Opinion
B226832
10-18-2011
ALISON M. MCDANIEL, Plaintiff and Appellant, v. STACIE L. MCDANIEL et al., Respondents.
Mitchell Gilleon Law Firm and James C. Mitchell, for Plaintiff and Appellant. Baker, Keener & Nahra, Laurence C. Osborn, Phillip A. Baker and Derrick S. Lowe, for Respondents.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. SC106797)
APPEAL from a judgment of the Superior Court of Los Angeles County. Linda K. Lefkowitz, Judge. Affirmed.
Mitchell Gilleon Law Firm and James C. Mitchell, for Plaintiff and Appellant.
Baker, Keener & Nahra, Laurence C. Osborn, Phillip A. Baker and Derrick S. Lowe, for Respondents.
INTRODUCTION
Appellant Alison McDaniel filed a defamation action alleging that Stacie McDaniel and Paul Olson (collectively Respondents) falsely reported to Virginia police that Alison murdered her father while caring for him in California. Respondents filed a motion to strike the complaint pursuant to California Code of Civil Procedure section 425.16, arguing that: (1) Respondents' statements to the police constituted a protected activity under section 425.16, and (2) Alison could not prevail on her claims because Respondents' statements were absolutely privileged under Civil Code section 47, subdivision (b). In her opposition, Alison argued that sections Code of Civil Procedure section 425.16 and Civil Code section 47, subdivision (b) did not apply to her claims because the case was governed by Virginia law.
The trial court ruled that California law applied and granted Respondents' motion to strike Alison's complaint. On appeal, Alison McDaniel argues that the trial court erred in applying California, rather than Virginia law. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
A. Events Preceding Alison McDaniel's Lawsuit
1. The death of Marshall McDaniel
Appellant Alison McDaniel and her father, Marshall McDaniel, lived together in a mobile home located in Malibu, California. In September of 2007, Marshall had quadruple bypass heart surgery and remained hospitalized until December 18, 2007. When Marshall returned home, he needed assistance performing basic life functions such as eating, dressing, using the bathroom and taking his daily medications. Alison's sister, Stacie McDaniel, hired Zella Lynch to help Alison care for Marshall.
Because Alison, Marshall and other members of the McDaniel family share the same last name, we refer to them by their first names, as do their counsel, for convenience and clarity. (Callahan v. Gibson, Dunn & Crutcher LLP (2011) 194 Cal.App.4th 557, 561, fn. 1.)
On the morning of January 22, 2008, Alison and Lynch were trying to feed Marshall and give him his medication when he "suddenly slumped down and was not responsive." Alison called 9-1-1 and paramedics transported Marshall to the hospital, where he was pronounced dead.
Shortly after Marshall's death, Alison had a phone conversation with Stacie and Stacie's husband, Paul Olson, who lived in Fairfax Station, Virginia. Stacie wanted to have an autopsy performed on Marshall to confirm the cause of his death. Although Alison did not believe an autopsy was necessary, she agreed to the request. In June of 2008, the UCLA Medical Center Department of Pathology issued an autopsy report concluding that the most likely cause of Marshall's death was a heart attack.
Under Marshall's will, Stacie was appointed to serve as the executor of the estate, which had an estimated value of $16,000,000. On October 17, 2008, Alison filed a petition alleging that Stacie had mismanaged the estate and requested that she be removed as executor. Alison filed a supplement to her petition in February of 2009, which alleged several additional instances of mismanagement.
2. Paul Olson's initial contact with California and Virginia police
On Thursday, February 12, 2009, Gregorio Vasquez, who was Marshall's long time assistant and handy man, informed Olson that Zella Lynch had told him that Alison may have caused Marshall's death. According to Vasquez, Lynch stated that she saw Alison forcing milk down Marshall's throat immediately prior to his death.
On February 17, 2009, Olson, who was then located in Virginia, called the Los Angeles County Sheriff's Department (LACSD) to report the information that had been relayed to him by Vasquez. An officer from the LACSD told Olson that he was not permitted to take a report over the phone and that Olson should make his report to local law enforcement.
Later the same day, Olson called the Fairfax County Sheriff's Department in
Virginia and spoke to Officer Robert J. Murphy, who prepared a report containing the following summary of their conversation:
Olson reported that his father-in-law, Marshall McDaniel, was murdered in Malibu, CA on 1-22-08 by Olson's sister-in-law, Allison (sic) McDaniel. Olson stated he recently contacted the Los Angeles County Sheriff's Office and attempted to report the event, but a deputy instructed him to contact his
local police to make the report, which he did. . . . Olson stated that Zella Lynch observed Allison (sic) . . . forcing milk down Marshall['s] . . . throat, which ultimately caused him to go into cardiac arrest and die. Lynch reported this to Marshall McDaniel's good friend, Gregory Vasquez.
