Opinion
Alameda County Super. Ct. No. RG05 239000
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Marchiano, P.J.
Leroy Cisneros sued DRI Commercial Corporation and Bill Leinenweaver for false imprisonment, civil rights violations (Civ. Code, §§ 51.7, 52.1), and intentional infliction of emotional distress arising out of an incident on a picket line. Defendants are appealing from the order denying their motion to strike the first amended complaint under the anti-SLAPP statute. (Code Civ. Proc., § 425.16.) The issues are whether Leinenweaver made a citizen’s arrest of plaintiff, and, if so, whether the arrest was activity protected under the anti-SLAPP law. It appears from the limited record before us that a citizen’s arrest transpired, and we hold that such an arrest does not qualify as protected activity. Based on these conclusions, we affirm the order denying the motion to strike.
Unless otherwise indicated, all further statutory references are to the Code of Civil Procedure.
I. BACKGROUND
Plaintiff is a business representative for the Roofers and Waterproofers Local 81 labor union. According to his declaration in opposition to the motion to strike, he and two other Local 81 business representatives were picketing on the morning of October 21, 2005, on the sidewalk outside the gate at DRI Commercial Corporation’s job site at the Federated Department Store in Hayward, when Leinenweaver drove rapidly up to the driveway of the job site in a pickup truck. Leinenweaver aimed the vehicle at the picketers instead of steering directly toward the gate. Plaintiff feared that he would be hit and jumped out of the way of the vehicle. Leinenweaver came to a stop just short of hitting plaintiff, got out, and ran at plaintiff shouting, “Who are you and what do you think you’re doing?” He told plaintiff, “I’m the owner and you don’t know who you’re messing with!” He pushed and bumped against plaintiff, yanked the microphone out of plaintiff’s bullhorn, and threw it to the ground. When plaintiff took out a notepad to record the vehicle’s license plate number, Leinenweaver grabbed the pad out of his hand and refused to return it. Leinenweaver then entered the job site and plaintiff resumed picketing.
According to Leinenweaver’s declaration, he drove peaceably up to the job site, came to a stop, and waited for Federated security personnel to open the gate. Plaintiff and the other picketers, holding signs that said “DRI Commercial” and “Local 81,” came over and stood in front of the vehicle and blocked it from moving forward. Leinenweaver got out of the vehicle and asked the picketers to move. They refused, and plaintiff began yelling in a hostile manner through his megaphone directly into Leinenweaver’s ear. Fearing for his safety and his hearing, Leinenweaver pulled the cord of plaintiff’s microphone, and the microphone fell out of plaintiff’s hand onto the ground. Leinenweaver had “unwanted physical contact” with plaintiff before getting back into his vehicle and driving into the job site.
A few minutes later, the police arrived. Federated security director George Allison indicates that Federated had summoned the police before the incident between plaintiff and Leinenweaver to monitor the picketing and ensure that it was peaceful.
Plaintiff states that an officer obtained his and Leinenweaver’s versions of the events, and “attempted to settle the matter without an arrest, urging me not to press charges against [Leinenweaver] and warning me that [Leinenweaver] would press charges against me if I pressed charges against him. The officer explained that he would then have to take custody of both of us. The officer added that he could not make a determination about whose version of events was right, and that the court would have to make the decision.” Plaintiff decided to press charges after calling and consulting with his boss at the union.
Leinenweaver states that, after the police spoke with him and plaintiff, an officer “advised me that based upon their investigation of the incident, the police were prepared to arrest [plaintiff] for battery if I wanted to press charges. I advised the officer that I was agreeable to pressing charges. The officers also informed me that [plaintiff] was pressing charges and that I would be arrested for alleged battery on [plaintiff].”
Plaintiff and Leinenweaver were both taken into custody. Plaintiff says that he was handcuffed, put in a patrol car, transported to the police station, and “not released from jail until four or five hours after this whole ordeal began . . . .”
II. DISCUSSION
A. Anti-SLAPP Framework
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. (§ 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. Under section 425.16, subdivision (b)(2), the trial court in making these determinations considers ‘the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based.’ ” (Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67.) Rulings on the issues are subject to de novo appellate review. (Rusheen v. Cohen (2006) 37 Cal.4th 1048, 1055 (Rusheen).)
