamen of the
complaint. (California Back Specialists Medical Group v. Rand
(2008) 160 Cal.App.4th 1032, 1036-1037.) Our focus is not on the
form of the plaintiff’s causes of action, but rather on “the
defendant’s activity that gives rise to his or her asserted
liability—and whether that activity constitutes protected speech
or petitioning.” (Navellier v. Sletten (2002) 29 Cal.4th 82, 92.)
Once the moving party has satisfied this initial step, the
burden shifts to the opposing party to demonstrate the
“probability that the plaintiff will prevail on the claim.”
(§ 425.16, subd. (b)(1); accord, Equilon, supra, 29 Cal.4th at
p. 67.) In order to meet the second prong of the test, a plaintiff

15
must state a legally sufficient claim. (Jarrow Formulas, Inc. v.
LaMarche (2003) 31 Cal.4th 728, 741.) “‘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.”’” (Ibid.)
“Only a cause of action that satisfies both prongs of the
anti-SLAPP statute—i.e., that arises from protected speech . . .
and lacks even minimal merit—is a SLAPP, subject to being
stricken under the statute.” (Navellier v. Sletten, supra, 29
Cal.4th at p. 89.)
II. Standards of review
Our review of an order granting an anti-SLAPP motion is
de novo. (Flatley v. Mauro (2006) 39 Cal.4th 299, 325.) In
determining whether section 425.16 applies, we “‘“accept as true
the evidence favorable to the plaintiff [citation] and evaluate the
defendant’s evidence only to determine if it has defeated that
submitted by the plaintiff as a matter of law.”’” (Flatley, at
p. 326.)
The standard of review applicable to the trial court’s ruling
sustaining respondents’ objections to the declarations of Jori
Nunes and Kelly Jass is abuse of discretion. (Public Employees’
Retirement System v. Moody’s Investors Service, Inc. (2014) 226
Cal.App.4th 643, 683.) Under this standard, “we will not
overturn an evidentiary ruling on appeal unless ‘the trial court
exceeded the bounds of reason, all of the circumstances before it
being considered.’” (Ibid.)
III. The anti-SLAPP analysis
In determining whether the anti-SLAPP statute applies to
bar appellant’s lawsuit, we must independently determine each

16
step in the two-part test. We find that the statute is applicable,
and appellant has not shown a probability of prevailing on her
claims. Therefore, we conclude that appellant’s complaint was
properly stricken in its entirety.
A. Threshold showing that complaint is based on
protected activity
The allegations
The allegations in appellant’s complaint all arise from her
participation in a nationally televised talk show. Appellant
claims that in preshow actions soliciting her participation
respondents made misrepresentations as to the content of the
show and the purpose of appellant’s appearance. Appellant
claims that her appearance on the show was in reliance upon
these alleged misrepresentations. Appellant asserts that during
these preshow communications she disclosed that she had a
mental illness and that respondent McGraw, with his training in
psychology, should have recognized this illness. Appellant
accuses respondents of calculating that publicizing and ridiculing
appellant’s mental illness “would make for good television.”
Appellant further claims that during the actual filming of
the show, McGraw “aggressively interrogated” her and demanded
that she “defend” her delusional claims. In her presence during
the filming of the show, McGraw spoke to appellant in a “mocking
and sometimes bewildered tone,” and asked her embarrassing
questions. McGraw’s actions caused the audience to laugh and
jeer at appellant. Appellant asserts that McGraw acted in this
way with knowledge that she would suffer severe emotional
distress as a result. Appellant claims that the nature and scope
of her appearance on the show bore no resemblance to what had
been represented to her beforehand.

17
 Appellant alleges that she suffered a mental breakdown
backstage immediately following the show and was involuntarily
committed to a mental health facility for five days. She asserts
that she continues to suffer severe mental distress and
experience threats and harassment following her appearance on
the show.
All alleged acts were undertaken in furtherance
of respondents’ exercise of free speech
The allegations concern actions that were undertaken in
furtherance of respondents’ goal of casting, creating, and
broadcasting a television show. Television shows are included
within the protection of section 425.16 as exercises of free speech.
(Tamkin, supra, 193 Cal.App.4th at p. 143.) The acts carried out
in casting the show and preparing for the show helped to
“‘advance that right or assist[] in the exercise of that right.’”
(Ojjeh, supra, 43 Cal.App.5th at p. 1039.) Thus, the allegations
and all of the allegedly wrongful conduct described in the
complaint arise from actions that are protected under the anti-
SLAPP statute. (Tamkin, supra, at p. 143.) As such respondents
met their initial burden of showing that the complaint “aris[es]
from [acts] in furtherance of [respondent’s] right of petition or
free speech.” (§ 425.16, subd. (b)(1).)
There was sufficient connection between
respondents’ alleged acts and the public interest
a. Applicable law interpreting the public
interest requirement
Section 425.16, subdivision (e)(4) incorporates the conduct
at issue in this lawsuit. Under that “catchall” provision protected
conduct includes acts “‘“in furtherance of a person’s right of
petition or free speech”’ . . . ‘in connection with a public issue or

