Rivera v. Cervantes CA2/4 ( 2024 )

Filed 9/5/24 Rivera v. Cervantes CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
LUIS RIVERA, B328363
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BC679846)
v.
ISRAEL CERVANTES,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of
Los Angeles County, Jon R. Takasugi, Judge. Affirmed.
John Sullivan for Defendant and Appellant.
Thomas W. Kielty for Plaintiff and Respondent.
Appellant Israel Ramirez Cervantes reported to police that
respondent Luis Rivera stole Cervantes’s car. Police recovered
the car from Rivera, who had registered the car in his name.
Rivera was arrested and charged with grand theft auto, forgery,
and filing a false affidavit. Rivera proceeded to jury trial, at
which Cervantes testified. The jury acquitted Rivera on two
charges and hung in favor of acquittal on the third, which the
prosecution later dismissed.
Rivera subsequently brought a malicious prosecution claim
against Cervantes. The claim proceeded to a bench trial, at
which Cervantes did not appear and no court reporter was
present. After the trial, the trial court issued a statement of
decision crediting Rivera’s testimony, entered judgment in favor
of Rivera, and awarded him $270,000.
In this appeal, Cervantes contends the trial court erred as a
matter of law by concluding that Cervantes lacked probable cause
when he reported the car stolen and that the criminal
proceedings against Rivera ended favorably to Rivera. He
further contends the trial court improperly disregarded his
affirmative defense of independent police investigation, both at
summary judgment and at trial. We affirm.
FACTUAL BACKGROUND
From the outset, this matter has been a “he-said, he-said”
case: Cervantes’s and Rivera’s stories about how Rivera came
into possession of the car are wildly divergent. However,
Cervantes failed to appear at the bench trial of Rivera’s malicious
prosecution claim, so the trial court heard only plaintiff Rivera’s
side of the story. We take the now-uncontested facts from the
statement of decision, which recognizes that “[t]here might be
more to Defendant’s version of this incident, but the Court was
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not presented this evidence because Defendant never appeared
for the trial.” We omit the trial court’s record citations and
footnotes.
“Defendant was infatuated with Cynthia, a dancer he met
while frequenting a bikini bar near his home. To curry favor, or
pay her for bringing stripper friends to his home for a private
party, Defendant gave her a 2002 Mercedes on 6/4/17 and
included the signed documentation needed to register the vehicle
with the DMV. Defendant sought a more serious relationship
with Cynthia.
“Cynthia did not share in the sentiment. She gave the car
to Plaintiff who drove her around in it and registered it under his
own name with the DMV on 7/21/17. After 111 desperate
unanswered texts to Cynthia, Defendant concluded he wanted
the car back.
“After a series of texts demanding return of the vehicle
under threat of calling the police, Defendant attempted to report
the car stolen but police would not take a report because he was
not the registered owner, Mayra Murillo was. Defendant and Ms.
Murillo went to report the car stolen and later filed an insurance
claim. Ms. Murillo testified she was Defendant’s girlfriend, but
she was clearly in the dark about many details and believed
Defendant’s concocted story about meeting Plaintiff in a bar and
giving him the car to fix a check engine light. Ms. Murillo also
testified the signatures on the DMV transfer documents were not
hers. However, the distinct way she signed her ‘M’ leads one to
believe the forger knew her signature. Ms. Murillo testified she
had never seen nor spoken to Plaintiff.
“Plaintiff was arrested on 9/12/17 and charged in Count 1
with Penal Code §118(a) [sic], perjury by declaration, Count 2
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with Penal Code §487(d)(1), grand theft auto, and Count 3 with
Penal Code §470(b)/473(a), forgery relating to identity theft.
“Defendant testified against Plaintiff at the preliminary
hearing and maintained this ‘mechanic I met in a bar’ story
during the jury trial in January 2019. Plaintiff was found not
guilty in Counts 1 & 2, and the jury hung on the forgery count 8-4
for not guilty. The case was set for retrial in March 2019,
however on the first day of 402 motions in limine, the deputy [sic]
District Attorney declined to prosecute and dismissed. Plaintiff
testified he spent a total of 11 days in jail before being able to
post the $7,000 premium for the $70,000 bail, incurred $100,000
in attorney fees, and spent a year and half of his life with anxiety
over whether he would be wrongfully convicted and possibly
sentenced to state prison.”
Cervantes denied knowing Cynthia, aka Esmeralda
Gonzales/z, until she came with Rivera to pick up the car.
Cervantes provided police with some of the text messages in
which he asked Rivera for the car back; he did not provide them
with the 111 messages to Cynthia predating his alleged first time
meeting her, which came up during cross-examination at the
criminal trial. Deposition testimony submitted at summary
judgment indicates that the prosecutor decided not to pursue the
forgery charge against Rivera even though Rivera admitted to
falsifying Murillo’s signature on the DMV forms due to concerns
about Cervantes’s credibility.
