Gaeta v. Silva

Filed 10/15/08 Gaeta v. Silva CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

Appellant Brenda Silvathen 16 years old accompanied her sister, Jackie Silva, to a party on November 20, 2005. In the early morning hours, Jackies[1] boyfriend, respondent Miguel L. Gaeta (Gaeta), allegedly struck Brenda twice in the face. Brenda reported the incident to the police, and Miguel was charged with criminal assault (hereafter, the criminal case). The criminal case was ultimately dismissed, and Miguel thereafter brought a civil action against Brenda, alleging claims of malicious prosecution, slander, libel, and intentional infliction of emotional distress. In it, he alleged that Brenda made false allegations that resulted in his arrest, incarceration, and prosecution. He later amended the complaint to name as defendants Brendas parents, appellants Yolanda and Jamie Silva, who were previously identified as fictitious parties. Brenda, Yolanda, and Jamie (hereinafter, collectively, appellants) filed a motion to strike the complaint under the anti-SLAPP statute, Code of Civil Procedure section 425.16.[2] The court granted the motion as to the claims for slander, libel, and intentional infliction of emotional distress; it denied the motion to strike as to Miguels claim of malicious prosecution.

Appellants challenge the order denying their anti-SLAPP motion. They claim that their motion to strike should have been granted as to the malicious prosecution claim because (1) they established the activity that was the subject of the complaint (i.e., initiation and prosecution of the criminal case) was protected activity under the anti-SLAPP statute, and (2) Miguel failed to meet his burden of demonstrating a probability of prevailing.

The initiation and prosecution of the criminal case were unquestionably protected activities under the anti-SLAPP statute. Further, we conclude from our de novo review of the matter that Miguel failed to meet his burden of showing a probability that he would prevail on his malicious prosecution claim. We therefore reverse the order denying appellants anti-SLAPP motion to strike the malicious prosecution cause of action in Miguels complaint.

FACTS AND PROCEDURAL HISTORY

On November 20, 2006, Miguel filed an unverified complaint for damages against Brenda and fictitiously named defendants. The complaint consisted of four causes of action, namely, malicious prosecution, slander, libel per se, and intentional infliction of emotional distress.

Miguel alleged in the complaint that on November 20, 2005, Brenda falsely claimed to officers of the San Jose Police Department that Miguel had committed a battery on her person, and that this false accusation resulted in his arrest and the filing by the Santa Clara County District Attorneys office of a misdemeanor criminal complaint (case no. CC511847) against him. Miguel was taken into custody, jailed, and required to appear at an arraignment and pretrial conference. The prosecutor dismissed the criminal case on the day it had been set for trial.

Miguel alleged further in the complaint that Brenda initiated the criminal case without probable cause because she knew that [Miguel] did not commit any act of violence against her on the date of [Miguels] arrest or at any time prior to that date or thereafter. He alleged that Brenda acted maliciously. He averred that Brenda became intoxicated at the party on November 20, 2005, at his home, that an argument ensued between the two of them, and that Brenda left the party so intoxicated that she fell down several times and hurt herself. Miguel claimed that Brenda made up the charge that he had assaulted her to cover up her intoxication and self-inflicted injuries from her parents. He alleged that he was damaged as a result of the criminal case.

On January 25, 2007, Miguel filed an amendment to the complaint. In that pleading, he substituted Yolanda and Jamie as defendants in place of two fictitiously named defendants Mary Doe Silva and John Doe Silva, respectively.[3] The only references in the complaint to those two fictitiously named parties were that they were Brendas parents and that they were therefore . . . responsible for the allegations, actions and conduct of Brenda Silva as hereinafter stated.

Appellants filed an anti-SLAPP motion to strike the complaint. The motion was accompanied by a memorandum of points and authorities and a declaration of counsel. Appellants contended that each of the causes of action asserted in the complaint arose out of an act that was in furtherance of constitutionally-protected rightsreporting a possible crime to the policeand was therefore potentially subject to a motion to strike under the anti-SLAPP statute, and Miguel bore the burden of showing through admissible evidence a reasonable probability that he would prevail on his claim. They argued further that the malicious prosecution claim was without merit because Miguel could not prove that (1) appellants were actively involved in Miguels prosecution, (2) the prosecution was terminated in Miguels favor, and (3) appellants lacked probable cause to make the complaint to the police. Lastly, appellants contended that the remaining causes of action were barred by an absolute privilege as provided in Civil Code section 47, subdivision (b).[4]

On the same day that appellants filed and served a reply indicating that no opposition to the motion had been timely filed and served, Miguel filed untimely opposition to the motion. The opposition consisted solely of a memorandum of points and authorities. Appellants served a supplemental reply to the opposition, objecting to its untimeliness as well as addressing its merits.