Olson informed Murphy that he and his wife wanted to be contacted by the LACSD to "provide further detailed information." Murphy told Olson he would "document [Olson's] concerns" and "fax a copy of the report to the [LACSD,] who would have jurisdiction of the alleged event."
3. LACSD's investigation
After receiving Murphy's police report, the LACSD opened an investigation of Marshall's death. The LACSD initially contacted Alison, who told the investigating officer that she had been feeding Marshall on the morning he died. Alison alleged that Marshall was drinking water when he "slouch[ed] down and was unresponsive." Alison said she immediately contacted paramedics and her father was transported to UCLA Medical Center, where he was pronounced dead. Alison informed the officer that her relationship with Stacie had been "strained" as the result of a dispute over Marshall's estate.
The LACSD also contacted Olson, who provided information that was essentially identical to the statements he made to Officer Murphy. According to the LACSD's report,
Paul Olson informed [the investigating officer] that Marshall['s] . . . death may have been as a result of elderly abuse at the hands of Alison McDaniel. Mr. Olson . . . stated that he learned of an incident in which Alison McDaniel force fed Mr. McDaniel . . . . [which] caused Mr. McDaniel to go into cardiac arrest . . . . [¶] Mr. Olson based his accusation on statements communicated to him by the handyman Gregorio Vasquez. He further explained that Gregorio Vasquez learned of the force feeding incident through Zella Lynch, the home care nurse who was caring for Marshall McDaniel at the time of the emergency.
The LACSD then interviewed Vasquez, who confirmed that he had told Olson that Lynch said she believed Alison may have been responsible for Marshall's death. Specifically, Vasquez informed the LACSD that Lynch said "she saw Allison (sic) holding Mr. McDaniel's head with one arm and forcing Mr. McDaniel to drink from a milk carton," which caused him to "gag" with "milk pouring out of both sides." Vasquez further alleged that Lynch said this incident caused Marshall "so much stress that it caused him to suffer the medical emergency." Vasquez also stated that he had relayed this information to Olson.
Vasquez also alleged that he had provided similar information to Stacie shortly after Marshall's funeral, but that she showed little "interest [in] the information at the time." Vasquez theorized that Stacie may not have understood him because his English was poor. Stacie told officers that she recalled having a conversation with Vasquez regarding Marshall's death, but that "she did not pay much attention to Gregorio at the time."
However, when the LACSD interviewed Zella Lynch, she said she never told Vasquez that Alison had force fed Marshall immediately prior to his death. Lynch further stated that she "did not see any milk or food on Mr. McDaniel's face or clothing" and "did not know why Gregorio would say this." According to Lynch, Alison was simply feeding her father when he began to look pale.
Based on Lynch's statements and the results of Marshall's autopsy, the LACSD decided to close the investigation:
Based on the interview of Zella Lynch, in which she unequivocally refutes the statements made by Gregorio Vasquez, coupled with the autopsy findings, Investigators feel there is insufficient evidence to warrant any further criminal investigation. This investigation will be made inactive and closed.
B. The Trial Court Proceedings
1. Alison's complaint
On February 11, 2010, Alison filed a complaint in Los Angeles Superior Court alleging that Olson and Stacie "intentionally published unprivileged and false statements to the Fairfax Police . . . which . . . accused Alison of . . . the crimes of murder or manslaughter." The complaint further alleged that Stacie and Olson had made similar statements to Alison's neighbors and "other persons who were acquainted with . . . Mr. McDaniel . . . [who] knew Alison." The complaint asserted causes of action against Stacie and Olson for "Defamation," "Conspiracy to Defame," "Aiding And Abetting Defamation," "Intentional Infliction of Emotional Distress," "Conspiracy To Inflict Emotional Distress" and "Aiding and Abetting Infliction of Emotional Distress." The complaint also pled two claims against Vasquez for defamation and intentional infliction of emotional distress.
2. Respondents' motion to strike the complaint
On April 10, 2010, Stacie and Olson (Respondents) filed a motion to strike the complaint pursuant to Code of Civil Procedure section 425.16. Respondents argued that all of Alison's claims were based on statements they allegedly made to police officers and other individuals in the community regarding the cause of Marshall's death, which qualified as protected activities under section 425.16. Respondents further asserted that Alison could not demonstrate a probability of prevailing on any of her claims because: (1) statements made to police officers regarding criminal activity are absolutely privileged under Civil Code section 47, subdivision (b), and (2) Alison had provided no evidence that Respondents told anyone other than the police that they believed Alison was responsible for Marshall's death.