18
an issue of public interest.’” (Ojjeh, supra, 43 Cal.App.5th at
p. 1036, quoting § 425.16, subd. (e)(4).) The provisions of section
425.16 must be construed broadly. (Nygård, Inc. v. Uusi-Kerttula
(2008) 159 Cal.App.4th 1027, 1039.) Generally, an issue of public
interest is any issue in which the public is interested. (Id. at
p. 1042.) “In other words, the issue need not be ‘significant’ to be
protected by the anti-SLAPP statute—it is enough that it is one
in which the public takes an interest.” (Ibid.)
Courts have recognized three general categories of cases
that fall under the “connection with a public issue” prong of the
test. (Jewett v. Capital One Bank (2003) 113 Cal.App.4th 805,
813-814; accord, § 425.16, subd. (e)(4).) “A public issue is
implicated if the subject of the statement or activity underlying
the claim (1) was a person or entity in the public eye; (2) could
affect large numbers of people beyond the direct participants; or
(3) involved a topic of widespread, public interest.” (Jewett,
supra, at p. 814.) Generally, in determining whether the speech
or conduct at issue is an issue of public interest, courts “must
consider the context as well as the content” of the act.
(FilmOn.com Inc. v. DoubleVerify Inc. (2019) 7 Cal.5th 133, 149
(FilmOn).) Thus, “[t]he inquiry under the catchall provision . . .
calls for a two-part analysis rooted in the statute’s purpose and
internal logic.” (Ibid.)
“First, we ask what ‘public issue or . . . issue of public
interest’ the speech in question implicates—a question we answer
by looking at the content of the speech. (§ 425.16, subd. (e)(4).)
Second, we ask what functional relationship exists between the
speech and the public conversation about some matter of public
interest. It is at the latter stage that context proves useful.”
(FilmOn, supra, 7 Cal.5th at pp. 149-150.)

19
 In other words, as the FilmOn court explained the
statement or conduct must, in some way, “‘contribute to the
public debate.’” (FilmOn, supra, 7 Cal.5th at p. 150.) Thus, in
determining whether an act is connected to a public issue or an
issue of public interest, “the inquiry . . . is one a court can hardly
undertake without incorporating considerations of context—
including audience, speaker, and purpose.” (Id. at pp. 151-152.)
Only in “carefully observing this wedding of content and context”
can we “discern if conduct is ‘in furtherance of’ free speech ‘in
connection with’ a public issue or issue of public interest.” (Id. at
p. 154, quoting § 425.16, subd. (e)(4).)
b. This lawsuit involves an issue of public
interest
Appellant asserts that respondents failed to establish a
sufficient connection between the asserted public interest and
their alleged conduct towards appellant. Instead, appellant
argues, respondents made virtually no attempt to establish that
their misconduct was connected to a public issue. While
respondents claimed that both mental health and television
shows are of public interest, appellant argues that her own
mental health is not an issue of public interest. Appellant cites
Weinberg v. Feisel (2003) 110 Cal.App.4th 1122, 1132 (Weinberg)
for the proposition that “‘public interest’ does not equate with
mere curiosity.” Appellant asserts that her own mental health
issues, which were highlighted on respondents’ television show,
serve no public interest other than curiosity.
The cases cited by appellant in support of this argument
are distinguishable. In Weinberg, the dispute was between two
token collectors. The defendant suspected the plaintiff had stolen
a token from him. After confronting the plaintiff, the defendant

