Judge Jill Feeney, Case Number: 23STCV27983, Date: 2024-03-06 Tentative Ruling

This is an action for defamation and malicious prosecution. Plaintiff alleges that on October 2, 2023, Defendant reported to law enforcement that Plaintiff engaged in harassing and criminal behavior. Defendant reported that Plaintiff confronted him, stopping and clenching both fists as if preparing to fight. Plaintiff alleges that this statement was false, and that Defendant knew the statement was false at the time he made it.

In assessing a defendant’s section 425.16 special motion to strike, the court must engage in a two-step process. (Shekhter v. Financial Indem. Co. (2001) 89 Cal.App.4th 141, 150.) First, the court must decide whether the defendant has met the threshold burden of showing that the plaintiff’s cause of action arises from the defendant’s constitutional rights of free speech or petition for redress of grievances. (Id.) This burden may be met by showing the act which forms the basis for the plaintiff's cause of action was an act that falls within one of the four categories of conduct set forth in 425.16(e). If the defendant meets his initial burden, then the burden shifts to the plaintiff to establish a probability that the plaintiff will prevail on the claim—i.e., present facts which would, if proved at trial, support a judgment in the plaintiff’s favor. (Id. at 15051.)

In making its determination of the anti-SLAPP motion, 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(b)(2).) However, the court does not “weigh credibility [nor] compare the weight of the evidence. Rather, [the court] accepts as true the evidence favorable to the plaintiff and evaluates the defendant’s evidence only to determine if it has defeated that submitted by the plaintiff as a matter of law.” (Flatley v. Mauro (2006) 39 Cal.4th 299, 326.)

Defendant objects to Plaintiff’s late-filed opposition. Plaintiff’s deadline to file an opposition was February 22, 2024. Plaintiff filed his opposition on February 23, 2024. Because the opposition was only one day late and Defendant had the opportunity to file a reply, the Court will consider the opposition in its discretion as permitted by Cal Rules of Court, Rule 3.1300(d).

Defendant objects to the hearing transcript Plaintiff lodged in support of his opposition. Defendant alleges that the judge presiding over restraining order hearings is not a witness with personal knowledge of the facts and made no sworn testimony. Defendant argues that the judge’s comments at the hearing are inadmissible because restraining order proceedings have no preclusive effect on subsequent proceedings.

Excerpts of transcripts from proceedings such as grand jury proceedings may be considered for purposes of anti-SLAPP motions because the transcripts are in the same nature as a declaration in that the testimony is given under penalty of perjury. (Sweetwater Union High School Dist. v. Gilbane Building Co. (2019) 6 Cal.5th 931, 943.) Sworn testimony made before a grand jury is obviously made under penalty of perjury. (Id.) Permitting courts to consider recorded testimony is consistent with the purposes of the anti-slapp statutes because the early filing deadline usually means that it is not practicable for a plaintiff to obtain declarations from various witnesses. (Id at pp. 943-944.) However, the authenticity of these transcripts must be established. (Id p.943.)

Moving parties have the initial burden to demonstrate that a cause of action is subject to a special motion to strike. (Martinez v. Metabolife Inter. Ins. (2003) 113 Cal.App.4th 181, 186; Fox Searchlight Pictures Inc. v. Paladino (2001) 89 Cal.App.4th 294, 304.) Specifically, courts decide whether moving parties have made a prima facie showing that the attacked claims arise from a protected activity, including defendants’ right of petition, or free speech, under the Constitution, in connection with issues of public interest. (Healy v. Tuscany Hills Landscape & Recreation Corp. (2006) 137 Cal.App.4th 1, 5; Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260, 278; Paulus v. Bob Lynch Ford, Inc. (2006) 139 Cal.App.4th 659, 671; Equilon Ent. v. Consumer Cause (2002) 29 Cal.4th 53, 67; Gov. Gray Davis Committee v. Amer. Taxpayers Alliance (2002) 102 Cal.App.4th 449, 458-59; CCP §425.16(e).) Moving parties can satisfy their burden by showing (1) statements made before legislative, executive or judicial proceedings, or made in connection with matters being considered in such proceedings, or (2) statements made in a public forum, or other conduct in furtherance of the exercise of the constitutional rights of petition or free speech, in connection with issues of public interest. (CCP §425.16(e); Equilon Ent., LLC v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 66.)

