Cox v. Harris CA5 ( 2021 )

Filed 9/30/21 Cox v. Harris CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
JERRY COX,
F079240
Plaintiff and Appellant,
(Super. Ct. No. 11149)
v.
ASHLEY HARRIS, OPINION
Defendant and Respondent.
APPEAL from a judgment of the Superior Court of Mariposa County. Michael A.
Fagalde, Judge.
Jerry D. Cox, in pro. per.; Law Offices of Marc E. Angelucci and Marc E.
Angelucci for Plaintiff and Appellant.
Jones Day, Erica L. Reilley, Erna Mamikonyan and Melissa Adams; Family
Violence Appellate Project, Shuray Ghorishi, Arati Vasan, Jennafer Dorfman Wagner
and Erin C. Smith for Defendant and Respondent.
-ooOoo-
Defendant Ashley Harris made a report to the police1 that plaintiff Jerry Cox had
assaulted and raped her at Cox’s ranch property. After a two-year investigation by the
police, the district attorney elected to dismiss the criminal charges against Cox pursuant
to section 1385 of the Penal Code. Cox then filed a civil complaint against Harris for
defamation, abuse of process and malicious prosecution, premised on his claim that
Harris’s report to the police was false. After retaining an attorney, Cox voluntarily
dismissed all but the malicious prosecution cause of action. In response to the lawsuit
brought against her, Harris filed a special motion to strike the complaint under Code of
Civil Procedure2 section 425.16, commonly known as the anti-SLAPP statute. The anti-
SLAPP statute provides a mechanism for the early dismissal of certain meritless lawsuits
arising from protected activity, generally referred to as SLAPP suits,3 if the requirements
for relief are met. (Sweetwater Union High School Dist. v. Gilbane Building Co. (2019)
6 Cal.5th 931, 940 [the statute “provides a procedure for weeding out, at an early stage,
meritless claims arising from protected activity”].) In this case, the special motion to
strike was granted by the trial court, and Cox now appeals from that order. Based upon
our de novo review, we conclude (i) the underlying complaint arose out of activity
protected by the anti-SLAPP statute, and (ii) Cox failed to substantiate his claim of
malicious prosecution. Because both prongs for granting relief under section 425.16
were met in this case, the motion was properly granted. Accordingly, the trial court’s
order granting the motion is affirmed. Additionally, the subsequent order by the trial
1 We use the term “police” in the general sense of law enforcement officers. In this
case, the law enforcement officers were with the Mariposa County Sheriff’s Office. For
purposes of this opinion, police and sheriff are used interchangeably.
2 Unless otherwise indicated, all statutory references are to the Code of Civil
Procedure.
3 A “SLAPP” suit is an acronym for a strategic lawsuit against public participation.
(Navellier v. Sletten (2002) 29 Cal.4th 82, 85 & fn. 1.)
2.
court granting Harris’s request for attorney fees under the anti-SLAPP statute is likewise
affirmed.4
BACKGROUND AND PROCEDURAL HISTORY
Cox’s Civil Complaint
On August 22, 2018, Cox filed his complaint for damages against Harris in the
Mariposa County Superior Court. Cox was not represented by an attorney at that time.
In the complaint, Cox alleged that in 2015, Harris made “false statements” to “the
Sheriff” and others that she was raped by Cox.5 Allegedly, “[a]s a result of the false
accusation,” criminal charges were brought against Cox in Mariposa County. As further
alleged in the complaint, “[t]he charges were dismissed several years later and the
District Attorney admitted … that [Harris] had lied.” As a result of the alleged false
accusation, Cox claimed to have suffered general, economic, reputational and emotional
damage. Based on the above allegations, Cox’s complaint sought to state the following
causes of action: (1) defamation; (2) libel; (3) malicious prosecution; and (4) abuse of
process.
4 Although Cox’s notice of appeal refers to both the order granting the special
motion to strike and the subsequent attorney fee order, Cox’s brief on appeal only
addresses the order granting the special motion to strike and makes no further argument
with respect to the attorney fee order. It therefore appears that Cox’s reference to the
attorney fee order in the notice of appeal was based solely upon his challenge to the
underlying order granting the motion to strike. In any event, any other potential
argument or issue relating to the attorney fee order is forfeited due to his failure to raise
or adequately discuss it. (Nelson v. Avondale Homeowners Assn. (2009) 172 Cal.App.4th
857, 862; Keyes v. Bowen (2010) 189 Cal.App.4th 647, 655–656.)
5 Harris’s report to the Mariposa County Sheriff or to a deputy of that office is, for
purposes of this opinion, synonymous with her making of a police report. That is, we
have used these terms, i.e., police report and sheriff’s report, interchangeably herein.
(Ante, fn. 1.)
3.
