Opinion
D069443
03-03-2017
DUNCAN FAULKNER et al., Plaintiffs and Appellants, v. CITY OF OCEANSIDE et al., Defendants and Respondents.
Duncan Faulkner and Catherine Ibarra, in pro. per., for Plaintiffs and Appellants. John Mullen, City Attorney and T. Steven Burke, Jr., Deputy City Attorney for Defendant and Respondent City of Oceanside. Tyson & Mendes, Robert F. Tyson, Jacob Felderman and Kelly C. Dunham for Defendants and Respondents Crusader Insurance Company, Haunted Head, Inc., Stephen King, Donna King, Kristen Henderson and Patrick Lawless.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 37-2015-00023541) APPEAL from a judgment of the Superior Court of San Diego County, Earl H. Maas, III, Judge. Affirmed. Duncan Faulkner and Catherine Ibarra, in pro. per., for Plaintiffs and Appellants. John Mullen, City Attorney and T. Steven Burke, Jr., Deputy City Attorney for Defendant and Respondent City of Oceanside. Tyson & Mendes, Robert F. Tyson, Jacob Felderman and Kelly C. Dunham for Defendants and Respondents Crusader Insurance Company, Haunted Head, Inc., Stephen King, Donna King, Kristen Henderson and Patrick Lawless.
Plaintiffs Duncan Faulkner and his mother, Catherine Ibarra, filed a complaint alleging the defendants conspired to deny Faulkner his legal rights to compensation for injuries he incurred during an assault by inadequately investigating the incident and making false statements to the police and the small claims court. The court granted Defendants' special motions to strike the complaint under Code of Civil Procedure section 425.16, concluding the statute protected the activities underlying the asserted claims and appellants could not establish a probability of success on the merits, and entered judgment in favor of defendants.
Subsequent statutory references are to the Code of Civil Procedure unless otherwise specified.
On appeal, Faulkner and Ibarra contend the court erred in granting the special motions to strike because the conduct underlying the complaint was illegal as a matter of law and therefore not entitled to protection under the anti-SLAPP statute, and, even if the conduct was entitled to protection, they made a sufficient showing on the merits of the asserted claims to overcome the statute. We conclude the conduct at issue does not fall under the illegal conduct exception and plaintiffs cannot establish a probability of success on the merits. Consequently, the trial court did not err in granting the special motions to strike and we affirm the judgments.
FACTUAL AND PROCEDURAL BACKGROUND
Because the appeal arises from orders granting special motions to strike under section 425.16, we derive the following factual summary from the complaint and evidence submitted in support of, or opposition to, the special motions to strike. (See § 425.16, subd. (b)(2); Chabak v. Monroy (2007) 154 Cal.App.4th 1502, 1509-1510 (Chabak).)
October 2014 Incident at Haunted Head
In October 2014, Faulkner and a friend, Michael Martinez, entered the Haunted Head Saloon, after having lunch and drinks at another establishment. Martinez purchased several alcoholic beverages and Faulkner consumed at least two of them. After Martinez became visibly intoxicated, Kristin Henderson, a manager at Haunted Head, asked Faulkner to assist Martinez out of the bar. Faulkner complied.
Faulkner returned to the Haunted Head Saloon approximately 45 minutes later. Faulkner asked Henderson for a glass of water, she made a comment about throwing him out, and Faulkner asked "what makes you think you could do that?" Henderson then signaled to Patrick Lawless, another employee, for assistance and, after a confrontation, Lawless physically removed Faulkner from the bar. Faulkner alleges Lawless then repeatedly and deliberately slammed his head into the concrete.