In conducting that review, “[w]e do not weigh the evidence, but accept as true all evidence favorable to the plaintiff.” (Consumer Justice Center v. Trimedica International, Inc. (2003) 107 Cal.App.4th 595, 605 (Consumer Justice Center).) “Precisely because the statute (1) permits early intervention in lawsuits alleging unmeritorious causes of action that implicate free speech concerns, and (2) limits opportunity to conduct discovery, the plaintiff’s burden of establishing a probability of prevailing is not high. We do not weigh credibility, nor do we evaluate the weight of the evidence. Instead, we accept as true all evidence favorable to the plaintiff and assess the defendant’s evidence only to determine if it defeats the plaintiff’s submission as a matter of law. [Citation.] Only a cause of action that lacks ‘even minimal merit’ constitutes [a] SLAPP. [Citation.]” (Overstock.com, Inc. v. Gradient Analytics, Inc. (2007) 151 Cal.App.4th 688, 699-700.)
B. Defendants’ Arguments
Wang v. Hartunian (2003) 111 Cal.App.4th 744, 746 (Wang), held that a citizen’s arrest is not protected activity under the anti-SLAPP statute. Wang’s holding has been applied in subsequent cases (Buchanan v. Maxfield Enterprises, Inc. (2005) 130 Cal.App.4th 418, 423-424 (Buchanan) [citizen’s arrest not privileged communication under Civ. Code, § 47]; Kesmodel v. Rand (2004) 119 Cal.App.4th 1128, 1137-1138 (Kesmodel) [same]), and was applied by the trial court here in ruling that defendants failed to satisfy the first prong of the anti-SLAPP test. Defendants seek to avoid Wang and its progeny on the theories that Leinenweaver did not effect a citizen’s arrest of plaintiff, or that Wang has been implicitly overruled by Rusheen. Defendants argue that the entire complaint must be stricken because Leinenweaver’s activity in connection with the arrest was protected and privileged, and all of the causes of action are based to a significant extent on the alleged false arrest. (Peregrine Funding, Inc. v. Sheppard Mullin Richter & Hampton LLP (2005) 133 Cal.App.4th 658, 672-673 [cause of action involving protected and unprotected activity is subject to motion to strike unless protected activity is merely incidental to unprotected activity].)
C. Whether a Citizen’s Arrest Occurred
Defendants maintain that Leinenweaver cannot be found to have made a citizen’s arrest merely because he told police that he was “agreeable to pressing charges” against plaintiff. “In considering whether a citizen’s arrest was made, and the legality thereof, it is the substance and not any ‘magic words’ which we must consider.” (Padilla v. Meese (1986) 184 Cal.App.3d 1022, 1032 (Meese).) Leinenweaver’s declaration acknowledges that the police told him they would arrest plaintiff if he wanted to press charges. Thus, he could reasonably be found to have known that his stated willingness to press charges would cause plaintiff to be arrested, and that whether an arrest occurred would be his decision. He can be deemed to have effected plaintiff’s arrest in these circumstances, and to have delegated only the physical act of arrest to the police. (See id. at pp. 1030-1032 [citizen need not physically restrain the suspect in order to make a citizen’s arrest, and “delegation of the physical act of arrest [to the officer] need not be express, but may be implied”; citizen’s arrest transpired even though citizen did not intend to arrest the plaintiff].)
Defendants note that Meese, supra, 184 Cal.App.3d at pages 1030-1031 stated that delegation of physical authority to the police “may be implied from the citizen’s act of summoning an officer, reporting the offense, and pointing out the suspect,” and they observe that Leinenweaver did not summon the police in this case. However, we do not believe that Meese purported to identify the only circumstances in which a citizen’s arrest could be implied, and we do not agree that summoning an officer is necessarily required.