A hearing on the motion took place on June 5, 2007, before the Honorable Mary Jo Levinger. At the hearing, Miguels counsel attempted to submit a declaration . . . related to a witness in this case. Although not identified for the record, it is apparent that the declaration was one signed by Brendas sister, Jackie.[5] Judge Levinger denied the request to submit the declaration and, because of the late-filing of the opposition, continued the matter for further hearing on July 3, 2007. The next day, Miguel apparently caused to be filed Jackies declaration.[6]

The matter came on for further argument on July 3, 2007, before a different judge, the Honorable Joseph Huber. After submitting the motion, the court granted appellants motions to strike as to the second, third, and fourth causes of action, and denied the motion as to the first cause of action (malicious prosecution). The court did not state in the order the basis for denying the motion as to Miguels malicious prosecution claim. Appellants thereafter made a motion for attorney fees pursuant to section 425.16, subdivision (c).[7] The court granted the motion and awarded appellants fees and costs in the amount of $9,338.41.

Appellants filed a timely notice of appeal from the order denying in part the anti-SLAPP motion.[8] An order denying an anti-SLAPP motion to strike is a proper subject for appeal, pursuant to sections 425.16, subdivision (i) and 904.1. (Chambers v. Miller (2006) 140 Cal.App.4th 821, 824; Navarro v. IHOP Properties, Inc. (2005) 134 Cal.App.4th 834, 839.)

DISCUSSION

I. Issues on Appeal

The overall issue on appeal is whether the trial court erred in denying the motion to strike the first cause of action of the complaint. Relevant questions to the disposition of this case include the following:

1. Whether the malicious prosecution cause of action in the complaint arose out of activity that is protected by the anti-SLAPP statute.

2. Whether Miguel presented evidence sufficient to support each element of his claim to establish that there was a reasonable probability that he would prevail on his malicious prosecution claim.

II. Anti-SLAPP Motions to Strike

A SLAPP suit seeks to chill or punish a partys exercise of constitutional rights to free speech and to petition the government for redress of grievances. [Citation.] (Rusheen v. Cohen (2006) 37 Cal.4th 1048, 1055.) Thus, a lawsuit arising from constitutionally protected speech or petitioning activity is a SLAPP if it lacks even minimal merit. (Navellier v. Sletten (2002) 29 Cal.4th 82, 89 (Navellier).)

SLAPP suits may be disposed of summarily by a special motion to strike under section 425.16, commonly known as an anti-SLAPP motion, which is a procedure where the trial court evaluates the merits of the lawsuit using a summary judgment-like procedure at an early stage of the litigation. (Varian Medical Systems, Inc. v. Delfino (2005) 35 Cal.4th 180, 192.) The statute provides: A cause of action against a person arising from any act of that person in furtherance of the persons 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 [cross-complainant] has established that there is a probability that the plaintiff will prevail on the claim. ( 425.16, subd. (b)(1).) As is relevant to this appeal, the statute defines  act in furtherance of a persons right of petition or free speech under the United States or California Constitution in connection with a public issue as including (1) any written or oral statement or writing made before a legislative, executive, or judicial proceeding, . . . (Id., subd. (e).)

A motion to strike under section 425.16 is analyzed and resolved by the court . . . engag[ing] in a two-step process. First, the court decides whether the defendant has made a threshold showing that the challenged cause of action is one arising from protected activity. The moving defendants burden is to demonstrate that the act or acts of which the plaintiff complains were taken in furtherance of the [defendants] right of petition or free speech under the United States or California Constitution in connection with a public issue, as defined in the statute. ( 425.16, subd. (b)(1).) If the court finds such a showing has been made, it then determines whether the plaintiff has demonstrated a probability of prevailing on the claim. (Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67 (Equilon).) Thus, [o]nly a cause of action that satisfies both prongs of the anti-SLAPP statutei.e., that arises from protected speech or petitioning and lacks even minimal meritis a SLAPP, subject to being stricken under the statute. (Navellier, supra, 29 Cal.4th at p. 89.)

III. Appellate Review of Order Granting Anti-SLAPP Motion

We have previously summarized the standard for an appellate courts review of the ruling on an anti-SLAPP motion. We repeat that summary here. We review de novo a trial courts ruling on a motion to strike under section 425.16 by conducting an independent review of the entire record. [Citations.] (HMS Capital, Inc. v. Lawyers Title Co. (2004) 118 Cal.App.4th 204, 212; see also Siam v. Kizilbash (2005) 130 Cal.App.4th 1563, 1569.) [] Thus, our review is conducted in the same manner as the trial court in considering an anti-SLAPP motion. In determining whether the defendant . . . has met its initial burden of establishing that the plaintiffs . . . action arises from protected activity, we consider the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based. ( 425.16, subd. (b)(2); see also City of Cotati v. Cashman [(2002)] 29 Cal.4th [69,] 79; Navellier, supra, 29 Cal.4th at p. 89.) The second prongi.e., whether the plaintiff . . . has shown a probability of prevailing on the meritsis considered under a standard similar to that employed in determining nonsuit, directed verdict or summary judgment motions. (ComputerXpress, Inc. v. Jackson (2001) 93 Cal.App.4th 993, 1010 [(ComputerXpress)].) [I]n order to establish the requisite probability of prevailing [citation], the plaintiff need only have stated and substantiated a legally sufficient claim. [Citations.] Put another way, the plaintiff must demonstrate that the complaint is both legally sufficient and supported by a sufficient prima facie showing of facts to sustain a favorable judgment if the evidence submitted by the plaintiff is credited. [Citations.] (Navellier, supra, at pp. 88-89.) [] As is true with summary judgment motions, the issues in an anti-SLAPP motion are framed by the pleadings. (Church of Scientology v. Wollersheim (1996) 42 Cal.App.4th 628, 655, disapproved on other grounds in Equilon, supra, 29 Cal.4th at p. 68, fn. 5.) The plaintiff may not rely solely on its complaint, even if verified; instead, its proof must be made upon competent admissible evidence. ([ComputerXpress,] supra, 93 Cal.App.4th at p. 1010.) In reviewing the plaintiffs evidence, the court does not weigh it; rather, it simply determines whether the plaintiff has made a prima facie showing of facts necessary to establish its claim at trial. (Ibid.) (Paulus v. Bob Lynch Ford, Inc. (2006) 139 Cal.App.4th 659, 672-673.)