Oceanside Police Officers Caporaso and Wheeler arrived shortly after the incident and spoke with Faulkner, Henderson and Lawless. Faulkner stated Lawless had hit him for no reason, but Henderson said she had asked Lawless to assist after Faulkner got upset because she refused to sell him more alcohol. Both Henderson and Lawless told the police that Faulkner began hitting his own head on the concrete after Lawless subdued him but before the police arrived. The officers noted Lawless was injured but did not want to press charges and that Faulkner had no visible injuries and appeared to be under the influence of alcohol. They did not arrest Faulkner or Lawless but did contact the fire department to evaluate Faulkner for possible head injuries. When fire department personnel arrived, Faulkner became hysterical and complained of pain whenever someone touched him. They transported Faulkner to the emergency room for further evaluation, where he was diagnosed with a shoulder separation and a concussion. That same evening, Officer Caporaso prepared a police report containing his recollection of the events and the witnesses' statements.
The next day, Faulkner continued to have symptoms so his roommates took him to another hospital. There, Faulkner received an MRI and CAT scan and was diagnosed with a "serious brain injury" and a separation of the shoulder. Because Faulkner did not have medical insurance, Ibarra agreed to take responsibility for the hospital bills. However, she was unable to pay all of them, her credit rating suffered and, as a result, she was unable to obtain a loan to finance additional medical care necessary to address Faulkner's ongoing symptoms resulting from postconcussion syndrome.
Faulkner's Request for Further Investigation by the Oceanside Police Department
In November 2015, Faulkner provided the Oceanside police department with a written statement about the incident and asked them to conduct an additional investigation. The police department informed Faulkner that he would need to contact Officer Caporaso and Faulkner attempted to do so but was ultimately unable to reach him. Faulkner and Ibarra then filed a complaint with the City of Oceanside's professional standards office alleging Officer Caporaso had not conducted an adequate investigation and improperly refused to undertake any further investigation. In response, Faulkner received a letter from Chief of Police Frank S. McCoy acknowledging his complaint and stating, in part, "I want to assure you that appropriate action has been taken."
Faulkner and Ibarra also filed a notice of claim with the City of Oceanside in compliance with the California Claims Act (Gov. Code, § 810, et seq.).
Faulkner's Demand and Small Claims Complaint against Haunted Head
In December 2014, Faulkner sent a written demand to Haunted Head requesting that it cover his medical bills. Haunted Head did not respond. Consequently, in January 2015, Faulkner and Ibarra each filed a claim in small claims court seeking reimbursement for medical bills allegedly resulting from injuries Faulkner sustained during the incident. Faulkner's friend and roommate attempted to serve a subpoena on Haunted Head seeking video surveillance of the incident from Haunted Head's security cameras. While waiting to serve the subpoena, she allegedly overheard a bartender say "It's all the fault of that Patrick Lawless; I saw him slam that poor guy's head on the cement. Patrick is a real loser; I knew we [Haunted Head Inc.] should never have hired that guy."
At the small claims trial, Henderson said that at the time of the incident, Faulkner was "black-out drunk," demanded alcohol, and called her derogatory names. In response to an inquiry from the court about statements in the police report indicating Faulkner hit his own head, Lawless stated, "that's just something I caught a brief glimpse of while he (Faulkner) was in handcuffs in the custody of the officers." At the conclusion of the trial, the small claims court found Faulkner had not presented any witnesses or evidence to prove his injuries were not self-inflicted and entered judgment against him.
The Present Complaint and Motions to Strike
In July 2015, Faulkner and Ibarra filed a complaint in superior court, alleging the defendants participated in an "ongoing civil and criminal conspiracy" by failing to adequately investigate the alleged battery, including false statements in a police report, and making false statements to the police in court in order to deprive Faulkner of his ability to pursue legal remedies available to him as a result of the battery. Based on these allegations, the complaint asserted the following causes of action against all defendants: (1) conspiracy; (2) abuse of process; (3) violation of 42 United States Code sections 1983, 14141, and 18 United States Code sections 241 and 242; (4) violation of Civil Code section 3294, oppression, fraud, malice; (5) intentional infliction of emotional distress; (6) negligent infliction of emotional distress; (7) negligent supervision; and (8) negligence per se.
The City of Oceanside and the remaining defendants (the Haunted Head defendants) each filed a special motion to strike the complaint under section 425.16. The court granted both motions and entered judgment in favor of defendants.