Defendants do not dispute that the other criteria for a citizen’s arrest identified in Meese—reporting the offense and pointing out the suspect—were satisfied here. According to Leinenweaver’s declaration, the police “asked me for my version of what happened in the incident,” and he told them of “the events and transactions described [in the declaration].” Shortly thereafter, the police “advised me that based upon their investigation of the incident, the police were prepared to arrest [plaintiff] for battery if I wanted to press charges.” According to Leinenweaver’s version of events, plaintiff initiated “unwanted physical contact” with him. It can be inferred from this evidence that Leinenweaver reported an offense (battery) and pointed out the suspect (plaintiff).
This conclusion is supported by the discussion in Meyers v. Redwood City (9th Cir. 2005) 400 F.3d 765, of the situation faced by officers who responded to a 911 call from a man named Bruno who was attempting to repossess plaintiff Meyer’s car. “Once Bruno told the officers he wanted to press charges . . . the officers were bound to take Meyers in on Bruno’s citizen’s arrest. By the same token, when Meyers told the officers that she too wished to press charges, the officers were equally bound to arrest Bruno.” (Id. at p. 773.) Whether or not an officer is required to take custody of a person who has been placed under a citizen’s arrest (see Haning et al., Cal. Practice Guide: Personal Injury (The Rutter Group 2006) [¶] 2:974.9, p. 2-310.20 (rev. #1, 2006) [citing Pen. Code, § 142, subd. (c)]; compare 73 Ops.Cal.Atty.Gen. 291, 293-295 (1990) [citing Pen. Code, § 142, subd. (a)]), the discussion in Meyers confirms that a citizen’s arrest can be effected by an individual who has not summoned the police to the scene.
Here, we have more than a bare “agreement to press charges”; we have prior advice to Leinenweaver indicating that his agreement was required to cause, and would in fact cause, plaintiff to be arrested.
The complaint here alleges that a citizen’s arrest transpired, and it is at least clear from the evidence presented that someone—either Leinenweaver or the officer—arrested plaintiff. (§ 425.16, subd. (b)(2) [anti-SLAPP rulings are based on the pleadings and supporting and opposing affidavits].) The dissent asserts that this is “not a case about police misconduct,” (dis. opn., post, at p. 4, fn. 4), but the defendants do not dispute that the officer had no lawful authority to make the arrest, and thus are alleging police misconduct by denying that a citizen’s arrest occurred. (See Pen. Code, § 836, subd. (a) [officer may make a warrantless arrest for a misdemeanor only if offense is committed in officer’s presence]; Arpin v. Santa Clara Valley Transp. Agency (9th Cir. 2001) 261 F.3d 912, 920 (Arpin) [police who arrived at scene after battery occurred could not lawfully arrest alleged perpetrator].) The problem for defendants is that nothing in the record suggests that the officer was disposed to make an illegal arrest. To the contrary, we must credit plaintiff’s declaration (Consumer Justice Center, Inc., supra, 107 Cal.App.4th at p. 605) that the officer urged him not to press charges and thus “attempted to settle the matter without an arrest.” (Italics added.) If evidence is ever developed that the officer made the arrest, defendants can seek a finding to that effect at a more fully developed motion for summary judgment, but the present record provides scant support for their attempt to hold the officer responsible for the arrest of the plaintiff.
At oral argument counsel for defendants conceded that they were contending that police misconduct occurred and not a citizen’s arrest.
D. Whether Wang and Progeny Remain Good Law
The plaintiff in Wang, supra, 111 Cal.App.4th at pages 746-747, sued the defendant for “false arrest/imprisonment” (see generally 5 Witkin, Summary of Cal. Law (10th ed. 2005) Torts, § 426, p. 643 [false arrest is one way to commit false imprisonment; false arrest and imprisonment are not separate torts]) and other torts arising from his citizen’s arrest by the defendant. The trial court granted the defendant’s motion to strike all the causes of action, and the appellate court reversed, finding, as we have said, that the arrest was not protected activity under the anti-SLAPP statute. (Wang, supra, at pp. 747, 752.) The court distinguished situations where police make an arrest based on a citizen’s report of a crime, and those where the citizen makes the arrest. (Id. at p. 749.) The court thought that the citizen’s report in the former situation might be privileged under Civil Code section 47, subdivision (b) (Wang, supra, at p. 749), but held that the citizen’s arrest in the latter situation was not privileged because it constituted conduct rather than communication (id. at pp. 751-752). The Wang court found precedent for its decision in Drum v. Bleau, Fox & Associates (2003) 107 Cal.App.4th 1009 (Drum), which held that an improper levy on exempt property pursuant to a writ of execution was not protected by the litigation privilege (Drum, supra, at pp. 1027-1028 & fn. 12), “because its essential nature was action, not communication” (Rusheen, supra, 37 Cal.4th at p. 1060). Wang reasoned that the defendant’s responsibility for the “physical act of restricting [the plaintiff’s] freedom of movement” (Wang, supra, at p. 752) was analogous to the “physical taking of property” found not to be privileged in Drum (id. at p. 751).