20
told other collectors that the plaintiff had stolen the token from
him. The plaintiff sued the defendant for these allegedly false
statements. In addressing the public interest requirement under
section 425.16, the Weinberg court noted that “defendant did not
present any evidence to show that plaintiff was anything other
than a private, anonymous token collector; that their dispute was
anything other than a private controversy; or that the
communications were made to anyone other than a small group
of other private parties.” (Weinberg, supra, 110 Cal.App.4th at
p. 1132.)
Here, in contrast, respondents presented evidence that all
the alleged actions took place in the context of creating and
broadcasting a widely viewed television show. The creation and
broadcasting of a television show is an issue of public interest.
(Tamkin, supra, 193 Cal.App.4th at p. 143 [CSI episode 913 is an
issue of public interest]; see Ojjeh, supra, 43 Cal.App.5th at
pp. 1043-1044 [proposed documentary about Syrian refugee crisis
concerned issues of public interest]; Brodeur v. Atlas
Entertainment, Inc. (2016) 248 Cal.App.4th 665, 675 [farcical
movie was a matter of public interest]; Hunter v. CBS
Broadcasting Inc. (2013) 221 Cal.App.4th 1510, 1521 [selection of
news anchor is in public interest]; Seelig v. Infinity Broadcasting
Corp. (2002) 97 Cal.App.4th 798 (Seelig) [on-air discussion
between talk radio hosts and their on-air producer about a
television show is a matter of public interest].) Appellant’s
complaint describes the show as “the #1 daytime talk show,”
“[n]ow in its 17th season,” and as a “trailblazing and award-
winning show” that “continues to provide the most
comprehensive forum on mental health issues in the history of
television.” The law is unequivocal that widely broadcast

21
productions such as the show are of public interest. In addition,
mental health issues and matters of health in general are
“‘undeniably of interest to the public.’” (Rivera v. First
DataBank, Inc. (2010) 187 Cal.App.4th 709, 716.) By engaging in
a discussion of mental health issues in a public forum, the show
clearly qualifies as involving matters of public interest under
section 425.16.
Appellant next argues that the only interest served by
broadcasting appellant’s mental illness to the public is “that of
curiosity.” (Citing Briscoe v. Reader’s Digest Assn., Inc. (1971) 4
Cal.3d 529, 537 (Briscoe), overruled by Gates v. Discovery
Communications, Inc. (2004) 34 Cal.4th 679, 692.) As Briscoe is
no longer good law, it does not advance appellant’s argument that
the subject episode of the show served no public interest other
than curiosity. Appellant also cites Wilbanks v. Wolk (2004) 121
Cal.App.4th 883, 898 (Wilbanks), for the proposition that “not all
statements made in a public forum, and not all conduct in
furtherance of the rights of petition or free speech, fall under
section 425.16.”5 Appellant argues that the mental health of one
indigent woman lends no legitimate contribution to discourse
about mental health generally. However, appellant voluntarily

5 In Wilbanks, the conduct at issue—publication of
statements about a small company on a Web site—was in the
public interest despite evidence that “plaintiffs are not in the
public eye, their business practices do not affect a large number
of people and their business practices are not, in and of
themselves, a topic of widespread public interest.” (Wilbanks,
supra, 121 Cal.App.4th at p. 898.) Because the publicized
information fell under the topic of “‘consumer information,’” it
concerned a matter of public interest under section 425.16.
(Wilbanks, at p. 899.)

22
agreed to appear on a show with a widespread audience of
millions of viewers. The topic of the show is mental health, and
the show and its guests have undeniably held the public interest
for many years. In addition to her voluntary appearance,
appellant freely shared her beliefs about her unusual powers
with the show’s creators in a prerecorded interview. Having
agreed to appear on the show and that the topics of discussion on
the live show were not limited in scope, appellant cannot now
claim that her mental health status is private for the purposes of
anti-SLAPP.
Appellant casts respondents’ actions as trickery, stating
that they are claiming protection for tricking vulnerable
psychiatric patients into divulging the details of their mental
disease and using this ammunition to humiliate them. We note
that courts have generally not accepted similar arguments when
nonpublic individuals interject themselves into a public debate in
a public forum. For example, in Ingels v. Westwood One
Broadcasting Services, Inc. (2005) 129 Cal.App.4th 1050 (Ingels),
an individual sought to participate in a call-in radio talk show by
calling in to the show to confront the host, who was giving advice
on relationships. (Id. at p. 1056.) In determining that the
plaintiff’s claims resulting from the call fell within the scope of
section 425.16, the Ingels court noted that the claims arose from
the plaintiff’s “attempt to express himself in an open forum
carried over the airwaves of public radio.” (Ingels, supra, at
p. 1064.) In this context, the Ingels court had “no trouble
concluding that respondents’ activity . . . fits within the scope of
section 425.16, subdivision (e)(4).” (Ibid.)
Similarly, in Seelig, supra, 97 Cal.App.4th 798, a woman
who had appeared as a contestant on the television program Who