Appellants ask us to take judicial notice of the trial court's ruling granting a motion to stay enforcement of the judgment. Because the ruling is not relevant to the issues on appeal, we decline to grant the request. (See Arce v. Kaiser Foundation Health Plan, Inc. (2010) 181 Cal.App.4th 471, 482 [court "may decline to take judicial notice of matters that are not relevant to dispositive issues on appeal"].)
DISCUSSION
I
GENERAL LEGAL PRINCIPLES AND STANDARD OF REVIEW
The Legislature enacted section 425.16 in an effort to stymie the filing of meritless lawsuits "brought primarily to chill the valid exercise of the constitutional rights of freedom of speech and petition for the redress of grievances." (§ 425.16, subd. (a); Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260, 278 (Soukup).) Under section 425.16, a defendant may bring a special motion to strike (an anti-SLAPP motion) at the outset of the case asking the court to dismiss the lawsuit on the grounds the complaint asserts meritless claims arising from conduct protected by the statute. (Soukup, supra, at p. 278.)
The court decides a motion to strike under section 425.16 using a two-step process. (Soukup, supra, 39 Cal.4th at p. 278.) First, the court determines whether the defendant has made a threshold showing that the claims arise from protected activity and, thus, are within the scope of the statute. (Ibid.) If the court determines the defendant has made such a showing, the court must then determine whether the plaintiff can demonstrate a probability of prevailing on the merits of any asserted claim. (Ibid.) To make this determination, the court reviews the pleadings and admissible evidence, typically in the form of affidavits or declarations submitted in conjunction with the special motion to strike and the opposition thereto. (See Chabak, supra, 154 Cal.App.4th at p. 1509.) If the plaintiff is unable to demonstrate a probability of success on the merits, the court strikes the cause of action under section 425.16. (Chabak, supra, at p. 1509.)
We review orders granting or denying an anti-SLAPP motion de novo. (Flatley v. Mauro (2006) 39 Cal.4th 299, 325 (Flatley).) We do not reweigh the evidence, but instead accept as true the evidence favorable to appellants and evaluate the defendants' evidence to determine if they have defeated the appellants' claims as a matter of law. (Chabak, supra, 154 Cal.App.4th at p. 1510.) In addition, we address the issues the parties briefed in the trial court and on appeal, but do not consider issues the parties could have, but did not, raise. (Kashmiri v. Regents of University of California (2007) 156 Cal.App.4th 809, 830.)
Here, the record establishes that in the trial court, the City of Oceanside argued the anti-SLAPP statute applied because all of plaintiffs' causes of action arose from protected conduct, such as its investigation of the incident at the bar, its written reports about the incident and its decision not to pursue criminal proceedings against Lawless. Similarly, the Haunted Head defendants maintained plaintiffs' complaint arose from protected conduct, specifically allegations they had provided false statements to the police and had testified untruthfully in the small claims case.
In opposing these motions, plaintiffs asserted defendants' conduct was illegal and thus was not protected activity under the anti-SLAPP statute. The plaintiffs did not argue any of their causes of action arose from both protected and unprotected conduct. Thus, in granting the defendants' motions, the trial court did not analyze whether any of the causes of action were "mixed" causes of action, nor the import of such a finding in assessing the first prong of a SLAPP motion. (See Baral v. Schnitt (2016) 1 Cal.5th 376, 384-396.)
On appeal, the parties largely repeat the arguments they made below. In their opening brief, plaintiffs acknowledge defendants' conduct is protected activity, but argue the anti-SLAPP statute does not apply because defendants' conduct was illegal. In opposition, respondents maintain the complained-of conduct arises from protected petitioning activity and is not illegal.
In reply, plaintiffs, for the first time, suggest their causes of action for negligence, negligent supervision, and negligent infliction of emotional distress involve "a mix of Respondents' protected and non-protected activity." However, plaintiffs do not develop this argument. They instead describe the gravamen of their complaint as arising from defendants' conspiratorial conduct intended to deprive the plaintiffs of compensation for their medical bills caused by false statements in the police report and small claims court. Appellants' passing reference, without supporting authority, to the concept of mixed causes of action in their reply brief is insufficient to preserve the argument for review. (REO Broadcasting Consultants v. Martin (1999) 69 Cal.App.4th 489, 500.)