The analysis in Wang, as in the other cases we will be discussing, focused on whether the activity was privileged under Civil Code section 47, rather than protected under the anti-SLAPP statute, but the conduct-communication distinction applies equally in both contexts, and the same standards are applied in drawing that line. (Briggs v. Eden Council for Hope & Opportunity (1999) 19 Cal.4th 1106, 1115 [communications protected by the Civ. Code, § 47, subd. (b) privilege “ ‘are equally entitled to the benefits of section 425.16’ ”]; Rusheen, supra, 37 Cal.4th at p. 1058 [whether conduct is “communicative or noncommunicative” for purposes of the litigation privilege “hinges on the gravamen of the action”]; City of Cotati v. Cashman (2002) 29 Cal.4th 69, 79 [gravamen of action determines whether activity is protected under anti-SLAPP statute].)
Hagberg v. California Federal Bank (2004) 32 Cal.4th 350 (Hagberg), confirmed Wang’s supposition that citizen reports to the police that cause the police to arrest a suspect are privileged communications. In Hagberg, the police arrested the plaintiff after the defendant reported its suspicion that the plaintiff had committed a crime. The defendant was shielded from liability because “communications are privileged under section 47(b) when they are intended to instigate official governmental investigation into wrongdoing, including police investigation . . . .” (Id. at p. 370.) The privilege “ ‘. . . “assure[s] utmost freedom of communication between citizens and public authorities whose responsibility it is to investigate and remedy wrongdoing.”. . .’ ” (Id. at p. 364.)
After Hagberg was decided, Kesmodel reaffirmed Wang and held that “a citizen’s arrest is conduct, not communication in an official proceeding authorized by law, and thus Civil Code section 47, subdivision (b) provides no immunity from liability for false imprisonment.” (Kesmodel, supra, 119 Cal.App.4th at p. 1134, italics deleted and capitalization modified.) Kesmodel distinguished Hagberg on the ground that the defendants in Kesmodel had made a citizen’s arrest, and not merely provided information to the police that caused the police to make an arrest. (Id. at p. 1136.) The court wrote: “[T]he evidence in this case shows something far more than pure communication with the officers, i.e., conduct beyond just a report of the alleged crime to the police. . . . [¶] . . . Kesmodel was not arrested and taken into custody based on the officers’ independent determination of the merits of the Rands’ complaint. It was instead the Rands’ act of effecting the citizen’s arrest, rather than simply their communication, which caused Kesmodel’s detention, imprisonment and thus harm. The Rands’ noncommunicative act of arresting Kesmodel was conduct and thus not privileged under section 47(b), which protects only communications or broadcasts.” (Id. at p. 1137, italics in original.)
The subsequent decision in Buchanan, supra, 130 Cal.App.4th 418, likewise adhered to Wang (id. at p. 424) and distinguished Hagberg (id. at pp. 426-427). In Buchanan, defendant Maxfield’s employee Newson made a citizen’s arrest of the plaintiff for trespassing. (Id. at pp. 421-422.) The court reasoned: “[N]ewson’s statement that he wanted appellant arrested for trespassing was not communicative in nature. Newson’s objective was to get appellant out of the store. . . . As in Drum [supra, 107 Cal.App.4th at p. 1025], where we held that communication was tangential to the actual levy, here the object was to get appellant out of the store, not to report a crime, and the communication that took place was tangential to Maxfield’s object to remove appellant from the premises. [¶] . . . The facts as alleged are that Maxfield personnel were telling the deputies nothing more than that they wanted appellant out of the store and that, when he refused to leave, Newson, and not the deputies, arrested appellant. This was conduct on the part of [Maxfield], and not communication.” (Id. at pp. 425-426.)