Unless otherwise noted, all further statutory references are to the Code of Civil Procedure.
In her opposition brief, Alison did not dispute that her claims arose from a protected activity within the meaning of section 425.16. Instead, she argued that section 425.16 did not apply because her claims were governed by Virginia law, which does not have an analogous statute. According to Alison, Virginia law applied because the Respondents were "Virginia citizens and committed the wrongful acts there."
Alison further argued that, even if section 425.16 applied to her claims, the trial court should apply Virginia's privilege law, which provides only a qualified privilege for "'complaint[s] . . . to law enforcement.'" Alison asserted that, to defeat Virginia's qualified privilege, she was required to demonstrate that Respondents' statements to the Virginia police were "motivated by spite or ill-will," or with "reckless disregard of the truth or falsity of the publication."
Alison further contended she had introduced sufficient evidence to make a prima facie showing that Respondents had acted with spite or reckless disregard of the truth of their statements. In support, Alison cited the following evidence: (1) her declaration and the autopsy results demonstrated that Respondents' allegations regarding the cause of Marshall's death were false; (2) the police reports demonstrated that Olson's allegations were based on an "unverified, secondhand account provided . . . by Vasquez, who is primarily a Spanish speaker;" (3) the police reports contained statements showing that although Vasquez told Stacie about Alison's alleged role in Marshall's death shortly after Marshall died, Respondents did not relay the information to police until "Alison had petitioned the court to remove Stacie as executor of their father's $16,000,000 estate," and; (4) under Marshall's will, Alison's portion of the inheritance, which totaled approximately $8 million, would go to Stacie if it was proved that Alison killed Marshall. According to Alison, this evidence "would allow a reasonable jury to infer that [Olson] and Stacie made the statements motivated by spite or ill-will towards Alison, or to hurt her, and at the same time, to try to enrich themselves financially by having Alison disqualified as one of her father's heirs of his estate under his will."
The opposition was accompanied by a declaration from Alison summarizing the events preceding her father's death and denying that she tried to force Marshall to eat any foods or liquids. Alison also submitted a copy of Marshall's will, the autopsy report, the Virginia and California police reports and various pleadings regarding Alison's petition to remove Stacie as executor of the estate.
Alison's opposition did not reference the statements Respondents had allegedly made to other individuals in the community regarding Alison's role in Marshall's death, nor did Alison provide any evidence that Respondents had ever made such statements.
3. The trial court's grant of the motion to strike
At the hearing on Respondents' motion to strike, Alison's counsel argued that section 425.16 was intended to protect California defendants and, as a result, it did not apply where the defendants were citizens of another state and their alleged misconduct occurred outside of California:
[T]he question in applying the anti-SLAPP law comes down to does California have any interest in applying its anti-SLAPP law to protect out-of-state citizens who are performing the speech . . . in a completely different state to another state's law enforcement agency.
I think the answer is a resounding no. There is no interest by the state of California to provide anti-SLAPP protection to out-of-state defendants who are performing an act in a different state.
The trial court disagreed, concluding that section 425.16, considered in conjunction with Civil Code section 47, subdivision (b), demonstrated a "strong state interest in [California] in protecting people . . . in the reporting of a crime to the police."
In a subsequent minute order, the trial court ruled that section 425.16 and Civil Code section 47, subdivision (b) applied to Alison's claims because she had failed to demonstrate that Virginia had any interest in "having its law applied to the case," or that Virginia's interests "would be impaired by the subordination of its policies to the policies of California." The court further concluded that: (1) Alison's claims arose from a protected activity and were therefore governed by section 425.16; (2) Alison had not demonstrated a probability of prevailing on her claims because Respondents' statements to the Virginia police were absolutely privileged under Civil Code section 47, subdivision (b); and (3) Alison had introduced no evidence demonstrating that Respondents told anyone other than the police that Alison had killed Marshall.
The minute order granted Respondents' motion and dismissed them from the case. Alison filed a timely notice of appeal.
DISCUSSION
Alison argues that the trial court erred in striking the portion of her claims predicated on Respondents' statements to the Virginia police. Specifically, Alison argues that: (1) the trial court should not have applied section 425.16 because her claims are governed by Virginia law, which has no counterpart to California's anti-SLAPP statute; and (2) even if section 425.16 applies, the trial court should have analyzed her claims under Virginia's privilege law, which extends only a qualified privilege to statements made to police regarding criminal activity, rather than California Civil Code section 47, subdivision (b), which provides an absolute privilege for such statements. Alison concedes that if the trial court correctly concluded that sections 425.16 and Civil Code section 47, subdivision (b) apply to her claims, there is no ground for reversal.