We review the courts order here denying in part appellants motion to strike with the above standard of review in mind.

IV. Protected Activity

Miguel alleged in his complaint that Brendas false accusation resulted in his arrest by the police and the subsequent filing of the criminal case against him. He also alleged that Brenda initiat[ed] and instigat[ed] his criminal prosecution. Miguel argues that appellants conduct of having actively instigated a spurious and unfounded criminal complaint against him was not the kind of activity protected under the anti-SLAPP statute. Thus, appellants did not meet their initial burden of making a threshold showing that the challenged cause of action is one arising from protected activity. (Equilon, supra, 29 Cal.4th at p. 67.) He argues that we therefore need not address the second prong of the anti-SLAPP statute, i.e., whether he made a prima facie showing that he would prevail.[9]

Under 425.16, subdivision (e)(1), protected activity includes any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law. And the protections of section 425.16 also apply to prelitigation conduct. (Flatley v. Mauro (2006) 39 Cal.4th 299, 322, fn. 11, citing Briggs v. Eden Council for Hope & Opportunity (1999) 19 Cal.4th 1106, 1115; see also Kolar v. Donahue, McIntosh & Hammerton (2006) 145 Cal.App.4th 1532, 1537 [anti-SLAPP protection for petitioning activity applies both filing of lawsuits and to related conduct, including statements made in connection with or in preparation of litigation].)

In Jarrow Formulas, Inc., supra, 31 Cal.4th 728, the Supreme Court held that malicious prosecution claims that arise out of underlying civil lawsuits are not exempt from anti-SLAPP motions. It reasoned, [B]y its terms, section 425.16 potentially may apply to every malicious prosecution action, because every such action arises from an underlying lawsuit, or petition to the judicial branch. By definition, a malicious prosecution suit alleges that the defendant committed a tort by filing a lawsuit. [Citation.] (Id. at pp. 734-735, fn. omitted; see also Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260, 291.) Accordingly, the court held that an action is not exempt from anti-SLAPP scrutiny merely because it is one for malicious prosecution. (Jarrow Formulas, supra, at p. 741.) Appellate courts in a number of instances have subsequently followed Jarrow Formulas in concluding that the defendant in a malicious prosecution case arising out of a prior civil suit had established that the claim arose out of protected activity under the anti-SLAPP statute. (See, e.g., 1100 Park Lane Associates v. Feldman (2008) 160 Cal.App.4th 1467, 1479; HMS Capital, Inc. v. Lawyers Title Co., supra, 118 Cal.App.4th at pp. 212-213; Slaney v. Ranger Ins. Co. (2004) 115 Cal.App.4th 306, 318.)

The Fourth Division of the Second District Court of Appeal considered whether a malicious prosecution claim based upon an underlying criminal prosecution was subject to a motion to strike under section 425.16. (Dickens v. Provident Life and Acc. Ins. Co. (2004) 117 Cal.App.4th 705 (Dickens).) In that case, the plaintiff-insured sued his disability insurer after he was acquitted of federal insurance fraud charges. (Id. at p. 707.) He alleged that the insurer prepared a biased investigation and then submitted its results to the United States Attorney to persuade that office to commence a criminal prosecution against the plaintiff. (Id. at p. 709.)

The court noted that the Supreme Court had held in Jarrow Formulas, supra, 31 Cal.4th 728, that a malicious prosecution action predicated upon the prior filing of a civil lawsuit fell within the ambit of the anti-SLAPP statute. (Dickens, supra, 117 Cal.App.4th at p. 713, original italics.) Citing its decision in Dove Audio, Inc. v. Rosenfeld, Meyer & Susman (1996) 47 Cal.App.4th 777, 784 (Dove Audio)in which it held that a malicious prosecution action arising out of attorneys presuit demand letters that threatened the filing of a complaint with the California Attorney General was subject to the anti-SLAPP statutethe Dickens court held that, [b]y a parity of reasoning, whatever contact [the insurer] had with the federal authorities was likewise within the ambit of the [anti-SLAPP] statute. It was contact with the executive branch of government and its investigators about a potential violation of the law. The contact was preparatory to commencing an official proceeding authorized by law: a criminal prosecution for mail fraud. And to the extent Dickenss claim is based upon testimony or evidence offered at his trial, that was clearly part of an official proceeding authorized by law. (Dickens, supra, at p. 714.)