Rusheen, supra, 37 Cal.4th at page 1065, then disapproved Drum and, defendants claim, thereby implicitly overruled Wang, Kesmodel, and Buchanan. Rusheen involved a cross-complaint for abuse of process arising out of opposing counsel’s alleged: failure to properly serve a complaint; taking of an improper default judgment; filing of false declarations on the issue of service; and participation in execution on the judgment. The trial court granted counsel’s anti-SLAPP motion based on the litigation privilege, and the Court of Appeal, following Drum, reversed. (Id. at pp. 1054-1055.) The Court of Appeal determined, based on the reasoning of Drum, that “. . . ‘the filing of a perjured proof of service may have been communicative but executing on the resulting default judgment was not. The litigation privilege therefore does not establish a complete defense to the abuse of process cause of action.’ ” (Id. at p. 1059.) The Supreme Court reversed, holding that the privilege applied and that the motion to strike should be granted. (Id. at p. 1048.)
The Rusheen court began by noting that, because the litigation privilege under Civil Code section 47, subdivision (b) “protects only publications and communications, a ‘threshold issue in determining the applicability’ of the privilege is whether the defendant’s conduct was communicative or noncommunicative. [Citation.] The distinction between communicative and noncommunicative conduct hinges on the gravamen of the action. [Citations.] That is, the key in determining whether the privilege applies is whether the injury allegedly resulted from an act that was communicative in its essential nature. [Citations.]” (Rusheen, supra, 37 Cal.4th at p. 1058.)
Rusheen concluded that the filing of allegedly false declarations of service of process were communicative acts protected by the privilege (Rusheen, supra, 37 Cal.4th at p. 1058), and that “procurement of the judgment based on the use of allegedly perjured declarations of service”—and not “the levying act”—was the gravamen of the action before it (id. at p. 1062). In support of those conclusions, Rusheen noted that the Court of Appeal had “failed to identify any allegedly wrongful conduct by [counsel] other than simply filing perjured declarations of service,” and that “enforcement of a judgment (in this case by way of levy) [was] simply the object of any civil action for damages.” (Ibid.)
Rusheen then went on to hold that “where the gravamen of the complaint is a privileged communication (i.e., allegedly perjured declarations of service) the privilege extends to necessarily related noncommunicative acts (i.e., act of levying).” (Rusheen, supra, 37 Cal.4th at p. 1062.) “Stated another way, unless it is demonstrated that an independent, noncommunicative, wrongful act was the gravamen of the action, the litigation privilege applies. [¶] Here, because the execution of the judgment did not provide an independent basis for liability separate and apart from the filing of the false declarations of service, the gravamen of the action was the procurement of the judgment, not its enforcement.” (Id. at p. 1065.)
Rusheen’s holding does not, in our view, serve to disapprove those in Wang, Kesmodel, and Buchanan. Rusheen does not address the tort of false imprisonment, and nothing in its discussion calls into question the central conclusion of those cases that false imprisonment by means of a citizen’s arrest is a noncommunicative act. While some communication will inevitably be made to the officer in delegating the physical act of arrest, that communication is the functional equivalent of handcuffing the plaintiff. The gravamen of the tort—intentional confinement of another against the person’s will (see 5 Witkin, Summary of Cal. Law, supra, § 426, p. 642)—is “in its essential nature” (Rusheen, supra, 37 Cal.4th at p. 1058) not a form of communication, and is the same whether the plaintiff is restrained personally by the defendant, or by the defendant through a third party in the case of a citizen’s arrest.