Alison's briefs do not reference the trial court's decision to dismiss all claims predicated on Respondents' alleged statements to Marshall's co-workers, neighbors and other individuals in the community. We therefore deem her appeal from that part of the trial court's order to be abandoned. (See Sklar v. Franchise Tax Board (1986) 185 Cal.App.3d 616, 621, fn. 5 ["Plaintiffs raise no argument in their briefs regarding their dismissed claim for declaratory relief. We therefore deem their appeal from that part of the judgment to be abandoned"]; Conner v. Dart Transportation Service (1976) 65 Cal.App.3d 320, 323 ["We treat the failure of the brief to discuss the seventh cause of action as abandoning the appeal as to it"].)
A. Governing Legal Principles and Standard of Review
We review the trial court's choice-of-law rulings under the de novo standard of review. (Brown v. Grimes (2011) 192 Cal.App.4th 265, 274 ["The choice-of-law issue is a legal one that is decided de novo"].) "„[I]n analyzing a choice-of-law issue, California courts apply . . . [a three-step] governmental interest analysis, under which a court carefully examines the governmental interests or purposes served by the applicable statute or rule of law of each of the affected jurisdictions . . . .'" (Castro v. Budget Rent-A-Car System, Inc. (2007) 154 Cal.App.4th 1162, 1179.)
"'"[G]enerally speaking the forum will apply its own rule of decision unless a party litigant timely invokes the law of a foreign state. In such event [that party] must demonstrate that the latter rule of decision will further the interest of the foreign state and therefore that it is an appropriate one for the forum to apply to the case before it."' [Citations.] Under the first step of the governmental interest approach, the foreign law proponent must identify the applicable rule of law in [the foreign] . . . state and must show it materially differs from the law of California. The fact that two . . . states are involved does not in itself indicate there is a conflict of laws problem. [Citation.] Indeed, if the relevant laws of each state are identical, there is no problem and the trial court may find California law applicable to . . . [the] claims. [Citation.]" (Washington Mutual Bank v. Superior Court (2001) 24 Cal.4th 906, 919-920 (Washington Mutual).)
"If, however, the trial court finds the laws are materially different, it must proceed to the second step and determine what interest, if any, each state has in having its own law applied to the case. [Citation.] Despite materially different laws, 'there is still no problem in choosing the applicable rule of law where only one of the states has an interest in having its law applied.' [Citation.] This means the trial court may properly find California law applicable without proceeding to the third step in the analysis if the foreign law proponent fails to identify any actual conflict or to establish the other state's interest in having its own law applied. [Citations.]" (Washington Mutual, supra, 24 Cal.4th at p. 920.)
"Only if the trial court determines that the laws are materially different and that each state has an interest in having its own law applied, thus reflecting an actual conflict, must the court take the final step and select the law of the state whose interests would be 'more impaired' if its law were not applied. [Citations.] In making this comparative impairment analysis, the trial court must determine 'the relative commitment of the respective states to the laws involved' and consider . . . 'the function and purpose of those laws.' [Citation.] These rules apply whether the dispute arises out of contract or tort [citations], and a separate conflict of laws inquiry must be made with respect to each issue in the case. [Citations]." (Washington Mutual, supra, 24 Cal.4th at p. 920.)
B. The Trial Court Properly Ruled that Section 425.16 Applies to Alison's Claims
We first consider the trial court's decision to apply section 425.16 to Alison's claims, rather than Virginia law, which does not have an anti-SLAPP statute.
1. Summary of section 425.16
The California Legislature passed section 425.16 in response to a growing number of meritless lawsuits, usually alleging tort liability, brought against persons for exercising their constitutional rights of petition and freedom of speech. Subdivision (a) of the statute contains legislative findings declaring that:
there has been 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. The Legislature finds and declares that it is in the public interest to encourage continued participation in matters of public significance, and that this participation should not be chilled through abuse of the judicial process.(§ 425.16, subd. (a).)
To address these findings, the statute authorizes the filing of a special motion that requires a court to strike claims brought "against a person arising from any act of that person in furtherance of the person's right of petition or free speech under the United States Constitution or the California Constitution . . . . unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim." (§ 425.16, subd. (b)(1).)
