California anti-SLAPP Project

Siam v. Kizilbash
(Appeal from Santa Clara Co. Superior Court, CV006823, Socrates Manoukian, J.)

Law Offices of David Yong Chun, David Yong Chun, San Jose, for
Plaintiff/Respondent Hab Siam.
Law Offices of J. Byron Fleck, J. Byron Fleck, Finwall Law Offices, Gordon J.
Finwall, San Jose, for Defendant/Appellant Murtz Kizilbash.


Defendant Murtz Kizilbash accused plaintiff Hab Siam of abusing defendant’s two
young sons. Defendant reported plaintiff’s alleged abuse to law enforcement,
school officials, and others. He also filed a civil harassment petition against plaintiff.
(Code.Civ.Proc., § 527.6.) [FN 1] Plaintiff denied the allegations and sued
defendant for defamation, emotional distress, malicious prosecution, and statutory
violations. Defendant filed a special motion to strike. (§ 425.16.) The trial court
denied the motion.

On appeal defendant contends, among other things, that plaintiff cannot prevail on
his claims because defendant’s statements are subject to the litigation privilege (Civ.
Code, § 47, subd. (b) (Civ.Code, § 47(b))) and, for policy reasons, a civil
harassment petition should not be a permissible basis for a malicious prosecution

We conclude that pursuant to the policy enunciated in Sheldon Appel Co. v. Albert
& Oliker (1989) 47 Cal.3d 863, 254 Cal.Rptr. 336, 765 P.2d 498 (Sheldon Appel ),
a cause of action for malicious prosecution may not be based upon an
unsuccessful civil harassment petition. (§ 527.6.) We reject defendant’s other
arguments, including his assertion of privilege, which we conclude is overridden by
the provisions of the Child Abuse and Neglect Reporting Act. (Pen.Code, §§ 11164
et. seq., 11172, subd. (a) ( Pen.Code, § 11172(a)).)
We shall reverse the trial court’s order denying defendant’s special motion to strike
and direct the court to enter a new order striking the cause of action for malicious


This case arose after plaintiff became involved with defendant’s former wife,
Momina Zaidi.

Defendant and Zaidi had been married in Pakistan in 1994 and moved to
California shortly thereafter. They were separated in 2000. When Zaidi first
decided to end the marriage, defendant allegedly demanded that she
agree to an Islamic divorce, give up custody of the couple’s two young
sons, and relinquish her community property rights.

Zaidi states that when she refused these demands defendant swore revenge. A
judgment of dissolution was entered in 2003 but the parties continued to litigate
custody issues. The custody dispute became very bitter and contentious and
defendant was allegedly very hostile and abusive toward Zaidi. According to the
first amended complaint, after plaintiff became involved with Zaidi defendant began
directing his hostility toward him as well.

Defendant accused plaintiff of abusing his two boys. He reported the
alleged abuse to school officials and people involved in the family law
Defendant also made reports to the Palo Alto and the East Palo Alto police
departments. The resulting law enforcement investigations did not reveal any
abuse. Plaintiff also claims that defendant coached the boys to transmit his threats
of violence to plaintiff and to say “bad things” about plaintiff to other people so that
he would be put in jail. Indeed, the boys’ therapist, Louise Burton, initiated a child
abuse investigation when she reported something one of the boys told her about
plaintiff to the authorities in Santa Clara County. The ensuing case was
investigated and closed as unfounded within a couple of weeks.

Approximately two months after the Burton case had been closed, defendant filed a
petition in San Mateo County (where plaintiff lived) seeking an injunction prohibiting
harassment. (§ 527.6.) In connection with that petition defendant obtained an ex
parte temporary restraining order (TRO) against plaintiff by allegedly representing
to the judge that the Santa Clara County child abuse investigation initiated by
Burton was still open. The TRO prevented plaintiff from coming near the children.
The trial court ultimately denied defendant’s request for a permanent injunction.
The TRO was dissolved and the court awarded plaintiff over $12,000 in attorney’s

Plaintiff’s first amended complaint contained eight causes of action: (1) libel and
libel per se, (2) slander and slander per se, (3) intentional infliction of emotional
distress, (4) negligent infliction of emotional distress, (5) making a knowingly false
report of child abuse in violation of Penal Code section 11172(a), (6) violation of
Civil Code section 51.7 (the Ralph Act), (7) malicious prosecution, and (8) abuse of
process. The trial court denied defendant’s special motion to strike as to all eight
causes of action.


A special motion to strike under section 425.16, the so-called anti-SLAPP statute,
allows a defendant to gain early dismissal of a lawsuit that qualifies as a SLAPP.
“SLAPP is an acronym for ‘strategic lawsuits against public participation.’ ” (Jarrow
Formulas, Inc. v. LaMarche (2003) 31 Cal.4th 728, 732, fn. 1, 3 Cal.Rptr.3d 636, 74
P.3d 737.) A SLAPP arises “from any act of [a] 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” and is 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).) Thus, evaluation of
an anti-SLAPP motion requires a two-step process in the trial court. “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).) If
the court finds such a showing has been made, it then must consider whether the
plaintiff has demonstrated a probability of prevailing on the claim.” (City of Cotati v.