Nor is the noncommunicative act of false arrest “necessarily related” within the meaning of Rusheen to communications to the police that are privileged under Hagberg. Wang, Kesmodel, and Buchanan all grant that communications made to prompt or assist police investigations are privileged, whether or not they result in an arrest by the police. But it is up to the citizen to make the arrest in cases like Wang, Kesmodel, and Buchanan involving misdemeanors not witnessed by the police because, as we have said, the citizen’s privileged report is insufficient to enable the police to make a lawful arrest. (Pen. Code, § 836, subd. (a); Arpin, supra, 261 F.3d at p. 920.) The citizen’s arrest is thus, of necessity, entirely divorced from, not necessarily related to, any prior privileged communication. In the language of Rusheen, supra, 37 Cal.4th at page 1065, a false citizen’s arrest is “an independent, noncommunicative, wrongful act” that constitutes “an independent basis for liability separate and apart from [the privileged communication].”
We therefore conclude that Wang, Kesmodel, and Buchanan are consistent with Rusheen, and that Wang was properly applied in the case at bench. The motion to strike hinged, as to all causes of action, on the unmeritorious argument that false citizen arrests are privileged. Accordingly, the court was correct in denying the motion.
E. Other Matters
Defendants improperly contend for the first time in their appellate reply brief (see Beane v. Paulsen (1993) 21 Cal.App.4th 89, 93, fn. 4 [arguments raised at that stage can be disregarded]) that, even if “technically a citizen’s arrest was effected, Leinenweaver should still not be deemed to have made such an arrest” because to conclude otherwise would “deprive him of his fundamental right to contact the police absent an express intention to waive that right.” A similar argument is advanced by the Pacific McGeorge Crime Victims Legal Clinic (McGeorge Legal Clinic) in an amicus curiae brief concerned with protecting reporters of domestic violence and sexual assault. The McGeorge Legal Clinic submits “that the absolute privilege of witness communications in the course of a police investigation should apply to all crime victims until they knowingly waive that privilege.”
United Food and Commercial Workers Union, Local No. 324 has filed an amicus curiae brief on behalf of plaintiff, arguing that a privilege for false citizen’s arrests “would frustrate and effectively preclude picketing of all kinds.” Defendants’ answer to this brief goes so far as to suggest that efforts to combat international terrorism will be compromised if our citizens do not have an unfettered right to lock people up.
Defendants also slip an argument into this answer that belonged in their opening brief that a desire to “press charges” should be insufficient to effect a citizen’s arrest because the average person would think that “pressing charges” would be in the discretion of law enforcement. Even if the point were valid, however, it would not change the result because, as we have noted, the officer did more than simply ask Leinenweaver whether he wanted to press charges; before doing so, the officer explained that if Leinenweaver desired to press charges plaintiff would be arrested.
In response to these points, it is sufficient to observe that nothing in our decision will deprive citizens of their “fundamental right to contact the police” about crime, or affect the privilege afforded to their communications in connection with police investigations. The traditional defense remains: if the defendant proves that the plaintiff committed a felony, or any crime in the defendant’s presence, then the arrest was lawful (CACI No. 1404 (Spring 2007 ed.)), and the defendant has a complete defense. No persuasive legal argument has been made for abolishing the citizen’s arrest form of the tort of false imprisonment, and we reiterate that only the arrest itself is actionable, not reports of crime to the police.
III. CONCLUSION
The order denying the anti-SLAPP motion is affirmed.
I concur: Stein, J., Swager, J., Dissenting
I respectfully dissent from my colleagues’ conclusion that a citizen’s arrest was made. From my review of the applicable law and the record before us, I conclude that Leinenweaver did not make a citizen’s arrest.
Although Cisneros and Leinenweaver disagree as to the events that led to the summoning of the police officers, they are in remarkable agreement as to what transpired after the officers’ arrival. The parties’ versions are set forth in the majority opinion and need not be repeated here in detail. From the declarations, it is clear that the police officer who spoke with the parties was attempting to diffuse what appears to have been a minor altercation at the site of an informational picket line. Significantly, what cannot be found anywhere in the record, and what differentiates this case from Wang v. Hartunian (2003) 111 Cal.App.4th 744, are sufficient facts to support the allegation that Leinenweaver in fact placed Cisneros under citizen’s arrest.
We do not have the benefit of any declarations from the police officers who responded to the site.
