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holding that the reporting to the police "had nothing to do with the court at all"
Summary of this case from Taylor v. Clark Cnty. Sch. Dist.Opinion
G053478 G053942
06-23-2017
GREGORY W. HOOD, Plaintiff and Appellant, v. CITY INVESTMENT CAPITAL, as Trustee, etc., Defendant and Respondent.
The Walker Law Firm and Joseph A. Walker for Plaintiff and Appellant. Martin & McCormick, John D. Martin and Kathy J. McCormick for Defendant and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 30-201300650214) OPINION Appeal from orders of the Superior Court of Orange County, Sheila Fell, Judge. Affirmed. The Walker Law Firm and Joseph A. Walker for Plaintiff and Appellant. Martin & McCormick, John D. Martin and Kathy J. McCormick for Defendant and Respondent.
INTRODUCTION
Gregory W. Hood has appealed from an order granting the anti-SLAPP motion of respondents Bradley Amster and CIC, Inc. (CIC). Hood sued Amster and CIC after Amster made a report to the Newport Beach Police Department (NBPD) about the removal of some fixtures from a house bought by CIC. The police subsequently identified Hood as the person who had removed the fixtures, and he was arrested. He was released on bond, and no charges were filed against him.
"SLAPP" is an acronym for "strategic lawsuit against public participation," and refers to a lawsuit that both arises out of the defendants' constitutionally protected expressive or petitioning activity and lacks a probability of success on the merits. (Code Civ. Proc., § 425.16; S.B. Beach Properties v. Berti (2006) 39 Cal.4th 374, 377.)
Hood sued Amster and CIC for abuse of process and malicious prosecution based on the police report. Respondents made an anti-SLAPP motion, and Hood applied to the court ex parte for permission to do some discovery before the motion was heard. The court denied the ex parte discovery application. The anti-SLAPP motion was ultimately granted. Hood has appealed from both the order granting the anti-SLAPP motion and the order denying the discovery application.
After the appeal of the anti-SLAPP order was filed, the court awarded respondents their attorney fees as prevailing defendants. Hood has filed a separate appeal from that order. We have consolidated both appeals for argument and disposition.
We affirm the order denying the ex parte application for permission to conduct discovery. Hood did not demonstrate the requisite good cause and, in any event, we perceive no abuse of discretion.
We also affirm the order granting the anti-SLAPP motion and the attorney fees order. The report to the NBPD was protected conduct under the first prong of the anti-SLAPP analysis. Hood did not carry his burden to show a probability of prevailing under the second prong. Leaving aside his failure to state a cause of action for either abuse of process or malicious prosecution, we note that making a police report is absolutely privileged under Civil Code section 47. The anti-SLAPP motion was correctly granted. As Hood did not contest respondents' entitlement to attorney fees or the amount awarded, the attorney fees award will be affirmed as well.
FACTS
Hood's complaint alleged four causes of action, two labeled abuse of process and two labeled malicious prosecution. All causes of action refer to the purchase of a house in Newport Beach.
Hood sold the house to the Circle Trust, CIC being the trustee. At the time of the sale, Hood's tenant occupied the premises. Hood alleged that after the tenant's departure, Hood removed certain items of personal property from the house.
Hood alleged that Amster, CIC's representative, reported to the NBPD that Hood had removed approximately $61,000 of fixtures from the house after the tenant left. About two weeks later, CIC filed a civil action in the Superior Court of Orange County seeking damages for the removed property.
In April 2012, Hood was arrested and booked on grand theft charges. He was released on bond. The Orange County District Attorney's Office subsequently informed Hood that it would not press criminal charges, citing lack of sufficient evidence.
Hood filed for bankruptcy protection in June 2012, and CIC filed an adversary proceeding in the bankruptcy court regarding the removal of the property from the Newport Beach house. That proceeding was later dismissed pursuant to stipulation.
The first cause of action for abuse of process rests on the theft report to the NBPD. The second cause of action, for malicious prosecution, is based on Hood's arrest on criminal charges of grand theft. Hood alleged that CIC and Amster lacked probable cause to accuse Hood of a crime. The third and fourth causes of action (abuse of process & malicious prosecution) are based on filing the adversary proceeding in Hood's bankruptcy.
Respondents made an anti-SLAPP motion, which was granted. The case was not dismissed at that point, because Amster had filed a cross-complaint, which was later dismissed. Respondents were subsequently awarded attorney fees as prevailing defendants.
According to the evidence submitted to support the motion, Amster did not report Hood to the NBPD. He merely reported to the police that valuable items had been taken. The police tracked Hood down through the moving company that had removed the items from the house. Hood submitted no countervailing evidence.
