Van Audenhove v. Perry, E065418

CourtCalifornia Court of Appeals
Writing for the CourtRAMIREZ, P.J.
Citation217 Cal.Rptr.3d 843,11 Cal.App.5th 915
Parties Dirck VAN AUDENHOVE, Plaintiff and Appellant, v. Robert D. PERRY, Defendant and Respondent.
Docket NumberE065418
Decision Date19 May 2017

11 Cal.App.5th 915
217 Cal.Rptr.3d 843

Dirck VAN AUDENHOVE, Plaintiff and Appellant,
v.
Robert D. PERRY, Defendant and Respondent.

E065418

Court of Appeal, Fourth District, Division 2, California.

Filed May 19, 2017
As Modified June 14, 2017


Walker Trial Lawyers, Barry M. Walker, Riverside, and Amy M. Oakden for Plaintiff and Appellant.

Hitzeman & Evenson and Donald W. Hitzeman for Defendant and Respondent.

OPINION

RAMIREZ, P.J.

11 Cal.App.5th 917

Dirck Van Audenhove sued Robert Perry for malicious prosecution, alleging that Perry contacted the police and falsely accused him of stalking, and that the police arrested him, but the district attorney's office ultimately declined to prosecute. The trial court sustained a demurrer and dismissed the action, on the ground that the complaint failed to allege a prosecution, as required for a claim of malicious prosecution.

We will hold that a cause of action for malicious prosecution cannot be premised on an arrest that does not result in formal charges (at least when the arrest is not pursuant to a warrant). Hence, we will affirm. We publish our decision because, to our surprise, we have found no California case on point. However, our conclusion seems to be generally accepted.

I

FACTUAL BACKGROUND

Consistent with the applicable standard of review (see part III, post ), we assume the truth of the following facts, which are drawn from the allegations of the operative complaint.

During part of the year, Van Audenhove and Perry were neighbors at a recreational vehicle resort in Aguanga.

In April 2013, Perry contacted the Riverside County Sheriff's Department and falsely accused Van Audenhove of stalking both him and his wife. When an officer responded, Perry made additional statements, falsely accusing Van Audenhove of acts constituting the crime of stalking, all with the intent to cause Van Audenhove to be arrested, prosecuted, and convicted. Van Audenhove was a Canadian citizen; Perry's "ultimate intention" was to cause him to be either deported or prevented from re-entering the country.

As a result, the police arrested Van Audenhove for felony stalking in violation of Penal Code section 646.9, subdivision (a). He was booked, held in jail overnight, and then released. In June 2013, the district attorney's office concluded, " ‘[T]his is a neighbor dispute[,] not a stalking.’ " It therefore declined to prosecute Van Audenhove.

217 Cal.Rptr.3d 845

Perry nevertheless continued to make false and defamatory statements about Van Audenhove, including statements accusing him of stalking, "to numerous [f]ederal [a]gencies, [s]uch as Homeland Security, ICA [sic ; sc. ICE?] and the U.S. State Department, Senator Feinstein, U.S. Congressmen and

11 Cal.App.5th 918
the] U.S. Border Patrol[,] in an attempt to prevent [Van Audenhove] from re-entering the United States."

II

PROCEDURAL BACKGROUND

In 2015, Van Audenhove filed this action against Perry. The original complaint is not in the record. Perry filed a demurrer to the complaint, which likewise is not in the record. The trial court sustained the demurrer, with leave to amend.

Van Audenhove then filed a first amended complaint, asserting a single cause of action for malicious prosecution. Perry filed a demurrer to the first amended complaint on several grounds, including that it failed to allege that Van Audenhove was ever prosecuted. In opposition,1 Van Audenhove argued that the filing of charges is not an element of malicious prosecution, and that "[a]ll that is required in actions for malicious prosecution against private persons is that the defendant has sought out the police or prosecutorial authorities and falsely reported facts indicating that [the] plaintiff has committed a crime."

After hearing argument, the trial court sustained the demurrer without leave to amend. It explained: "[T]here was no actual prosecution and thus [the] claim for malicious prosecution is missing a key element." It entered a judgment of dismissal.

III

STANDARD OF REVIEW

A demurrer should be sustained when "[t]he pleading does not state facts sufficient to constitute a cause of action." (Code Civ. Proc., § 430.10, subd. (e).)