23
Wants to Marry a Millionaire (Fox Network, Feb. 15, 2000) was
contacted by a radio show requesting her to appear live on the
show and discuss her participation in the television show.
Though she declined to appear on the live radio show, the hosts
nevertheless discussed and allegedly slandered her. (Id. at
pp. 801-805.) In determining that the woman’s lawsuit against
the radio show and its hosts fell within the purview of section
425.16, the Seelig court noted that, “[b]y having chosen to
participate as a contestant in the Show, plaintiff voluntarily
subjected herself to inevitable scrutiny and potential ridicule by
the public and the media.” (Seelig, supra, at p. 808.) Appellant
in this matter voluntarily subjected herself to the same kind of
public scrutiny and potential ridicule.
Appellant’s objection that she was publicly humiliated for
the sheer amusement of a television audience does not change the
result. The value of the speech at issue is not part of the
analysis: “We are not concerned with the social utility of the
speech at issue . . . ; rather, we examine whether a defendant—
through public or private speech or conduct—participated in, or
furthered, the discourse that makes an issue one of public
interest.” (FlimOn, supra, 7 Cal.5th at p. 151.)
c. The result is not based on the synecdoche
theory of public issue
Appellant argues that the trial court’s ruling was based on
“the oft-rejected, so-called ‘synecdoche theory of public issue in
the anti-SLAPP statute,’ where ‘[t]he part [is considered]
synonymous with the greater whole.’” (World Financial Group,
Inc. v. HBW Ins. & Financial Services, Inc. (2009) 172
Cal.App.4th 1561, 1570.) The World Financial court explained
that one could arguably identify a strong public interest in nearly

24
every topic. However, “‘[t]he fact that “a broad and amorphous
public interest” can be connected to a specific dispute is not
sufficient to meet the statutory requirements’ of the anti-SLAPP
statute.” (Ibid.) In World Financial, credit card solicitations did
not implicate matters of public interest for the purposes of section
425.16 where such communications were “merely solicitations of
a competitor’s employees and customers undertaken for the sole
purpose of furthering a business interest.” (World Financial,
supra, at p. 1572.) While the court did not dispute that
“employee mobility and competition are issues of public interest,”
the specific nature of the speech at issue removed it from the
protections of section 425.16. (World Financial, supra, at
p. 1572.) Any other outcome would “effectively ‘eviscerate the
unfair business practices laws,’ a result the Legislature plainly
did not intend.” (Ibid.) World Financial involved commercial
speech and is not comparable to the present situation.
Appellant also relies on Dyer v. Childress (2007) 147
Cal.App.4th 1273 (Dyer). In Dyer, Troy Dyer sued the defendants
for the allegedly false portrayal of him in the movie Reality Bites
(Jersey Films; Universal Pictures 1994). Dyer attended film
school with Childress, the author of the screenplay that
eventually became the movie in which a rebellious slacker
portrayed by Ethan Hawke was given the name Troy Dyer. (Id.
at pp. 1276-1277.) The defendants filed an anti-SLAPP motion,
arguing that the film addressed broad topics of public interest.
While the Dyer court acknowledged that movies involve free
speech, it concluded that “not all speech in a movie is of public
significance.” (Id. at p. 1280.) Instead, “[t]he issue turns on the
specific nature of the speech rather than the generalities
abstracted from it.” (Ibid.) The speech at issue was the “asserted

25
misuse of Dyer’s persona.” (Ibid.) While the movie addressed
some topics of public interest, “the representation of Troy Dyer as
a rebellious slacker is not a matter of public interest and there is
no discernable public interest in Dyer’s persona.” (Ibid.) The
court specified that “[t]he fact that ‘a broad and amorphous public
interest’ can be connected to a specific dispute is not sufficient to
meet the statutory requirements.” (Ibid.)
Notably, the Dyer court distinguished Ingels and Seelig,
discussed above, because the plaintiffs in those cases “voluntarily
thrust themselves into a discussion of public topics.” (Dyer,
supra, 147 Cal.App.4th at p. 1281.) “Dyer, on the other hand, did
not interject himself into any public debate.” (Ibid.) Here
appellant did inject herself into the public debate regarding
mental health by voluntarily agreeing to appear on the show.
Thus, unlike the Dyer plaintiff, appellant cannot argue that she
has no connection to the issues of public interest discussed on the
show.
The remaining cases cited by appellant are similarly
distinguishable. (Dual Diagnosis Treatment Center, Inc. v.
Buschel (2016) 6 Cal.App.5th 1098, 1106 [allegedly defamatory
statements about substance abuse treatment center published in
weekly electronic newsletter were not about the public issue of
addiction treatment but simply about “the purported license
status of that particular facility”]; Bikkina v. Mahadevan (2015)
241 Cal.App.4th 70, 80-84 [statements made by advisor about
student in university complaint process and to a small number of
other students were not made in a public forum and constituted a
private campaign to discredit another scientist, thus were not an
issue of public interest]; Mann v. Quality Old Time Service, Inc.
(2004) 120 Cal.App.4th 90, 111 [allegedly false statements