Cashman (2002) 29 Cal.4th 69, 76, 124 Cal.Rptr.2d 519, 52 P.3d 695.) “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, 89, 124 Cal.Rptr.2d 530, 52 P.3d 703.)
In the present case, defendant contends that he should have prevailed on both
prongs of the test. Plaintiff does not address the first prong. Nevertheless, since
our standard of review is de novo (Equilon Enterprises v. Consumer Cause, Inc.
(2002) 29 Cal.4th 53, 67, 124 Cal.Rptr.2d 507, 52 P.3d 685), we shall conduct the
complete analysis.

1. The Applicability of Section 425.16
A defendant meets the burden of showing that a plaintiff’s action arises from a
protected activity by showing that the acts underlying the plaintiff’s cause of action
fall within one of the four categories of conduct described in section 425.16,
subdivision (e). (Dowling v. Zimmerman (2001) 85 Cal.App.4th 1400, 1417, 103 Cal.
Rptr.2d 174.) Those four categories are: “(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; (3)
any written or oral statement or writing made in a place open to the public or a
public forum in connection with an issue of public interest; (4) or any other conduct
in furtherance of the exercise of the constitutional right of petition or the
constitutional right of free speech in connection with a public issue or an issue of
public interest.” (§ 425.16, subd. (e).)
With the exception of the sixth cause of action for violation of Civil Code section
51.7, the acts underlying plaintiff’s claims fall into the first or second of these
categories. The first five causes of action are based upon defendant’s reports of
child abuse to “people who were legally required to report any child abuse
allegations … in an attempt to manufacture corroboration” for his own false
allegations. That is, the statements were designed to prompt action by law
enforcement or child welfare agencies. Communications that are preparatory to or
in anticipation of commencing official proceedings come within the protection of the
anti-SLAPP statute. (Dove Audio, Inc. v. Rosenfeld, Meyer & Susman (1996) 47 Cal.
App.4th 777, 784, 54 Cal.Rptr.2d 830; Briggs v. Eden Council for Hope &
Opportunity (1999) 19 Cal.4th 1106, 1109-1110, 81 Cal.Rptr.2d 471, 969 P.2d
564; ComputerXpress, Inc. v. Jackson (2001) 93 Cal.App.4th 993, 1009, 113 Cal.
Rptr.2d 625.) Thus, defendant’s reports of child abuse to persons who are bound
by law to investigate the report or to transmit the report to the authorities are
protected by the statute. (§ 425.16, subd. (e)(2).) The seventh cause of action for
malicious prosecution is recognized as being susceptible to an anti-SLAPP motion.
(Jarrow Formulas, Inc. v. LaMarche, supra, 31 Cal.4th at p. 741, 3 Cal.Rptr.3d 636,
74 P.3d 737.) And the eighth cause of action for abuse of process is also subject to
the statute since it arises from the exercise of the right of petition.
The sixth cause of action, however, does not describe conduct arising from a
protected activity. This cause of action for violation of Civil Code section 51.7 is
based upon allegations that defendant committed violence and made threats of
violence against plaintiff based upon his religion. These allegations do not describe
acts in furtherance of defendant’s rights of petition or free speech and are not
encompassed by the anti-SLAPP statute. (§ 425.16, subd. (e).) The trial court was
correct in denying defendant’s motion as to the sixth cause of action. As to the
remaining causes of action, we proceed to the second prong of the analysis.
2. Plaintiff’s Likelihood of Success on the Merits
In the second prong of the anti-SLAPP analysis the plaintiff’s burden of
demonstrating a probability of prevailing is subject to a standard similar to that used
in deciding a motion for nonsuit, directed verdict, or summary judgment.
(ComputerXpress, Inc. v. Jackson, supra, 93 Cal.App.4th at p. 1010, 113 Cal.Rptr.
2d 625.) The court determines only whether the plaintiff has made a prima facie
showing of facts that would support a judgment if proved at trial. (Ibid.) We grant
the motion if the plaintiff fails to produce evidence to substantiate his claim or if the
defendant has shown that the plaintiff cannot prevail as a matter of law. (Wilson v.
Parker, Covert & Chidester (2002) 28 Cal.4th 811, 821, 123 Cal.Rptr.2d 19, 50 P.
3d 733.)
Defendant argues that, for several reasons, plaintiff’s causes of action fail as a
matter of law. We begin our analysis by considering defendant’s legal challenge to
the malicious prosecution cause of action.
a. The Seventh Cause of Action for Malicious Prosecution
Defendant argues that as a matter of policy a petition for an injunction prohibiting
harassment (§ 527.6) is not a proper basis for a malicious prosecution claim. To
date, no published opinion has expressly ruled upon the question. (See Thomas v.
Quintero (2005) 126 Cal.App.4th 635, 651, 24 Cal.Rptr.3d 619.)
Malicious prosecution has been termed a “disfavored cause of action.” (Sheldon
Appel, supra, 47 Cal.3d at p. 872, 254 Cal.Rptr. 336, 765 P.2d 498.) The original
reason for that is that when the tort was based upon criminal prosecutions there
was concern that the threat of later civil liability would discourage ordinary citizens
from reporting suspected criminal activity. (Id. at p. 872, fn. 5, 254 Cal.Rptr. 336,
765 P.2d 498.) The tort has not risen in favor since its extension to civil law. If
anything, the trend is to limit its expansion.