A court must "'engage in a two-step process when determining whether a defendant's anti-SLAPP motion should be granted. First, the court decides whether the defendant has made a threshold showing that the challenged cause of action is one "arising from" protected activity. [Citation.] If the court finds such a showing has been made, it then must consider whether the plaintiff has demonstrated a probability of prevailing on the claim.' [Citation.]" (Episcopal Church Cases (2009) 45 Cal.4th 467, 477.) "To show a probability of prevailing for purposes of section 425.16, a plaintiff must '"'make a prima facie showing of facts which would, if proved at trial, support a judgment in plaintiff's favor.'"' [Citation.]" (Computer Xpress, Inc. v. Jackson (2001) 93 Cal.App.4th 993, 1010.)
2. The trial court properly ruled that section 425.16 applies to Alison's claims
Alison argues that the trial court should not have applied section 425.16 because her claims are governed by Virginia law, which does not have an analogous statutory provision. Alison concedes that if California law applies, her claims, which are predicated on statements the Respondents made to Virginia police regarding suspected criminal activity, are subject to the procedures described in section 425.16.
Alison's concession is supported by well-established case law. Our courts have repeatedly held that police reports and other "statements designed to prompt action by law enforcement" qualify as "[c]ommunications that are preparatory to or in anticipation of commencing official proceedings," and therefore "come within the protection of the anti-SLAPP statute." (Siam v. Kizilbash (2005) 130 Cal.App.4th 1563, 1569-1570; see also Chabak v. Monroy (2007) 154 Cal.App.4th 1502, 1511 [defendant's "statement[] to police" regarding criminal activity "arose from her right to petition the government and thus is protected activity"]; Salma v. Capon (2008) 161 Cal.App.4th 1275, 1286 [communications to police seeking "official investigations into perceived wrongdoing . . . are protected by section 425.16"].) It is therefore clear that, if California law applies, Alison's claims are subject to section 425.16.
A recent case from this district, Lefebvre v. Lefebvre (September 28, 2011) _____ Cal.App.4th _____ (Lefebvre), does not compel a different outcome. In that case, the plaintiff sued defendant for conspiring to "to bring a false criminal report against him." (Id. at p. *3.) Although defendant conceded that she had knowingly filed a false police report in violation of Penal Code, section 148.5 ("Every person who reports to [law enforcement] . . . that a felony or misdemeanor has been committed, knowing the report to be false, is guilty of a misdemeanor), she argued that plaintiff's claims were still subject to section 425.16. The appellate court disagreed, explaining that because plaintiff did "not contest that she submitted an illegal, false criminal report," her conduct was not "in furtherance of her constitutional rights of petition or speech" and therefore not protected by the statute. (Id. at pp. *9, *14.) Lefebvre is an application of Flatley v. Mauro (2006) 39 Cal.4th 299, in which the California Supreme Court held that "where a defendant brings a motion to strike under section 425.16 . . . but either the defendant concedes, or the evidence conclusively establishes, that the assertedly protected speech or petition activity was illegal as a matter of law, the defendant is precluded from using the anti-SLAPP statute to strike the plaintiff's action." (Id. at p. 320) In this case, defendants have never admitted that they knew their reports were false, nor has plaintiff argued that the evidence conclusively establishes that fact.
The first prong of the governmental interests test requires us to determine "whether the potentially concerned states have different laws" on the subject at issue. (North American Asbestos Corp. v. Superior Court (1986) 180 Cal.App.3d 902, 905 (North American Asbestos).) Alison argues that Virginia does not have a law similar to section 425.16, and Respondents do not contend otherwise. Because the parties do not dispute the issue, we will assume that Virginia's lack of a similar statute is sufficient to satisfy the "different laws" prong of the governmental interests test.
The second prong of the test requires us to determine "whether each of the states has an interest in having its law applied to the case." (North American Asbestos, supra, 180 Cal.App.3d at p. 905.) The legislative findings in section 425.16, subdivision (a) make clear that one of the purposes of the statute is to ensure that California courts, and the state's judicial processes as a whole, are not used as a means of interfering with the valid exercise of the right of free speech or the right of petition. Because Alison filed her complaint in a California court, this state has an interest in applying the procedures described in section 425.16 to ensure that her claims have sufficient merit to justify the potential restraints it places on Respondents' right to exercise their right to speak freely to police.
Alison contends that California has no interest in applying section 425.16 where, as here, the defendants reside in another state and allegedly committed the unlawful act in another state. According to Alison, "California enacted the law with the interest of discouraging the use of its courts to further meritless lawsuits filed against its citizens that would chill the exercise of free speech of California speakers." There is no language in the statute indicating that the legislature intended the statute to apply only to claims filed against California citizens. California has an interest in ensuring that its courts are not used to restrain the valid exercise of rights regardless of the domicile of the speaker.
