Cox v. Griffin
| Citation | 246 Cal.Rptr.3d 185,34 Cal.App.5th 440 |
| Decision Date | 17 April 2019 |
| Docket Number | D074893 |
| Court | California Court of Appeals Court of Appeals |
| Parties | Lucinda COX, Plaintiff and Appellant, v. Hollis GRIFFIN, Defendant and Respondent. |
Law Offices of Keith B. Bardellini, Keith B. Bardellini ; Drinker Biddle & Reath, George T. Caplan and Paul M. Gelb, Los Angeles, for Plaintiff and Appellant.
Law Office of John M. Kramer, John M. Kramer ; Law Offices of Kristen Martin and Kristen Martin, Costa Mesa, for Defendant and Respondent.
The lesson in this case is there are important distinctions between the torts of false imprisonment and malicious prosecution. Lucinda Cox alleged that Hollis Griffin intentionally filed a false police report accusing Cox of forgery and embezzlement, leading to Cox's arrest and seven-day incarceration. Cox's attorney asked the court to instruct the jury on false arrest (false imprisonment) and intentional infliction of emotional distress. Cox's complaint did not allege a cause of action for malicious prosecution, and the court did not instruct on malicious prosecution.
After the jury awarded Cox $ 450,000 in a general verdict, the trial court granted Griffin's motion for judgment notwithstanding the verdict (JNOV) because under Hagberg v. California Federal Bank (2004) 32 Cal.4th 350, 7 Cal.Rptr.3d 803, 81 P.3d 244 ( Hagberg ), citizen reports of suspected criminal activity can only be the basis for tort liability on a malicious prosecution theory. ( Id. at pp. 355, 7 Cal.Rptr.3d 803, 81 P.3d 244.) When a citizen contacts law enforcement to report a suspected crime, the privilege in Civil Code1 section 47, subdivision (b) (hereafter section 47(b) ) bars causes of action for false imprisonment and intentional infliction of emotional distress, even if the police report was made maliciously. ( Mulder v. Pilot Air Freight (2004) 32 Cal.4th 384, 387, 7 Cal.Rptr.3d 828, 81 P.3d 264 ( Mulder ); Hagberg , at p. 365, 7 Cal.Rptr.3d 803, 81 P.3d 244.)
In sum, Cox prevailed on causes of action barred by section 47(b), and she failed to allege and have the jury instructed on her only potentially viable cause of action, malicious prosecution.
Cox's only argument in her opening brief is that the JNOV should be reversed because "the elements of malicious prosecution were supported by substantial evidence in the record." We reject Cox's argument because an appellant "cannot challenge a judgment on the basis of a new cause of action [she] did not advance below." ( UnitedStates Golf Assn. v. Arroyo Software Corp. (1999) 69 Cal.App.4th 607, 623, 81 Cal.Rptr.2d 708 ( United States Golf. ) ) There is an exception to that rule allowing a change in theory on appeal if the new theory involves a question of law on undisputed facts. But that exception does not apply here because the record does not contain undisputed evidence establishing all elements of malicious prosecution. Accordingly, although the jury found that Griffin intentionally filed a false police report causing Cox emotional distress, we are compelled to affirm the defense judgment.
In 2008 Cox and Griffin, who had been friends for over 20 years, opened a cosmetology school together. Cox was one of the school's teachers and Griffin handled administration.
In 2010 Cox and Griffin had numerous business disagreements, causing them to sell the school in 2012. To pay final expenses Cox opened a checking account in July 2012 that required both of their signatures on checks. When the account was opened, the bank provided three checks, which Cox and Griffin signed in blank; i.e., with no payee, no date, and no amount. Cox used two of the checks to pay small invoices and kept the third blank check for future use. Griffin testified that she understood Cox would use that third check to pay a $20 invoice.
About seven months later, in February 2013, Cox issued the remaining presigned blank check to herself for $ 35,200, essentially depleting the joint account.