II
STEP ONE: THE ASSERTED CLAIMS ARISE FROM PROTECTED ACTIVITY
We first address whether the defendants made a threshold showing that the asserted claims arise from protected activities. Appellants do not contest that they do, but instead argue the statute does not apply here because the underlying conduct was illegal as a matter of law.
The anti-SLAPP statute does not protect speech or conduct that is illegal as a matter of law because there is no constitutionally protected right to such illegal speech or conduct. (Flatley, supra, 39 Cal.4th at p. 305 [concluding speech that constitutes extortion as a matter of law is not protected by the right to free speech or the anti-SLAPP statute].) Consequently, the trial court properly denies a special motion to strike when it determines that the speech or conduct underlying the asserted claims is illegal as a matter of law. (Ibid.) The illegality exception applies to remove the protection of the anti-SLAPP statute when the defendant admits or when the uncontroverted evidence conclusively shows that the speech or conduct was illegal. (Lefebvre v. Lefebvre (2011) 199 Cal.App.4th 696, 705; Dwight R. v. Christy B. (2013) 212 Cal.App.4th 697, 711.)
Appellants have not established the exception applies here. The defendants have not admitted that their alleged conduct was improper, much less illegal but, instead, have consistently denied such allegations. Appellants assert the defendants have not submitted evidence contradicting the allegations, but defendants submitted sworn affidavits in support of their motion asserting the police officers were properly trained, their investigation followed appropriate police protocol, and that the statements made by all defendants during the investigation, in the police report, and at trial were truthful. We recognize there are inconsistencies in the statement Lawless gave to the police, as reflected in the police report, and his statements in court with respect to the exact timing of when Faulkner allegedly hit his own head on the concrete. However, this inconsistency alone does not constitute uncontroverted evidence conclusively establishing Lawless or the police knowingly and illegally made false statements, and the findings of the small claims court indicate the court found Lawless and Henderson to be more credible than Faulkner and thus support the veracity of the defendants' statements.
Appellants also argue the illegality exception applies because the illegal battery committed by Lawless against Faulkner caused their damages. Notably, however, the complaint does not assert a cause of action for battery. Because the complaint frames the issues on appeal in the context of an anti-SLAPP motion (see Schoendorf v. U.D. Registry, Inc. (2002) 97 Cal.App.4th 227, 236), and the alleged battery does not form the basis of the asserted causes of action in the complaint, the battery does not make the illegal conduct exception applicable here.
Because appellants have not established the applicability of the illegal conduct exception, we conclude the defendants have made a threshold showing that the claims asserted in the complaint arise from communications or conduct protected by the anti-SLAPP statute.
III
STEP TWO: APPELLANTS HAVE NOT SHOWN A PROBABILITY
OF SUCCESS ON THE MERITS
Having concluded defendants met their burden with respect to the first prong, we now turn to the second prong of the anti-SLAPP analysis and consider whether appellants are able to demonstrate a probability of prevailing on the merits of any of the asserted claims. To do so, appellants must demonstrate the complaint is legally sufficient to state a claim and that the stated claim is " ' "supported by a sufficient prima facie showing of facts to sustain a favorable judgment if the evidence submitted by the [appellants] is credited." ' " (Navellier v. Sletten (2002) 29 Cal.4th 82, 88-89.) Appellants have the burden of establishing the complaint and supporting evidence meet this second prong and, thus, that the court erred in dismissing the complaint under section 425.16. (See Feldmen v. 1100 Park Lane Associates (2008) 160 Cal.App.4th 1467, 1477-1478.)
As noted above, the asserted claims here arise primarily from allegations that the Oceanside police department did not adequately investigate the alleged battery and the Haunted Head defendants made false statements to the police and in small claims court. In addition, appellants argue the complaint asserts a claim based on the alleged use of excessive force by an Oceanside police officer. We address each separately and conclude appellants have not demonstrated a probability of success on the merits with respect to any asserted claim.