In addition to ensuring that its courts are not used as a mechanism to restrain the valid exercise of certain constitutionally-protected rights, California has an interest in applying section 425.16 because Respondents' statements to the Virginia police related to criminal activity that was allegedly committed by a California resident in California. Respondents' statements therefore involve a matter of public significance within this jurisdiction.
We next consider whether Virginia has an interest in having its law applied here. As the "foreign law proponent," Alison has the burden "to establish the other state's interest in having its own law applied." (Washington Mutual, supra, 24 Cal.4th at p. 920.) Alison's sole argument on this issue is that "by not having adopted . . . [an anti-SLAPP] law, Virginia has shown (and has) an interest in not providing its citizens with California style anti-SLAPP protection." In effect, Alison argues that Virginia has an interest in having its citizens, who are the defendants in this case, receive fewer procedural protections than they would receive in Virginia courts. Alison fails to explain how Virginia's interests are impaired by such an outcome and we find no merit in her argument. Moreover, we can conceive of no possible interest that Virginia might have in whether California applies a procedural mechanism that is intended to ensure its own courts are not used to restrain the exercise of the right of petition or the right of free speech.
Because California has a clear interest in applying section 425.16, and Alison has failed to identify any Virginia interest that would be impaired by applying the statute, the trial court properly ruled that California law governs this issue. (Washington Mutual, supra, 24 Cal.4th at p. 920 ["court may properly find California law applicable without proceeding to the third step in the analysis if the foreign law proponent fails to . . . establish the other state's interest in having its own law applied. [Citations.]".)
C. The Trial Court Properly Concluded that Civil Code section 47, subdivision (b) Applies to Alison's Claims
Alison next argues that, even if her claims are governed by section 425.16, the trial court should have applied Virginia's qualified privilege law, rather than the absolute privilege described in California Civil Code section 47, subdivision (b). We must re-apply the governmental interests test to determine which state's privilege law applies. (Washington Mutual, supra, 24 Cal.4th at p. 920 ["a separate conflict of laws inquiry must be made with respect to each issue in the case"].)
The parties do not dispute that Virginia and California apply "materially different" privilege laws to statements made to police regarding criminal activity. (Washington Mutual, supra, 24 Cal.4th at p. 920 ["Under the first step of the governmental interest approach, the foreign law proponent must . . . show [that the foreign law] materially differs from the law of California"].) Under Virginia law, "a complaint . . . to law enforcement officials on the subject of a criminal act . . . fall[s] under [a] qualified privilege." (Matthew v. Carr (2006) 70 Va. Cir. 297, 299.) This "qualified privilege is lost if a plaintiff proves by clear and convincing evidence that the defamatory words were spoken with common-law malice." (Smalls v. Wright (Va. 1991) 399 S.E.2d 805, 808.) In contrast, under California law, "a statement urging law enforcement personnel to investigate another person's suspected violation of criminal law" enjoys "an unqualified privilege under [Civil Code] section 47(b)." (Hagberg v. California Federal Bank FSB (2004) 32 Cal.4th 350, 364 (Hagberg).) This "'"absolute"' privilege . . . bars all tort causes of action based on [such statements] except a claim for malicious prosecution." (Brown v. Department of Corrections (2005) 132 Cal.App.4th 520, 525.)
Because California and Virginia apply materially different privilege laws to statements made to police regarding criminal activity, we must "determine what interest, if any, each state has in having its own law applied to the case." (Washington Mutual, supra, 24 Cal.4th at p. 920.) In Williams v. Taylor (1982) 129 Cal.App.3d 745 (Williams), the court explained the purposes underlying California's adoption of an absolute, rather than qualified, privilege regarding statements made to law enforcement:
"[t]he policy underlying the privilege is to assure utmost freedom of communication between citizens and public authorities whose responsibility it is to investigate and remedy wrongdoing." [Citation.] In order for such investigation to be effective, "there must be an open channel of communication by which citizens can call his attention to suspected wrongdoing. That channel would quickly close if its use subjected the user to a risk of liability for libel. A qualified privilege is inadequate under the circumstances. . . . [¶] The importance of providing to citizens free and open access to governmental agencies for the reporting of suspected illegal activity outweighs the occasional harm that might befall a defamed individual. Thus the absolute privilege is essential." [Citation.](Id. at pp. 753-754; see also Hagberg, supra, 32 Cal.4th at pp. 364-365 [citing and quoting Williams with approval].)