The court in Dickens, supra, 117 Cal.App.4th at pages 715-716,also cited Hagberg v. California Federal Bank FSB (2004) 32 Cal.4th 350 (Hagberg), in support of its reasoning. In Hagberg, the Supreme Court held that the litigation privilege under Civil Code section 47, subdivision (b) is absolute in shielding persons who report suspected criminal activity to the authorities: [T]he overwhelming majority of cases conclude that when a citizen contacts law enforcement personnel to report suspected criminal activity and to instigate law enforcement personnel to respond, the communication also enjoys an unqualified privilege under [Civil Code] section 47[, subdivision] (b). These cases explain that a statement urging law enforcement personnel to investigate another persons suspected violation of criminal law, to apprehend a suspected lawbreaker, or to report a crime to prosecutorial authorities is shielded from tort liability to the same extent as a similar statement to administrative enforcement agencies. Reasoning that such communications are at least preparatory to any other official proceeding authorized by law, (ibid.) the majority of decisions in the Courts of Appeal have held such statements to be shielded by an absolute privilege. We find these decisions to be persuasive . . . . (Id. at p. 364.)[10] Accordingly, the Dickens court concluded that a malicious prosecution action predicated upon a defendants alleged participation in procuring a criminal prosecution against a plaintiff falls within the ambit of the anti-SLAPP statute. This conclusion furthers the statutes salutary purpose of acting as a procedural device for screening out meritless claims which arise out of constitutionally protected conduct connected to a public issue. [Citation.] (Dickens, supra, at p. 716, quoting Jarrow Formulas, supra, 31 Cal.4th at p. 737.)

We concur with the reasoning and holding of the court in Dickens, supra, 117 Cal.App.4th 705. Section 425.16 cannot be construed broadly to protect petitioning activity involving civil litigation, and narrowly where such petitioning activity involves a criminal matter. Our view is bolstered by our decision in Siam v. Kizilbash, supra, 130 Cal.App.4th 1563. There, we considered whether a civil suit was subject to the anti-SLAPP statute, where it included claims for defamation and malicious prosecution based upon the defendants child abuse accusations against the plaintiff and the prior filing of a civil harassment petition under section 527.6. We held that reports of suspected child abuse to parties having a duty to report or investigate those charges constituted communications preparatory to or in anticipation of the commencement of official proceedings that were protected under subdivision (e)(2) of section 425.16. (Siam v. Kizilbash, supra, at p. 1570; see also Chabak v. Monroy (2007) 154 Cal.App.4th 1502, 1511-1512 [17-year-old girls reports to police that the plaintiff, a physical therapist, had touched her inappropriately were protected activity under anti-SLAPP statute]; Wang v. Hartunian (2003) 111 Cal.App.4th 744, 749 [report to police of alleged criminal activity subject to privilege under Civil Code 47, subdivision (b)].)

In this case, Brendas complaint to the police concerning Miguels alleged assault was preparatory to an official police investigation. It occurred in the context of that investigation and of the determination by the district attorneys office as to whether it should prosecute Miguel. All subsequent statements by Brenda to the police or to prosecutors on the issue were similarly connected to official proceedings. Therefore, under Jarrow Formulas, supra, 31 Cal.4th 728, and Dickens, supra, 117 Cal.App.4th 705, any and all of Brendas statements were protected petitioning activity under section 425.16, subdivisions (b)(1) and (e)(1).

Miguel argued further in his opposition to the motion to strike that Brendas actions were not protected activity because the anti-SLAPP statute does not protect citizens from knowingly making false criminal reports to the police. But this argument makes the suppositionwithout evidentiary supportthat Brendas statements to the police were in fact false. It is not the defendants burden in bringing a[n anti-]SLAPP motion to establish that the challenged cause of action is constitutionally protected as a matter of law. [Citations.] Once the defendant shows that the cause of action arose from acts done in furtherance of an exercise of free speech, it becomes the plaintiffs burden to establish that the acts are not protected by the First Amendment. [Citation.] (Lieberman v. KCOP Television, Inc. (2003) 110 Cal.App.4th 156, 165; see also Governor Davis Com. v. American Taxpayers Alliance (2002) 102 Cal.App.4th 449, 460 [with the legality of [the defendants] exercise of a constitutionally protected right in dispute in the action, the threshold element in a section 425.16 inquiry has been established and claimed illegality of the defendants conduct is considered in context of discharge of the plaintiffs burden of showing a probability it will prevail].) This is not a narrow circumstance where the anti-SLAPP motion must be denied because of the defendants failure to show that the activity is protected because either the defendant concedes the illegality of its conduct or the illegality is conclusively shown by the evidence . . . (Flatley v. Mauro, supra, 39 Cal.4th at p. 316.)