26
reflecting negatively on plaintiff’s business reputation were not
matters of public interest because they concerned the plaintiff’s
specific business practices], disapproved of by Baral v. Schnitt
(2016) 1 Cal.5th 376; Consumer Justice Center v. Trimedica
International, Inc. (2003) 107 Cal.App.4th 595, 602 [advertising
about the properties of pill not a matter of public interest because
the phrase does not include “advertising statements about a
particular commercial product”]; Rivero v. American Federation of
State, County and Municipal Employees, AFL-CIO (2003) 105
Cal.App.4th 913, 924 [statements concerning supervision of a
staff of eight people “hardly a matter of public interest”].) None
of the cases involves a plaintiff who voluntarily appeared on a
widely broadcast television show to engage in a debate on an
issue of public concern.6
In sum, respondents have met their initial burden of
showing that the conduct at issue in this lawsuit arises from acts
undertaken in furtherance of their constitutional right of free

6 Nor do the federal cases cited by appellant convince us that
the discussion on the show involving appellant’s purported
abilities were not in the public interest. In Dun & Bradstreet,
Inc. v. Greenmoss Builders, Inc. (1985) 472 U.S. 749, a credit
report was not an issue of public concern where it “was made
available to only five subscribers, who, under the terms of the
subscription agreement, could not disseminate it further.” (Id. at
p. 762.) In City of San Diego v. Roe (2004) 543 U.S. 77, videos of
sexual activity created by a police officer were not matters of
public concern because they were not “a subject of general
interest and of value and concern to the public at the time of
publication.” (Id. at p. 84.) The show on which appellant chose to
appear was unquestionably of interest to the general public at
the time it was created.

27
speech in connection with a public issue or issue of public
concern. (§ 425.16, subd. (e)(4).)
B. Probability of prevailing
Respondents met their initial burden of showing that
appellant’s complaint is based on activity protected by section
425.16. The burden thus shifts to appellant to demonstrate a
probability of prevailing on her claims. We analyze each claim
separately below and conclude that appellant has not made the
required showing as to any of her causes of action.7
Intentional infliction of emotional distress
(IIED)
The elements of the tort of IIED 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 plaintiff’s suffering severe or extreme
emotional distress; and (3) actual and proximate causation of the
emotional distress by the defendant’s outrageous conduct.”’”
(Christensen v. Superior Court (1991) 54 Cal.3d 868, 903.)
Whether a defendant’s conduct can reasonably be found to be
outrageous is a question of law to be initially determined by the
court. (Berkley v. Dowds (2007) 152 Cal.App.4th 518, 533.) The
alleged conduct must be so extreme as to exceed all bounds of
what is usually tolerated in a civilized community. (Cochran v.
Cochran (1998) 65 Cal.App.4th 488, 494.) “The defendant must
have engaged in ‘conduct intended to inflict injury or engaged in

7 Appellant’s opening brief does not mention or address her
negligent misrepresentation claim. Therefore, we decline to
discuss it and treat any appeal of this cause of action as forfeited.
(Stoll v. Shuff (1994) 22 Cal.App.4th 22, 25, fn. 1 [in the absence
of a serious effort to raise an issue on appeal, it is waived].)

28
with the realization that injury will result.’” (Christensen, supra,
at p. 903.) “‘“[M]ere insults, indignities, threats, annoyances,
petty oppressions, or other trivialities”’” are not subject to an
IIED claim because the law does not intervene when “‘“some one’s
[sic] feelings are hurt.”’” (Agarwal v. Johnson (1979) 25 Cal.3d
932, 946, disapproved on other grounds by White v. Ultramar,
Inc. (1999) 21 Cal.4th 563, 571-572.)
Appellant argues that her IIED claim is supported by her
allegations that respondents solicited a mentally ill psychiatric
patient to appear on the show, pretended to believe she had
psychic abilities, convinced her to take the stage by
misrepresenting what would happen once the cameras started
rolling, then ambushed her by mocking her delusional beliefs
while the audience laughed. Appellant argues that this is
outrageous conduct by any standard. Appellant further argues
that it is reasonable to infer that respondents’ actions were
calculated to cause appellant immediate and severe emotional
distress.
Appellant fails to cite facts sufficient to show that the acts
alleged were so extreme as to exceed the bounds of what is
tolerated in a civilized community. (Cochran v. Cochran, supra,
65 Cal.App.4th at p. 494.) The show has engaged in this type of
production throughout its history as a talk show; and, not only
has it been tolerated, it has been accepted and approved of by
many viewers. In addition, appellant has failed to present any
evidence that she was a “mentally-ill psychiatric patient” or was
under the care of a mental health professional at the time of
respondents’ alleged acts. Nor has she presented any evidence
suggesting that she informed respondents of a specific mental
health diagnosis or disorder. Thus there is no evidence that