There is concern about the volume of litigation in American courts, but the courts
and the Legislature tend to agree that expanding the reach of malicious
prosecution actions is not the best remedy for the problem. (Sheldon Appel, supra,
47 Cal.3d at p. 873, 254 Cal.Rptr. 336, 765 P.2d 498.) The Supreme Court set
forth its view of the issue in Sheldon Appel: “While the filing of frivolous lawsuits is
certainly improper and cannot in any way be condoned, in our view the better
means of addressing the problem of unjustified litigation is through the adoption of
measures facilitating the speedy resolution of the initial lawsuit and authorizing the
imposition of sanctions for frivolous or delaying conduct within that first action itself,
rather than through an expansion of the opportunities for initiating one or more
additional rounds of malicious prosecution litigation after the first action has been
concluded.” (Ibid.) The Legislature has implicitly concurred with this assessment by
continuing to enact legislation to weed out patently meritless claims at an early
stage and to impose sanctions in the initial lawsuit for frivolous or delaying conduct.
(See, e.g., §§ 437c, 1038, 128.7, 425.16.)
Bidna v. Rosen (1993) 19 Cal.App.4th 27, 23 Cal.Rptr.2d 251 (Bidna ) followed the
reasoning of Sheldon Appel and refused to extend the tort of malicious prosecution
to motions and orders to show cause in family law proceedings. Bidna identified
four good reasons for drawing this bright-line rule. Three of those are pertinent
here. [FN 2] First, family law proceedings have “a unique propensity for bitterness”
that makes it difficult to distinguish a malicious motion from an ordinary one.
Second, the family law court has authority to discourage frivolous tactics within the
underlying litigation by imposing attorney fee awards as sanctions for frivolous
conduct. Third, family law matters often require a special sensitivity and flexibility in
crafting remedies. The threat that a litigant will be subject to a malicious
prosecution action increases the risk of asking for any particular remedy and
decreases the likelihood of obtaining effective relief. (Id. at p. 35, 23 Cal.Rptr.2d
[FN 2] Bidna’s fourth reason was that the availability of malicious prosecution
actions would raise malpractice insurance premiums for family law lawyers. (Bidna,
supra, 19 Cal.App.4th at pp. 35-36, 23 Cal.Rptr.2d 251.)
On the other side of the equation, Bidna noted that exempting family law
proceedings from the scope of a malicious prosecution claim would deprive litigants
of a means of redress in some of the most egregious cases. The court concluded,
however, that the remedy for egregious conduct “is for the family law bench to nip it
in the bud with appropriate sanctions, not to expand tort liability for malicious
prosecution to the family law bar.” (Bidna, supra, 19 Cal.App.4th at pp. 36, 29, 30,
23 Cal.Rptr.2d 251.)
Another type of proceeding exempted from the scope of a malicious prosecution
claim is a small claims action. (Pace v. Hillcrest Motor Co. (1980) 101 Cal.App.3d
476, 479, 161 Cal.Rptr. 662 (Pace); see § 116.110 et seq.) Pace observed that the
Legislature’s intent in enacting the small claims process was to provide a simple
and expeditious means to settle disputes over small amounts because ordinary
litigation involved so much time and expense that legal resolution of such disputes
was impractical. (Pace, supra, 101 Cal.App.3d at p. 478, 161 Cal.Rptr. 662.) The
Legislature designed small claims proceedings “to function quickly and informally.”
(Id. at p. 479, 161 Cal.Rptr. 662.) “To permit an action for malicious prosecution to
be grounded on a small claims proceeding would frustrate the intent of the
Legislature in adopting an expeditious and informal means of resolving small
disputes, would inject into a simple and accessible proceeding elements of time,
expenses, and complexity which the small claims process was established to avoid,
and would require a prudent claimant to consult with an attorney before making use
of this supposedly attorney-free method for settling disputes over small amounts.”
The reasoning of Bidna and Pace is applicable here. Section 527.6 is used where
the victim has been stalked, threatened or otherwise seriously harassed. (Grant v.
Clampitt (1997) 56 Cal.App.4th 586, 591, 65 Cal.Rptr.2d 727.) There are many
cases that exemplify the bitter and even irrational disputes that arise under section
527.6. (See Kobey v. Morton (1991) 228 Cal.App.3d 1055, 278 Cal.Rptr. 530
[defendant hired private detective to follow victim, threatened victim's children,
falsely accused victim of having AIDS]; Ensworth v. Mullvain (1990) 224 Cal.App.3d
1105, 274 Cal.Rptr. 447 [defendant stalked victim, made numerous phone calls,
sent threatening letters, threatened to commit suicide in victim's presence]; Elster v.
Friedman (1989) 211 Cal.App.3d 1439, 260 Cal.Rptr. 148 [neighbors played stereo
at high volume, made false reports to animal regulation officers about victims,
repeatedly rang their doorbell]; Oriola v. Thaler (2000) 84 Cal.App.4th 397, 100 Cal.
Rptr.2d 822 [defendant made 25-40 "crank calls" to victim every day].) In such
highly charged circumstances a successful defendant may be inclined to counter
with a civil action against the unsuccessful plaintiff. Yet, as in family law disputes,
the background of bitterness would make it difficult to distinguish between a
malicious petition and one that is not malicious. Further, just as in family law
matters, section 527.6 provides for attorney fees as sanctions for a frivolous
petition. (§ 527.6, subd. (i).) Indeed, after refusing to grant defendant’s petition for
an injunction, the San Mateo County court sanctioned defendant by awarding
plaintiff more than $12,000 in attorney fees.