Miguels claim is plainly one that concerns an act in furtherance of [a] persons right of petition under the federal and state Constitutions ( 425.16, subd. (b)(1)) that is protected under the anti-SLAPP statute. (See Briggs v. Eden Council for Hope and Opportunity, supra, 19 Cal.4th at p. 1121 [noting that intent of Legislature in enacting anti-SLAPP statute was to protect all direct petitioning of governmental bodies . . . including . . . courts].) We therefore proceed with the second prong in assessing the merits of appellants motion to strike: whether Miguel made a prima facie showing of the probable validity of his malicious prosecution claim.

V. Prima Facie Showing of Valid Claim

A. Malicious Prosecution Claims Generally

Malicious prosecution has long been considered a disfavored tort both because of its potential to impose an undue chilling effect on the ordinary citizens willingness to report criminal conduct or to bring a civil dispute to court [citation] and because, as a means of deterring excessive and frivolous lawsuits, it has the disadvantage of constituting a new round of litigation itself [citation]. (Wilson v. Parker, Covert & Chidester (2002) 28 Cal.4th 811, 817 (Wilson); see also Ferreira v. Gray, Cary, Ware & Freidenrich (2001) 87 Cal.App.4th 409, 413, requirements of malicious prosecution are to be enforced strictly because of torts potential chilling effect on the willingness of persons to report crimes or pursue legal rights and remedies in court]; but see Casa Herrera, Inc. v. Beydoun (2004) 32 Cal.4th 336, 349 [malicious prosecution claim will not be barred simply because of torts disfavored status].) Thus, as our high court has observed, the elements of the tort have historically been carefully circumscribed [in California] so that litigants with potentially valid claims will not be deterred from bringing their claims to court by the prospect of a subsequent malicious prosecution claim. (Sheldon Appel Co. v. Albert & Oliker (1989) 47 Cal.3d 863, 872 (Sheldon Appel).) Although it acknowledged that the flood of litigation in recent years has caused a reassessment of the disfavored status of the malicious prosecution tort (ibid.), the Supreme Court declined the invitation to abandon or relax the traditional limitations on malicious prosecution recovery. (Id. at p. 874.)

The tort originated as a remedy for an individual who had been subjected to a maliciously instituted criminal charge, but in California, as in most common law jurisdictions, the tort was long ago extended to afford a remedy for the malicious prosecution of a civil action. (Sheldon Appel, supra, 47 Cal.3d at p. 871.) In the context of redressing wrongs resulting from both wrongful criminal prosecutions and civil proceedings, the elements are the same: a plaintiff must demonstrate that the prior action (1) was commenced by or at the direction of the defendant . . . [; 2] was pursued to a legal termination in his, plaintiffs, favor [citations]; [3] was brought without probable cause [citations]; and [4] was initiated with malice [citations]. [Citation.] (Id. at pp. 871-872, quoting Bertero v. National General Corp. (1974) 13 Cal.3d 43, 50.)

The first element, in the context of an underlying criminal prosecution, consists of initiating or procuring the arrest and prosecution of another under lawful process, . . .  The test is whether the defendant was actively instrumental in causing the prosecution. [Citation.] (Sullivan v. County of Los Angeles (1974) 12 Cal.3d 710, 720.) Thus, a private citizen may be liable for malicious prosecution only where he or she has at least sought out the police or prosecutorial authorities and falsely reported facts to them indicating that plaintiff has committed a crime. [Citations.] (Ibid.) For instance, where the defendants were merely contacted by the police to identify whether the voice on tape-recorded bomb threats was the plaintiffs and took no affirmative steps beyond that identification, they were held to have no potential liability for malicious prosecution because they had no role in initiating the plaintiffs prosecution. (Cedars-Sinai Medical Center v. Superior Court (1988) 206 Cal.App.3d 414, 417-418.)

The second element of the tort requires that the underlying proceeding must have terminated in the plaintiffs favor. Where the underlying proceeding is a criminal prosecution, the plaintiff need not show that there was a final termination in the sense that the prosecution is incapable of revival, such as an acquittal. Certain dismissals will constitute a favorable termination. As the Supreme Court explained in Jaffe v. Stone (1941) 18 Cal.2d 146, 150-151, It is not enough, however, merely to show that the proceeding was dismissed. The theory underlying the requirement of favorable termination is that it tends to indicate the innocence of the accused, and coupled with the other elements of lack of probable cause and malice, establishes the tort, that is, the malicious and unfounded charge of crime against an innocent person . . . . If [a dismissal or other termination without a trial] is of such a nature as to indicate the innocence of the accused, it is a favorable termination sufficient to satisfy the requirement. If, however, the dismissal is on technical grounds, for procedural reasons, or for any other reason not inconsistent with his guilt, it does not constitute a favorable termination. [] Thus, the accuser or the prosecuting officers may abandon the proceeding because of the defects in the complaint, or doubts as to the jurisdiction of the offense, with the intention of bringing a new proceeding in proper form or before a proper court. Whether this abandonment takes place before the committing magistrate or at the actual trial itself, the dismissal cannot be regarded as a favorable termination in favor of the accused. [Citation.] Similarly, if the accused manages to thwart the efforts of the officials by suppression of evidence, flight from the jurisdiction, or other acts of this nature, the abandonment of the prosecution resulting in a dismissal of the complaint cannot be used by him as the basis of an action for malicious prosecution.