Cox testified that Griffin had no further interest in the business and told Cox to take the money to pay the school's debts. Cox also testified that she disbursed the $ 35,200 to pay the school's debts and did not keep "a single dime" for herself.
Griffin disagreed, testifying that she never authorized Cox to issue herself a $ 35,200 check. In September 2013 Griffin sent Cox an e-mail asking her to explain how this money was taken out of the joint account "without [her] signature" and "[c]an you please tell [me] what is going on?" Cox did not reply.
In October 2013 Griffin reported to the San Bernardino County Sheriff's Department that Cox had forged her signature on the $ 35,200 check. The sheriff's department investigated and a warrant was issued for Cox's arrest.
Griffin has law enforcement contacts. Her husband works for a district attorney's office. Griffin also owns a gun shop, sold firearms to the deputy who took the crime report, and knows the detective assigned to investigate her criminal complaint.
The detective asked Griffin to notify the sheriff's department if she saw Cox. On December 23, 2014, at about 8 p.m., Griffin and her husband reported that Cox was at a residence owned by one of Cox's clients.3 A deputy arrested Cox there and later booked her into jail on Christmas Eve. Cox was unable to raise her $ 250,000 bail and spent several days in jail with only a thin mat for a bed.4 She was "freezing cold" and except for an apple each day, Cox ate nothing because "[e]verything else was either very sloppy or inedible." Cox feared for her life, heard people screaming "day and night," and saw rats outside her cell.
At trial, Griffin acknowledged that Cox had not forged her signature on the $ 35,200 check. Griffin testified that when she contacted police in October 2013, she had forgotten that seven months earlier she had signed the blank check. Griffin testified that although the check was not forged, it was fraudulent because Cox wrongfully used Griffin's share of the $ 35,200 to pay Cox's personal expenses.
An accountant testified that as a result of errors in the school's tax returns, Griffin received tax benefits at Cox's expense. In closing argument, Cox's attorney argued that Griffin sought to chill Cox's attempts to file amended tax returns by making a false police report about the $ 35,200 check.
In December 2015 Cox filed a form complaint against Griffin containing one cause of action entitled "Intentional Tort," alleging:
During trial, the court granted Cox's motion to amend the complaint to conform to proof to add a cause of action for intentional infliction of emotional distress. The record does not indicate that Cox sought to amend the complaint to add a malicious prosecution cause of action.
Cox's attorney asked the court to instruct on (1) intentional infliction of emotional distress and (2) false arrest with warrant. On the false arrest cause of action, the court instructed the jury as follows:
In closing argument, Cox's attorney told the jury, "So we have two causes of action ... intentional infliction of emotional distress [and] ... false arrest." In his rebuttal closing, Cox's attorney reiterated that "[t]his case is about false arrest, false imprisonment, and intentional infliction of emotional distress."6
The jury returned a general verdict in Cox's favor for $ 450,000. After the court entered judgment on the verdict, Griffin filed a JNOV motion asserting that under Hagberg , supra , 32 Cal.4th 350, 7 Cal.Rptr.3d 803, 81 P.3d 244, section 47(b)"provides an absolute privilege for statements made to law enforcement personnel to report suspected criminal activity ... and the only basis of tort liability possibly available is ... a cause of action for malicious prosecution." Additionally, Griffin asserted insufficient evidence supported a malicious prosecution claim. Griffin also asked the court to take judicial notice of an order stating that Cox was held to answer for two counts after her preliminary hearing.7
Cox opposed the JNOV motion, asserting that section 47(b) did not immunize "intentionally false statements to law enforcement." In reply, Griffin again cited Hagberg , supra , 32 Cal.4th 350, 7 Cal.Rptr.3d 803, 81 P.3d 244, stating that the privilege "cannot be defeated by a showing of malice."
After conducting a hearing, the court granted the JNOV motion, ruling that section 47(b)"provides a complete defense to Cox's causes of action." Cox appealed from the defense judgment.
I. THE COURT CORRECTLY ENTERED JNOV
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