Hood has appealed from the order granting the anti-SLAPP motion only as to the first two causes of action, abuse of process and malicious prosecution respectively. He concedes that the claims regarding the adversary proceeding (third & fourth causes of action) belong in the bankruptcy court. He has also appealed from the denial of an ex parte application to permit limited discovery in anticipation of the anti-SLAPP motion. Finally, he has appealed separately from the award of attorney fees to respondents, as a precaution in case the order granting the anti-SLAPP motion is reversed. He does not dispute respondents' entitlement to fees if the order is affirmed or the amount of the fees.
DISCUSSION
Anti-SLAPP Motion
The California Legislature enacted the anti-SLAPP statute to counteract "a disturbing increase in lawsuits brought primarily to chill the valid exercise of the constitutional rights of freedom of speech and petition for the redress of grievances." (Code Civ. Proc., § 425.16, subd. (a).) A court may order a cause of action "arising from any act" "in furtherance" of the "right of petition or free speech under the United States Constitution or the California Constitution in connection with a public issue" to be stricken by means of this special motion. (Code Civ. Proc., § 425.16, subd. (b)(1).) We review the order granting or denying an anti-SLAPP motion de novo. (Flatley v. Mauro (2006) 39 Cal.4th 299, 325.)
We use a two-part test to evaluate an anti-SLAPP motion. First, we determine whether the complaint or cause of action is "one arising from protected activity." (Navellier v. Sletten (2002) 29 Cal.4th 82, 88.) As the Supreme Court has emphasized, "[T]he critical consideration is whether the cause of action is based on the defendant's protected free speech or petitioning activity." (Id. at p. 89.) If the defendant satisfies the first part of the test, the burden shifts to the plaintiff to demonstrate a probability of prevailing. (Id. at p. 88.) Although the plaintiff does not have to prove its case at this juncture, it must present a prima facie case that could sustain a judgment if its evidence is believed. (Id. at pp. 88-89.)
Protected Activity
Both claims for which Hood seeks review are based on reporting Hood to the NBPD for theft. Hood claims that respondents' police report was an abuse of process and that the NBPD "commenced" "a criminal prosecution" against Hood "based upon the charges" of grand theft reported by respondents. The commencement of a criminal prosecution based on the theft report is the basis of the malicious prosecution cause of action.
Communications with the police are protected under the anti-SLAPP statute. (See Comstock v. Aber (2012) 212 Cal.App.4th 931, 941-942 & cases cited therein.) The only exception is an admittedly false police report, which is illegal (see Pen. Code, § 148.5) and therefore not entitled to First Amendment protection. (See Kenne v. Stennis (2014) 230 Cal.App.4th 953, 966-967.) In this case, however, Amster stated in his declaration supporting the motion that when he went to view the Newport Beach house, he saw that it had been stripped of items such as high-end kitchen appliances and light fixtures. He then called the police to report the removed items. Amster did not admit that he had made a false police report. Accordingly, the conduct alleged in the first two causes of action with respect to respondents is protected activity.
Hood argued in his opposition to the motion that Amster lied to the police after making the initial report by stating later that all the removed items had been replaced, when they had not been, and by failing to tell the police that the house had been subsequently sold as-is for a profit, thereby negating damages. By this time, however, the investigation was in the hands of the NBPD and the district attorney. Whether the items had been replaced and whether the property had been sold were irrelevant to the issue of whether a crime had been committed by removing the items. The existence of damages was relevant to the civil case and to the issue of restitution in the criminal case, but it did not wipe out the subject of the initial police report, that items had been illegally removed from the house.
During his deposition, the NBPD detective in charge of the investigation was asked whether he knew the house had been sold. He replied, "No, and I think the reason that I don't specifically remember is that is my opinion, it didn't have a lot of bearing on my case."
Hood's contention that the police report was false is controverted and, as a result, it is not admittedly false. Therefore making the report is protected conduct. (Kenne v. Stennis, supra, 230 Cal.App.4th at pp. 966-967.)
Probability of Prevailing
Once we have determined that Hood's complaint alleges protected conduct, we must then determine whether he established a probability of prevailing on the merits. "To meet this burden, [the plaintiff] must '"demonstrate the [complaint] is 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." [Citation.] "The burden on the plaintiff is similar to the standard used in determining motions for nonsuit, directed verdict, or summary judgment."' [Citation.]" (Gilbert v. Sykes, 147 Cal.App.4th 13, 26.)
We note first that Hood has not stated a cause of action for either abuse of process or malicious prosecution.
