Judge: Colin Leis, Case: 21STCV47525, Date: 2022-10-14 Tentative Ruling

Case Number: 21STCV47525    Hearing Date: October 14, 2022    Dept: 3

SUPERIOR COURT OF CALIFORNIA

COUNTY OF LOS ANGELES – NORTHEAST DISTRICT

DEPARTMENT 3

MOVING PARTIES:             Defendants Ty Labbe and Liza Gonzalez 

RESPONDING PARTIES:    Plaintiffs Gerald Wachel and Gina Wachel   

Special Motion to Strike Portions of the First Amended Complaint

The court considered the moving papers, opposition, and reply papers filed in connection with this motion. 

BACKGROUND

            Plaintiffs Gerald and Gina Wachel filed this lawsuit on December 30, 2021, against Defendants Ty Labbe and Liza Gonzalez.

            On April 1, 2022, Plaintiffs filed their First Amended Complaint (“FAC”).

            On June 1, 2022, Defendants filed the instant special motion to strike portions of the FAC pursuant to Code of Civil Procedure section 425.16. 

However, on August 25, 2022, Plaintiffs filed the operative Second Amended Complaint (“SAC”), asserting causes of action for (1) malicious prosecution, (2) abuse of process, (3) negligence, (4) intentional infliction of emotional distress, (5) trespass to chattels, (6) defamation, and (7) defamation (based on other statements). Therefore, the court will rule on Defendants’ motion as being directed at the SAC instead of the FAC because the pertinent allegations at issue in Defendants’ motion are unchanged.

The SAC alleges the following. Defendant Ty Labbe (“Labbe”) is Plaintiffs’ neighbor. On or about January 8, 2021, Labbe’s pit bull (while in Wachel’s front yard) aggressively chased and captured Wachel’s cat in its mouth. Wachel dislodged his cat from the pit bull’s mouth by grabbing and kicking the dog. He then placed the pit bull back into Labbe’s yard by gently tossing it over a low (approximately “2’ tall”) brick wall. After Wachel tossed Labbe’s dog back into Labbe’s yard, Labbe angrily and loudly falsely accused Wachel of abusing his dog. He then incited violence by falsely and loudly calling Wachel a pedophile and threatening him with physical harm. Upon information and belief, Labbe lied to the police that Wachel had slammed his dog on the ground while omitting the fact that his dog had captured Wachel’s cat in its mouth. Subsequently, after learning his dog may be deemed a danger to the community and be required to wear a muzzle based on Wachel’s complaint to the “SPCA,” Labbe (a former homicide detective) went to the District Attorney’s office and unduly influenced the district attorney to prosecute the Wachels before a police investigation into the pit bull incident was completed. On March 12, 2021, the district attorney filed criminal charges against the Wachels. The entire proceeding was terminated in favor of the Plaintiffs on or about June 22, 2021. Plaintiffs’ first and second causes of action for malicious prosecution and abuse of process, respectively, are based on events surrounding or leading to that criminal proceeding.  

Defendants now move to strike the malicious prosecution and abuse of process claims pursuant to Code of Civil Procedure section 425.16. 

LEGAL STANDARD

The anti-SLAPP statute is “a mechanism through which complaints that arise from the exercise of free speech rights can be evaluated at an early stage of the litigation process and resolved expeditiously.” (Simmons v. Allstate Ins. Co. (2001) 92 Cal.App.4th 1068, 1073 [internal quotations omitted].) Courts use a two-step process for determining whether an action is a strategic lawsuit against public participation, or a SLAPP. First, the court determines whether the defendant has established that the challenged claim arises from protected speech. (Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67.) If such a showing has been made, the court “determines whether the plaintiff has demonstrated a probability of prevailing on the claim.” (Ibid.) 

