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Filed 7/17/15 Phelps v. Bacon CA1/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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

FIRST APPELLATE DISTRICT

DIVISION THREE

JANET DENISE PHELPS,

Plaintiff and Appellant,

v.

KENNETH BACON, et al.,

Defendants and Respondents.

 A139771

 (Solano County

 Super. Ct. No. FCS041131)

Plaintiff Janet Denise Phelps in propria persona appeals from the order granting 

the anti-SLAPP motion of defendants David Timko, Linda LaSorsa, and the law firm of 

Timko & LaSorsa (collectively and severally T&L), Kenneth Bacon, and the law firm of 

Lewis & Bacon (collectively and severally L&B) to strike her complaint.1The court 

correctly found that Phelps’s causes of action arose from protected activity under the 

anti-SLAPP statute (Code Civ. Proc., § 425.16), and that she did not establish a 

probability of prevailing on her claims. Accordingly, we affirm.

 

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Phelps filed a timely notice of appeal in the superior court on September 13, 

2013, naming Kenneth Bacon as the sole respondent. In addition to that notice of appeal, 

we have received notices of appeal naming each of the other defendants as respondents. 

These notices of appeal are not stamped as having been filed in the superior court. The 

superior court docket indicates that these notices of appeal were timely received on 

September 16, 2013, but were returned to Phelps because “the original notice of appeal 

that was filed on Friday 9/13/13 is sufficient enough to cover the order filed on 7/15/13.” 

Under these circumstances, we conclude that Phelps has timely appealed as to all of the 

defendants who made the anti-SLAPP motion.
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BACKGROUND

This is the third of three related suits Phelps has filed. In the first action (Phelps 

I), Phelps, represented by counsel, sued Harry Misthos over a real estate dispute. 

Terminating sanctions were imposed on Phelps for failing to respond to discovery. The 

trial court rejected Phelps’s claim that discovery defaults were excused by her ill health, 

finding “ ‘this claim is not adequately established by her medical evidence, and is also 

belied by the multiple motions and other documents she has filed after the court’s 

issuance of the order compelling responses.’ ” Division One of this Appellate District 

affirmed the trial court’s decision on the point, holding that the court “acted well within 

its discretion in rejecting Phelps’ medical excuses. . . . [I]t is indeed astounding that 

Phelps could devote energy to motion practice, and attend case events including the 

mediation one day before the hearing on Misthos’s initial motion to compel, yet, at the 

same time, could not muster any energy over the course of two years, despite a court 

order, to answer two sets of discovery.” (Phelps v. Misthos (Nov. 29, 2012, A129963) 

[nonpub. opn.], p. 8.)

In Phelps II, Phelps in pro per sued T&L, the opposing attorneys in Phelps I

representing Mithos. Her complaint included causes of action for legal malpractice and 

breach of fiduciary duty based on an alleged attorney-client relationship between Phelps 

and T&L in the real estate transaction that spawned the Phelps I suit. T&L was 

represented in Phelps II by L&B. L&B demurred to the first amended complaint, which 

was set for a hearing on December 4, 2008. Phelps filed no opposition to the demurrer. 

Meanwhile, in Phelps I, T&L subpoenaed Phelps’s medical records from her treating 

nurse practitioner, Virginia Savely. The records were copied on November 20, 2008, 

without objection from Phelps. 

That same day, Phelps sent the judge in Phelps II a copy of a letter from Savely 

stating that she had an appointment with Phelps on October 13 and determined that 

Phelps was too ill to attend a case management conference on October 14. On November 

24, Phelps requested an extension of time to respond to the demurrer due to illness. On 

December 2, Phelps sent the judge in Phelps II another letter from Savely stating that 
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Phelps suffered from “several chronic, debilitating illnesses,” with symptoms that 

“waxe[d] and wane[d]. . . . [¶] Recent exacerbation of her symptoms has made it nearly 

impossible for her to attend to most aspects of her life. Her general exhaustion and 

mental unclarity make it difficult for her think (sic) or communicate. [¶] Please consider 

a 60 day postponement of legal matters, so that Ms. Phelps may recuperate.” 