Harris’s Special Motion to Strike Complaint
On December 19, 2018, Harris filed her special motion to strike the complaint
under section 425.16, also referred to herein as the anti-SLAPP motion. The motion was
made on the ground that the causes of action alleged in the complaint arose from
protected activity within the meaning of section 425.16, and that Cox cannot meet his
burden of establishing a probability of success on the merits. Harris’s motion also
requested an award of attorney fees and costs incurred in having to bring the motion.
The motion was accompanied by Harris’s declaration. In Harris’s declaration, she
stated that she met Cox through an online dating site in approximately October 2015, and
on November 11, 2015, she travelled to visit him at his home known as “Bison Creek
Ranch” in Mariposa County. Harris asserted in her declaration that “Mr. Cox sexually
assaulted me and held me against my will at Bison Creek Ranch from November 11,
2015 through November 13, 2015.” According to Harris, during that time, Cox also
threatened her life and choked her. Harris further asserted that, on November 13, 2015,
she was able to get away from Cox’s home and, in her words, “that day I filed a police
report about what Mr. Cox did to me.” After the incident she assertedly had bruises, a
swollen throat, and vaginal tearing. Her declaration attached a redacted copy of the
police report and a photograph allegedly depicting her bruising. Finally, Harris’s
declaration stated that “[t]he District Attorney issued a criminal complaint, which was
subsequently amended on February 22, 2016,” and a copy of the amended criminal
complaint was attached.
In Harris’s points and authorities in support of her motion, she argued that Cox’s
lawsuit was not legitimate but was merely to retaliate against her for having the courage
to report Cox’s sexual assault to the police. She argued that her right to report the rape to
the police is protected by the anti-SLAPP statute and that Cox cannot show a probability
of prevailing.
4.
Cox’s Opposition to the Motion
Cox hired an attorney to represent him in November 2018. On December 18,
2018, one day before the special motion to strike was filed by Harris, a request for
dismissal was filed by Cox, through his new counsel, to voluntarily dismiss all of the
causes of action in the complaint other than malicious prosecution. The dismissal was
entered on December 18, 2018. The trial court observed that the request for dismissal
and the special motion to strike likely “crossed paths in the mail.”
Cox filed opposition to the special motion to strike on January 22, 2019. He
argued that because the only remaining cause of action was for malicious prosecution,
there was no protected conduct under the anti-SLAPP statute, and therefore the special
motion to strike should be denied. Moreover, according to Cox, even if he had to show a
probability of prevailing on his cause of action for malicious prosecution, the evidence he
presented with his opposition papers was sufficient to meet that burden. That evidence
included Cox’s declaration denying that he raped, battered or kidnapped Harris. Cox
asserted therein that the “whole story [Harris] told the Sheriff was a lie.” He admitted to
having sex with Harris after they met through an online dating service. However, he said
the last time they had sex was on November 8, 2015, the morning after Cox and Harris
had attended a wedding together. Cox asserted that Harris elected to stay at the ranch
during that time and afterward, and he allowed her to do so. He explained that Harris
sent some texts to him on November 12, 2015 which were mistaken, such as texts about
not liking “getting slapped in the face” or “last night’s rough sex.” Cox noted in his
declaration that on the evening of November 12, 2015, he went out to dinner with Harris
at a local restaurant.
In addition to Cox’s declaration, additional exhibits were submitted by Cox. The
exhibits included an excerpt of a worker’s compensation deposition in 2017, in which
Harris appears to be saying she cannot recall being the victim of sexual or physical abuse
other than an attack in 2010. Cox also attached a record of cell phone texts made by
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Harris during the time she claimed she was trapped at the ranch and could not make
outgoing calls. Cox argued these and other inconsistencies in Harris’s story confirmed
she was not telling the truth and that Cox’s claim of malicious prosecution was
adequately supported.
In his opposition to the special motion to strike, Cox also submitted a copy of
Mariposa County District Attorney Thomas Cooke’s request for dismissal of the criminal
complaint against Cox. The dismissal was requested by the district attorney on
August 14, 2017, pursuant to section 1385 of the Penal Code, “in the furtherance of
justice.” The court or judge assigned to the criminal case granted the dismissal that same
day. In Cox’s declaration, he alleged that the district attorney subsequently “admitted on
video that [Harris] had lied.” Cox stated that someone gave him a copy of this video,
which could be found on “youtube.”
Harris’s Reply Papers in Support of Motion
In Harris’s reply declaration, she stated in greater detail her account of what
allegedly happened. She claimed it began on November 11, 2015, when Cox got mad at
her and choked her for calling him by his actual name, i.e., Jerry, rather than “Bronson.”
Harris then described how Cox allegedly raped her; including that he forcibly penetrated
her vagina and mouth. Harris stated that Cox told her no one would believe her if she
said anything, and that she could be easily disposed of. The next day, on November 12,
2015, she attempted to leave the ranch, but she could not locate her keys. According to
her reply declaration, Cox continued to physically and verbally assault her and prevented
her from leaving the ranch. She admitted that Cox took her to a restaurant on November
12, 2015, but he had allegedly warned her not to raise any suspicion or make any eye
contact with anyone. He had her car keys and drove her car to the restaurant.