DISCUSSION

A.   Prong One: Protected Activity

“[T]he only thing the defendant needs to establish to invoke the protection of the SLAPP statute is that the challenged lawsuit arose from an act on the part of the defendant in furtherance of her right of petition or free speech.” (Fox Searchlight Pictures, Inc. v. Paladino (2001) 89 Cal.App.4th 294, 307; see also Code Civ. Proc., § 425.16, subd. (e).) In determining whether a cause of action arises from protected conduct, the court focuses on “the allegedly wrongful and injury-producing conduct that provides the foundation for the claims.” (Castleman v. Sagaser (2013) 216 Cal.App.4th 481, 490-491.) “[T]he critical consideration is whether the cause of action is based on the defendant’s protected free speech or petitioning activity.” (Navellier v. Sletten (2002) 29 Cal.4th 82, 89 [emphasis in original].) In making this determination, the court considers “the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based.” (Ibid.) 

1.     First Cause of Action for Malicious Prosecution

“By definition, a malicious prosecution suit alleges that the defendant committed a tort by filing a lawsuit.” (Jarrow Formulas, Inc. v. LaMarche (2003) 31 Cal.4th 728, 735 (“Jarrow”).) “Accordingly, every Court of Appeal that has addressed the question has concluded that malicious prosecution causes of action fall within the purview of the anti-SLAPP statute.” (Ibid.) Here, Plaintiffs’ malicious prosecution claim is based on the criminal action that the Defendants allegedly induced. Defendants’ reporting of an alleged crime is an act in furtherance of the exercise of their constitutional right of petition. Therefore, it falls within the purview of the anti-SLAPP statute.

In opposition, Plaintiffs rely on Lefebvre v. Lefebvre (2011) 199 Cal.App.4th 696 (“Lefebvre”) to argue that filing false police reports (as the SAC alleges Defendants did) is not an act in furtherance of the constitutional rights of petition or free speech. (See Lefebvre, supra, 199 Cal.App.4th at p. 703 [because the “act of making a false police report was not an act in furtherance of [the] constitutional right of petition or free speech, the anti-SLAPP statute simply never comes into play in this case. Neither the federal nor the state constitutional right of petition or free speech encompass a right to file a false crime report.” (Italics removed)].)

However, in Kenne v. Stennis (2014) 230 Cal.App.4th 953 (“Kenne”), the California Court of Appeal distinguished Lefebvre from cases where the defendants denied making false reports. “In [Lefebvre], the wife conceded that her report to the police was both false and illegal.” (Id. at p. 967; see also Lefebvre at p. 700 [wife and co-conspirator “conspired to bring false criminal accusations”] and at p. 705 [wife did “not contest that she submitted an illegal, false criminal report.”].) But as Kenne observed, “Here, defendants deny that any report they made to the police was false or illegal. Thus, this case is controlled by the case law holding that when allegations of making false reports are controverted, they are insufficient to render that alleged conduct unlawful as a matter of law and outside the protection of section 425.16.” (Ibid.) 

Here, like in Kenne, the Defendants deny making false criminal reports to the police. Labbe testifies that on January 8, 2021, he witnessed Wachel pinning Labbe’s pit bull (named Lucy) and Wachel’s cat together against a wall. (Motion, Labbe Decl., ¶ 4.) He then observed Wachel knee-drop his full body weight upon Lucy, causing her to yelp. (Motion, Labbe Decl., ¶ 4.) Labbe yelled at Wachel to let Lucy go, and Wachel, while taunting Labbe, lifted Lucy chest high with both hands and slammed her forcefully onto the ground on the side of a wall. (Labbe Decl., ¶ 5.) “As a result of this assault on [his] dog, [Labbe] filed a police report with the La Verne Police Dept. …. [He is] informed and believe that [his] report …led to a criminal complaint being filed by the District Attorney, in Pomona, CA, entitled People vs Gerald & Gina Wachel, Los Angeles Superior Court, Case No: 1PC00435.” (Labbe Decl., ¶ 6.) Subsequently, Labbe “became aware the Los Angeles County District Attorney’s office had assigned the case to Deputy District Attorney [DDA] Cesar Rodriguez. DDA Rodriguez interviewed [him] about the case facts.” (Labbe Decl., ¶ 7.) Plaintiffs have not submitted any declaration disputing those facts and the SAC is unverified. Therefore, since Plaintiffs’ allegations of making false reports are controverted, they are insufficient to render that alleged conduct unlawful as a matter of law and outside the protection of section 425.16. 