The third element, whether there was an absence of probable cause in bringing the prior case, is a question of law to be determined by the court. (Sheldon Appel, supra, 47 Cal.3d at pp. 874-875.) The presence or absence of probable cause is viewed under an objective standard applied to the facts upon which the defendant acted in prosecuting the prior case. (Id. at pp. 878, 881.) The test of determining probable cause is a less stringent standard (id. at p. 885) of whether any reasonable attorney would have thought the claim to be tenable. (Id. at p. 886.) Where the underlying matter is a criminal prosecution, probable cause is ascertained by determining whether it was objectively reasonable for the defendant [] to suspect the plaintiff [] had committed a crime. [Citations.] (Ecker v. Raging Waters Group, Inc. (2001) 87 Cal.App.4th 1320, 1330.)[11]

The fourth element is whether the defendant acted with malice in initiating the underlying civil or criminal proceedings. Unlike probable cause which is a legal determination, malice is a question of fact typically decided by the jury. (Sheldon Appel supra, 47 Cal.3d at pp. 874-875.) The malice element of the malicious prosecution tort goes to the defendants subjective intent. . . . It is not limited to actual hostility or ill will toward the plaintiff. (Sierra Club Foundation v. Graham (1999) 72 Cal.App.4th 1135, 1156-1157.) Malice is ordinarily proved by circumstantial evidence and inferences that may be drawn from the evidence. (Burke v. Watts (1922) 188 Cal. 118, 126-127; Padres L.P. v. Henderson (2003) 114 Cal.App.4th 495, 522.)

Here, the issue of whether Miguel met his burden in opposing the anti-SLAPP motions of showing a probability that he would prevail on his malicious prosecution claim turns on whether he satisfied each of the four elements.

B. Initiation of Prosecution

Miguel presented no admissible evidence on the subject of who was responsible for his prosecution. The only evidence submitted by Miguel in his opposition was Jackies declaration; she does not address the subject of how her boyfriend came to be prosecuted.

But appellants themselves presented evidence concerning the initiation of the prosecution. This evidence was in the form of the police report attached to counsels declarationevidence to which Miguel did not object and which may therefore be considered in determining whether he made a prima facie showing in support of his claim. (See Gallant v. City of Carson (2005) 128 Cal.App.4th 705, 709-713 [declaration opposing anti-SLAPP motion used to show probability that the plaintiff would prevail, where evidentiary objections thereto, though made by the defendants, were waived by failure to seek or obtain rulings from trial court; Gallagher v. Connell (2004) 123 Cal.App.4th 1260, 1268-1269 [court properly considered the plaintiffs evidence in opposition to anti-SLAPP motion, notwithstanding its hearsay nature, where the defendant failed to assert a proper evidentiary objection].)[12] There is evidence derived from that police report that Brenda told at least three officers that she had been struck in the face by Miguel.

The police report noted that Brenda was interviewed by Officer Van Den Broeck early in the morning (approximately 5:15 a.m.) on November 20, 2005 in the lobby of Carlson Convalescent Center in San Jose. She told the officer that she and her sister had been at a nearby house and that at approximately 4:00 a.m., she had wanted to return to her home in Gilroy. Her sisters boyfriend, Miguel, became angry and backhanded Brenda twice across the face. After about one hour of walking, she arrived at the convalescent center. The officer observed that Brenda had a swollen face and lower lip[,] . . . redness in the right side of her face and some red lines.

Brenda also reported to Officer Pickens that Miguel had touched her in the area of her groin, she slapped him, and he struck her twice in the face. Brenda told the officer that Miguel warned her that if she told anyone, he would kill her and her sister. Miguel was later brought by Officer Pickens to Valley Medical Center, where Brenda had been taken for treatment. She positively identified Miguel as the person who had struck her and threatened her and hid behind Officer Pickens as she did so.

Lastly, the police report reflects that two days after the incident, Brenda reported to Detective Chubon that Miguel had struck her twice and, as she ran away, had threatened to kill her and her sister if she said anything. Detective Chubon noted that Brenda want[ed] to pursue a complaint against [Miguel] and [would] cooperate with the investigation.

Appellants contend that they did not initiate the prosecution of Miguel because it was the police who decided to arrest him and the district attorney who decided to prosecute him. This argument, however, contains a misperception of the law. As noted above, a party may be liable for malicious prosecution if he or she was actively instrumental in causing the prosecution. [Citation.] (Sullivan v. County of Los Angeles, supra, 12 Cal.3d at p. 720.) Here, Miguel presented a prima facie case that she was actively instrumental in the criminal case.