It is true that by declining to extend the malicious prosecution tort to unsuccessful
section 527.6 petitions we deprive an aggrieved defendant of a remedy for some of
the harm he or she has suffered as a result of a malicious petition. However, the
harm should be fairly minimal. Section 527.6 was passed to provide quick relief to
harassment victims threatened with great or irreparable injury. (Smith v. Silvey
(1983) 149 Cal.App.3d 400, 405, 197 Cal.Rptr. 15.) Like a small claims action, a
section 527.6 petition is designed to be processed simply and expeditiously. A
petition is filed, a hearing is held, normally within a few weeks, and an order is made
or not made. (§ 527.6, subd. (d).) As a result of this expedited process a defendant
is not usually likely to incur substantial legal fees. There is no risk of incarceration
or financial ruin. At worst, he or she will simply be ordered to stop doing something.
And to the extent the defendant has grievances of his or her own, section 527.6
expressly permits a cross-complaint. (§ 527.6, subd. (d).)
Another important consideration is that a section 527.6 petition is not an ordinary
civil action. (See Nicholson v. Fazeli (2003) 113 Cal.App.4th 1091, 1099, 6 Cal.Rptr.
3d 881 [declining to extend Bidna to ordinary civil actions arising within family law
proceedings].) The statute provides for an action to be completed in a matter of
weeks and incorporates an expectation that victims may often seek relief without
the benefit of a lawyer. (See § 527.6, subd. (d) [trial court makes an "independent
inquiry" into the facts]; § 527.6, subd. (m) [Judicial Council forms to be "simple and
concise].”) Permitting a malicious prosecution claim to follow an unsuccessful
section 527.6 petition would frustrate this streamlined procedure. The prudent
plaintiff would seek legal advice before filing a petition. The risk of subsequent
litigation might dissuade victims of serious harassment from seeking the remedy.
Those that were not discouraged would be subject to the possibility of serious
financial harm in the future. On balance, these concerns outweigh the concern that
an aggrieved defendant might be deprived of the additional remedies a malicious
prosecution action would provide in egregious situations.
We recognize that the Supreme Court has recently explained that just because
malicious prosecution suits are disfavored they should not be barred for that
reason alone. (Casa Herrera, Inc. v. Beydoun (2004) 32 Cal.4th 336, 349, 9 Cal.
Rptr.3d 97, 83 P.3d 497.) Our conclusion, however, is not based solely upon the
disfavored status of the tort. We are concerned with the sensitive and emotionally
charged nature of a section 527.6 petition and the “unending roundelay of
litigation” (Silberg v. Anderson (1990) 50 Cal.3d 205, 214, 266 Cal.Rptr. 638, 786 P.
2d 365) that is likely to ensue if a successful defendant is able to counter with a
malicious prosecution suit. Our conclusion is also based upon the fact that in
enacting section 527.6 the Legislature has provided for speedy resolution of the
initial suit and has authorized the imposition of sanctions for frivolous or delaying
conduct within the first action. As the Supreme Court has counseled, this is the
preferable means for discouraging frivolous lawsuits. (See Sheldon Appel, supra,
47 Cal.3d at p. 873, 254 Cal.Rptr. 336, 765 P.2d 498.)
We conclude that the unsuccessful filing of a petition for an injunction under section
527.6 may not form the basis for a malicious prosecution action. Since plaintiff’s
cause of action for malicious prosecution is based upon defendant’s unsuccessful
section 527.6 petition, the cause of action fails as a matter of law. It follows that the
trial court erred in denying defendant’s motion as it applied to the seventh cause of
b. The Litigation Privilege
Turning to the remaining causes of action, defendant contends that plaintiff cannot
prevail as a matter of law because defendant’s communications are subject to the
litigation privilege of Civil Code section 47(b). [FN 3] He argues that Penal Code
section 11172(a), which imposes liability for knowingly filing false reports of child
abuse, does not override the litigation privilege because it is unconstitutional or
otherwise invalid. We reject these arguments.
[FN 3] Civil Code section 47(b) provides in pertinent part: “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.”
i. Penal Code section 11172(a) Is Not Unconstitutional
Penal Code section 11172(a) is part of the Child Abuse and Neglect Reporting Act.
(Pen.Code, § 11164 et. seq.) Penal Code section 11172(a) provides: “No
mandated [child abuse] reporter shall be civilly or criminally liable for any report
required or authorized by this article,…. Any other person reporting a known or
suspected instance of child abuse or neglect shall not incur civil or criminal liability
as a result of any report authorized by this article unless it can be proven that a
false report was made and the person knew that the report was false or was made
with reckless disregard of the truth or falsity of the report, and any such person who
makes a report of child abuse or neglect known to be false or with reckless
disregard of the truth or falsity of the report is liable for any damages caused.”
Thus, Penal Code section 11172(a) provides that those who knowingly or
recklessly file false child abuse reports may be sued for a knowingly false report of
abuse unless they are among the persons listed as mandatory reporters. A parent
is not a mandatory reporter. (Pen.Code, § 11165.7.) Defendant argues that this
disparity in protection is a content-based regulation of speech and is impermissible
under the First Amendment of the United States Constitution. [FN 4]
[FN 4] Defendant did not raise this constitutional issue below. The general rule is
that appellate courts will not consider matters raised for the first time on appeal.