29
respondents knowingly took advantage of her purportedly
vulnerable state.
Further, appellant’s claim is based on her assertion that
she was mocked. She alleges that McGraw invited her onto his
nationally televised program and made fun of her claims that she
had supernatural powers. Although this was embarrassing for
appellant, to which she had a strong, emotional reaction, this
mocking behavior is not actionable. Mere indignities or insults
may not, as a matter of law, form the basis of an IIED claim.
(Agarwal v. Johnson, supra, 25 Cal.3d at p. 946.)
Appellant cites Golden v. Dungan (1971) 20 Cal.App.3d
295, 303, footnote 6 (Golden), which explains that “‘[t]he extreme
and outrageous character of the conduct may arise from the
actor’s knowledge that the other is peculiarly susceptible to
emotional distress, by reason of some physical or mental
condition or peculiarity.’” However, appellant fails to point to
evidence showing that she alerted respondents that she was
particularly susceptible to emotional distress. Nor is there any
evidence from which we can draw such an inference. On the
contrary, appellant presented as ready and willing to appear on
the show and discuss her purported abilities. Further, as the
Golden court noted, even in cases where the IIED plaintiff is
particularly susceptible to emotional distress, “major outrage is
essential to the tort; and the mere fact that the actor knows that
the other will regard the conduct as insulting, or will have his
feelings hurt, is not enough.” (Ibid.) Respondents’ conduct,
which consisted of questioning appellant about her beliefs on
national television, did not fit under the description of a major
outrage.

30
 Appellant failed to state a claim for IIED as she did not
allege sufficiently outrageous conduct.
Fraud
The elements of fraud are “‘(1) misrepresentation (false
representation, concealment, or nondisclosure); (2) knowledge of
falsity (scienter); (3) intent to defraud (i.e., to induce reliance); (4)
justifiable reliance; and (5) resulting damage.’” (Alliance
Mortgage Co. v. Rothwell (1995) 10 Cal.4th 1226, 1239.) In a
claim of fraud the elements must be alleged with specificity.
(Nagy v. Nagy (1989) 210 Cal.App.3d 1262, 1268.)
In support of her claim of fraud appellant alleged that
respondents made misrepresentations to her to induce her to
appear on the show. These alleged misrepresentations included:
(1) her appearance on the show would be limited to discussing
childhood abuse her boyfriend claimed to have suffered; (2) the
nature of appellant’s appearance was to support her boyfriend in
confronting his alleged abusers; and (3) if she participated in the
show she would later have the opportunity to work with McGraw
as he treated children with repressed memories of abuse.
Appellant failed to specify the date and speaker of each alleged
misrepresentation, instead simply generalizing that “defendants”
made such misrepresentations. Appellant also alleged generally
that respondents concealed material facts concerning her
appearance on the show—for example, respondents never
informed appellant that the program would address her mental
illness or delusional beliefs. Appellant alleged that respondents
knew the misrepresentations were false when they were made
and that she relied on them.
In order to satisfy her burden under the second prong of the
anti-SLAPP analysis, appellant must “substantiate the legal

31
sufficiency of [her] claim.” (DuPont Merck Pharmaceutical Co. v.
Superior Court (2000) 78 Cal.App.4th 562, 568.) In other words,
it is not sufficient that she has alleged a legally sufficient claim—
she “must provide the court with sufficient evidence to permit the
court to determine whether ‘there is a probability that the
plaintiff will prevail on the claim.’” (Ibid.; accord, § 425.16, subd.
(b)(1).)
Appellant did not provide sufficient evidence to
substantiate her fraud claim. Appellant presented no admissible
evidence other than her declaration. In her declaration, she
states that a producer told her if she agreed to appear on the
show, she would later have an opportunity to work with McGraw
as he treated children with memories of abuse because she could
read their minds and see their injuries. There is no evidence that
the unnamed producer had knowledge of the falsity of the
statement or intended to defraud appellant.8 Further considering
the vague nature of this alleged promise, there is no evidence of
appellant’s reliance on the promise. Finally, there is no evidence

8 In appellant’s own words the unnamed producer stated
that appellant’s supernatural powers “would be a big help to
Dr. Phil and could be the start of a professional relationship
between us.” (Italics added.) The italicized words show that the
speaker was stating a possibility of a hypothetical future
development dependent upon various factors—not a false
assurance of future employment. It appears that the speaker
provided conjecture that if appellant in fact showed an
exceptional talent, McGraw could consider working with her in
the future. “‘[P]redictions as to future events, or statements as to
future action by some third party, are deemed opinions, and not
actionable fraud.’” (Tarmann v. State Farm Mut. Auto. Ins. Co.
(1991) 2 Cal.App.4th 153, 158.)