Further, according to Harris’s reply declaration, she was finally able to escape the
ranch on November 13, 2015, with the help of another person who was on the premises
by the name of Darlene W. (Darlene). Harris stated that when Darlene saw her face and
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cheek she said, “ ‘[h]e (Mr. Cox) hit you didn’t he?’ ” and then Darlene drove Harris to
the sheriff’s office. Harris’s reply declaration continued: “On November 13, 2015, the
Mariposa County Sherriff’s office (‘the Sheriff’) interviewed me with a victim advocate
present. After my initial interview with the Sheriff, I was transported for a Sexual
Assault Response Team (‘SART’) examination.”
Harris’s reply papers included a full and complete copy of the police report.
Included in the police report were findings that semen found from the swabs taken of
Harris’s vaginal area during her examination matched the DNA of Cox. Additionally, an
account of the police interview with the SART examiner who had examined Harris was
provided, which included the examiner’s observations of extensive bruising over Harris’s
entire body including legs and buttocks, along with signs of trauma or micro fractures to
the vagina, all of which were stated by the examiner to be consistent with Harris’s report
of a sexual assault. Also contained in the police report was an account of an interview
with Cox by one of the sheriff’s deputies on November 13, 2015, in which it was reported
that Cox denied ever having any sexual encounters with Harris and said that “he had
never even kissed her.”
At the same time, we note that portions of the full police report indicated
inconsistencies or discrepancies in Harris’s portrayal of what occurred. For example,
phone records not only revealed Harris could send texts, but revealed that Harris spoke
with a friend on her cell phone on November 12, 2015 for approximately 23 minutes, but
Harris never mentioned any concerns to her friend in that phone call. Also, other persons
who were staying in the same cabin on the night of November 11, 2015, told the sheriff’s
deputy that they did not hear any loud noises that night and did not observe anything out
of the ordinary the next morning between Cox and Harris.
In her reply points and authorities in support of her special motion to strike, Harris
reiterated her position that making the report to police of the crime allegedly committed
against her was protected activity under the anti-SLAPP statute, and furthermore, that
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Cox had failed to plead or to minimally substantiate all of the necessary elements of his
cause of action for malicious prosecution.
The Hearing of the Motion
The hearing on the special motion to strike was held on March 11, 2019. In
addressing the several evidentiary objections made by the parties, the trial court ruled that
it would be considering the entire police report or sheriff’s report. However, in regard to
the 2017 worker’s compensation deposition transcript submitted by Cox, the trial court
sustained Harris’s objection on the ground it was not adequately authenticated. As to the
YouTube video allegedly depicting the district attorney saying words to the effect that he
dismissed the case because he learned that Harris had lied, the trial court sustained
Harris’s objections because Cox “failed to authenticate the YouTube video, and it lacks
foundation.” Additionally, the trial court found Cox had failed to comply with the
requirement of the rules of court (Cal. Rules of Court, rule 2.1040(b)(1)) to provide a
written transcript of any statements contained in a video or audio recording. In light of
these rulings, the trial court also sustained Harris’s objections to certain statements
contained in Cox’s declaration as to the content of the YouTube video and/or the reasons
the district attorney made its decision to dismiss the criminal case.
In its ruling on the merits of the motion from the bench, the trial court held that
when Cox dismissed the other causes of action in the complaint, he also removed any
factual basis in the pleading for a malicious prosecution cause of action. Therefore, the
complaint failed to state facts constituting a cause of action. Further, the trial court stated
it was giving weight to “the independent investigation doctrine,” and also noted that
“from the sheriff’s report, the DNA test corroborates that Mr. Cox did have sexual
intercourse with [Harris]” even though Cox had “denied having any sexual contact with
[her] whatsoever.” For these reasons, the trial court concluded that under the “second
prong” of the analysis of the anti-SLAPP motion, Cox failed to meet his burden of
showing a probability of prevailing on the malicious prosecution action. Therefore, the
8.
motion was granted. In granting the motion, it is apparent the trial court implicitly agreed
with Harris’s position that her report to the police was protected speech or conduct under
the anti-SLAPP statute. Finally, the trial court found that Harris was entitled to an award
of attorney fees under the anti-SLAPP statute, but the court continued the hearing on the
attorney fee request to May 6, 2019.
The order granting the motion was made on March 11, 2019, although the formal
written order was not filed until May 6, 2019. The subsequent order granting to Harris a
recovery of attorney fees and costs pursuant to the anti-SLAPP statute was entered on
May 6, 2019. Cox timely filed his notice of appeal on May 10, 2019.
DISCUSSION
I. Standard of Review
“We review de novo the grant or denial of an anti-SLAPP motion.” (Park v.