The same cannot be said, however, for Brendas parents. There was no evidence whatsoever that Jamie had any involvement in Miguels criminal prosecution. And the evidence against Yolanda was very minimal. The police report contains a notation that she was the person who originally called the police. There is also a note that she had travelled to San Jose to pick up a copy of the police report and was pursuing a restraining order against Miguel. This was insufficient to establish that Yolanda was actively instrumental in causing the prosecution. (Sullivan v. County of Los Angeles, supra, 12 Cal.3d at p. 720.)

Moreover, any claim that Yolanda and Jamie are responsible as parents for their childs alleged tort is without merit. [I]n the absence of statute, ordinarily a parent is not liable for the torts of his [or her] minor child. [Citation.]  (Robertson v. Wentz (1986) 187 Cal.App.3d 1281, 1288.) An exception arises where the parent will incur liability for intentional acts of violence or property damage if he or she is negligent in failing to take reasonable measures to control the child where there are known propensities for such violence or destructiveness. (Weisbart v. Flohr (1968) 260 Cal.App.2d 281, 291.) Thus, [p]arents are responsible for harm caused by their children only when it has been shown that the parents as reasonable persons previously became aware of habits or tendencies of the infant which made it likely that the child would misbehave so that they should have restrained him in apposite conduct and actions. [Citation.] (Reida v. Lund (1971) 18 Cal.App.3d 698, 702; see also CACI No. 410 (2008 ed.).) There is no evidence here that Brenda had a habit or tendency to bring complaints (true or otherwise) of possible crimes to the police; there was no evidence of any notice to her parents of such a propensity. There is thus no evidence upon which Yolanda and Jamie, as parents, could be found liable for the tort of their daughter.

We conclude that there was insufficient evidence presented to support this first element of Miguels malicious prosecution claim as to Yolanda or Jamie. The motion to strike should therefore have been granted as to those appellants.[13] Because there was sufficient evidence that Brenda was actively instrumental in Miguels criminal prosecution, we proceed with an analysis of the second above-described element of a malicious prosecution claim.

C. Favorable Termination of Proceedings

As noted above, Miguel submitted no evidence in opposition to the motion other than Jackies declaration. That declaration does not deal with the disposition of the criminal case. Likewise, the evidence of appellants does not provide any information as to the outcome of the prosecution against Miguel.

The parties make unsupported statements in both their motion papers below and in their briefs on appeal as to the disposition of the criminal case. For instance, appellants in their motion asserted that the district attorney decided to dismiss the case after Brenda left the country before trial due to her fear of retribution had she testified against Miguel. There was no evidentiary support for this claim, one which appellants have reiterated on appeal. On the other hand, Miguel contended in his opposition that immediately before trial, [Brenda] fled the country in an effort to avoid testifying to her baseless allegations. Elsewhere in his opposition, he claimed that she fle[d] the jurisdiction in an effort to avoid perjury and testifying under oath to the allegations made by her. Moreover, the decision to dismiss all charges against [Miguel] was based on lack of sufficient evidence. None of these contentions was supported by any evidence submitted by Miguel.[14]

A showing that the underlying litigation or criminal prosecution terminated in favor of the plaintiff is an essential element of a malicious prosecution claim. (Jaffe v. Stone, supra, 18 Cal.2d at p. 150.) The theory underlying the requirement of favorable termination is that it tends to indicate the innocence of the accused . . . . (Ibid.)  Here, we are presented with no evidence that the criminal case even terminated, let alone that such termination constituted, as a matter of law, one that was favorable to Miguel. We cannot accept as evidence the speculation of Miguel that the prosecution dismissed the criminal case because of a lack of evidence, or that Brenda fle[d] the jurisdiction in an effort to avoid perjury and testifying under oath to the allegations made by her. (See Contemporary Services Corp. v. Staff Pro Inc. (2007) 152 Cal.App.4th 1043, 1057-1058 [finding the plaintiffs did not make prima facie case for malicious prosecution claim to defeat anti-SLAPP motion because they did not show favorable termination of prior case, rejecting the plaintiffs speculation that the complaint was dismissed to avoid deposition [of the defendants president] because it would reveal underlying claims to be meritless].)

Miguels failure to present evidence that there was a favorable termination of the criminal case compels the conclusion that he did not meet his burden of making a prima facie showing in support of his malicious prosecution claim. Therefore, the motion to strike the first cause of action of the complaint brought by Brenda should have been granted.[15]

DISPOSITION

The order denying the special motion to strike the first cause of action of the complaint pursuant to the anti-SLAPP statute brought on behalf of appellants Brenda Silva, Yolanda Silva, and Jamie Silva is reversed. The matter is remanded to the trial

court to enter an order granting the motion to strike the malicious prosecution cause of action of the complaint.

Duffy, J.

WE CONCUR:

Rushing, P.J.

Premo, J.

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[1] Because the three appellants and one material witness have the same surname, we will refer to the parties and witnesses by forenames to avoid confusion. We mean no disrespect in doing so.