(Bayside Timber Co. v. Board of Supervisors (1971) 20 Cal.App.3d 1, 5, 97 Cal.
Rptr. 431.) However, appellate courts may consider such matters when the issue
relates to questions of law only or where the public interest or public policy is
involved. (Ibid.) A related concern is the “long-established rule that an appellate
court will not enter upon the resolution of constitutional questions unless absolutely
necessary to a disposition of the appeal.” (Id. at pp. 5-6, 97 Cal.Rptr. 431.) Here,
the facial constitutionality of Penal Code section 11172(a) is a pure question of law
and is an issue of public concern. Further, much of plaintiff’s argument turns upon
the validity of this statute. Thus, in order to fairly dispose of the appeal we shall
pass upon the constitutional issue.
Defendant argues that even though a knowingly false statement of fact is not
constitutionally protected speech, Penal Code section 11172(a) impermissibly
discriminates by imposing liability only upon voluntary reporters. We perceive no
free speech issue under these circumstances since the statute does not
discriminate based upon the content of the speech. R.A.V. v. St. Paul (1992) 505 U.
S. 377, 382, 112 S.Ct. 2538, 120 L.Ed.2d 305 (R.A.V.), upon which defendant
relies, does not alter our conclusion. R.A.V. struck down an ordinance that made it
a crime to place an object (such as a burning cross or a Nazi swastika) upon public
or private property if one has reasonable grounds to know that the object arouses ”
‘anger, alarm or resentment in others on the basis of race, color, creed, religion or
gender….’ ” (Id. at p. 380, 112 S.Ct. 2538.) Although the speech at issue (fighting
words) was not constitutionally protected, R.A.V. held that it was impermissible to
punish only fighting words based on race, color, creed, religion, or gender. (Id. at p.
391, 112 S.Ct. 2538.) Here, the Legislature has not selectively punished any
particular category of false child abuse reports. All knowingly false child abuse
reports are subject to liability unless a mandated reporter makes the report.
Even if imposing liability only upon nonmandated reporters may be construed as
content-based regulation, such a scheme is not unconstitutional. As R.A.V.
explained, a government is not prohibited from selectively discriminating within a
proscribable class of speech in all cases. “The rationale of the general prohibition
[upon governmental regulation of speech], after all, is that content discrimination
‘raises the specter that the Government may effectively drive certain ideas or
viewpoints from the marketplace,’ [citations]. But content discrimination among
various instances of a class of proscribable speech often does not pose this
threat.” (R.A.V., supra, 505 U.S. at pp. 387-388, 112 S.Ct. 2538.) One such
instance is where “the nature of the content discrimination is such that there is no
realistic possibility that official suppression of ideas is afoot.” (Id. at p. 390, 112 S.
Ct. 2538.)
People v. Stanistreet (2002) 29 Cal.4th 497, 510, 127 Cal.Rptr.2d 633, 58 P.3d
465 held that Penal Code section 148.6, which makes it a misdemeanor to file a
knowingly false allegation of misconduct against a peace officer, is a permissible
regulation of proscribable speech. Among other things, Stanistreet concluded that
there was no realistic possibility that the statute would suppress ideas, pointing out
that the subject (complaints of misconduct against peace officers) is actually a
favored subject as evidenced by the fact that all such reports must be investigated.
Similarly, Penal Code section 11172(a) encourages child abuse reporting by
granting absolute immunity to mandatory reporters. It imposes liability on voluntary
reporters merely to discourage knowingly false reports. Indeed, this is the only
speech that defendant suggests may be discouraged. He identifies no ideas, nor
can we conceive of any, that Penal Code section 11172(a) might tend to suppress.
Defendant refers us to Walker v. Kiousis (2001) 93 Cal.App.4th 1432, 1447, 114
Cal.Rptr.2d 69, which held that Civil Code section 47.5 is unconstitutional. Civil
Code section 47.5 permits a peace officer to pursue a defamation claim against a
person who filed a false report of the officer’s misconduct. Like Penal Code section
11172(a), therefore, Civil Code section 47.5 makes a person liable for a
communication that would otherwise be protected by the litigation privilege. Civil
Code section 47.5 differs from Penal Code section 11172(a), however, because it
does not discriminate based upon the speaker, but (arguably) upon the content of
the speech. Furthermore, another division of the same district court of appeal has
disagreed with Walker, ruling that Civil Code section 47.5 poses no realistic
possibility that it will result in the official suppression of ideas. (Loshonkohl v. Kinder
(2003) 109 Cal.App.4th 510, 516, 135 Cal.Rptr.2d 114.) [FN 5] Likewise, we
conclude that Penal Code section 11172(a) poses no such risk. It is not an
unconstitutional content-based regulation of speech.
[FN 5] Defendant also argues that there is no reason to exclude parents from the
absolute immunity granted to mandated reporters. Defendant offers no legal basis
for revising the Legislature’s judgment on this point. Accordingly, we decline to
consider the question. (See Cal. Const., art. III, § 3.)
ii. Penal Code Section 11172(a) Overrides the Litigation Privilege
Defendant also argues that even if we find Penal Code section 11172(a) to be
constitutional, the section does not trump the absolute privilege of Civil Code
section 47(b). Defendant acknowledges that Begier v. Strom (1996) 46 Cal.App.4th
877, 885, 54 Cal.Rptr.2d 158 (Begier ) held that the provision in Penal Code
section 11172(a) imposing liability upon voluntary reporters for knowingly filing false
reports of child abuse overrides the litigation privilege of Civil Code section 47(b).