Board of Trustees of California State University (2017) 2 Cal.5th 1057, 1067.) We
exercise independent judgment in determining whether, based on our own review of the
record, the challenged claims arise from protected activity. (Ibid.) We also
independently decide whether the complainant has established a reasonable probability of
prevailing on the merits. (Chabak v. Monroy (2007) 154 Cal.App.4th 1502, 1510.) On
the latter issue, we neither weigh credibility nor compare the weight of the evidence.
Rather, we accept as true the evidence favorable to the plaintiff and evaluate the
defendant’s evidence only to determine if it has defeated that submitted by the plaintiff as
a matter of law. (Flatley v. Mauro (2006) 39 Cal.4th 299, 326.)
II. Overview of the Anti-SLAPP Statute
Section 425.16, subdivision (b)(1), provides: “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 Constitution or the 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
9.
will prevail on the claim.” An act in furtherance of a person’s right of petition or free
speech is broadly defined by section 425.16, subdivision (e), to include the following:
“(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, or (4) 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.”
“[T]he Legislature enacted section 425.16, the anti-SLAPP statute, to provide for
the early dismissal of unmeritorious claims filed to interfere with the valid exercise of the
constitutional rights of freedom of speech and petition for the redress of grievances.
[Citation.]” (Club Members for an Honest Election v. Sierra Club (2008) 45 Cal.4th 309,
315; accord, Baral v. Schnitt (2016) 1 Cal.5th 376, 384.) “The Legislature authorized the
filing of a special motion to strike such claims (§ 425.16, subds. (b)(1), (f)), and expressly
provided that section 425.16 should ‘be construed broadly.’ [Citations.]” (Club
Members for an Honest Election v. Sierra Club, supra, at p. 315; see § 425.16, subd. (a).)
The resolution of an anti-SLAPP motion follows 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.… [Second], [i]f 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.) That is, if the defendant makes the required showing, the
burden shifts to the plaintiff to demonstrate the merit of the claim by establishing a
probability of success. (Baral v. Schnitt, supra, 1 Cal.5th at p. 384.) “Only a cause of
action that satisfies both prongs of the anti-SLAPP statute—i.e., that arises from
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protected speech or petitioning and lacks even minimal merit—is a SLAPP, subject to
being stricken under the statute.” (Navellier v. Sletten, supra, 29 Cal.4th at p. 89.)
To satisfy the first step or prong, the moving defendant must show the cause of
action arises from acts that come within one of the categories of section 425.16,
subdivision (e). (City of Cotati v. Cashman (2002) 29 Cal.4th 69, 78.) If the defendant
does not meet this threshold burden, the court denies the motion without addressing the
second step. If the defendant makes the required showing, the burden shifts to the
plaintiff to satisfy the second step of the anti-SLAPP analysis by demonstrating the merit
of the claim. (Baral v. Schnitt, supra, 1 Cal.5th at p. 384.)
To satisfy the second step or prong, a plaintiff must state and substantiate a legally
sufficient claim. (Rusheen v. Cohen (2006) 37 Cal.4th 1048, 1056.) “ ‘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.]’ ” (Ibid.) In deciding the
question of potential merit, the trial court considers the pleadings and evidentiary
submissions of both the plaintiff and the defendant. (§ 425.16, subd. (b)(2); Wilson v.
Parker, Covert & Chidester (2002) 28 Cal.4th 811, 821.) Described as a procedure
similar to a summary judgment motion, the court’s role in this second step has been
stated as follows: “The court does not weigh evidence or resolve conflicting factual
claims. Its inquiry is limited to whether the plaintiff has stated a legally sufficient claim
and made a prima facie factual showing sufficient to sustain a favorable judgment. It
accepts the plaintiff’s evidence as true, and evaluates the defendant’s showing only to
determine if it defeats the plaintiff’s claim as a matter of law.” (Baral v. Schnitt, supra, 1
Cal.5th at pp. 384–385.) “ ‘[C]laims with the requisite minimal merit may proceed.’ ”
(Id. at p. 385.) However, as to the second step, a plaintiff seeking to demonstrate the
merit of the claim may not rely solely on its complaint; instead, “ ‘its proof must be made
upon competent admissible evidence.’ [Citations.]” (Sweetwater Union High School
11.
Dist. v. Gilbane Building Co., supra, 6 Cal.5th at p. 940.)6 If the plaintiff fails to meet its
burden of showing minimal merit under the second step or prong, the motion will be
granted.
III. The Claim Arose Out of Protected Activity
Communications with the police are protected under the anti-SLAPP statute.