32
that appellant suffered any economic damage resulting from this
promise. (See Alliance Mortgage Co. v. Rothwell, supra, 10
Cal.4th at p. 1240 [unless a plaintiff merely seeks to rescind a
contract, she must show actual monetary loss to recover on a
fraud claim]).
The trial court observed that appellant admitted she did
not justifiably rely on respondents’ purported promises. At the
hearing on the motion appellant’s counsel stated:
“Just by way of example, you know, you’re going to be
able to use your psychic powers to help Dr. Phil treat
child abuse victims if you just agree to appear on the
show. [¶] As I said, that is a ludicrous statement. It
could not have possibly been true. Nobody could have
believe[d] it to be true.”
In response to the court’s inquiry, “So how can you rely on
it,” appellant’s counsel responded, “Because she’s delusional and
suffers from mental illness and [respondents’] agent went out of
his way to play along with her delusional beliefs.” However,
appellant’s counsel confirmed that “everybody here who doesn’t
suffer from sincerely held delusional beliefs can immediately look
at that and recognize that that promise was absurd.”
On appeal appellant asks that we categorize her as an
“‘[e]xceptionally gullible or ignorant’” person of below normal
intelligence. (Citing Boeken v. Philip Morris, Inc. (2005) 127
Cal.App.4th 1640, 1667 (Boeken).)9 Appellant presented no

9 The Boeken court stated, “‘Exceptionally gullible or
ignorant people have been permitted to recover from defendants
who took advantage of them in circumstances where persons of
normal intelligence would not have been misled. [Citations.] “No
rogue should enjoy his ill-gotten plunder for the simple reason

33
admissible evidence of any specific mental health diagnosis, only
declaring that at various times throughout her life she had been
diagnosed and treated with “various psychiatric disorders.”
Appellant points to no evidence in the record specifying any such
disorder or explaining its effects.10 There is no evidence showing
that she can be categorized as exceptionally gullible, ignorant, or
below normal intelligence. Thus, the quote from Boeken does not
assist her in making a claim for fraud.
Appellant has failed to provide evidence supporting her
claim for fraud. She has failed to present specific facts regarding
the alleged misrepresentations, failed to provide any evidence at
all of respondents’ knowledge of fraud or intent to deceive, and
failed to provide evidence of justifiable reliance. Under the
circumstances she has failed to show a probability of prevailing
on her claim for fraud.
Unfair competition
Business and Professions Code section 17200 et seq., or
unfair competition law (UCL), prohibits “any unlawful, unfair or

that his victim is by chance a fool.”’” (Boeken, supra, 127
Cal.App.4th at p. 1667.)
10 Appellant set forth in her declaration that “Via text
message or email, I sent [respondents’] TV Producer a written
medical diagnosis by my physician indicating that I was being
treated for multiple psychiatric disorders. [Respondents’] TV
Producer asked me to do this.” However, appellant does not
provide a citation to a page in the record showing any such text
message or e-mail. Nor does she specify the diagnosis or the
physician’s name or qualifications. Appellant cites no law
supporting the notion that unsupported references to a mental
health diagnosis justify her reliance on admittedly “ludicrous”
alleged promises.

34
fraudulent business act or practice.” (Bus. & Prof. Code,
§§ 17200, 17203.) “The UCL’s purpose is to protect both
consumers and competitors by promoting fair competition in
commercial markets for goods and services.” (Kasky v. Nike, Inc.
(2002) 27 Cal.4th 939, 949 (Kasky).) To determine whether a case
involves speech that falls under the laws aimed at preventing
false advertising or other forms of commercial deception, a court
must consider the speaker, the intended audience, and the
content of the message. (Id. at p. 960.)
In typical commercial speech cases, the speaker is likely to
be someone engaged in commerce—that is, generally, the
production, distribution, or sale of goods or services—or someone
acting on behalf of a person so engaged, and the intended
audience is likely to be actual or potential buyers or customers, or
persons (such as reporters or reviewers) likely to repeat the
message to or otherwise influence actual or potential buyers or
customers. (Kasky, supra, 27 Cal.4th at p. 960.)
Commercial speech is generally directed towards “an
audience of persons who may be influenced by that speech to
engage in a commercial transaction with the speaker,” and is
typically speech about a “product or service at a price, directed to
persons who may want, and be willing to pay for, that product or
service.” (Kasky, supra, 27 Cal.4th at pp. 960-961.) The factual
content of such speech is “commercial in character,” consisting of
representations about “business operations, products, or services
of the speaker.” (Id. at p. 961.)
The UCL protects only commercial speech, as described in
Kasky, and does not extend to noncommercial speech. (Kasky,
supra, 27 Cal.4th at p. 952.) None of the allegations in
appellant’s complaint concern the type of commercial speech