On December 3, L&B wrote a letter to the judge in Phelps II objecting to Phelps’s 

request for additional time to oppose the demurrer. The letter stated that L&B first 

learned of Phelps’s November 24 extension request the previous day. The letter informed 

the court that during the time Phelps was allegedly too ill to respond to the demurrer, she 

had filed pleadings and made court appearances in Phelps I. The letter also stated that the 

medical records subpoenaed in Phelps I showed her last visit to Savely’s medical office 

was on October 13. L&B enclosed “chart notes regarding the October 13, 2008 visit,” 

and stated that the notes showed Phelps “was ‘getting better’ at that time but was 

suffering from a case of the flu.” The letter added: “As noted above, since that time she 

recovered from the flu sufficiently so that she was able to attend a settlement conference 

on October 20, 2008 and a court hearing on November 7, 2008” in Phelps I. 

That same day, the judge issued a tentative ruling sustaining the demurrer without 

leave to amend. Phelps did not request a hearing, and the tentative ruling became final on 

December 4. On December 23, the court filed a judgment of dismissal. 

Six months later, on June 30, 2009, Phelps moved to set aside the judgment. 

Phelps asserted amongst other things that her “request for a continuance due to her illness 

was not considered by the court. The Plaintiff believes that was, at least in part, because 

she was prejudiced by the improper ex parte communication with court (sic) by the 

defendants together with the unlawful dissemination of her private health records.” 

In support of her motion, Phelps filed a May 11, 2009 letter from a doctor in 

Savely’s medical office stating that “Phelps has been under our care with monthly visits 

since October 2006. . . . She has been diagnosed with chronic neurologic Lyme disease, 

sequelae of exposure to toxic mold, and Morgellons disease, a rare skin condition. . . . 

[¶] Symptoms have included extreme fatigue, painful skin lesions, muscle and joint pain, 
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severe headaches, stiff neck, nausea, blurry vision, cognitive difficulties such as inability 

to understand, remember or process information, and depression and anxiety due to her 

condition. These symptoms have rendered her incapable of working or engaging in all 

but the most basic self-care activities since October of 2006.” 

Phelps moved for an order that the doctor’s letter and her medical records 

previously submitted to the court be sealed. In this motion, Phelps wrote: “In violation 

of the Plaintiff’s civil liberties, the defendants demonstrated outrageous conduct for two 

experienced attorneys, when they knowingly and willfully obtained the Plaintiff’s entire 

medical file from her health providers by the unlawful use of a discovery subpoena; 

[¶] The defendants subsequently transmitted that entire medical record file of 

approximately 42 pages to their attorney of record, Mr. Kenneth Bacon. The defendants 

did not seek, nor were they granted, permission or authorization from the Plaintiff, to 

obtain and/or further disseminate her private medical file; [¶] The defendants’ attorney of 

record, Mr. Kenneth Bacon, after receiving the file in its entirety, singled out those 

individual records that best supported his contention that the Plaintiff should not receive 

additional time to prepare an opposition to the demurrer.” 

T&L opposed the motion to set aside the judgment, but did “not specifically 

oppose Ms. Phelps’s request that she be allowed to file her medical records in 

conjunction with the motions under seal.” However, T&L argued that Phelps had 

“waived her right of privacy and/or the physician-patient privilege regarding her medical 

records by tendering her medical condition as an issue in this action. In this regard, Ms. 

Phelps specifically tendered her medical condition in issue when she filed her untimely 

request for an extension of time to respond to defendants’ demurrer on November 24, 

2008, and on December 2, 2008, when she submitted a letter from Nurse Practitioner 

Virginia Savely.” 

In her August 18, 2009 reply, Phelps acknowledged that she had “probably” 

waived her physician-client privilege by making her medical condition an issue. 

However, she asked the court to refer the attorneys in the case to the State Bar, and to 

“take the necessary steps to discipline the defendant’s attorney by turning this matter over 
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to the district attorney for prosecution” for violation of the Confidentiality of Medical 

Information Act.” (Civ. Code, § 56 et seq.) 

The court denied the motion to set aside the judgment, and another motion to set 

aside the judgment Phelps filed in November 2009. In October 2010, she filed a notice of 

appeal from the judgment, and Division Two of this District dismissed the appeal as 

untimely. (Phelps v. Timko, et al. (Jan. 19, 2012, A129979) [nonpub. opn.])