(Comstock v. Aber (2012) 212 Cal.App.4th 931, 941–942 & cases cited therein; Chabak
v. Monroy, supra, 154 Cal.App.4th at p. 1512 [report to police by minor that she was
touched inappropriately by physical therapist was protected under anti-SLAPP statute as
coming within her right to petition government].) The only exception would be an
admittedly false police report, which is illegal (see Pen. Code, § 148.5), or where the
police report was false as a matter of law under undisputed facts. (Kenne v. Stennis
(2014) 230 Cal.App.4th 953, 966–967 [an allegedly false police report can be protected
petitioning activity under the first prong of the anti-SLAPP statute if the falsity of the
report is controverted]; see Flatley v. Mauro, supra, 39 Cal.4th at pp. 316, 333 [where
conduct is conclusively shown to be illegal as a matter of law, it is not protected under
§ 425.16].) Here, since the evidence was in conflict regarding the issue of whether
Harris’s police report was potentially false, her communications to the police constituted
protected petitioning activity for purposes of the anti-SLAPP statute. Therefore, the first
prong of the anti-SLAPP analysis was clearly satisfied by Harris.
The fact that the absolute litigation privilege under Civil Code section 47 is
inapplicable to malicious prosecution claims (Silberg v. Anderson (1990) 50 Cal.3d 205,
216) does not affect our holding that the subject conduct comes within the protection of
the anti-SLAPP statute. The Supreme Court previously addressed that issue, concluding
6 At the second stage of an anti-SLAPP hearing, the court “may consider affidavits,
declarations, and their equivalents if it is reasonably possible the proffered evidence set
out in those statements will be admissible at trial.” (Sweetwater Union High School Dist.
v. Gilbane Building Co., supra, 6 Cal.5th at p. 949.)
12.
that section 425.16 is nonetheless applicable to malicious prosecution causes of action.
(Jarrow Formulas, Inc. v. LaMarche (2003) 31 Cal.4th 728, 732, 736–737 (Jarrow).)7
Indeed, in view of the plain wording of the anti-SLAPP statute, which is applied broadly,
Jarrow noted with approval that “every Court of Appeal that has addressed the question
has concluded that malicious prosecution causes of action fall within the purview of the
anti-SLAPP statute.” (Jarrow, at p. 735.)
Cox’s only argument relating to the first prong is that, because the trial court
construed his voluntary dismissal of the other causes of action (i.e., besides malicious
prosecution) as effectively removing all factual allegations from the complaint, no facts
remained in the pleading that could potentially constitute protected conduct for purposes
of the anti-SLAPP statute. We disagree with Cox’s argument. Based on our own de
novo review of the pleading, together with other documents submitted in connection with
the anti-SLAPP motion, it is clear that Cox’s claim for malicious prosecution was
premised upon or arose out of his assertion that Harris’s communications to the police
were false. Under the record before us, such communications constituted protected
conduct under section 425.16. We conclude the first prong of the anti-SLAPP analysis
has been met.
IV. Plaintiff Failed to Substantiate His Malicious Prosecution Claim
Harris’s threshold burden of showing the cause of action arose from protected
activity having been satisfied, the burden shifted to Cox to demonstrate a probability of
prevailing on the merits of the cause of action. (Baral v. Schnitt, supra, 1 Cal.5th at
p. 384.) To meet that burden, he was required to state and substantiate a legally sufficient
7 Noting the litigation privilege is “an entirely different type of statute” than section
425.16, Jarrow explained: “The former enshrines a substantive rule of law that grants
absolute immunity from tort liability for communications made in relation to judicial
proceedings [citation]; the latter is a procedural device for screening out meritless claims
[citation].” (Jarrow, supra, 31 Cal.4th at p. 737.)
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claim. (Rusheen v. Cohen, supra, 37 Cal.4th at p. 1056.) “ ‘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.]’ ” (Ibid.) In deciding the question of
potential merit, the trial court considers the pleadings and evidentiary submissions of
both the plaintiff and the defendant. (§ 425.16, subd. (b)(2).)
A. Cox Stated a Legally Sufficient Claim
The first aspect of showing a probability of success on the merits is to have stated
a legally sufficient cause of action in the complaint. “If the pleadings are not adequate to
support a cause of action, the plaintiff has failed to carry his burden in resisting the
motion.” (Gilbert v. Sykes (2007) 147 Cal.App.4th 13, 31.) The elements of a cause of
action for malicious prosecution are that the prior action (1) was commenced by or at the
direction of the defendant and was pursued to a legal termination in the plaintiff’s favor;
(2) was brought without probable cause; and (3) was initiated with malice. (Casa
Herrera, Inc. v. Beydoun (2004) 32 Cal.4th 336, 341.)
Here, the trial court held that when Cox dismissed the other (i.e., all except
malicious prosecution) causes of action in the complaint, the effect of that dismissal was
to remove all of the factual allegations from the complaint. Consequently, the trial court
found the complaint lacked the required factual elements for malicious prosecution. As a
result, the trial court concluded that Cox had not met his burden of stating a legally
sufficient claim.