35
described in Kasky. Nor does appellant provide us with facts or
legal authority suggesting that any of the alleged speech at issue
in this case can be categorized as commercial speech covered by
the UCL. Under these circumstances, appellant has failed to
state a viable claim for violation of the UCL. (Kasky, supra, at
p. 952.)
Rescission
Under Civil Code section 1689, subdivision (b)(1), a party
may rescind a contract if her “consent . . . was given by . . .
fraud.” Civil Code section 1689, subdivision (b)(5) further
provides that a contract may be rescinded if it “is unlawful for
causes which do not appear in its terms or conditions, and the
parties are not equally at fault.” Appellant asserts that she
testified in her declaration to essential facts supporting a claim
for rescission. Appellant asserts that the same facts that support
her claim for fraud support her claim for rescission. “Fraud is
one of the grounds on which a contract can be rescinded.”
(Engalla v. Permanente Medical Group, Inc. (1997) 15 Cal.4th
951, 973.)
As set forth above, appellant has failed to state a prima
facie case of fraud. She has failed to provide specific information
regarding the allegedly fraudulent statements; evidence showing
the alleged speaker’s knowledge of fraud or intent to defraud; or
evidence of justifiable reliance. In the absence of these elements
appellant’s claim of fraud cannot survive respondents’ anti-
SLAPP motion. Thus, like her other claims, appellant’s
rescission claim has no probability of prevailing.11

11 Because we have determined that the anti-SLAPP statute
applies and appellant has no probability of prevailing on the
appealed causes of action, we decline to discuss the parties’

36
IV. Evidentiary rulings
Appellant argues that the trial court abused its discretion
in sustaining respondents’ objections to the declarations of Jori
Nunes and Kelly Jass. These declarants alleged that they, like
appellant, had been deceived into appearing on the show.
Respondents objected to the admission of these declarations on
the grounds of relevance and hearsay. The trial court sustained
all of respondents’ evidentiary objections.
Appellant provides no argument or citation to authority
regarding the specific grounds for respondents’ objections. Nor
does she provide any reasoned argument or citation to authority
suggesting that the trial court abused its discretion in sustaining
the subject objections. Under the circumstances appellant has
forfeited on appeal her argument that the trial court abused its
discretion. (Garcia v. Seacon Logix, Inc. (2015) 238 Cal.App.4th
1476, 1489 [appellate brief must contain legal argument with
citation to authorities or the point will be deemed forfeited].)
However, we note that only relevant evidence is admissible.
(Evid. Code, § 350.) Appellant fails to explain how the
declarations of Jori Nunes and Kelly Jass assist in proving any of
appellant’s allegations as to the events at issue in this lawsuit.
Appellant also fails to explain how such evidence could be
admissible considering the restriction found in Evidence Code

competing arguments as to whether appellant was a limited
purpose public figure. If appellant could be described as a limited
purpose public figure, she would be required to prove actual
malice as to any purported false statements. (Reader’s Digest
Assn. v. Superior Court (1984) 37 Cal.3d 244, 256.) We need not
reach the issue of whether the actual malice standard applies to
appellant, as her claims fail without reaching this issue.

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section 1101, subdivision (a), which provides that “evidence of a
person’s character or a trait of his or her character (whether in
the form of an opinion, evidence of reputation, or evidence of
specific instances of his or her conduct) is inadmissible when
offered to prove his or her conduct on a specified occasion.”
Under Evidence Code section 1101, subdivision (a), the
declarations of Jori Nunes and Kelly Jass are irrelevant. In the
absence of reasoned, legally supported argument, we have no
basis to find that the trial court abused its discretion in excluding
the declarations.12

DISPOSITION
The judgment is affirmed. Respondents are awarded their
costs of appeal.

________________________, J.
CHAVEZ
We concur:

________________________, P. J.
LUI

________________________, J.
ASHMANN-GERST

12 We decline to discuss appellant’s argument that her claims
are not barred by the liability waivers she signed. Appellant
argues that the two waivers she signed were procured by fraud.
Because all causes of action are subject to dismissal under section
425.16, we need not reach this issue.

38