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Court of Appeal:
Filing False Police Report Constituted ‘Protected’ Activity
Div. Eight of This District Retreats From Broad Proclamation in Its 2011 Decision Indicating Contrary View
By a MetNews Staff Writer
Div. Eight of the Court of Appeal for this district has held that, as a general proposition, turning in a false police report is protected activity and that, when it results in an arrest and an unsuccessful prosecution, and the person who was wrongly accused sues for malicious prosecution based on the report, an anti-SLAPP motion potentially lies, rejecting broad language to the contrary in a 2011 pronouncement by that division.
Justice John Shepard Wiley Jr. said in an opinion filed Thursday that then-Los Angeles Superior Court Judge Mark V. Mooney, now an arbitrator/mediator, erred in denying the defendants’ anti-SLAPP motion but was nonetheless correct in his preliminary conclusion that the first prong of the anti-SLAPP statute, Code of Civil Procedure §425.16—that the action was based on protected conduct—was satisfied.
Where Mooney “went astray,” Wiley declared, was in failing to spot that, under the second prong, the plaintiff, Saide Lugo, could not show “minimal merit” because the defendants, Pixior, LLC, and the individuals she sued, had “a winning defense.” That defense was based on the causal chain, originating with the report, being broken by an “independent investigation” conducted by the Los Angeles County Sheriff’s Department.
In light of Wiley’s declaration that there must be a granting of the special motion to strike, on remand, the issue of whether or not there was protected activity does not affect the outcome. However, his discussion of that issue narrows the scope of the division’s 2011 decision in Lefebvre v. Lefebvre.
2011 Decision
There, then-Presiding Justice Tricia Bigelow, also now in private dispute resolution, pointed out that under the first prong, a special motion to strike does not lie unless a defendant acted, under language of the statute, in furtherance of the defendant’s “right of petition or free speech under the United States Constitution or the California Constitution in connection with a public issue.”
She wrote that the defendant’s “act of making a false police report was not an act in furtherance of her constitutional rights of petition or free speech” so that “the anti-SLAPP statute simply never comes into play in this case,” elaborating:
“Neither the federal nor the state constitutional rights of petition or free speech encompass a right to file a false crime report. Indeed, if the right of petition or free speech encompassed a right to file a false crime report, then laws criminalizing such reports would be inherently unconstitutional.”
Wiley’s Opinion
Differentiating the facts in that decision, and avoiding an express departure from the holding, Wiley pointed to the jury’s “extraordinary act” in Lefebvre in issuing a “remarkable and indeed unprecedented post-verdict written statement” which read, in part:
“We, the jury, believe that the absence of any real investigation by law enforcement is shocking and we agree that this appears to follow a rule of guilty until proven innocent. There was no credible evidence supporting the indictment. We believe prosecuting this as a crime was not only a waste of time, money, and energy, for all involved, but is an affront to our justice system.”
By contrast, Wiley said:
“This case has no extraordinary element. Nothing conclusively shows Pixior broke the law. No independent fact finder has declared ‘the absence of any real investigation by law enforcement is shocking….
“The usual rule thus applies: a malicious prosecution action predicated upon a defendant’s alleged participation in procuring a criminal prosecution against a plaintiff falls within the ambit of the anti-SLAPP statute.”
‘Independent Investigation’ Defense
Lugo said in her opening brief on appeal that she “does not quibble with the basic proposition that ‘in most cases, a person who merely alerts law enforcement to a possible crime…is not liable if…law enforcement, on its own, after an independent investigation, decides to prosecute.’ ” However, she maintained that the defense fails in the present case because no truly independent investigation occurred.
She insisted that “the alleged ‘independent investigation’ leading to Lugo’s arrest and prosecution was anything but: as the detective testified at the preliminary hearing, it was almost entirely based on the (false) statements” made by four employees of Pixior.
Wiley recited that Lugo “asserts the prosecutors showed no independence but were simply slothful pawns of Pixior.”
The justice responded:
“The detective did receive information from Pixior, certainly. But investigations commonly begin by interviewing the ostensible victim, because crime victims usually know something about the crime. This does not negate independence….No facts showed the detective was Pixior’s cat’s paw.”
As he sized it up, “[a]s a matter of law, this investigation was independent of Pixior” and the defense “completely shielded the Pixior parties from liability, meaning the special motion to strike had merit and must end this lawsuit.”
The case is Lugo v. Pixior, LLC, B324368.
David S. Binder and Zena Mary Kalioundji of the Chatsworth firm of Binder and Kalioundji, LLP represented Lugo. Peter Wayne Ross and Ira George Bibbero of the Los Angeles firm of Ross LLP and Fahim Farivar, Brian Ning, and Catherine Jung of the Tarzana firm of Farivar Law Firm, APC, acted for Pixior and its employees.
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