A. The Complaint Does Not Assert a Valid Claim Based on the Failure to Investigate
1. Claims Arising Under State Law
A police department generally does not have a legal duty to investigate or prosecute any particular crime and, accordingly, courts have denied recovery for state law claims arising from a failure to investigate properly or to investigate at all. (Williams v. State of California (1983) 34 Cal.3d 18, 24-25.) Where, as here, a police department does conduct an investigation, Government Code section 821.6 states, "[a] public employee is not liable for injury caused by his instituting or prosecuting any judicial . . . proceeding within the scope of his employment, even if he acts maliciously and without probable cause." Consistent with this provision, law enforcement officers are entitled to immunity from civil liability for conduct directly connected with the judicial processes, including investigations that may lead to criminal proceedings, freeing them to investigate crimes and enforce the laws without harassment or interference. (White v. Towers (1951) 37 Cal.2d 727, 730 (White).) Government Code section 815.2, subdivision (b) extends the immunity to public entities. (Ibid. ["a public entity is not liable for an injury resulting from an act or omission of an employee of the public entity where the employee is immune from liability."].)
Here, the individual police officers did not have a duty to investigate or prosecute any particular crime, including the alleged battery and their investigative efforts were routine actions undertaken within the scope of their employment and for the purpose of instituting or prosecuting a judicial proceeding. Therefore, the police officers were immune from civil liability under California state law arising from the investigation, including the creation of the police report, the statements included therein, and the decision whether or not to reopen the investigation. (See Gov. Code, § 821.6; White, supra, 37 Cal.2d at p. 730.) This immunity was equally applicable to the city for all state law causes of action asserted against it. (Gov. Code, § 815.2, subd. (b).)
2. Claims Arising Under Federal Law
Appellants' third cause of action alleged violations of Faulkner's federal civil rights under title 42 United States Code sections 1983 (section 1983). Section 1983 confers civil liability on individuals and public entities acting under the color of state law for injuries caused by actions depriving one or more individuals of a constitutional right or privilege. (42 U.S.C. § 1983; Monell v. Department of Social Services of City of New York (1978) 436 U.S. 658, 691-692.) A governmental entity, such as a city, is liable for the actions of an individual employee or agent under section 1983 only when the individual acts pursuant to a governmental custom or policy. (Monell, supra, at p. 694.)
The complaint also asserts this cause of action under several other statutes, but those statutes are inapplicable in this context. Title 18 United States Code sections 241 and 242 relate to criminal, and not civil, proceedings and title 42 United States Code section 14141 authorizes claims only by the Attorney General of the United States.
Here, the complaint does not include sufficient factual allegations to support a claim that the police officers were acting pursuant to a governmental custom or policy as required by section 1983. The complaint summarily alleges the officers acted pursuant to a policy whereby they were designated as "final policymaker[s]" but does not provide any factual allegations that could, if true, establish the existence of such a policy or that any alleged constitutional violation resulted from that policy. Appellants also point to allegations in the complaint that defendants are "commonly accused of internally colluding in non-constitutional misconduct"; however, this vague and conclusory allegation is not sufficient to establish a policy or custom that resulted in the alleged violation of Faulkner's rights.
Finally, appellants point to allegations in the complaint that the Oceanside police department had a pattern or practice of favoring certain influential individuals or entities but, again, the complaint does not tie these allegations to Faulkner's section 1983 claim or contain factual allegations that, if true, would establish the existence of such a practice. Further, the complaint does not adequately allege that any of the Haunted Head defendants were members of this alleged influential class. Appellants point to a small number of other, unrelated and seemingly isolated cases as evidence but these cases are insufficient to establish the existence of any of the asserted patterns or practices. We therefore conclude the complaint does not adequately state a claim under section 1983.
The complaint also asserts the third cause of action for violation of section 1983 against the Haunted Head defendants, but it does not state a valid claim against them because it does not adequately allege the Haunted Head defendants were acting under color of state law. --------
Based on the foregoing, we conclude the complaint does not assert a valid claim based on the Oceanside police officers' alleged failure to adequately investigate the incident between Faulkner and Lawless.