We take issue with the trial court’s interpretation of the dismissal. Based on our
de novo review thereof, it does not appear from plaintiff’s request for dismissal that any
particular factual allegations within the complaint were being removed or stricken from
the pleading, but only that three of the four causes of action—each of which were
premised on the same set of underlying facts—were being dismissed. Therefore, when
plaintiff’s remaining cause of action for malicious prosecution stated that “[p]laintiff re-
14.
alleges and incorporates by reference all paragraphs above[,]” the referenced factual
allegations of the complaint were retained in the malicious prosecution cause of action.
Those factual allegations included that Harris falsely reported to the sheriff that Cox
raped her; her false report led to criminal charges being brought against Cox; the charges
were dismissed years later, and the district attorney indicated that Harris had lied.
Although the pleading is lacking in specificity, and the allegations do not frame
the elements of the cause of action in legal terminology, liberally construed the pleading
of such facts was minimally sufficient to allege that the prosecution was precipitated by
Harris when she allegedly made a knowingly false report to the sheriff that she was raped
by Cox, and that such actions were consequently malicious and without probable cause
on her part. The further allegation concerning the district attorney’s purported
affirmation that Cox “had lied” appears to be addressing the underlying reason for the
dismissal; that is, it is an effort to plead a favorable termination. We note this allegation
is ambiguous and uncertain because it lacks meaningful factual context and specificity. It
could be interpreted as alleging (or attempting to allege) the district attorney dismissed
the case because he concluded the rape accusation by Harris was itself a lie or untrue. On
the other hand, assuming the allegation of the district attorney’s affirmation is correct it
may only mean the district attorney thought Harris was lacking in credibility or that she
apparently lied about some of the peripheral details of the case. The latter would not
necessarily indicate a favorable termination on the merits. Nevertheless, because the
ambiguous nature of this allegation was arguably more a failure of clarity and/or of
specificity than one of substance, we do not believe the pleading, by itself, provides a
satisfactory basis for our determination of the instant appeal. Accordingly, for purposes
of our review of the anti-SLAPP motion, we shall construe the ambiguity in Cox’s favor
and conclude that Cox set forth a legally sufficient claim. Rather than resolving this
matter based on the pleading alone, we proceed to consider whether plaintiff has
substantiated his claim with prima facie evidence.
15.
B. Cox Failed to Substantiate His Claim
In responding to the anti-SLAPP motion, Cox had the burden of substantiating his
claim by making a sufficient prima facie showing of facts to sustain a favorable judgment
if the evidence submitted by him is credited. (Rusheen v. Cohen, supra, 37 Cal.4th 1048,
1056.) Claims with the requisite minimal merit may proceed. (Baral v. Schnitt, supra, 1
Cal.5th at p. 385.) The court does not weigh the evidence or resolve conflicts; rather, it
accepts the plaintiff’s evidence as true, and evaluates the defendant’s showing only to
determine if it defeats the plaintiff’s claim as a matter of law. (Id. at pp. 384–385.)
Here, Cox’s evidence in opposition to the motion included his declaration stating
in detail his version of events, admitting that he had consensual sex with Harris on
November 8, 2015, but denying that he raped or kidnapped her and asserting that the
whole story Harris told to the police was a lie. This declaration indicated what Cox
would testify to at trial, and if such assertions of fact were accepted as true—i.e., that
Cox’s version of events is actually what happened and therefore Harris made a
knowingly false report and lied to the police—it would tend to show in a prima facie
sense that Harris’s accusations to the police were malicious and without probable cause.
Therefore, those two elements of the cause of action would appear to have at least
minimal merit.
The remaining essential element of the cause of action for malicious prosecution
which had to be substantiated by Cox was that the criminal case or proceeding “was
commenced by or at the direction of the defendant and was pursued to a legal termination
in … [the plaintiff’s] favor.” (Casa Herrera, Inc. v. Beydoun, supra, 32 Cal.4th at
p. 341.) We shall consider this element in two parts: first, whether the evidence showed
Harris may be deemed to have initiated the prosecution; and second, whether the
evidence showed a termination in Cox’s favor.
16.
1. Prosecution Requirement
In its ruling on the motion, the trial court stated that under “the second prong,”
plaintiff did not show a probability of prevailing. That conclusion was apparently based
on the trial court’s decision to “give weight to” what it referred to as “the independent
investigation doctrine.” As explained below, the independent investigation defense
relates to the issue of who may be found to have initiated a criminal prosecution.
In terms of whether a private person may be deemed to have initiated a criminal
prosecution, the test is whether the defendant was actively instrumental in causing the
prosecution. (Cedars-Sinai Medical Center v. Superior Court (1988) 206 Cal.App.3d
414, 417; accord, Zucchet v. Galardi (2014) 229 Cal.App.4th 1466, 1482.) This requires
that the defendant must have “ ‘at least sought out the police or prosecutorial authorities
and falsely reported facts to them indicating that plaintiff has committed a crime.