PROCEDURAL HISTORY
Rivera filed his initial complaint against Cervantes in
October 2017, shortly after his arrest; he asserted a single cause
of action for fraud and deceit based on intentional
misrepresentation. Rivera subsequently amended the complaint
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several times and ultimately filed the operative fourth amended
complaint on June 16, 2021. Malicious prosecution was the sole
cause of action asserted in the fourth amended complaint.
Cervantes moved for summary judgment. In the motion, he
argued that Rivera was prosecuted after an independent police
investigation, which revealed the title transfer documents that
formed the basis of the perjury and forgery charges. Cervantes
asserted that he and Murillo were unaware those documents
existed when they reported the car stolen. He also asserted that
he had an objectively reasonable suspicion that Rivera committed
a crime, Murillo was the one who actually filed the police report,
and the criminal proceedings did not end favorably for Rivera
since the jury hung on one count. Rivera opposed the motion.
The trial court denied the motion for summary judgment
after a hearing at which no court reporter was present. As
relevant here, the court found that Cervantes’s “own evidence
establishes that he was instrumental in the arrest and
prosecution” of Rivera, and that Rivera “was not convicted of any
crime.” The court further concluded that “even setting aside
these deficiencies, it is clear that a triable issue of material fact
exists as to whether or not Defendant procured Plaintiff’s arrest
and prosecution from malicious motives and without probable
cause.”
Both Rivera and Cervantes subsequently filed trial briefs.
Cervantes reiterated the arguments he made at summary
judgment, including his contention that law enforcement’s
independent investigation of Rivera absolved Cervantes of any
liability for malicious prosecution. Cervantes also requested a
statement of decision pursuant to Code of Civil Procedure section
632. He specifically asked the court to address three issues: (1)
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“Whether the criminal proceedings against Plaintiff Luis Rivera
(“Rivera”) was commencement [sic] by or at the direction
Cervantes [sic]”; (2) “Whether the judicial proceeding ended
favorably to Rivera”; and (3) “Whether Cervantes lacked probable
cause to suspect a crime had been committed.”
The court heard the matter at a bench trial on September 6
and 7, 2022. Cervantes did not appear, though both his counsel
and Murillo did. Rivera testified and the court admitted his
exhibits without objection from Cervantes’s counsel. The exhibits
included Cervantes’s cell phone records and text messages, DMV
records, “exemplars” of Murillo’s signature, and the police report
and felony complaint filed against Rivera. None of the exhibits is
in the appellate record, and there is no reporter’s transcript of the
trial.
On September 9, 2022, the court filed the statement of
decision quoted at length above. The statement of decision also
set forth law related to malicious prosecution claims, including
the elements of the cause of action as set forth in CACI No. 1500.
It additionally included the following analysis of those elements:
“The evidence presented shows Plaintiff’s [sic] ‘active
involvement’ by his false reporting of a vehicle theft to the police
and false testimony during the preliminary hearing and jury
trial. Plaintiff cannot get any more favorable ending in a
criminal matter than acquittals and a dismissal. There was no
reasonable belief there were grounds for causing Plaintiff’s arrest
and prosecution. While it is impossible to know Defendant’s
mindset, it is clear he acted out of jealousy, a broken heart, or an
attempt to salvage his relationship with his girlfriend Ms.
Murillo, but definitely not to bring forth justice. Plaintiff suffered
substantial harm in both [sic] liberty, expenses, and anxiety over
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having to go through a jury trial and face prison incarceration,
and all of this was caused by Defendant’s conduct.” The court
awarded Rivera $100,000 in damages for the attorney fees he
incurred during the criminal trial, $70,000 for the 11 days’
incarceration and posting of bail, and $100,000 in emotional
distress damages. There is no indication in the record that either
party made “proposals as to the content of the statement of
decision.” (Code Civ. Proc., § 632.)
The court entered judgment on January 30, 2023.
Cervantes timely appealed.
DISCUSSION
I. Standard of Review
“In reviewing a judgment based upon a statement of
decision following a bench trial, we review questions of law de
novo. [Citation.] We apply a substantial evidence standard of
review to the trial court’s findings of fact.” (Thompson v. Asimos
(2016) 6 Cal.App.5th 970, 981 (Thompson).) Our review is
deferential; we consider the evidence in the light most favorable
to the prevailing party, liberally construe factual findings to
support the judgment, and draw all reasonable inferences in
support of the findings. (Ibid.)
Moreover, the doctrine of implied findings requires us to
infer all factual findings necessary to support the judgment.