Accordingly, the court finds that the Defendants have met their burden of establishing that Plaintiffs’ first cause of action for malicious prosecution arises from protected activity. Therefore, “[b]ecause the initial burden of showing that the malicious prosecution claim [is] subject to scrutiny under section 425.16 …, the burden shift[s],” to the Plaintiffs to “establish a probability of prevailing in the litigation.” (HMS Capital, Inc. v. Lawyers Title Co. (2004) 118 Cal.App.4th 204, 213 (“HMS Capital”).)

2.     Second Cause of Action for Abuse of Process

“[S]ince ‘the essence of the tort of abuse of process ... [is] some misuse of process in a prior action[,] ... it is hard to imagine an abuse of process claim that would not fall under the protection of the [anti-SLAPP] statute.’ [Citation.]” (Maleti v. Wickers (2022) 82 Cal.App.5th 181, 200–201.) Plaintiffs’ abuse of process claim alleges the following. “Defendants used a legal process, specifically a criminal prosecution, against the Wachels to accomplish a purpose for which it is not designed, namely, to gain an unjustifiable collateral advantage. …. Specifically, Defendant Ty Labbe attempted to get the Wachels to sign a liability waiver, waiving the Wachels rights to any claims they had or would have in the future against Defendant Ty Labbe and any other Defendants shortly after legal process was already initiated against the Wachels.” (SAC, ¶ 47.) 

Plaintiffs again rely on Lefebvre to argue that the act of making a false report (which led to the criminal proceeding) was not act in furtherance of the constitutional rights of petition or free speech. However, as discussed above, since Plaintiffs’ allegations of making false reports are controverted, they are insufficient to render that conduct outside the protection of the anti-SLAPP statute. Accordingly, the court finds that the Defendants have met their burden of establishing that Plaintiffs’ second cause of action for abuse of process arises from protected activity. Therefore, the burden shifts to Plaintiffs to establish the probability of prevailing on the merits as to that claim.

B.    Prong Two: Probability of Prevailing

To establish the likelihood of prevailing, a “plaintiff must demonstrate that the complaint is both 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.” (Premier Med. Mgmt. Sys., Inc. v. California Ins. Guarantee Assn. (2006) 136 Cal.App.4th 464, 476 [internal quotations omitted].) In making the prong two determination, “the court shall consider the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based.” (Code Civ. Proc., § 425.16, subd. (b)(2).) “The court does not, however, weigh [defendant’s] evidence against the plaintiff’s, in terms of either credibility or persuasiveness. Rather, the defendant’s evidence is considered with a view toward whether it defeats the plaintiff’s showing as a matter of law, such as by establishing a defense or the absence of a necessary element.” (1-800 Contacts, Inc. v. Steinberg (2003) 107 Cal.App.4th 568, 585.) 

1.     Likelihood of Success – First Cause of Action for Malicious Prosecution

“In an action for malicious prosecution, the plaintiff must establish that the prior underlying action (1) was commenced by or at the direction of the defendant, or the defendant continued to prosecute it after discovering it lacked probable cause, and it was pursued to a legal termination in plaintiff's favor; (2) was brought without probable cause; and (3) was initiated with malice.” (HMS, supra, 118 Cal.App.4th at p. 213.) “[T]o create liability for malicious prosecution it is not enough to provide information to authorities during an ongoing criminal investigation. The person must ‘take some affirmative action to encourage the prosecution by way of advice or pressure, as opposed to merely providing information.’ [Citation.]” (Zucchet v. Galardi (2014) 229 Cal.App.4th 1466, 1485 (“Zucchet”).) For example, in Zucchet, “[t]here [was] no evidence or allegation that [the defendant] insisted upon or urged further prosecution of the case against [the plaintiff], or that he gave advice to the prosecutors or placed pressure on the government to continue the case against [the plaintiff].” (Ibid.) 