He contends, however, that Hagberg v. California Federal Bank (2004) 32 Cal.4th
350, 355, 7 Cal.Rptr.3d 803, 81 P.3d 244 (Hagberg ) has called that holding into
question. We disagree.
The issue in Hagberg was whether statements made to law enforcement personnel
about suspected criminal activity are subject to the qualified privilege of Civil Code
section 47, subdivision (c), which grants immunity for certain communications made
without malice, or whether such reports were absolutely privileged under Civil Code
section 47(b), which applies regardless of malicious intent. Hagberg concluded that
such statements made to law enforcement personnel are absolutely privileged.
(Hagberg, supra, 32 Cal.4th at p. 355, 7 Cal.Rptr.3d 803, 81 P.3d 244.)
Like Civil Code section 47, Penal Code section 11172(a) grants an absolute
privilege in some situations and a qualified privilege in others. The dissent in
Hagberg argued that the Legislature’s grant of absolute immunity for mandatory
reporters under Penal Code section 11172(a) would be unnecessary if the absolute
privilege of Civil Code section 47(b) applies in such cases already. (Hagberg,
supra, 32 Cal.4th at p. 379, 7 Cal.Rptr.3d 803, 81 P.3d 244.) The majority
recognized the redundancy but was not convinced that it should affect the result:
“Penal Code section 11172 was part of a comprehensive scheme in which the
Legislature sought to increase substantially the reporting of a specific type of crime,
but at the same time to provide potential subjects of such increased reporting with
explicit civil protection against malicious false reports…. Such an exceptional and
comprehensive scheme, in which the Legislature has balanced conflicting interests,
does not reflect an attempt by the Legislature to deal generally with the subject of
the potential civil liability, if any, faced by persons who report crime to the police.”
(Id. at p. 371, fn. 6, 7 Cal.Rptr.3d 803, 81 P.3d 244.) There is nothing in this
response or elsewhere in the Supreme Court’s discussion that casts doubt upon
the validity of Penal Code section 11172(a) or upon the conclusion of Begier,
supra, 46 Cal.App.4th 877, 54 Cal.Rptr.2d 158 that the liability it imposes upon
voluntary reporters overrides the litigation privilege.
iii. Penal Code section 11172(a) Applies to Defendant’s Reports
Defendant further contends that even if Penal Code section 11172(a) trumps the
litigation privilege, it does so only with respect to statements made to the agencies
listed in the Child Abuse and Neglect Reporting Act, i.e., “to any police department
or sheriff’s department, … county probation department, … or the county welfare
department.” (Pen.Code, § 11165.9.) According to defendant, therefore, his
communications to school personnel and others in connection with the family law
proceedings remain privileged under Civil Code section 47(b). Again we disagree.
Although we have found no authority directly on point, there are cases that hold
that the immunity extended to mandatory reporters encompasses more than just
the act of reporting the suspected abuse. For example, Storch v. Silverman (1986)
186 Cal.App.3d 671, 681, 231 Cal.Rptr. 27, held that absolute immunity extends to
mandated reporters who assist in identifying instances of child abuse but do not
personally report it to the authorities. The court’s reasoning was that limiting
immunity to the person who actually made the report would defeat the purpose of
encouraging reports of child abuse. (Ibid.; and see Krikorian v. Barry (1987) 196
Cal.App.3d 1211, 1223, 242 Cal.Rptr. 312.)
The Legislature crafted the disparate treatment of mandated and voluntary
reporters in order to balance “the public interest in ferreting out cases of child
abuse” against “the policy of protecting the reputations of those who might be
falsely accused.” (Begier, supra, 46 Cal.App.4th at p. 885, 54 Cal.Rptr.2d 158.)
That is, the purpose of imposing liability upon voluntary reporters is to discourage
knowingly false reports. Just as Storch concluded that immunity is not limited to the
mere act of reporting, we conclude that the imposition of liability is not limited to
voluntary reports made to the listed agencies but includes reports made to persons
who are legally required to transmit such reports to the listed agencies. To hold
otherwise would essentially nullify the balance struck by the Legislature in
determining when liability should attach. (See ibid.) Accordingly, we reject
defendant’s claim that the liability imposed by Penal Code section 11172(a) does
not apply to him.
In sum, the litigation privilege of Civil Code section 47(b) does not protect
defendant from the liability imposed by Penal Code section 11172(a).
c. The Fourth Cause of Action for Negligent Infliction of Emotional Distress
Defendant contends that the facts supporting plaintiff’s cause of action for
negligent infliction of emotional distress do not fall within accepted categories of the
“direct victim” version of the tort. (See Christensen v. Superior Court (1991) 54 Cal.