(Thompson, supra, 6 Cal.App.5th at p. 981; Fladeboe v. American
Isuzu Motors, Inc. (2007) 150 Cal.App.4th 42, 58 (Fladeboe).)
This doctrine “is a natural and legal corollary to three
fundamental principles of appellate review: (1) a judgment is
presumed correct; (2) all intendments and presumptions are
indulged in favor of correctness; and (3) the appellant bears the
burden of proving an adequate record and affirmatively proving
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error.” (Fladeboe, supra, 150 Cal.App.4th at p. 58.) Code of Civil
Procedure sections 632 and 634 “set forth the means by which to
avoid application of these inferences in favor of the judgment.
When the court announces its tentative decision, a party may,
under section 632, request the court to issue a statement of
decision explaining the basis of its determination, and shall
specify the issues on which he [or she] is requesting the
statement; following such a request, the party may make
proposals relating to the contents of the statement.” (In re
Marriage of Arceneaux (1990) 51 Cal.3d 1130, 1133.) “Thereafter,
under section 634, the party must state any objection he [or she]
may have to the statement in order to avoid an implied finding on
appeal in favor of the prevailing party. The section declares that
if omissions or ambiguities in the statement are timely brought to
the trial court’s attention, the appellate court will not imply
findings in favor of the prevailing party. The clear implication of
this provision, of course, is that if a party does not bring such
deficiencies to the trial court’s attention, he [or she] waives his
[or her] right to claim on appeal that the statement was deficient
in these regards, and hence the appellate court will imply
findings to support the judgment.” (Ibid., footnote omitted.)
II. Governing Law
“Malicious prosecution ‘consists of initiating or procuring
the arrest of another under lawful process but from malicious
motives and without probable cause.’” (Sullivan v. County of Los
Angeles (1974) 12 Cal.3d 710, 720 (Sullivan), emphases in
original.) “The remedy of a malicious prosecution action lies to
recompense the defendant [in the maliciously prosecuted
proceeding] who has suffered out of pocket loss in the form of
attorney fees and costs, as well as emotional distress and injury
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to reputation because of groundless allegations made in pleadings
which are public records.” (Sagonowsky v. More (1998) 64
Cal.App.4th 122, 132.) To prove a cause of action for malicious
prosecution of a criminal proceeding, the plaintiff must
demonstrate that the criminal proceeding was (1) commenced by
or at the direction of the defendant; (2) initiated without probable
cause; (3) initiated with malice; and (4) concluded in plaintiff’s
favor. (Greene v. Bank of America (2015) 236 Cal.App.4th 922,
931 (Greene).)
“Cases dealing with actions for malicious prosecution
against private persons require that the defendant has at least
sought out the police or prosecutorial authorities and falsely
reported facts to them indicating that plaintiff has committed a
crime.” (Sullivan, supra, 12 Cal.3d at p. 720.) “‘The test is
whether the defendant was actively instrumental in causing the
prosecution.’” (Ibid.) Responding to law enforcement inquiries
during an existing investigation or “merely giving testimony” at a
preliminary hearing or trial generally are not sufficient to give
rise to liability for malicious prosecution. (Zucchet v. Galardi
(2014) 229 Cal.App.4th 1466, 1482.) Thus, “‘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.’” (Cox v. Griffin
(2019) 34 Cal.App.5th 440, 452, quoting Williams v. Hartford Ins.
Co. (1983) 147 Cal.App.3d 893, 898.) But “‘knowingly giving false
information to the police’” and ratifying that information through
testimony “‘constitutes advising or assisting another to begin the
proceeding.’” (Williams v. Hartford Ins. Co., supra, 147
Cal.App.3d at p. 898.)
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A criminal proceeding is initiated with probable cause
where it is objectively reasonable for the defendant to suspect the
plaintiff has committed a crime. (Greene, supra, 236 Cal.App.4th
at p. 931.) The trial court must determine “‘whether, on the basis
of the facts known to the defendant, the institution of the prior
action was legally tenable. The resolution of that question of law
calls for the application of an objective standard to the facts on
which the defendant acted.’” (Ecker v. Raging Waters Group, Inc.
(2001) 87 Cal.App.4th 1320, 1330.) A criminal proceeding is
initiated with malice where the defendant “‘had no substantial
ground for believing in the plaintiff’s guilt, but, nevertheless,
instigated proceedings against the plaintiff.’” (Greene v. Bank of
America (2013) 216 Cal.App.4th 454, 464.) Malice “‘“is not
limited to actual hostility or ill will toward the plaintiff.’”” (Ibid.)
