Filed
5/29/13  Casey v.
Thrifty Payless CA2/1

>NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

> 

California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
relying on opinions not certified for publication or ordered published, except
as specified by rule 8.1115(b).  This
opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.

 

IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

 

SECOND
APPELLATE DISTRICT

 

DIVISION
ONE

 

 
>

TRACI M. CASEY,               Plaintiff and Respondent,               v.   THRIFTY PAYLESS, INC.,               Defendant and Appellant.

B242206        (Los Angeles County       Super. Ct. No. BC478867)

 

            APPEAL from
an order of the Superior Court
of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Los Angeles
County.  Rolf M. Treu,
Judge.  Reversed.

            Manning
& Kass, Ellrod, Ramirez, Trester, Jeffrey M. Lenkov, Martin D. Holly, and
Julie Fleming for Defendant and Appellant.

No appearance for Plaintiff and
Respondent.

 

 

 

                                       ___________________________________

 

 

 

 

Plaintiff was arrested after
defendant reported to police that plaintiff was trafficking in prescription
drugs.  Plaintiff sued defendant for,
inter alia, defamation and false imprisonment,
alleging its report to police was false. 
Defendant denied the allegations and specially moved to strike the
complaint as a strategic lawsuit against public participation (SLAPP) pursuant
to Code of Civil Procedure section 425.16, arguing its police report
constituted protected activity and plaintiff could not establish a probability
of prevailing on the merits.  Plaintiff
filed no opposition to the motion but the trial court nevertheless denied it,
concluding it had to accept as true the allegation that the police report was
false and finding defendant’s making of a false report was unprotected
activity.

The trial court erred.  Although making a false police report is not
protected activity, when a defendant specially moves to strike a complaint
under Code of Civil Procedure section 425.16 the court cannot accept as true
plaintiff’s mere allegation that defendant’s police report was false.  If no admission or uncontroverted evidence,
as opposed to bare allegations, establishes that a police report was false, the
making of the report is protected activity subject to the protections of the
anti-SLAPP statute.  Because defendant’s
conduct was protected and plaintiff failed to demonstrate a reasonable probability
of prevailing on the merits, defendant’s motion to strike should have been
granted.  We therefore reverse the trial
court’s ruling.

BACKGROUND

            We take the
facts from the complaint.  On February 10, 2010, plaintiff Traci
Casey arrived at a Rite Aid store owned by defendant Thrifty Payless, Inc.
(hereafter Rite Aid) with written authorization to pick up prescription
medication for a patient.  Forewarned by
a Rite Aid employee, Los Angeles County Sheriff’s deputies were waiting,
dressed as Rite Aid employees.  After
Casey obtained the medication, deputies arrested her on suspicion of drug
trafficking, ignoring the documentation authorizing her to obtain the
medication and her request that they phone the physician who had prescribed the
medication or the patient to whom it was to be delivered.  Sheriff’s deputies later released her,
apparently without charging her.

Casey sued Rite Aid and the
Sheriff’s Department for defamation, false imprisonment, negligence, and
intentional infliction of emotional distress. 
In the complaint, she alleged a Rite Aid employee, acting maliciously
and without probable cause, instigated her arrest by giving false and
defamatory statements to the Sheriff’s Department that she was trafficking in a
controlled substance.

The Sheriff’s Department prevailed
on its demurrer to the complaint and is not party to this appeal.  Rite Aid answered the complaint with a
general denial of any wrongdoing and moved to dismiss the complaint pursuant to
Code of Civil Procedure section 425.16, arguing the lawsuit arose out of
protected activity—its employee’s report to police—and Casey could not
establish a reasonable probability she would prevail on her claims.  Rite Aid submitted no evidence in support of
the motion, and Casey filed no opposition.

The court issued a tentative ruling
before the hearing.  Relying on the
recent case of Lefebvre v. Lefebvre
(2011) 199 Cal.App.4th 696 (Lefebvre),
the court wrote that because “a false police report has been held to not
constitute protected activity,” the “alleged falsity” of Rite Aid’s report to
police rendered the communication unprotected activity.  The court denied the special motion to strike
accordingly, and did not reach the second prong of a section 425.16 analysis,
i.e., whether the plaintiff has established a reasonable probability of success
on the merits.

At the hearing, the trial court
indicated it was bound to accept as true plaintiff’s allegation that the police
report was false.  After taking the
matter under submission the court adopted its tentative ruling as the final
order.

DISCUSSION

A.        Anti-SLAPP Motion

Rite Aid contends the trial court
erred in denying its special motion to
strike.  We agree.

As our Supreme Court has noted,
Code of Civil Procedure section 425.16 provides in relevant part:  “‘A cause of action against a person arising
from any act of that person in furtherance of the person’s right of petition or
free speech under the United States or California Constitution in connection
with a public issue shall be subject to a special motion to strike, unless the
court determines that the plaintiff has established that there is a probability
that the plaintiff will prevail on the claim.’ 
[Citation.]  Under this statute,
the party moving to strike a cause of action has the initial burden to show
that the cause of action ‘aris[es] from [an] act . . . in furtherance of the
[moving party’s] right of petition or free speech.’  [Citations.] 
Once that burden is met, the burden shifts to the opposing party to
demonstrate the ‘probability that the plaintiff will prevail on the
claim.’  [Citations.]”  (Zamos
v. Stroud (2004) 32 Cal.4th 958, 964-965.)

