Lefebvre v. Lefebvre

• Decision Date: 28 September 2011
• Docket Number: No. B224207.,B224207.
• Citation: 131 Cal.Rptr.3d 171,2011 Daily Journal D.A.R. 14708,199 Cal.App.4th 696,11 Cal. Daily Op. Serv. 12425
• Court: California Court of Appeals Court of Appeals
• Parties: Jon M. LEFEBVRE, Plaintiff and Respondent, v. Alice LEFEBVRE et al., Defendants and Appellants.

199 Cal.App.4th 696

131 Cal.Rptr.3d 171

11 Cal. Daily Op. Serv. 12,425

2011 Daily Journal D.A.R. 14,708

Jon M. LEFEBVRE, Plaintiff and Respondent,

v.Alice LEFEBVRE et al., Defendants and Appellants.

No. B224207.

Court of Appeal, Second District, Division 8.

Sept. 28, 2011.

Beltran, Beltran, Smith, Oppel & MacKenzie and Patrick S. Smith, Burbank, for Defendants and Appellants.

Kermisch & Paletz, William Kermisch, Burbank, and Natalie Locke for Plaintiff and Respondent.

BIGELOW, P.J.

Jon Lefebvre filed a complaint alleging malicious prosecution and similar causes of action against his former spouse, Alice Lefebvre, and an alleged civil co-conspirator, Nancy Toothman.¹ Alice and Toothman filed a special motion to strike Jon's complaint under the anti-SLAPP statute. ( Code Civ. Proc., § 425.16.) ² The trial court entered an order denying the anti-SLAPP motion, and Alice and Toothman then filed this appeal. We affirm the trial court's order.

FACTS

Jon and Alice married in August 1995; they have two minor children. Over a period of years prior to August 2005, Alice began reading books on the subjects of divorce and money, including at least one book which included information about using false criminal accusations against a spouse in a divorce proceeding. During the same time period, Alice and Toothman conspired to bring false criminal accusations against Jon. On August 17, 2005, in furtherance of the conspiracy, Alice reported to a sheriff deputy that Jon had recently threatened to kill her and their children, and Toothman confirmed Alice's criminal report to the deputy.

On August 26, 2005, authorities with the Sheriff's Department, acting in reliance upon the criminal reports from Alice and Toothman, filed a criminal case against Jon, charging him with a violation of Penal Code section 422, making a criminal threat. The charge was tried to a jury and Jon was found not guilty.

At the time of the verdict, the jurors, acting of their own volition, selected the jury foreperson to read the following statement into the record: “We, the jury, believe that the absence of any real investigation by law enforcement is shocking and we agree that this appears to follow a rule of guilty until proven innocent. There was no credible evidence supporting the indictment. We believe prosecuting this as a crime was not only a waste of time, money, and energy, for all involved, but is an affront to our justice system. This jury recommends restitution to the defendant for costs and fees of defending himself against these charges. This jury requests that our collective statement be made available in any [future] legal action relating to these parties....” The judge who presided over Jon's criminal trial granted Jon's motion for a finding of factual innocence pursuant to Penal Code section 851.8, subdivision (e).

Jon thereafter filed a complaint in the local federal district court against Alice and Toothman. The district court dismissed Jon's federal action without prejudice to refilling his claims in state court. Jon then filed a complaint against Alice and Toothman alleging causes of action for malicious prosecution, false arrest and imprisonment, negligent statements without justification, intentional infliction of emotional distress, and for damages for violation of his civil rights pursuant to Civil Code section 52.1.

In summary, Jon's complaint alleges that Alice and Toothman conspired to bring a false criminal report against him, that their statements to police precipitated the underlying criminal action, that they repeated their false accusation at trial, and that the trial ended with his acquittal, and the subsequent finding of factual innocence.

Alice and Toothman filed a joint special motion to strike Jon's complaint under the anti-SLAPP statute. (§ 425.16.) The parties argued the anti-SLAPP motion to the trial court, and the court took the matter under submission. The court entered an order denying the anti-SLAPP motion. Broadly summarized, the court's six-page order sets forth the court's reasons for concluding that Alice and Toothman failed to meet their initial burden under the anti-SLAPP procedure because they did not show that the reports they filed with the police authorities constituted “protected activity” within the meaning of the anti-SLAPP statute. The trial court found that the record “conclusively” established that Alice's and Toothman's statements to the police were an “illegal activity” under Penal Code section 148.5, and, as such, not a “protected activity” within the meaning of the anti-SLAPP statute. (See Flatley v. Mauro (2006) 39 Cal.4th 299, 322–325, 46 Cal.Rptr.3d 606, 139 P.3d 2( Flatley ).) Having determined that Alice and Toothman failed to meet their initial burden under the anti-SLAPP statute of showing a “protected activity,” the court found it unnecessary to address their contention that they will win their case in the end based on the “litigation privilege” established in Civil Code section 47, subdivision (b).