[Citation.]’ ” (Cedars-Sinai Medical Center v. Superior Court, supra, 206 Cal.App.3d at
p. 417, quoting Sullivan v. County of Los Angeles (1974) 12 Cal.3d 710, 720; accord,
Greene v. Bank of America (2013) 216 Cal.App.4th 454, 464.) On the other hand, “in
most cases, a person who merely alerts law enforcement to a possible crime and a
possible criminal is not liable if, law enforcement, on its own, after an independent
investigation, decides to prosecute.” (Williams v. Hartford Ins. Co. (1983) 147
Cal.App.3d 893, 898.) In the latter case, the independent investigation may create an
affirmative defense to a malicious prosecution cause of action. (Ibid.)
Here, the evidence presented by the parties reflects that Harris was actively
instrumental in causing the prosecution; that is, she sought out the police and reported
that Cox had raped her. At the very least, this evidence was sufficient to create minimal
merit on this issue, which was sufficient for purposes of meeting the evidentiary burden
in response to the anti-SLAPP motion. Harris argues herein that the extensive police
investigation in this case insulates her as a matter of law, but that does not necessarily
follow. She may have still been actively instrumental in bringing about the prosecution
17.
under the principles cited above. In any event, to the extent the independent investigation
defense may potentially be applicable, it would involve issues of fact that, on the record
before the trial court, could not be resolved as a matter of law in connection with the
subject anti-SLAPP motion.
2. The Favorable Termination Requirement
Termination in favor of the plaintiff is an essential element of the tort of malicious
prosecution, and the requirement is strictly enforced. (Cox v. Griffin (2019) 34
Cal.App.5th 440, 450.) “The core concept is that the termination must reflect on the
merits of the prior action.” (Ibid.) “ ‘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 [of malicious
prosecution].’ ” (Casa Herrera, Inc. v. Beydoun, supra, 32 Cal.4th at p. 341.) Therefore,
in order for the termination of the prior action to be considered favorable to the malicious
prosecution plaintiff, it must reflect on the merits and indicate the plaintiff’s innocence of
the misconduct alleged in the prior action. (Id. at pp. 341–342; accord, StaffPro, Inc. v.
Elite Show Services, Inc. (2006) 136 Cal.App.4th 1392, 1399–1400; Susag v. City of Lake
Forest (2002) 94 Cal.App.4th 1401, 1411.) Because the termination must reflect the
innocence of the accused, a dismissal by itself is not enough. (Jaffe v. Stone (1941) 18
Cal.2d 146, 150.) Dismissals of criminal proceedings can be on a variety of grounds that
do not necessarily indicate the innocence of the accused. (Ibid.) If the resolution of the
underlying action leaves doubt as to the party’s innocence, it is not a favorable
termination. (Eells v. Rosenblum (1995) 36 Cal.App.4th 1848, 1855.) However,
evidence of the reasons for the dismissal may be presented to satisfy the favorable
termination element. (Cox v. Griffin, supra, 34 Cal.App.5th at pp. 451–452; Susag v.
City of Lake Forest, supra, 94 Cal.App.4th at p. 1411.)
In the present case, the dismissal was made pursuant to Penal Code section 1385,
in the furtherance of justice. By itself, that form of dismissal does not necessarily involve
18.
a consideration of the merits of the case or indicate the innocence of the accused. (See
People v. Hatch (2000) 22 Cal.4th 260, 273; Agresti v. Department of Motor Vehicles
(1992) 5 Cal.App.4th 599, 604.)
In his opposition to the anti-SLAPP motion, Cox attempted to indicate the reason
for the dismissal of the criminal case against him by making reference to the existence of
a YouTube video. At the hearing of the motion, the trial court requested an offer of proof
concerning the video. In response, Cox’s attorney stated the content of the video
depicted the district attorney at a public meeting admitting that the reason for dismissing
the case against Cox was that Harris had lied. In response to the trial court’s further
questions, Cox’s attorney stated he did not know who made the video recording, and he
did not recall the date when it was made, but he believed the occasion was a small
political gathering in which the district attorney was running for office and someone in
the audience asked a question about Cox’s case.8 Harris objected at the hearing to the
admission of the YouTube video on the grounds that it was not authenticated and lacked
foundation. The trial court sustained Harris’s evidentiary objections.9 Under Evidence
Code section 1400, “a video recording is authenticated by testimony or other evidence
that it actually depicts what it purports to show.” (McGarry v. Sax (2008) 158
Cal.App.4th 983, 990.) Nothing in the record before us regarding the subject anti-SLAPP
8 Cox’s attorney also stated, in making his offer of proof, that he believed the video
was “shot with permission” because it was “a small room” and “it was clear it was being
shot.”
9 In her respondent’s brief in the instant appeal, Harris states it is unclear whether or
not the individual speaking in the video is, in fact, District Attorney Cooke, when the
recording was made, whether the individual being recorded was even aware that he was
being recorded, or whether the discussion actually involved Cox’s case.