3d 868, 869, 2 Cal.Rptr.2d 79, 820 P.2d 181; Molien v. Kaiser Foundation Hospitals
(1980) 27 Cal.3d 916, 923, 167 Cal.Rptr. 831, 616 P.2d 813; Burgess v. Superior
Court (1992) 2 Cal.4th 1064, 9 Cal.Rptr.2d 615, 831 P.2d 1197.) Although plaintiff
designated the fourth cause of action as a negligence claim, his allegations are that
defendant’s conduct “constituted the highest level of negligence and gross
negligence” and that it was “fraudulent, malicious, oppressive, willful, despicable,
cruel, unjust, contemptible, reprehensible, and wanton, and was specifically
intended to oppress Plaintiff’s rights.” This is in substance a claim for reckless
infliction of emotional distress, which is not the same as a claim for negligent
infliction of emotional distress. (Christensen v. Superior Court, supra, 54 Cal.3d at
p. 904, 2 Cal.Rptr.2d 79, 820 P.2d 181; and see Ess v. Eskaton Properties, Inc.
(2002) 97 Cal.App.4th 120, 129, 118 Cal.Rptr.2d 240.) Thus, it is immaterial that
plaintiff may have failed to allege facts to support a negligence claim.
d. The Eighth Cause of Action for Abuse of Process
Defendant also argues that plaintiff’s cause of action for abuse of process is
insufficient as a matter of law because it does not contain the requisite elements.
Defendant misreads the claim.
There are two main elements of a cause of action for abuse of process: ” ‘ “first, an
ulterior purpose, and second, a wilful act in the use of the process not proper in the
regular conduct of the proceeding.” ‘ ” (Oren Royal Oaks Venture v. Greenberg,
Bernhard, Weiss & Karma, Inc. (1986) 42 Cal.3d 1157, 1168, 232 Cal.Rptr. 567,
728 P.2d 1202.) “Process is action taken pursuant to judicial authority…. [¶] Merely
obtaining or seeking process is not enough; there must be subsequent abuse, by a
misuse of the judicial process for a purpose other than that which it was intended to
serve. [Citations.] The gist of the tort is the improper use of the process after it is
issued.” (Adams v. Superior Court (1992) 2 Cal.App.4th 521, 530-531, 3 Cal.Rptr.
2d 49.)
Plaintiff’s eighth cause of action alleges that defendant obtained a TRO by falsely
representing to the court that plaintiff was being investigated for child abuse. The
cause of action goes on to allege that after the court denied defendant’s request
for a permanent injunction he nevertheless referred to the TRO to corroborate his
allegations when he spoke with others about plaintiff’s alleged abuse. Thus, the
element of improper use is satisfied by the allegation that defendant improperly
used the TRO after it was issued.
e. Plaintiff’s Evidence
We finally come to the question of whether plaintiff has demonstrated a probability
of prevailing upon the six remaining causes of action. Before turning to plaintiff’s
evidence we first consider defendant’s concern that the trial court did not rule on
his evidentiary objections.
Plaintiff submitted three declarations — his own declaration, Zaidi’s declaration, and
the declaration of San Mateo County Sheriff’s Deputy Dwayne K. Earles. Defendant
raised over 200 separate written objections to this evidence. The trial judge did not
make specific formal rulings on each individual objection. Rather, when defendant’s
counsel orally reminded the court that it had not ruled on his objections the court
answered: “By implication those have been overruled and sustained in my order.”
The court’s written order states: “[Plaintiff] has submitted the declarations of
himself, of Momina Zaidi, and of [S]an Mateo County Sheriff’s Deputy Dwayne K.
Earles. For purposes of discussion of this motion only, the Court will not consider
Deputy Earle’s declaration.” Defendant argues that this ruling was inadequate and
he urges this court to make the specific evidentiary rulings he sought below.
Plaintiff contends that defendant did not obtain a ruling because he failed to press
his objections with sufficient vigor and, therefore, that he waived the objections.
(See Ann M. v. Pacific Plaza Shopping Center (1993) 6 Cal.4th 666, 670, fn. 1, 25
Cal.Rptr.2d 137, 863 P.2d 207.)
Although the trial court did not rule upon each of defendant’s objections
individually, the court did make a blanket ruling of sorts. That is, in expressly
declining to consider the Earles declaration the court implicitly sustained defendant’
s objections to that evidence. But even though defendant failed to obtain a ruling
on his remaining objections, we do not believe he waived the objections. Defendant
filed written objections and orally requested a ruling. He cannot be faulted merely
because the trial court did not provide the response he sought. (See City of Long
Beach v. Farmers & Merchants Bank of Long Beach (2000) 81 Cal.App.4th 780,
785, 97 Cal.Rptr.2d 140, holding evidentiary objections preserved where further
request for ruling would have been a fruitless or idle act.) Furthermore, given that
our standard of review is de novo and that the parties have had ample opportunity
to address the issue, it would be unnecessary and unfair in these circumstances to
consider the objections waived. (Thomas v. Quintero, supra, 126 Cal.App.4th at p.
656, 24 Cal.Rptr.3d 619.) We conclude that the evidence contained in plaintiff’s
and Zaidi’s declarations is part of the record on appeal and that defendant did not
waive his evidentiary objections by failing to press more strenuously for a ruling.