Alice and Toothman filed a timely notice of appeal.

DISCUSSION

Alice and Toothman (hereafter collectively Alice) contend the order denying the anti-SLAPP motion must be reversed. First, because all of Jon's claims arise from Alice's criminal report to the police and, second, because her report was a “privileged communication” under Civil Code section 47, making it also a “protected activity” under the anti-SLAPP statute. Alice further argues that a privileged communication under Civil Code section 47 cannot give rise to liability, thus defeating any possibility that Jon has a “probability of prevailing” in his current case. Alice's argument does not persuade us that the trial court's order must be reversed.

The Anti–SLAPP Statute

We recently reviewed the anti-SLAPP statute in Gerbosi v. Gaims, Weil, West & Epstein, LLP (2011) 193 Cal.App.4th 435, 122 Cal.Rptr.3d 73( Gerbosi ): “The Legislature enacted the anti-SLAPP statute to address the societal ills caused by meritless lawsuits that are filed to chill the exercise of First Amendment rights. (§ 425.16, subd. (a).) The statute accomplishes this end by providing a special procedure for striking meritless, chilling causes of action at the earliest possible stages of litigation. The statute requires two steps for striking a cause of action. In the first step, the court is tasked with determining whether the defendant has made a threshold showing that the challenged cause of action is one ‘arising from protected activity.’ In this step, the moving defendant must demonstrate that the acts upon which the plaintiff's claim is based were taken in furtherance of the defendant's right of petition or free speech under the federal or state Constitutions. If the court finds this threshold showing has been made by the defendant, the court must then determine whether the plaintiff has demonstrated a ‘probability of prevailing’ on his or her claim. ( Equilion [ Equilon ] Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67 [124 Cal.Rptr.2d 507, 52 P.3d 685]( Equilion [ Equilon] ).)” ( Gerbosi, supra, 193 Cal.App.4th at p. 443, 122 Cal.Rptr.3d 73.)

“A cause of action ‘arising from protected activity’ means that the defendant's acts underpinning the plaintiff's cause of action involved an exercise of the right of petition or free speech. [Citation.] ... The defendant must establish that the plaintiff's cause of action is actually based on conduct in the exercise of those rights. [Citation.]” ( Gerbosi, supra, 193 Cal.App.4th at p. 443, 122 Cal.Rptr.3d 73.)

The second step of the anti-SLAPP procedure—a “probability of prevailing” on the merits—means a plaintiff must show that he or she has “a reasonable probability of prevailing, not prevailing by a preponderance of the evidence. For this reason, a court must apply a ‘summary-judgment-like’ test ( Taus v. Loftus (2007) 40 Cal.4th 683, 714 [54 Cal.Rptr.3d 775, 151 P.3d 1185] ), accepting as true the evidence favorable to the plaintiff and evaluating the defendant's evidence only to determine whether the defendant has defeated the plaintiff's evidence as a matter of law. ( Wilcox v. Superior Court (1994) 27 Cal.App.4th 809, 823 , disapproved on other grounds in Equilon, supra, 29 Cal.4th at p. 68, fn. 5 [124 Cal.Rptr.2d 507, 52 P.3d 685].) A court may not weigh credibility or compare the weight of the evidence. The court's single task is to determine whether the plaintiff has made a prima facie showing of facts supporting his or her cause of action. (ComputerXpress, Inc. v. Jackson [ (2001) 93 Cal.App.4th 993,] 1010 .)” ( Gerbosi, supra, 193 Cal.App.4th at p. 444, 122 Cal.Rptr.3d 73.)

We review an order denying an anti-SLAPP motion under the de novo standard of review. ( PrediWave Corp. v. Simpson Thacher & Bartlett LLP (2009) 179 Cal.App.4th 1204, 1218, 102 Cal.Rptr.3d 245.) In other words, we will employ the same two-step procedure as did the trial court in determining whether the anti-SLAPP motion was properly denied. ( Gerbosi, supra, 193 Cal.App.4th at p. 444, 122 Cal.Rptr.3d 73.)

Citing Hagberg v. California Federal Bank (2004) 32 Cal.4th 350, 7 Cal.Rptr.3d 803, 81 P.3d 244( Hagberg ), Alice argues her false criminal report to the police was absolutely privileged under Civil Code section 47, subdivision (b). We assume without deciding that Alice is correct. It is Alice's next argument with which we take issue. Still relying on Hagberg, and now also on Wang v. Hartunian (2003) 111 Cal.App.4th 744, 3 Cal.Rptr.3d 909( Wang ), Alice argues her “privileged activity” amounted to “protected activity” within the meaning of the anti-SLAPP statute. The trial court disagreed, and so do we.

As noted above, the anti-SLAPP statute is not implicated, and cannot be invoked by a defendant, unless the defendant's conduct underpinning a plaintiff's cause of action involved an act in furtherance of the defendant's “right of petition or free speech under the United States Constitution or the ...