B. The Complaint Does Not Assert a Valid Claim Based on False Statements
The claims asserted against the remaining defendants arise from allegations that they made false statements to the police in connection with their investigation and during the trial in small claims court. Defendants assert the litigation privilege protects those statements.
Like prosecutorial immunity, the litigation privilege is "relevant to the second step in the anti-SLAPP analysis in that it may present a substantive defense a plaintiff must overcome to demonstrate a probability of prevailing." (Rohde v. Wolf (2007) 154 Cal.App.4th 28, 38.) The litigation privilege, codified in Civil Code section 47, immunizes communications related to judicial proceedings from tort liability and bars such causes of action. (Jarrow Formulas, Inc. v. LaMarche (2003) 31 Cal.4th 728, 738; Rubin v. Green (1993) 4 Cal.4th 1187, 1194.) The statute defines privileged publications or broadcasts to include those made "[i]n any (1) legislative proceeding, (2) judicial proceeding, (3) in any other official proceeding authorized by law, or (4) in the initiation or course of any other proceeding authorized by law," subject to a number of specific exceptions not relevant here. (Civ. Code, § 47, subd. (b).) Although originally developed as a defense to defamation based on publications made in the context of litigation, the privilege now applies to all torts except malicious prosecution and all communications required or permitted by law in any judicial proceeding for the purpose of litigation, even if made prior to trial or outside of the courtroom. (Rusheen v. Cohen (2006) 37 Cal.4th 1048, 1057; see Jacob B. v. County of Shasta (2007) 40 Cal.4th 948, 956 [concluding the litigation privilege bars civil actions based on claims of perjury].)
Here, the complaint asserts claims against the Haunted Head defendants based on allegations that they made false statements in connection with the police investigation and in court. The police investigation was in anticipation of a judicial proceeding and the trial in small claims court was a judicial proceeding. As such, the litigation privilege protects the Haunted Head defendants from liability arising from any asserted cause of action. Further, to the extent the allegations arise from statements the police officers made to the other defendants in the course of the investigation or in connection with the testimony presented at the small claims trial, or a conspiracy between the city and the Haunted Head defendants based on such communications, the litigation privilege protects those communications as well. We therefore conclude the complaint does not state a valid claim against any Haunted Head defendant.
C. The Complaint Does Not Assert a Valid Claim Based on Excessive Force
Appellants also suggest they asserted a claim based on the use of excessive force by an Oceanside police officer against Faulkner and ask us to apply the reasoning set forth in Winterrowd v. Nelson (9th Cir. 2007) 480 F.3d 1181, to conclude the defendants are not entitled to immunity with respect to that claim. In Winterrowd, the Ninth Circuit Court of Appeals concluded a police officer was not entitled to qualified immunity against a section 1983 claim based on allegations that the officer used excessive force during a pat-down. (Id. at pp. 1183, 1186.) Unlike Winterrowd, however, the complaint here does not assert a section 1983 claim based on the use of excessive force. Instead, the section 1983 claim is based on the alleged conspiracy to deny Faulkner his rights to due process and equal protection through inadequate investigation and false statements. The complaint only references the alleged use of excessive force once in passing during the discussion of background facts. The complaint does not state a cause of action based on the use of excessive force and Winterrowd is thus inapplicable.
Because we conclude the complaint is not legally sufficient to state a claim, we need not address whether appellants made a prima facie showing of facts to sustain a favorable judgment on any asserted claim. (See Navellier v. Sletten, supra, 29 Cal.4th 82, 88-89.) Without stating any legally sufficient claim, appellants cannot demonstrate a probability of success on the merits under the second prong of the anti-SLAPP analysis. Therefore, the court did not err in granting the special motions to dismiss or in entering judgment in favor of defendants.
DISPOSITION
The judgment is affirmed.
HUFFMAN, J. WE CONCUR:
McCONNELL, P. J.
HALLER, J.