"The common law tort of malicious prosecution originated as a remedy for an individual who had been subjected to a maliciously instituted criminal charge, but in California, as in most common law jurisdictions, the tort was long ago extended to afford a remedy for the malicious prosecution of a civil action. [Citations.] Under the governing authorities, in order to establish a cause of action for malicious prosecution of either a criminal or civil proceeding, a plaintiff must demonstrate 'that the prior action (1) was commenced by or at the direction of the defendant and was pursued to a legal termination in his, plaintiff's, favor [citations]; (2) was brought without probable cause [citations]; and (3) was initiated with malice [citations].' [Citations.]" (Sheldon Appel Co. v. Albert & Oliker (1989) 47 Cal.3d 863, 871.)
"To be considered 'favorable' for purposes of a malicious prosecution action, a termination in the underlying action 'must reflect the merits of the action and the plaintiff's innocence of the misconduct alleged in the lawsuit.' [Citations.] 'The key is whether the termination reflects on the underlying defendant's innocence. [Citations.] If the resolution of the underlying litigation "leaves some doubt as to the defendant's innocence or liability[, it] is not a favorable termination, and bars that party from bringing a malicious prosecution action against the underlying plaintiff. '" [Citation.]" (StaffPro, Inc. v. Elite Show Services, Inc. (2006) 136 Cal.App.4th 1392, 1399-1400.)
The cause of action with this name is based on the actions of the NBPD, in arresting and booking Hood. He is evidently confused about the functions of the NBPD and the district attorney. The police cannot "commence a criminal prosecution" against anyone. They can arrest someone and book him or her, but after that the matter is out of police hands. The district attorney decides whether to file a criminal complaint against the arrested person; filing the complaint "commences" a criminal prosecution. In this case, the district attorney decided not to file criminal charges against Hood, so no criminal case was ever commenced against him. (Cf. Jaffe v. Stone (1941) 18 Cal.2d 146, 148-149 [case dismissed after preliminary hearing].)
Elements of a malicious prosecution action are missing here. No underlying action was filed at all, with or without probable cause. Hood did not allege a favorable termination. A decision by the district attorney not to prosecute for lack of sufficient evidence is not necessarily based on a perception of innocence.
Likewise, Hood has not stated a cause of action for abuse of process. "The common law tort of abuse of process arises when one uses the court's process for a purpose other than that for which the process was designed. [Citations.] It has been 'interpreted broadly to encompass the entire range of "procedures" incident to litigation.' [Citation.] [¶] '[T]he essence of the tort [is] . . . misuse of the power of the court; it is an act done in the name of the court and under its authority for the purpose of perpetrating an injustice.' [Citation.] To succeed in an action for abuse of process, a litigant must establish that the defendant (1) contemplated an ulterior motive in using the process, and (2) committed a willful act in the use of the process not proper in the regular conduct of the proceedings." (Rusheen v. Cohen (2006) 37 Cal.4th 1048, 1056-1057.)
The first cause of action for abuse of process alleged in the complaint—reporting Hood to the NBPD—had nothing to do with the court at all. According to Hood's allegations, the matter never got as far as a court case. If no court process was involved, there is no basis for the cause of action. (Stolz v. Wong Communications Limited Partnership (1994) 25 Cal.App.4th 1811, 1823 [abuse of process not applicable to administrative proceedings]; Bidna v. Rosen (1993) 19 Cal.App.4th 27, 40 [abuse of process "concerns the misuse of the tools the law affords litigants once they are in a lawsuit"]; Meadows v. Bakersfield Savings & Loan Assn. (1967) 250 Cal.App.2d 749, 753 [recording notice of default and publishing notice of trustee' sale not done under authority of court; no abuse of process].) Hood cannot prevail on a cause of action for abuse of process based on respondents' making the police report.
We do not, however, rely on the labels attached to causes of action, but instead look at the alleged facts. (See Moriarty v. Laramar Management Corp. (2014) 224 Cal.App.4th 125, 133.) In this case, the question is whether Hood has shown a probability of prevailing in a lawsuit based on making a police report, regardless of what label he attaches to the claims.
The answer is no. The California Supreme Court discussed this question in Hagberg v. California Federal Bank (2004) 32 Cal.4th 350 (Hagberg). In that case, the plaintiff sued California Federal Bank after bank employees called police regarding a check the plaintiff was trying to cash. The employees had been told by the drawer of the check that it was not valid. This information later proved to be erroneous, but by that time police had shown up at the bank to question the plaintiff. (Id. at p. 356.)
The plaintiff's complaint included causes of action for false arrest and imprisonment, slander, emotional distress, and discrimination. (Hagberg, supra, 32 Cal.4th at p. 357.) The bank's motion for summary judgment was affirmed on appeal. (Id. at p. 358.)