Finally, “to establish malicious prosecution of a criminal
proceeding, the plaintiff must demonstrate the action was
pursued to a legal termination in his or her favor.” (Susag v. City
of Lake Forest (2002) 94 Cal.App.4th 1401, 1411.) If the
proceeding terminates other than on the merits, “the court must
examine the reasons for termination to see if the disposition
reflects the opinion of the court or the prosecuting party that the
action would not succeed. If resolution of the underlying action
leaves a residue of doubt about the plaintiff’s innocence or
liability, it is not a favorable termination sufficient to support a
cause of action for malicious prosecution.” (Sierra Club
Foundation v. Graham (1999) 72 Cal.App.4th 1135, 1149.) The
dismissal of charges or voluntary dismissal of an action “permits
the inference that the complaint was without merit.”
(Sagonowsky v. More, supra, 64 Cal.App.4th at p. 128.)
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III. Analysis
A. Probable Cause
Cervantes first contends that the court erred as a matter of
law by concluding he lacked probable cause when he reported the
car stolen. He asserts that even accepting the court’s factual
findings as true, he “had an objectively reasonable basis for
reporting Rivera stole the vehicle that was not ‘completely
without merit,’” namely that he wanted the car back, and “its
[sic] not objectively unreasonable that a vehicle not being
returned would amount to a theft.” We disagree.
The trial court found that Cervantes voluntarily gave the
car to Cynthia, along with documentation to register the car with
the DMV. It further found that after Cervantes decided he
wanted the car back, and Cynthia and/or Rivera would not return
it, he “concocted” and reported to police a false story about giving
the car to Rivera for repairs. Given the facts known to Cervantes
at the time he and Murillo made the police report—that he gave
the car and its paperwork to Cynthia—he had no substantial or
objective basis to believe Rivera stole the car or committed any
other crime.
B. Favorable Termination
Cervantes next contends the trial court erred by finding
that the criminal proceedings terminated in Rivera’s favor. He
argues that “Rivera not being acquitted on one count should
compel a finding that the proceeding did not end in Rivera’s favor
because he was not acquitted on all counts.” He asserts that
there is doubt as to Rivera’s innocence on the forgery charge,
because four jurors voted to convict and “[t]here is no 100%
innocent explanation as to why Rivera would sign DMV
documentation that Rivera bought the car from Murillo if
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Cynthia had given him the vehicle as Rivera claims and the trial
court found.” Cervantes also points to deposition testimony from
the prosecutor, introduced at summary judgment but seemingly
not admitted at trial, that the prosecutor did not believe Rivera to
be innocent.
As the trial court succinctly stated, Rivera “cannot get any
more favorable ending in a criminal matter than acquittals and a
dismissal.” Even if the prosecutor did not believe Rivera was
factually innocent, his dismissal of the forgery charge clearly
“reflects the opinion of . . . the prosecuting party that the action
would not succeed” and leaves no “residue of doubt” that Rivera
should not be held criminally liable for the alleged conduct.
(Sierra Club Foundation v. Graham, supra, 72 Cal.App.4th at p.
1149.) The dismissal of charges “permits the inference that the
complaint was without merit” (Sagonowsky v. More, supra, 64
Cal.App.4th at p. 128), and the trial court did not err by drawing
that inference here.
C. Consideration of Independent Investigation
Cervantes finally contends that the court erred by
“ignoring” his affirmative defense that he was not involved in
initiating or commencing the criminal proceedings, because the
prosecutor only brought charges against Rivera after
independent investigation by law enforcement. He asserts that
“based upon the undisputed facts,” this “defense applies as a
matter of law.”
To the extent Cervantes argues the court erred by failing to
address this defense in the statement of decision, the argument is
waived due to his failure to (a) request the court make such a
finding under Code of Civil Procedure section 632 and (b) alert
the court to the alleged omission under Code of Civil Procedure
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section 634. (See In re Marriage of Arceneaux, supra, 51 Cal.3d
at p. 1133.) Cervantes’s request for a statement of decision made
no mention of an affirmative defense, and there is no indication
that he asked the trial court to correct the alleged omission after
the statement of decision was issued. We accordingly apply the
doctrine of implied findings to the extent it may be necessary to
do so in light of the court’s express findings that Cervantes was
actively involved in the criminal proceedings by making a false
report to police and then falsely testifying at both the preliminary
hearing and the subsequent jury trial.
To the extent the argument may be preserved, it lacks
merit. The primary authority Cervantes cites in support of the
defense, Williams v. Hartford Ins. Co., supra, 147 Cal.App.3d at
p. 898, expressly states that “‘knowingly giving false information
to the police’” and ratifying that information through testimony
“‘constitutes advising or assisting another to begin the
proceeding.’” The trial court found Cervantes did exactly that.
Accordingly, any independent investigation by law enforcement
does not absolve him of liability for malicious prosecution.
DISPOSITION
The judgment is affirmed. Rivera may recover his costs of
appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
COLLINS, ACTING P. J.
We concur:
MORI, J. ZUKIN, J.
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