Here, Defendant alleges that Plaintiff’s claims arise from Defendant’s right to petition or free speech because both causes of action arise from Defendant’s report to law enforcement and his request for a civil harassment restraining order. “The law is that communications to the police are within SLAPP.” (Comstock v. Aber (2012) 212 Cal.App.4th 931, 941.) Here, Plaintiff’s FAC alleges that Defendant made a false report to law enforcement that Plaintiff had confronted Defendant, forcibly blocking Defendant’s path, balling his fists as if to fight, and staring at Defendant. (FAC, ¶¶9-10.) Thereafter, Defendant made a request for a civil harassment restraining order based on these false allegations. (FAC, ¶¶12-14.)

Plaintiff’s claims arise from Defendant’s right of petition or free speech because communicating with law enforcement is an exercise of Defendant’s right of free speech. The filing of a civil harassment petition also constitutes protected activity. (Kenne v. Stennis (2014) 230 Cal.App.4th 953, 966.)

Plaintiff argues that Defendant’s statement to law enforcement is not protected because the statement was false. False police reports are illegal conduct and are not an act in furtherance of the constitutional rights of petition or free speech under Cal. Civ. Proc. §425.16(b)(1). (Lefebvre v. Lefebvre (2011), 199 Cal. App. 4th 696, 131.) Specifically, knowingly making a false police report is a misdemeanor. (Penal Code, §148.5.) However, 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. (Kenne v. Stennis (2014), 230 Cal.App.4th 953, 967.)

Here, Plaintiff alleges the statement was false because surveillance footage of the incident shows that Plaintiff did not stop in front of or approach Defendant, nor did he ball his fists as if to fight Defendant. Defendant lodged a copy of the surveillance footage with the Court. (Motion, Exh. 5.) The footage shows that Plaintiff walked past Defendant without stopping and did not clench his fists as if to fight Defendant. During the hearing on Defendant’s restraining order, the court there found that Defendant was not credible because the surveillance footage of the incident did not show that Plaintiff moved closer to Defendant or that he balled his fists preparing to fight Plaintiff. (Plaintiff’s RJN, 80:17-23.) Defendant concedes that Plaintiff did not stop as he remembered. (Mandallan Decl., ¶28.) Because Plaintiff concedes that the report was false, it is uncontroverted that his report was false.

However, the Court cannot find, as a matter of law, that Plaintiff’s conduct was unlawful. When a defendant’s assertedly protected activity may or may not be unlawful, the defendant may only invoke the anti-SLAPP statute unless the activity is unlawful as a matter of law. (Dwight R. v. Christy B. (2013) 212 Cal.App.4th 697, 711, emphasis in original.) Here, Defendant testifies that he never knowingly made any false statements to law enforcement regarding the October 2023 incident. (Mandallan Decl., ¶30.) Defendant believes his report was inconsistent with the footage due to the shock of seeing Plaintiff for the first time after Plaintiff’s alleged assault on Defendant. (Id.) Unlike Lefebvre, where a defendant knowingly made a false police report and conceded that the making of the report was illegal, here, Defendant concedes the report was false but controverts whether he knowingly made the false report. Even if another court found that the video footage did not substantiate Defendant’s report to law enforcement, the court there declined to find that Defendant committed perjury. (Defendant’s RJN, 80:15-22.) Whether Defendant knowingly made a false report to law enforcement as a matter of law remains controverted.

If the defendant meets its initial burden to show its activity is protected by the ant-SLAPP statute, then the burden shifts to the plaintiff to prove he has a legally sufficient claim and to prove with admissible evidence a probability of prevailing on the claim. (De Havilland v. FX Networks, LLC¿(2018) 21 Cal.App.5th 845, 855.) The trial court considers the pleadings and evidence of both parties. (Ibid.) The plaintiff’s proof must be made upon competent admissible evidence. (Sweetwater Union High School Dist. v. Gilbane Building Co. (2019) 6 Cal.5th 931, 940.)(“Sweetwater”) The court “does not weigh evidence or resolve conflicting factual claims.” (Ibid.) The court’s inquiry “is limited to whether the plaintiff has stated a legally sufficient claim and made a prima facie factual showing sufficient to sustain a favorable judgment” accepting the plaintiff’s evidence as true. (Ibid.) “The court evaluates the defendant’s showing only to determine if it defeats the plaintiff’s claim as a matter of law…‘[C]laims with the requisite minimal merit may proceed.’” (Id.; see also Navellier v. Sletten (2002) 29 Cal.4th 82, 89.)¿