[2] SLAPP is an acronym for strategic lawsuit against public participation. (Jarrow Formulas, Inc. v. LaMarche (2003) 31 Cal.4th 728, 732 (Jarrow Formulas).) Further statutory references are to the Code of Civil Procedure unless otherwise stated.

[3] The amendment refers to John Doe Silva as Jaime R. Silva. Apparently, his true forename, however, is Jamie.

[4] Civil Code section 47 provides in part as follows: A privileged publication or broadcast is one made: [] . . . [] (b) In any (1) legislative proceeding, (2) judicial proceeding, (3) in any other official proceeding authorized by law, or (4) in the initiation or course of any other proceeding authorized by law and reviewable pursuant to Chapter 2 (commencing with Section 1084) of Title 1 of Part 3 of the Code of Civil Procedure, . . .

[5] The copy of Jackies declaration that is made part of appellants appendix shows that it was faxed to appellants counsel the day before the June 5 hearing date.

[6] An endorsed-filed copy of Jackies declaration is not included in the appendix. The superior court docket, however, discloses that Miguel filed an unspecified declaration on June 6; further, appellants represent in their brief that Miguel filed Jackies declaration after the first hearing on the motion, and Miguel refers to the declaration at length in his brief.

[7] In any action subject to subdivision (b), a prevailing defendant on a special motion to strike shall be entitled to recover his or her attorneys fees and costs. . . . ( 425.16, subd. (c).)

[8] Miguel did not appeal from either the order granting the anti-SLAPP motion as to the second through fourth causes of action or from the order awarding attorney fees and costs. Accordingly, the only issue before us is whether the court properly denied the motion to strike as to the malicious prosecution cause of action.

[9] Miguel engages in speculation by contending that the trial court reached only the first prong of the anti-SLAPP analysis and did not feel compelled to move on to the second prong of weighing the probability of success. As we have noted, the court did not provide the basis for its partial denial of the anti-SLAPP motion. Since we review the matter de novo, the trial courts reasons for its ruling are in any event not germane.

[10] As noted by the Supreme Court, the only tort claim we have identified as falling outside the privilege established by [Civil Code] section 47[, subdivision] (b) is malicious prosecution. (Hagberg, supra, 32 Cal.4th at p. 361, citing Silberg v. Anderson (1990) 50 Cal.3d 205, 216.)

[11] We note that in cases predating Sheldon Appel supra, 47 Cal.3d 863, courts explained that a malicious prosecution defendants belief in the validity of the criminal charge must be both reasonable (objective) and honest (subjective). (See, e.g., Cummings v. Fire Ins. Exchange (1988) 202 Cal.App.3d 1407, 1419 [probable cause has both a subjective and an objective element].) The Supreme Court made clear that probable cause is determined under an objective standard. (Sheldon Appel supra, 47 Cal.3d at pp. 877-882.)

[12] In his appellate brief, Miguel asserts for the first time objections to appellants evidence submitted in connection with the motion, including the police report. He asks that such evidence not be considered. Miguel having failed to assert these objections below, they are waived. (Gallant v. City of Carson, supra, 128 Cal.App.4th at pp. 709-713; Gallagher v. Connell, supra, 123 Cal.App.4th at pp. 1268-1269.)

[13] As to Yolanda and Jamie, the record shows no evidence to support certain other elements of the malicious prosecution claim (e.g., favorable termination of proceedings, absence of probable cause, and malice). Because Miguel, however, failed to present evidence of one necessary element (initiation of the prosecution), we need not address the other elements of the claim. (See Sheldon Appel, supra, 47 Cal.3d at p. 868 [finding that the plaintiff did not establish one element, i.e., lack of probable cause to initiate underlying case, meant that malicious prosecution action failed].)

[14] Moreover, Miguel cannot rely on the allegations of his unverified complaint to the effect that the criminal case terminated in his favor. (Roberts v. Los Angeles County Bar Assn. (2003) 105 Cal.App.4th 604, 614 [a plaintiff cannot simply rely on its pleadings, even if verified in making a prima facie showing in opposition to an anti-SLAPP motion].)

[15] There is considerable doubt as to whether Miguel made a prima facie showing of the third element of his malicious prosecution claim, namely, that he presented evidence that Brenda did not have probable cause in connection with the prosecution of the criminal case. Notably missing was a declaration from Miguel refuting Brendas claims to the police that he backhanded her twice. The only evidence he submitted potentially rebutting Brendas showing (evidenced in the police reports) that she reported to the police that Miguel had struck her was Jackies declaration, in which she stated that [a]t no time did [Miguel] ever strike [Brenda] in my presence. (Italics added.) The italicized portion of the statement makes Jackies refutation that Miguel struck her sister a qualified one. In any event, however, since we resolve this appeal by concluding that Miguel failed to meet his burden of showing that the criminal case was terminated in his favor, we need not definitively resolve the legal question of whether Miguel made a prima facie showing that Brenda lacked probable cause in pursuing the criminal case. (Benach v. County of Los Angeles(2007) 149 Cal.App.4th 836, 845, fn. 5 [appellate courts will not address issues whose resolution is unnecessary to disposition of appeal].)