"Our standard of review of an order sustaining a demurrer is well settled. We independently review the ruling on demurrer and determine de novo whether the complaint alleges facts sufficient to state a cause of action. [Citation.] In doing so, we ‘give the complaint a reasonable interpretation, reading it as a whole and its parts in their context. [Citation.] ...’ [Citation.]"

[11 Cal.App.5th 919

(Parthemore v. Col (2013) 221 Cal.App.4th 1372, 1378, 165 Cal.Rptr.3d 367.) "We assume the truth of the properly pleaded factual allegations, facts that reasonably can be inferred from those expressly pleaded and matters of which judicial notice has been taken. [Citations.] We liberally construe the pleading with a view to substantial justice between the parties. [Citations.]" (Regents of University of California v. Superior Court (2013) 220 Cal.App.4th 549, 558, 163 Cal.Rptr.3d 205.)

IV

THE "PROSECUTION" ELEMENT OF MALICIOUS PROSECUTION

Van Audenhove contends that malicious prosecution, when based on an underlying

217 Cal.Rptr.3d 846

criminal proceeding, does not require the filing of formal charges, and therefore his arrest was sufficient to satisfy the "prosecution" element.

This appears to be a question of first impression in California. This can hardly be the first time that a person has falsely accused another person of a crime and succeeded in getting the other person arrested, but not in getting the other person prosecuted. Thus, the very lack of authority on this issue is telling. However, language in the case law points to a general understanding that an arrest, without formal charges, is not a sufficient foundation for a malicious prosecution claim.

" ‘[I]n order to establish a cause of action for malicious prosecution of either a criminal or civil proceeding, a plaintiff must demonstrate "that the prior action (1) was commenced by or at the direction of the defendant and was pursued to a legal termination in his, plaintiff's, favor [citations]; (2) was brought without probable cause [citations]; and (3) was initiated with malice [citations]." ’ [Citation.]" (Casa Herrera, Inc. v. Beydoun (2004) 32 Cal.4th 336, 341, 9 Cal.Rptr.3d 97, 83 P.3d 497.)

Included in this definition is a requirement of an "action" or a "proceeding," which must have been first "commenced" and then "favor[ably]" "terminat[ed]." Admittedly, this definition has been stretched to accommodate analogous situations. (See Zamos v. Stroud (2004) 32 Cal.4th 958, 960, 965-970, 12 Cal.Rptr.3d 54, 87 P.3d 802 [malicious prosecution action can

11 Cal.App.5th 920

be based on continuing, as well as initiating, an action]; Hardy v. Vial (1957) 48 Cal.2d 577, 580-582, 311 P.2d 494 [malicious prosecution action can be based on an administrative proceeding]; but see Bertero v. National General Corp. (1974) 13 Cal.3d 43, 52, 118 Cal.Rptr. 184, 529 P.2d 608 ["[C]ourts have refused to recognize a tort of malicious defense."].) Nevertheless, an arrest does not fit within this definition. An arrest is not a proceeding. Moreover, a favorable termination is one that "indicate[s] the innocence of the accused ...." (Jaffe v. Stone (1941) 18 Cal.2d 146, 150, 114 P.2d 335.) However, release from arrest does not necessarily indicate innocence; the arrestee may yet be prosecuted.

In Singleton v. Perry (1955) 45 Cal.2d 489, 289 P.2d 794, the Supreme Court contrasted malicious prosecution with false imprisonment: " ‘ "False imprisonment is the unlawful violation of the personal liberty of another" [citation], the interference with the personal liberty of the plaintiff in a way which is absolutely unlawful and without authority. Malicious prosecution is procuring the arrest or prosecution of another under lawful process, but from malicious motives and without probable cause.’ [¶] ... [¶]

"No one can recover damages for a legal arrest and conviction; therefore, in cases of malicious prosecution it becomes necessary to await the final determination of the action . But the same principle does not apply to an action for false imprisonment, as the form of action is based upon an illegal arrest and no matter ex post facto can legalize an act which was illegal at the time it was done. From this it will be seen that one of the essential elements of a complaint for malicious prosecution is that the proceeding upon which it is based has finally terminated in favor of the plaintiff, while it is equally apparent that this is not a necessary or proper allegation in an action for false imprisonment. [Citations.]’ [Citations.]" (Singleton v. Perry , supra , 45 Cal.2d at pp. 494-495, 289 P.2d 794, some italics in orig., some italics added.)