Although defendant did not waive the objections below, he does not describe them
in detail on appeal. He states only that the declarations are “full of argument,
conclusions, opinions, hearsay and irrelevant information” and directs us to the
papers he filed in the court below. He further argues that if we sustain all of his
objections there would remain insufficient admissible evidence to support a prima
facie case. We think a more efficient approach would begin with a search for
admissible evidence. This is not a summary judgment case like Sambrano v. City of
San Diego (2001) 94 Cal.App.4th 225, 229, 243-244, 114 Cal.Rptr.2d 151, where
the appellate court was forced to rule on the objections. (See also Vineyard Springs
Estates, LLC v. Superior Court (2004) 120 Cal.App.4th 633, 642-643, 15 Cal.Rptr.
3d 587, directing the trial court to make the requested evidentiary rulings.) In a
summary judgment motion the crucial question is whether the evidence presents a
material factual dispute. In that situation the admissibility of a single fact can be
dispositive. In contrast, in order to defeat an anti-SLAPP motion the plaintiff needs
to submit only enough admissible evidence to show that he has a probability of
prevailing on his claims. “[A] probability of prevailing is established if the plaintiff
presents evidence establishing a prima facie case which, if believed by the trier of
fact, will result in a judgment for the plaintiff.” (Mattel, Inc. v. Luce, Forward,
Hamilton Scripps (2002) 99 Cal.App.4th 1179, 1188, 121 Cal.Rptr.2d 794.) The trial
court clearly denied defendant’s motion because it found plaintiff’s evidence
sufficient to establish a prima facie case. It follows that in conducting our de novo
review we need to identify only sufficient admissible evidence to support the trial
court’s conclusion. The admissibility of any other evidence is immaterial.
Accordingly, we need not consider each of defendant’s objections in detail.
Before we consider the evidence, we review the elements that plaintiff must prove
to establish his claims. The first and second causes of action for libel and slander
require evidence of false and unprivileged publications that have a tendency to
injure a person in the manner described in the statutes. (Civ.Code, §§ 45, 46.) The
third and fourth causes of action for intentional and reckless infliction of emotional
distress must be supported by evidence of “(1) extreme and outrageous conduct by
the defendant with the intention of causing, or reckless disregard of the probability
of causing, emotional distress; (2) the plaintiff’s suffering severe or extreme
emotional distress; and (3) actual and proximate causation of the emotional distress
by the defendant’s outrageous conduct.” (Cervantez v. J.C. Penney Co. (1979) 24
Cal.3d 579, 593, 156 Cal.Rptr. 198, 595 P.2d 975; and see Ess v. Eskaton
Properties, Inc., supra, 97 Cal.App.4th at p. 129, 118 Cal.Rptr.2d 240.) The sixth
cause of action for violation of Penal Code section 11172(a) requires evidence that
defendant made knowingly false reports of child abuse. Finally, the eighth cause of
action for abuse of process requires evidence of an ulterior purpose and a willful
act in the use of the process not proper in the regular conduct of the proceeding.
(Oren Royal Oaks Venture v. Greenberg, Bernhard, Weiss & Karma, Inc., supra, 42
Cal.3d at pp. 1168-1169, 232 Cal.Rptr. 567, 728 P.2d 1202.)
Turning finally to the evidence, we conclude that it is sufficient to meet plaintiff’s
burden. Defendant admits that he made reports to mandatory reporters, law
enforcement, and other third parties in which he accused plaintiff of physically and
mentally abusing defendant’s children. The crucial evidence that plaintiff submits is
that he never abused the children. Zaidi provides support for the element of malice
and outrageous conduct in her description of defendant’s threats and abusive
behavior. Plaintiff and Zaidi both recount numerous instances in which they
observed or experienced defendant’s abusive and antagonistic behavior toward
plaintiff. Evidence to support the abuse of process claim is Zaidi’s statement that
sometime after the San Mateo County court denied defendant’s petition for a
permanent injunction, she was present when defendant told a third party that
plaintiff was subject to a restraining order preventing him from being near the
children. Finally, plaintiff describes the harm he has suffered as including sleeping
and eating disturbances, fear for his safety and the safety of his own son, fear of
being arrested, anxiety over his finances and reputation, loss of time and
productivity at work, headaches, and panic attacks.
None of defendant’s objections applies to this evidence. The evidence is based
upon the declarants’ personal knowledge. It does not contain argument, opinion, or
legal conclusions and it is unquestionably relevant. The evidence is sufficient to
permit a jury to find that defendant misused the results of court proceedings, made
knowingly false reports of child abuse, and caused plaintiff to suffer serious mental
distress. In short, plaintiff has demonstrated a probability of prevailing on his claims
for defamation, emotional distress, violation of Penal Code section 11172, and
abuse of process.
Plaintiff’s fifth cause of action for violation of Civil Code section 51.7 is not subject
to a section 425.16 special motion to strike and the trial court was correct in
denying defendant’s motion as to it. Of the remaining causes of action, plaintiff has
shown a probability of prevailing on all but the seventh–his cause of action for
malicious prosecution. As to the seventh cause of action, plaintiff cannot prevail
because a petition for an injunction prohibiting harassment (§ 527.6) cannot form
the basis for a malicious prosecution claim. The trial court erred, therefore, in
denying defendant’s anti-SLAPP motion with respect to the seventh cause action
but was correct in denying it as to the remaining claims.
The order of the superior court denying defendant’s special motion to strike is
reversed. The trial court is instructed to enter a new order granting defendant’s
motion in part and striking the seventh cause of action from the first amended
complaint. The parties shall bear their own costs on appeal.
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