California has an obvious interest in having its absolute privilege law apply where, as here, the defendants' statements to police involved a suspected murder that was allegedly committed by a citizen of this state within this state. As Williams makes clear, the purpose of the absolute privilege is to encourage individuals to report criminal activity in California by withdrawing any risk of liability that might otherwise arise from making such statements. Moreover, California has decided, as a matter of state public policy, that while residents such as Alison might occasionally suffer harms associated with malicious false accusations of wrongdoing, those harms are outweighed by the social benefits of ensuring unfettered channels of communication between the police and individuals who have knowledge of crimes committed in this state. Thus, applying the absolute privilege effectuates the balance California has put in place to resolve crimes committed within this jurisdiction.
California also has an interest in applying its absolute privilege because Alison has elected to assert her defamation and intentional infliction of emotional distress claims under California law. Through its adoption of Civil Code section 47, subdivision (b), California has limited the scope of such claims to the extent they are predicated on statements made to police. (Cf. Block v. First Blood Associates (1988 S.D.N.Y.) 691 F.Supp. 685, 698 (Block) ["[t]he fulcrum of a privilege defense is the scope of protection to be afforded under a state's substantive law to otherwise defamatory publications"].) Because Alison is seeking to utilize the laws of California to impose liability on Respondents, she must also accept the defenses this state has adopted that narrow the breadth of her potential recovery. It would be both unfair and illogical to allow Alison to assert substantive claims under one set of state laws while simultaneously forcing the Respondents to defend against those claims based on a the laws of another jurisdiction. To the extent Alison would have preferred the application of Virginia's more limited qualified privilege defense, she was free to pursue her claims in Virginia under Virginia's defamation law.
Alison has never argued that Virginia law, rather than California law, should govern the substantive elements of her defamation and emotional distress claims. Indeed, her briefing repeatedly refers to the California Civil Code and California case law when describing the elements of those claims.
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Alison, however, contends that California has no interest in having its absolute privilege applied in this case because the Respondents' statements were made to Virginia police, rather than California police. According to Alison, California's "adopti[ion of] an absolute privilege . . . to the act of reporting an alleged crime to the police" is intended "to provide . . . protection to persons reporting crimes in this state - not to citizens of another state, making a report of a crime to the police in that other state." There are two problems with this argument.
First, the undisputed evidence shows that Olson intended to make his report to California police, not Virginia police. Olson initially contacted the LACSD to report Alison's alleged role in Marshall's death, but was told that he should call his local law enforcement because the department was not permitted to take police reports over the phone. Olson then contacted the Virginia police, provided a statement to Officer Murphy and requested that Murphy ask the LACSD to contact him. Murphy promptly forwarded Olson's statements to the LACSD, who then conducted an investigation. Thus, it is apparent that it was always Olson's intent to make a criminal report to the California police and spoke to Virginia police only after having been directed to do so by California authorities. But for that specific direction, there is no reason to believe Olson would have ever reported the criminal activity in Virginia.
Second, it is simply not true that California has no interest in providing protections to foreign residents who report criminal activity that occurred in California to their local law enforcement, rather than to California police. The purpose of the absolute privilege is to encourage individuals to report criminal activity to aid law enforcement in resolving California crimes without the threat of legal action. Those goals are furthered regardless of whether those reports are made to law enforcement located outside or within California.
In sum, California has two distinct interests in applying its privilege law in this case. First, it serves to encourage any individual, regardless of their location, to aid California law enforcement in resolving crimes committed in this state. Second, applying the absolute privilege effectuates the limitations that California intended to apply to defamation and emotional distress claims arising under California law.
Virginia's interest in having its qualified privilege law apply to a California action, filed by a California resident whose injury allegedly occurred in this jurisdiction, is less clear. Alison, who has the burden of establishing the foreign jurisdiction's interest in having its law applied, argues that "Virginia has an interest in having its qualified privilege protection apply to its citizens" because the privilege "ensures that a Virginia citizen's acts or reporting alleged crimes to the police in that state are protected." As Respondents explain in their appellate brief, this argument fails to explain how "applying California law . . . [would] disrupt the government interest of Virginia to protect Virginia citizens" who report criminal activity. Indeed, California's absolute privilege provides more protection to Virginia's citizens than they would otherwise receive in their home state. Alison has therefore failed to discharge her burden to establish what interest Virginia has in applying its qualified privilege under the circumstances of this case.
Moreover, it is apparent that the policy reasons underlying Virginia's decision to extend only a qualified, rather than absolute, privilege to statements made to law enforcement are not implicated here. Virginia's adoption of a qualified privilege serves two purposes. The first is to protect citizens from malicious defamatory police reports. The second is to ensure that citizens do not waste law enforcement resources by making false police reports in bad faith. (See generally Caldor, Inc. v. Bowden (Md. Ct. App. 1993) 625 A.2d 959, 968-969 (Caldor) [discussing policy reasons underlying adoption of qualified, rather than absolute privilege].) Neither purpose is implicated here.