Singleton thus suggests that, when there is a legal arrest, the arrestee does not yet have a cause of action for either false imprisonment or malicious prosecution;

217 Cal.Rptr.3d 847
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11 practice notes
  • Harmon v. City of Pocatello, Case No. 4:17-cv-00485-DCN
    • United States
    • United States District Courts. 9th Circuit. District of Idaho
    • January 7, 2020
    ...basis, because there are cases which appear to broaden "prosecution" as widely as Harmon suggest. See, e.g. , Van Audenhove v. Perry , 11 Cal. App. 5th 915, 922, 217 Cal.Rptr.3d 843 (Ct. App. 2017), as modified (June 14, 2017), review denied (Aug. 9, 2017) ("Malicious prosecution is procuri......
  • Cox v. Griffin, D074893
    • United States
    • California Court of Appeals
    • April 17, 2019
    ...theory, raised for the first time on appeal, is forfeited.12 Disagreeing with this analysis, Cox cites Van Audenhove v. Perry (2017) 11 Cal.App.5th 915, 217 Cal.Rptr.3d 843 ( Van Audenhove ) for the proposition that a "lawful warrant constitutes a proceeding for purposes of the elements of ......
  • Kim v. R Consulting, D076923
    • United States
    • California Court of Appeals
    • July 30, 2021
    ...whether a party can sue for malicious prosecution following a favorable outcome in a contempt trial.In Van Audenhove v. Perry (2017) 11 Cal.App.5th 915, 919-920, 217 Cal.Rptr.3d 843, the plaintiff had been arrested without a warrant, and the court concluded that a warrantless arrest was not......
  • Miller v. Keenan, Case No. CV 17-2969 SJO (SS)
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Central District of California
    • August 22, 2017
    ...32 Cal. 4th 336, 341 (2004) (standard applies to underlying prosecution of either a criminal or civil matter); Van Audenhove v. Perry, 11 Cal. App. 5th 915, 919 (2017) (quoting Casa Herrera). Malicious prosecution is also actionable under state law where the defendant "continu[es] to prosec......
  • Request a trial to view additional results
12 cases
  • Harmon v. City of Pocatello, Case No. 4:17-cv-00485-DCN
    • United States
    • United States District Courts. 9th Circuit. District of Idaho
    • January 7, 2020
    ...basis, because there are cases which appear to broaden "prosecution" as widely as Harmon suggest. See, e.g. , Van Audenhove v. Perry , 11 Cal. App. 5th 915, 922, 217 Cal.Rptr.3d 843 (Ct. App. 2017), as modified (June 14, 2017), review denied (Aug. 9, 2017) ("Malicious prosecution is procuri......
  • Cox v. Griffin, D074893
    • United States
    • California Court of Appeals
    • April 17, 2019
    ...theory, raised for the first time on appeal, is forfeited.12 Disagreeing with this analysis, Cox cites Van Audenhove v. Perry (2017) 11 Cal.App.5th 915, 217 Cal.Rptr.3d 843 ( Van Audenhove ) for the proposition that a "lawful warrant constitutes a proceeding for purposes of the elements of ......
  • Kim v. R Consulting, D076923
    • United States
    • California Court of Appeals
    • July 30, 2021
    ...whether a party can sue for malicious prosecution following a favorable outcome in a contempt trial.In Van Audenhove v. Perry (2017) 11 Cal.App.5th 915, 919-920, 217 Cal.Rptr.3d 843, the plaintiff had been arrested without a warrant, and the court concluded that a warrantless arrest was not......
  • Miller v. Keenan, Case No. CV 17-2969 SJO (SS)
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Central District of California
    • August 22, 2017
    ...32 Cal. 4th 336, 341 (2004) (standard applies to underlying prosecution of either a criminal or civil matter); Van Audenhove v. Perry, 11 Cal. App. 5th 915, 919 (2017) (quoting Casa Herrera). Malicious prosecution is also actionable under state law where the defendant "continu[es] to prosec......
  • Request a trial to view additional results

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