Phelps in pro per filed this lawsuit against T&L and L&B (hereafter collectively 

and severally defendants) on June 11, 2012. The complaint alleges that defendants 

violated her right to privacy, the Confidentiality of Medical Information Act, and the 

Americans With Disabilities Act (42 U.S.C. § 12101 et seq.) when they used her medical 

records subpoenaed in Phelps I in defense of her case in Phelps II. The date of the 

violations is identified as December 3, 2008, the date of L&B’s letter to the judge in 

Phelps II objecting to Phelps’s request for an extension of time to oppose T&L’s 

demurrer, which attached a copy of nurse Savely’s notes of Phelps’s October 13, 2008 

appointment. Although the letter indicates that a copy was faxed to Phelps, the complaint 

alleges that, “[b]ecause of her disabilities,” she did not become aware of defendants’ 

allegedly wrongful conduct until June 9, 2009. The causes of action against L&B alleged 

that L&B had unlawfully obtained and published Phelps’s medical records. The cause of 

action for unlawful publication alleged that the December 3 letter defamed Phelps 

because it included “false assumptions . . . demeaning her illness and trying to usurp her 

medical provider’s orders.” 

The court granted defendants’ anti-SLAPP motion, finding that they were “acting 

in furtherance of their right of petition and free speech” when they disclosed “subpoenaed 

medical information about [Phelps] . . . in defending the actions [she] previously filed.” 

The court determined that Phelps failed to establish a probability of prevailing on the 

merits, noting that she submitted no evidence in opposition to the motion. The court 

agreed with defendants that the disclosures of Phelps’s medical information were 

protected by the litigation privilege (Civ. Code, § 47, subd. (b)), and that her causes of 

action were barred by statutes of limitation. 
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DISCUSSION

Resolving an anti-SLAPP motion is “[a] two-step process. First, the court decides 

whether the defendant has made a threshold showing that the challenged cause of action 

is one arising from protected activity. The moving defendant’s burden is to demonstrate 

that the act or acts of which the plaintiff complains were taken ‘in furtherance of the 

[defendant’s] right of petition or free speech under the United States or California 

Constitution in connection with a public issue,’ as defined in the statute. [Code Civ. 

Proc., § 425.16, subd. (b)(1).] If the court finds such a showing has been made, it then 

determines whether the plaintiff has demonstrated a probability of prevailing on the 

claim.” (Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67.) Rulings 

on these anti-SLAPP issues are subject to de novo appellate review. (Rusheen v. Cohen

(2006) 37 Cal.4th 1048, 1055.)

The trial court correctly concluded that the unlawful acts alleged here were taken 

in furtherance of defendants’ right of petition. Such acts include “any written or oral 

statement or writing made in connection with an issue under consideration or review 

by . . . a judicial body.” (Code Civ. Proc., § 425.16, subd. (e).) Thus, the December 3, 

2008 letter to the court was protected activity, as were the acts of obtaining and reading 

Phelps’s medical records taken in furtherance of that protected activity. Phelps’s case is 

indistinguishable in this respect from Bergstein v. Stroock & Stroock & Lavan LLP

(2015) 236 Cal.App.4th 793, 813, where a law firm was sued for “receiving and using 

confidential information to prepare for and prosecute litigation against plaintiffs. . . . 

Clearly those claims arise from protected activity within the meaning of the anti-SLAPP 

statute.”

The court also correctly ruled that Phelps did not establish a probability of 

prevailing on the merits. Phelps has no viable claim for invasion of privacy because she 

put her medical condition at issue in Phelps II. (Heller v. Norcal Mutual Ins. Co. (1994) 

8 Cal.4th 30, 43–44.) She has no viable claim for violation of the Confidentiality of 

Medical Information Act because that law does not regulate disclosures by attorneys. 

(Civ. Code, §§ 56.10 [disclosures by health care providers and health care service plans 
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or contractors]; 56.102 [disclosures by pharmaceutical companies]; 56.106 

[psychotherapists]; 56.20 [employers]; 56.26 [providers of administrative services to 

programs paying for health care]; 56.265 [insurance underwriters].) Phelps cites no 

authority suggesting that defendants can be held liable under the Americans With 

Disabilities Act for contesting her request for additional time to oppose the demurrer in 

Phelps II. Phelps’s defamation claim is time barred by the one-year statute of limitations

set forth in Code of Civil Procedure section 340, subdivision (c). (Shively v. Bozanich

(2003) 31 Cal.4th 1230, 1246.) Her complaint alleges that she discovered defendants’ 

wrongdoing on June 9, 2009. The complaint was filed more than one year later, on June 

11, 2012. 

DISPOSITION

The order granting the anti-SLAPP motion is affirmed.
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_________________________

Siggins, J.

We concur:

_________________________

McGuiness, P. J.

_________________________

Jenkins, J.
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Phelps v. Bacon, A139771