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motion indicates that such authentication evidence was provided by Cox or potentially
existed. Nor was any potential basis for curing the objection indicated.10
In Sweetwater Union High School Dist. v. Gilbane Building Co., supra, 6 Cal.5th
931, the Supreme Court explained the nature of evidence that may be considered in an
anti-SLAPP motion and held that the basic test is reasonable admissibility at trial. (Id. at
p. 949.) In that case, the Supreme Court set forth the relevant principles as follows:
“[A]t the second stage of an anti-SLAPP hearing, the court may consider affidavits,
declarations, and their equivalents if it is reasonably possible the proffered evidence set
out in those statements will be admissible at trial. Conversely, if the evidence relied upon
cannot be admitted at trial, because it is categorically barred or undisputed factual
circumstances show inadmissibility, the court may not consider it in the face of an
objection. If an evidentiary objection is made, the plaintiff may attempt to cure the
asserted defect or demonstrate the defect is curable.” (Ibid.)
On appeal, Cox has not presented any legal or factual analysis of whether the trial
court’s evidentiary ruling excluding the YouTube video constituted error. Therefore,
Cox has forfeited such argument on appeal. (Holden v. City of San Diego (2019) 43
Cal.App.5th 404, 418; Keyes v. Bowen, supra, 189 Cal.App.4th at p. 655; Nelson v.
Avondale Homeowners Assn., supra, 172 Cal.App.4th at p. 862.) Although Cox’s
briefing on appeal makes perfunctory mention that the YouTube video should not have
been excluded, he fails to provide legal authority or discussion beyond that assertion.
“[A]n argument raised in such perfunctory fashion is waived.” (People v. Harper (2000)
82 Cal.App.4th 1413, 1419, fn. 4; accord, Tilbury Constructors, Inc. v. State Comp. Ins.
Fund (2006) 137 Cal.App.4th 466, 482.) Nor has Cox argued that any basis exists to
authenticate the accuracy of the YouTube video such that there would be a reasonable
10 The trial court also excluded the YouTube video on the additional ground that no
transcript was provided as required by the applicable rules of court. The trial court noted,
“All that we have in your pleadings was a link to a YouTube video.”
20.
possibility for its admissibility at trial. In light of these failings, Cox has not only
forfeited such arguments but has failed to meet his fundamental burden as the appellant
of demonstrating error. A trial court’s judgment or order is presumed to be correct on
appeal, and error must be affirmatively demonstrated. (Yield Dynamics, Inc. v. TEA
Systems Corp. (2007) 154 Cal.App.4th 547, 556–557; Denham v. Superior Court (1970)
2 Cal.3d 557, 564.)
Based on the foregoing, we conclude that any error relating to the trial court’s
exclusion of and failure to consider the YouTube video in connection with the anti-
SLAPP motion is forfeited on appeal. Accordingly, the trial court’s decision excluding
that evidence stands. As a result, Cox failed to meet his burden in response to the anti-
SLAPP motion of showing prima facie evidence that the dismissal of the criminal
charges constituted a favorable termination on the merits that reflected his innocence.
Since there was no evidence on the essential issue of a favorable termination, Cox did not
substantiate the minimal merit of his cause of action for malicious prosecution, and the
trial court correctly granted the anti-SLAPP motion.11
11 Cox has requested that we judicially notice a hearing transcript from a proceeding
in San Luis Obispo County relating to a request for a domestic violence restraining order.
The transcript concerns a hearing held on July 26, 2019, on said restraining order request,
in Harris v. Cox, case No. 18FL-0715, which was months after the present appeal was
taken from the trial court’s anti-SLAPP order. We deny the request for judicial notice,
since that matter was not part of the record before the trial court in the anti-SLAPP
motion. (MMM Holdings, Inc. v. Reich (2018) 21 Cal.App.5th 167, 187; see In re Zeth S.
(2003) 31 Cal.4th 396, 405 [an appeal reviews the correctness of a judgment as of the
time of its rendition, upon a record of matters which were before the trial court for its
consideration].) “Reviewing courts generally do not take judicial notice of evidence not
presented to the trial court. Rather, normally ‘when reviewing the correctness of a trial
court’s judgment, an appellate court will consider only matters which were part of the
record at the time the judgment was entered.’ [Citation.]” (Vons Companies, Inc. v.
Seabest Foods, Inc. (1996) 14 Cal.4th 434, 444, fn. 3.) No exceptional circumstances are
present to warrant a departure from these basic rules.
21.
DISPOSITION
The order granting Harris’s special motion to strike under section 425.16 is
affirmed, and the subsequent order granting attorney fees to Harris under that same
statute is likewise affirmed. Harris is entitled to her costs on appeal.
LEVY, Acting P.J.
WE CONCUR:
POOCHIGIAN, J.
DE SANTOS, J.
22.