Wang, and its progeny, Buchanan v. Maxfield Enterprises, Inc. (2005) 130 Cal.App.4th 418 and Kesmodel v. Rand (2004) 119 Cal.App.4th 1128, all involved underlying facts that are missing from the record before us. In Wang, the defendant called the police and reported the incident. When the police arrived, they asked the defendant if he wished to make a citizen’s arrest. The defendant then signed a “Private Person’s Arrest” form, and the plaintiff was taken into custody by the police. (Wang. v. Hartunian, supra, 111 Cal.App.4th 744, 746.)
In Buchanan, a store security employee requested sheriff’s deputies to evict the plaintiff from the store. The deputies advised store personnel that they would have to make a citizen’s arrest. The security person then made a citizen’s arrest of the defendant for trespassing. (Buchanan v. Maxfield Enterprises, Inc., supra, 130 Cal.App.4th 418, 421–422.)
The defendants in Kesmodel placed the plaintiff under citizen’s arrest after they summoned the police and told the police that they wanted the plaintiff arrested. They were told that they would have to make a citizen’s arrest, and were advised of the possible consequences of that arrest. They then signed a citizen’s arrest form. (Kesmodel v. Rand, supra, 119 Cal.App.4th 1128, 1133.)
The basic elements of a citizen’s arrest can be distilled from these cases. “A private person can make a citizen’s arrest by calling for a peace officer, reporting the offense, and pointing out the suspect.” (CACI No. 1403.) However, none of these elements can be found in this case. It is undisputed that neither Leinenweaver nor Cisneros called the police or reported an offense. And there is nothing to indicate that Leinenweaver requested anyone to do so. When the police arrived, they properly went about their duties in gathering information in an attempt to resolve the situation. They spoke with both Cisneros and Leinenweaver. An officer advised Leinenweaver that “the police were prepared to arrest Mr. Cisneros for battery if [Leinenweaver] wanted to press charges” and Leinenweaver indicated that he “was agreeable to pressing charges.” (Italics added.) There is absolutely no evidence in the record that either Leinenweaver or Cisneros was making a citizen’s arrest of the other. At most Leinenweaver was “agreeable to pressing charges.”
Relying on Padilla v. Meese (1986) 184 Cal.App.3d 1022, my colleagues speculate that: “[Leinenweaver] could reasonably be found to have known that his stated willingness to press charges would cause plaintiff to be arrested, and that whether an arrest occurred would be his decision.” (Maj. opn., ante, at p. 5.) The decision in Meese, however, is predicated on facts that are fundamentally different from what is before us.
Consistent with my colleagues, I will refer to this case as Meese.
In Meese, which was an action challenging the suspension of Padilla’s driver’s license for driving under the influence, the issue before the court was whether Padilla’s arrest was lawful. An inspector for the Department of Food and Agriculture working at an inspection station received information from a citizen that Padilla had been driving erratically. Padilla approached the inspection station and stopped. The inspector concluded from Padilla’s speech and the odor of alcohol about him that he was under the influence. He told him to pull over and park. The inspector, who testified that it was not his procedure to make citizen’s arrests, summoned a highway patrol officer who placed Padilla under arrest. (Meese, supra, 184 Cal.App.3d 1022, 1025.) The court found that although the CHP officer did not have probable cause to arrest Padilla because he was not present when the driving occurred, the inspector effectively placed Padilla under citizen’s arrest, thereby making his arrest lawful for license suspension proceedings. The court found that the “delegation of the physical act of arrest need not be express, but may be implied from the citizen’s act of summoning an officer, reporting the offense, and pointing out the suspect.” (Id.at pp. 1030–1031.) This language, although broad in scope, must be viewed in the context of the narrow issue before the Meese court. Nevertheless, it still does not support the conclusion that Leinenweaver made a citizen’s arrest since he neither summoned the officer nor reported an offense. He simply responded to questions from the officer.