Unlike California, Virginia has decided that a qualified privilege is sufficient to protect the state's interest in encouraging its citizens to report criminal activity, while simultaneously protecting its citizens from the harms associated with defamatory statements that are made with malice. As explained by other state courts that have followed Virginia's decision to apply only a qualified privilege to statements made to police:
a qualified privilege "is sufficiently protective of [those] wishing to report events concerning crime and balances society's interest in detecting and prosecuting crime with a defendant's interest not to be falsely accused." [Citation.] There is no benefit to society or the administration of justice in(Fridovich v. Fridovich (Fla. 1992) 598 So.2d 65, 69; Caldor, supra, 625 A.2d at pp. 968-969 [citing and quoting Fridovich]; Toker v. Pollak (1978) 44 N.Y.2d 211, 221 [a qualified privilege is "sufficient to foster the public purpose of encouraging citizens to come forth with information concerning criminal activity" while addressing the harm associated with "false and injurious communications as to the reputation of others . . . for the gratification of an evil and malicious disposition"].) Whatever interest Virginia may have in providing its own citizens a remedy to address false and malicious accusations made to police, the plaintiff in this case is a California resident, not a Virginia citizen. Thus, Virginia has no party to protect.
protecting those who make intentionally false and malicious defamatory statements to the police. The countervailing harm caused by the malicious destruction of another's reputation by false accusation can have irreparable consequences. . . . [T]he law should provide a remedy in situations such as this.
The California Supreme Court considered a similar situation in Hurtado v. Superior Court (1974) 11 Cal.3d 574, in which the plaintiffs, who were residents of Mexico, filed a wrongful death suit against California defendants. The defendants argued that the trial court should apply a Mexican law that limited recovery in wrongful death cases to approximately $25,000, rather than California law, which imposed no such limitation. The California Supreme Court concluded that the purpose of Mexico's damages limitation was "to protect [its resident] defendants from excessive financial burdens or exaggerated claims." (Id. at pp. 580-581.) The Court further ruled that because the defendants were not residents of Mexico, Mexico had no interest in having its damages limitation applied:
Since it is the plaintiffs and not the defendants who are the Mexican residents in this case, Mexico has no interest in applying its limitation of damages -- Mexico has no defendant residents to protect and has no interest in denying full recovery to its residents injured by non-Mexican defendants.(Id. at p. 581; see also Block, supra, 691 F.Supp. at pp. 698-699 [rejecting New York defendants' contention that California's absolute privilege, rather than New York's qualified privilege, should apply to plaintiff's claims because California "'has no defendant residents to protect'" and has no interest in "the application of California rules of law" that would bar claims asserted by its residents.])
This case presents an analogous situation: Virginia's adoption of a qualified privilege provides a mechanism for its citizens to recover for harms caused by malicious false police reports. However, the plaintiff in this case is a resident of California who elected to proceed in California court. Virginia has no interest in dictating the remedies available to a California resident in a matter pending in California.
The second purpose of adopting a qualified, rather than absolute privilege, is to avoid "'wasting of law enforcement resources, by investigations of false, maliciously made complaints.'" (Gallo v. Barile (Conn. 2007) 935 A.2d 103, 114 [citing and quoting Caldor, supra, 625 A.2d at p. 968.) Thus, to the extent Olson's report required the State of Virginia to expend considerable time and resources investigating his allegations, Virginia would arguably have an interest in the application of its privilege law. However, as explained above, the undisputed evidence shows that did not occur here. Olson only spoke to Virginia police after the LACSD directed him to do so. When Olson gave the Virginia police his statement, he asked Virginia authorities to request that California police contact him for more information. Virginia authorities then passed Olson's statement along to the LACSD, who proceeded to conduct the investigation. Therefore, California, and not Virginia, is the jurisdiction that expended law enforcement resources in investigating the matter.
In sum, Alison has failed to articulate any interest Virginia has in having its qualified privilege law applied in this action. Moreover, the purposes of Virginia's qualified privilege law are not implicated where, as here, the plaintiff is a California resident proceeding in California court, and the Virginia police did not expend any appreciable resources in investigating Respondents' allegedly false statements. Accordingly, we conclude that Virginia does not have any interest in having its privilege law applied to this case and that the trial court properly applied California Civil Code section 47, subdivision (b).
DISPOSITION
The trial court's order granting Respondents' motion to strike is affirmed. Respondents are to recover their costs on appeal.
ZELON, J. We concur:
PERLUSS, P. J.
WOODS, J.