“‘The usual formulation is that the [litigation] privilege applies to any communication (1) made in judicial or quasi-judicial proceedings; (2) by litigants or other participants authorized by law; (3) to achieve the objects of the litigation; and (4) that [has] some connection or logical relation to the action.’…The privilege “is not limited to statements made during a trial or other proceedings, but may extend to steps taken prior thereto, or afterwards.’”¿ (Action Apartment Assn., Inc. v. City of Santa Monica¿(2007) 41 Cal.4th 1232, 1241.)¿ “The privilege applies to communications relative to the defense of an action as well as those relative to its filing and prosecution.”¿ (Cabral v. Martins¿(2009) 177 Cal.App.4th 471, 485.)¿ “The privilege is ‘absolute in nature, applying “to¿all¿publications,¿irrespective of their maliciousness.’ “¿ (Optional Capital, Inc. v. Akin Gump Strauss, Hauer & Feld LLP¿(2017) 18 Cal.App.5th 95, 116.)¿

Here, the facts satisfy the first element because Defendant’s statements to law enforcement and request for a restraining order were made during and prior to a judicial proceeding, the hearing on Defendant’s request for a restraining order. Second, the statements were made by Defendant, a litigant in this action. Third, Defendant made the statements about the confrontation in order to secure a restraining order, the object of the judicial proceeding. Finally, Defendant’s statements have a connection to this action because the cause of action for defamation arises from Plaintiff’s statement to law enforcement.

Plaintiff clarifies in his opposition that his cause of action for defamation is based only on the statements made by Defendant to law enforcement. Plaintiff contends that these statements which would normally fall under the litigation privilege are not covered by that privilege because they fall under the exception set forth at subdivision (b)(5) which states that a false report to law enforcement made knowing that the report is false or with reckless disregard for the truth or falsity of the report are not covered by the privilege.

Plaintiff’s defamation claims is based on a per se theory. (FAC, Paragraph 25.) The elements of such a claims are that: (1) a defendant made one or more of the statements at issue to a person other than plaintiff; (2) the person reasonably understood that the statements were about plaintiff; (3) the person reasonably understood the statements to mean that plaintiff committed a crime/was threatening or harassing defendant; (4) defendant failed to use reasonable care to determine the truth or falsity of the statements; (5) this conduct was a substantial factor in causing plaintiff actual damages to include harm to plaintiff’s business or occupation or shame, mortification or hurt feelings. (CACI No. 1704.)

Here, the verified FAC, the testimony of the parties at the hearing, and the video surveillance are sufficient to establish the minimal merit required to move forward. To fall within this exception to the litigation privilege there needs to be a showing that a party acted with reckless disregard for the truth or falsity of the reports made to law enforcement. Here, the Court cannot say as a matter of law that this standard has not been met.

Defendant next argues that Plaintiff cannot prevail on his claim of malicious prosecution because the unsuccessful filing of a civil harassment claim cannot form the basis of a malicious prosecution claim. The unsuccessful filing of a petition for an injunction under section 527.6 may not form the basis for a malicious prosecution action. (Siam v. Kizilbash (2005) 130 Cal.App.4th 1563, 1574.) Permitting a malicious prosecution claim to follow an unsuccessful section 527.6 petition would frustrate the streamlined nature of a section 527.6 procedure, dissuade victims of serious harassment from seeking restraining orders, and subject those who filed petitions to serious financial harm. (Id at p. 1573.) “On balance, these concerns outweigh the concern that an aggrieved defendant might be deprived of the additional remedies a malicious prosecution action would provide in egregious situations.” (Id.)

Here, Plaintiff’s malicious prosecution claim is based on Defendant’s unsuccessful petition for a civil harassment restraining order. (FAC ¶¶32-33.) Plaintiff cannot prevail on his claim of malicious prosecution because it cannot be based on the unsuccessful petition for a civil harassment restraining order.