The court held the police report was protected by the absolute privilege of Civil Code section 47, subdivision (b). "[T]he overwhelming majority of cases conclude that when a citizen contacts law enforcement personnel to report suspected criminal activity and to instigate law enforcement personnel to respond, the communication also enjoys an unqualified privilege under [Civil Code] section 47[, subdivision ](b). These cases explain that a statement urging law enforcement personnel to investigate another person's suspected violation of criminal law, to apprehend a suspected lawbreaker, or to report a crime to prosecutorial authorities is shielded from tort liability to the same extent as a similar statement to administrative enforcement agencies. Reasoning that such communications are at least preparatory to 'any other official proceeding authorized by law,' (ibid.) the majority of decisions in the Courts of Appeal have held such statements to be shielded by an absolute privilege. We find these decisions to be persuasive . . . ." (Hagberg, supra, 32 Cal.4th at p. 364.) California Federal was therefore entitled to summary judgment as a matter of law. (Id. at pp. 358, 376.)
In this case, the first two causes of action rest entirely on respondents' police report. Regardless of the label Hood attaches to these claims, making a police report is absolutely privileged. Hood cannot base any cause of action on it except for malicious prosecution. (See Silberg v. Anderson (1990) 50 Cal.3d 205, 215-218.) He has no cause of action for malicious prosecution, as stated above, because crucial elements are not present. No case based on the police report was filed against him, and there was no termination in his favor, as defined by this tort.
The court cited the absolute privilege of Civil Code section 47, subdivision (b), afforded to police reports in the ruling on the anti-SLAPP motion.
Denial of Discovery
Code of Civil Procedure section 425.16, subdivision (g), provides, "All discovery proceedings in the action shall be stayed upon the filing of a notice of motion made pursuant to this section. The stay of discovery shall remain in effect until notice of entry of the order ruling on the motion. The court, on noticed motion and for good cause shown, may order that specified discovery be conducted notwithstanding this subdivision." A plaintiff seeking to lift the stay for good cause must show that the discovery is necessary to oppose the anti-SLAPP motion and that it is narrowly tailored to meet that end. (Britts v. Superior Court (2006) 145 Cal.App.4th 1112, 1125 (Britts).) We review rulings on discovery motions for abuse of discretion. (Id. at p. 1123.)
After the anti-SLAPP motion was filed, Hood applied ex parte to be allowed to take the depositions of Amster and of CIC's person most qualified to testify (PMK). He also asked to be allowed to subpoena the business records of the escrow company involved in the purchase of the Newport Beach house. The trial court denied the application.
We are assuming without deciding that the denial of the ex parte application is an appealable order, inasmuch as the granting of the anti-SLAPP motion put an end to Hood's complaint, even though no final judgment was entered.
We cannot say the trial court abused its discretion in denying the ex parte application to lift the discovery stay. Hood did not establish good cause for the discovery. His only explanation for seeking Amster's deposition was that he needed "to verify the veracity of . . . Amster's statements" made in the declaration supporting the anti-SLAPP motion. His explanation for requesting the deposition of CIC's PMK and the escrow company's business records was even more vague: they would "shed light on the facts relevant to the occurrences from the period of February through May 2012" and Hood could not prove his probability of prevailing without them. What light the deposition and documents would shed or why they would help him prove his probability of prevailing was left unrevealed. Hood supplies no reasons at all for wanting these depositions and documents in his opening brief.
Hood also argues that because respondents did some discovery, they should be estopped from opposing his requests. He cites no authority for this idea. The court is required to evaluate any request for discovery after the filing of an anti-SLAPP motion for good cause in keeping with the statutory aims. (Britts, supra, 145 Cal.App.4th at p. 1125.) This is not a "tit-for-tat" situation.
The only two issues in an anti-SLAPP motion are (1) is the conduct protected and (2) if it is, has the plaintiff showed a probability of prevailing. As it stands now, on appeal, those two issues in this case centered on the police report. Was it protected activity, and was it privileged? Hood has not shown how the depositions he requested or the business records he wanted to subpoena would assist in answering either question.
Attorney Fees Appeal
As stated above, Hood filed an appeal from the order granting respondents' their attorney fees under Code of Civil Procedure section 425.16, subdivision (c)(1), out of an abundance of caution, in case the order granting the anti-SLAAP motion was overturned. Because we are affirming that order, the attorney fees order is also affirmed.
The fee motion was heard after the time to appeal the order granting the anti-SLAPP motion had expired.
DISPOSITION
The order granting respondents' anti-SLAPP motion is affirmed. The order granting attorney fees is affirmed. Respondents are to recover their costs on appeal.
THOMPSON, J. WE CONCUR: MOORE, ACTING P. J. IKOLA, J.