Here, Plaintiffs have not shown a likelihood of prevailing on their malicious prosecution claim because they allege, but fail to produce evidence showing, that the Defendants influenced the district attorney to file criminal charges against them. On the other hand, Defendants have produced the declaration of Deputy District Attorney Rodriguez, who was in charge of the criminal proceeding. Rodriguez testifies that after reviewing all relevant investigation materials, including police reports, he decided to file charges against the Defendants. (Motion, Rodriguez Decl., ¶ 5.) However, at no time during his investigation was he improperly influenced by the Defendants regarding the scope of his investigation or his decision to file charges. (Rodriguez Decl., ¶¶ 6-7.) In addition, he was never pressured, badgered, coerced, bullied, or intimated by the Plaintiffs during the investigation. (Rodriguez Decl., ¶¶ 8, 10.) His decision was completely independent of any communications he had with Labbe. (Rodriguez Decl., ¶¶ 9, 11.) For those reasons, the court finds that Plaintiffs have failed to show a likelihood of prevailing on their malicious prosecution claim. 

2.     Likelihood of Success – Second Cause of Action for Abuse of Process

“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, 1057.)

Here, Plaintiffs have not shown a likelihood of prevailing in their abuse of process claim. As stated above, the claim alleges that the Defendants used the criminal proceeding to essentially bribe the Wachels into signing a liability waiver that waived their rights to any claims they had or would have in the future against the Defendants (and any other Defendants) shortly after the criminal proceeding was initiated against the Wachels. However, Plaintiffs have not provided any declaration, affidavit, or other evidence attesting to those facts. In addition, it is unclear how a liability waiver was connected to a criminal proceeding when the state brings the action and not the Defendants. It is also unclear why a liability waiver would be improper; litigants frequently settle their claims out of court even before litigation is filed. 

In opposition, Plaintiff argues that the abuse of process claim is based on the allegation that the Defendants filed a false police report. However, Plaintiffs have failed to produce any evidence supporting that allegation. In addition, that allegation is disputed by the Defendants’ declarations. 

For those reasons, the court finds that Plaintiffs have failed to show a likelihood of prevailing on their abuse of process claim. 

Accordingly, the court grants the Defendants’ anti-SLAPP motion to strike the first and second causes of action for malicious prosecution and abuse of process, respectively, in the SAC. 

C.   Recoverable Fees

The prevailing party on an anti-SLAPP motion is entitled to an award of fees and costs. (Code Civ. Proc., § 425.16, subd. (c).) Here, the court finds that the Defendants are the prevailing party on the anti-SLAPP motion. Defense counsel, Ronald S. Housman, sets forth the basis for the fee award in his declaration in support of the motion. (Motion, Housman Decl., ¶ 7.) Counsel seeks $5,009.50, which consists of 23.3 hours counsel anticipates he would have spent in connection with the instant motion (including time attending the hearing), at a billing rate of $215 per hour. Plaintiffs argue that the court should deny the requested attorney’s fees because the motion was frivolous and intended to cause unnecessary delay. The court disagrees that the motion is frivolous. In addition, Plaintiffs have failed to prove unnecessary delay. 

For those reasons, the court grants the requested attorney’s fees. 

CONCLUSION

Based on the foregoing, the court grants Defendants Ty Labbe and Liza Gonzalez’s special motion to strike the first cause of action for malicious prosecution and second cause of action for abuse of process. 

The court orders Plaintiffs Gerald Wachel and Gina Wachel to pay the Defendants’ counsel $5,009.50 in attorney’s fees within 30 days of this ruling.

Defendants are ordered to give notice of this ruling.

IT IS SO ORDERED.

DATED:  October 14, 2022

_____________________________

Colin Leis

Judge of the Superior Court