Stec v. Ewing
Filed 9/6/07 Stec v. Ewing CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
JOANNA STEC, Plaintiff and Respondent, v. NATALIA EWING, Defendant and Appellant. | D049126 (Super. Ct. No. GIN051463) |
APPEAL from a judgment of the Superior Court of San Diego County, Lisa Guy-Schall, Judge. Reversed and remanded with directions.
Any claims which arise out of a citizen's report of alleged criminal activity to law enforcement personnel are subject to a motion to strike under the anti-SLAPP statute, Code of Civil Procedure section 425.16. Moreover, when a citizen reports suspected criminal activity to law enforcement personnel, the communication is absolutely privileged under Civil Code section 47, subdivision (b). Here, all of plaintiff's claims against defendant arise out of defendant's report to a sheriff's department of alleged conduct by plaintiff. Accordingly, we reverse the trial court's order denying defendant's motion to strike and remand with directions to strike plaintiff's complaint and award defendant reasonable attorney fees incurred both in the trial court and on appeal.
FACTS AND PROCEDURAL BACKGROUND
Plaintiff and respondent Joanna Stec filed a complaint against defendant and appellant Natalia Ewing which alleged causes of action for defamation and intentional infliction of emotional distress. According to the complaint, on January 6, 2006, Stec served Ewing with annulment papers filed by Ewing's former husband, and in response Ewing called the San Diego County Sheriff and made false and defamatory statements about Stec. The record discloses Ewing reported to the sheriff's department that on January 6, 2006, Ewing and her mother were physically and verbally assaulted by Ewing's former husband, that Stec was present during the assault and, along with Ewing's former husband, Stec threatened to kill Ewing.
In response to the complaint, Ewing filed a motion to strike the complaint under the provisions of the anti-SLAPP statute. The trial court found Ewing's statements to the sheriff's department were petitioning activity within the meaning of the anti-SLAPP statute. Nonetheless, the trial court denied the motion to strike. In particular, the court found the statements to the police department were not privileged.
DISCUSSION
I
The principles which govern the anti-SLAPP statute and our review of orders granting and denying motions to strike are now fairly well-established. "Section 425.16 provides, inter alia, that '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.' ( 425.16, subd. (b)(1).) 'As used in this section, "act in furtherance of a person's right of petition or free speech under the United States or California Constitution in connection with a public issue' includes: (1) any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law; (2) any written or oral statement or writing made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official proceeding authorized by law . . . .' (Id., subd. (e).) [] ... []
"Section 425.16 posits . . . a two-step process for determining whether an action is a SLAPP. First, the court decides whether the defendant has made a threshold showing that the challenged cause of action is one arising from protected activity. ( 425.16, subd. (b)(1).) 'A defendant meets this burden by demonstrating that the act underlying the plaintiff's cause fits one of the categories spelled out in section 425.16, subdivision (e)' [citation]. If the court finds that such a showing has been made, it must then determine whether the plaintiff has demonstrated a probability of prevailing on the claim. ( 425.16, subd. (b)(1); see generally Equilon [Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67 (Equilon)].)
"As we previously have observed, in order to establish the requisite probability of prevailing ( 425.16, subd. (b)(1)), 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.]
"Only a cause of action that satisfies both prongs of the anti-SLAPP statute−i.e., that arises from protected speech or petitioning and lacks even minimal merit−is a SLAPP, subject to being stricken under the statute." (Navellier v. Sletten (2002) 29 Cal.4th 82, 87-89.)
"We independently review a trial court's ruling on a SLAPP motion under a de novo standard of review. [Citation.] Moreover, whether section 425.16 applies to a particular complaint, presents a legal question subject to the same de novo review standard on appeal. [Citation.]" (Blackburn v. Brady (2004) 116 Cal.App.4th 670, 676.)
II
In this case, Ewing's statements to the sheriff's department were "made before" and "in connection with" an official proceeding. (A. F. Brown Electrical Contractor, Inc. v. Rhino Electric Supply, Inc., (2006) 137 Cal.App.4th 1118, 1125-1126; Briggs v. Eden Council for Hope & Opportunity (1999) 19 Cal.4th 1106, 1115.) Thus the burden shifted to Stec to show a reasonable probability that she would prevail on her causes of action. (Code Civ. Proc., 425.15, subd. (b).)
In demonstrating the probability of prevailing on the merits, "the plaintiff must demonstrate the complaint is both legally sufficient and is supported by a prima facie showing of facts sufficient to sustain a favorable judgment if the evidence submitted by the plaintiff is given credit." (Ruiz v. Harbor View Community Assn. (2005) 134 Cal.App.4th 1456, 1466, citing Navellier v. Sletten, supra, 29 Cal.4th at pp. 88-89). The plaintiff cannot demonstrate a probability of prevailing on the merits if the cause of action arises from privileged communications. Civil Code section 47, subdivision (b), provides an absolute privilege to communications made "[i]n 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 [statutes governing writs of mandate]," with certain statutory exceptions not applicable in this case. Statements to police are absolutely privileged under section 47(b). (Hagberg v. California Federal Bank (2004) 32 Cal.4th 350, 364.) " 'The policy underlying the privilege is to assure utmost freedom of communication between citizens and public authorities whose responsibility it is to investigate and remedy wrongdoing.' " (Id. at p. 364, citing Williams v. Taylor (1982) 129 Cal.App.3d 745, 753-754.)
In light of Hagberg, Ewing's statements to the sheriff's department enjoy absolute privilege under Civil Code section 47, subdivision (b). Since Stec's complaint is based on Ewing's statements to law enforcement personnel, her claims are barred as a matter of law. Thus, Stec cannot establish as a matter of law that she has a probability of prevailing on her claims. Accordingly, we reverse the trial court's ruling and direct the court to strike Stec's compliant pursuant to Code of Civil Procedure section 425.16.
DISPOSITION
The court's denial of Ewing's special motion to strike is reversed, and on remand the trial court is directed to enter a new order striking Stec's complaint. The trial court is further instructed to award Ewing the reasonable attorney fees she incurred in the trial court and on appeal.
Ewing is awarded her costs on appeal.
BENKE, J.
WE CONCUR:
McCONNELL, P. J.
McDONALD, J.
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