Statements made to police in
response to a perceived wrongdoing for the purpose of garnering police
assistance are within the scope of the anti-SLAPP statute.  (Salma
v. Capon (2008) 161 Cal.App.4th 1275, 1286; Chabak v. Monroy (2007) 154 Cal.App.4th 1502, 1512; >Siam v. Kizilbash (2005) 130 Cal.App.4th
1563, 1570.)  But Code of Civil Procedure
“section 425.16 cannot be invoked by a defendant whose assertedly protected
activity is illegal as a matter of law.” 
(Flatley v. Mauro (2006) 39
Cal.4th 299, 317; Lefebvre, >supra, 199 Cal.App.4th at p. 704.)  “An activity may be deemed unlawful as a
matter of law when the defendant does not dispute that the activity was
unlawful, or uncontroverted evidence conclusively shows the activity was
unlawful.”  (Dwight R. v. Christy B. (2013) 212 Cal.App.4th 697, 712.)

The trial court relied on our
colleagues’ decision in Lefebvre for
the proposition that an allegedly
false police report constitutes unprotected activity as a matter of law.  The reliance was misplaced.  In Lefebvre,
Division Eight of this court concluded the defendants’ actions in filing a
police report against the plaintiff did not involve an exercise of the href="http://www.fearnotlaw.com/">right of petition or free speech.  But that was because the defendants did not
deny they had “submitted an illegal, false criminal report” against the
plaintiff.  (199 Cal.App.4th at p. 705.)  Because the record conclusively established
the defendants’ statements to police were false, and thus illegal under Penal
Code section 148.5 (it is a misdemeanor to make a false police report), their
anti-SLAPP motion was properly denied.

But a defendant >may invoke the anti-SLAPP statute if the
plaintiff’s allegations of unlawful activity have not been established either
by uncontroverted evidence or admission. 
(Dwight R. v. Christy B., >supra, 212 Cal.App.4th at p. 712.)  Here, the falsity of Rite Aid’s employee’s statements
to sheriff’s deputies has not been conclusively established, either by
uncontroverted evidence or Rite Aid’s admission.  On the contrary, Rite Aid denies any
wrongdoing.  Lefebvre is thus of no assistance in terms of defeating Rite Aid’s
motion, and the trial court erred when it concluded Casey’s lawsuit arose out
of unprotected activity.

 
Several cases illustrate the distinction between a plaintiff’s bare
allegations of unlawful activities and uncontroverted evidence that the
activities are unlawful.  In >Siam v. Kizilbash, supra, 130 Cal.App.4th 1563, the defendant’s allegedly false report
to school officials that the plaintiff had abused the defendant’s children was
protected activity, notwithstanding plaintiff’s allegation of falsity, because no
uncontroverted evidence showed that the report was false.  (Id.
at pp. 1569–1570.)  Similarly, in >Chabak v. Monroy, supra, 154 Cal.App.4th 1502, the defendant’s allegedly false report
to police that the plaintiff inappropriately touched her was deemed protected
activity because there was no uncontroverted evidence showing the report to be
false. 

Most recently, in >Dwight R. v. Christy B., >supra, 212 Cal.App.4th 697, the
defendant was alleged to have falsely reported to county social workers that
the plaintiff sexually abused his five-year-old daughter.  (Id.
at pp. 702-703.)  Division Two of the
Fourth Appellate District concluded the allegedly false report constituted
protected activity because the defendant did not concede, but rather denied,
that she engaged in any unlawful activity. 
The court held that the plaintiff’s “mere allegation that [the
defendant] engaged in unlawful . . . activities is insufficient to
render her alleged actions unlawful as a matter of law and outside the
protection of Code of Civil Procedure section 425.16.”  (Id.
at p. 712.)

            Because
statements made to police for the purpose of obtaining assistance to address
wrongdoing are protected, and no admission by Rite Aid or uncontroverted
evidence established that its police report was false, the activity fell within
the protection of Code of Civil Procedure section 425.16.

 â€œThe 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 [citation], 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. 
[Citation.]  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.  [Citation.]’  [Citation.]” 
(Lefebvre, >supra, 199 Cal.App.4th at p. 702.)

Because she filed no opposition to
Rite Aid’s special motion to strike, Casey failed to carry her burden of
proving a reasonable probability of success on the merits.

Because Rite Aid’s actions were in
furtherance of its petition rights and Casey made no effort to make a prima
facie showing of facts to support her claims, the lawsuit cannot go forward.

B.        Attorney Fees

Rite Aid contends the trial court
should have granted its motion for attorney fees incurred in bringing the
special motion to strike.  We agree.

Code of Civil Procedure section
425.16, subdivision (c)(1), provides that “a prevailing defendant on a special
motion to strike shall be entitled to recover his or her attorney’s fees and
costs.”  “The defendant may recover fees
and costs only for the motion to strike, not the entire litigation.”  (Christian
Research Institute v. Alnor (2008) 165 Cal.App.4th 1315, 1320.)  “[A]scertaining the fee amount is left to the
trial court’s sound discretion.”  (>Id. at p. 1321.)

Because Rite Aid’s special motion
to strike must be granted, and because Rite Aid is the prevailing party in this
appeal, it is entitled to recover its fees and costs attributable to both the
motion and the appeal.

DISPOSITION

The trial court’s order denying
Rite Aid’s special motion to strike is reversed.  Rite Aid is entitled to recover its costs and
attorney fees incurred both in bringing its motion and on appeal, in amounts to
be determined by the trial court.

            NOT TO BE
PUBLISHED.

 

 

 

            CHANEY, J.

We concur:

 

 

 

                        MALLANO,
P. J.

 

 

 

            JOHNSON, J.