It is interesting to note that the court in Wang appears to recognize the applicability of the anti-SLAPP provisions even where a citizen summons the police with the intention of having a person arrested. “Thus, had Hartunian summoned the police and reported to them Wang’s conduct with the intention of prompting his arrest, and had the police, after conducting an investigation based upon that report, arrested Wang, Hartunian’s conduct of making a report to the police might fall within the ambit of Civil Code section 47, subdivision (b). According to the evidence in the record, however, that is not what happened. Rather, after the police declined to arrest Wang based on Hartunian’s report, Hartunian arrested Wang, and delivered him to the police, which he was obligated to do pursuant to Penal Code section 847, subdivision (a).” (Wang v. Hartunian, supra, 111 Cal.App.4th 744, 749, fn. omitted.)
My colleagues find ostensible support in Meyers v. Redwood City (9th Cir. 2005) 400 F.3d 765, a case that involved a civil rights action against police officers who responded to a call involving a dispute over repossession of an automobile, for their conclusion that a citizen’s arrest was made by implication. In the course of its opinion, the court observed that “[o]nce Bruno told the officers he wanted to press charges . . . the officers were bound to take Meyers in on Bruno’s citizen’s arrest. By the same token, when Meyers told the officers that she too wished to press charges, the officers were equally bound to arrest Bruno.” (Id. at p. 773.) From this broad language the majority appears to be adopting a position that a citizen’s arrest is implied when an individual simply expresses a desire to press charges.
Meyers, however, must be read in the context of the issues and facts before the court. The defendants in Meyers were police officers accused of misconduct, and the court was not confronted with a factual framework in which a citizen expressed only a desire to press charges in response to an officer’s question. The Meyers opinion reveals that: “At some point Bruno told the officers that he wanted to effect a citizen’s arrest against Plaintiffs for assaulting him. Plaintiffs informed the officers that they, too, wished to effect a citizen’s arrest against Bruno for assault and trespass.” (Meyers v. Redwood City, supra, 400 F.3d 765, 768–769, italics added.) Not surprisingly, the manifest expression of a desire to make a citizen’s arrest as opposed to a desire to press charges is a fact common with the Wang line of cases.
The case before us is not a case about police misconduct. No such allegations have been made by plaintiff in his complaint.
Meese appears to be an exception.
It is difficult for me to accept the proposition that a citizen who never initiates contact with the police to report a crime, but only gives information to the police in response to their questions and then answers in the affirmative when asked if he or she wants to press charges, is knowingly or impliedly delegating to the police the actual arrest of the suspect. This notion imputes to a citizen a level of knowledge concerning the nuances of the law of arrest that is not reasonable and ignores the realities of citizen and police interaction. And it could expose many citizens to liability for false arrest simply based on their willingness to cooperate with police officers who are investigating possible criminal activity.
Since I conclude that no citizen’s arrest occurred, it is clear that Leinenweaver’s statements to the police are communicative conduct that fall within the provisions of the anti-SLAPP statute. With this conclusion I find it unnecessary to address the interesting issue of the continuing viability of Wang and its progeny in view of our high court’s further pronouncements in Rusheen v. Cohen (2006) 37 Cal.4th 1048 and Hagberg v. California Federal Bank (2004) 32 Cal.4th 350.
For the reasons set forth above, I would reverse the trial court’s order as it relates to the false imprisonment cause of action because Leinenweaver did not make a citizen’s arrest, his communications to the police are within the provisions of the anti-SLAPP statute, and are absolutely privileged under Civil Code section 47, subdivision (b). (Hagberg v. California Federal Bank, supra, 32 Cal.4th 350, 364.)
The second and third causes of action, however, present distinct issues. These causes of action are based on violations of Civil Code sections 51.7 and 52.1, respectively. It is therefore necessary to determine whether these causes of action are “based on an act in furtherance of the defendant’s right of petition or free speech.” (City of Cotati v. Cashman (2002) 29 Cal.4th 69, 78.) It is true that each cause of action incorporates the allegations of the preceding causes of actions including the first cause of action for false imprisonment. But unlike the communicative acts that underlie the first cause of action, the second and third causes of action appear to be predicated primarily on noncommunicative acts that were antecedent to the statements giving rise to the first cause of action. For that reason, I believe that they are not subject to the anti-SLAPP provisions.
For the reasons set forth above, I would reverse the order on the false imprisonment cause of action and affirm the order as to the remaining causes of action.
Swager, J.