Lugo v. Pixior, LLC ( 2024 )

4/18/24
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
SAIDE LUGO, B324368
Plaintiff and Respondent, Los Angeles County
Super. Ct. No. 22STCV17590
v.
PIXIOR, LLC, et al.,
Defendants and Appellants.
APPEAL from an order of the Superior Court of
Los Angeles County, Mark V. Mooney, Judge. Reversed.
Ross, Peter W. Ross, Ira G. Bibbero; Farivar Law Firm,
Fahim Farivar, Brian Ning and Catherine Y. Jung for
Defendants and Appellants.
Binder and Kalioundji, David S. Binder and Zena M.
Kalioundji for Plaintiff and Respondent.
____________________
Saide Lugo sued former employer Pixior, LLC and some of
its employees for malicious prosecution. Lugo claimed Pixior had
falsely reported her to police, which triggered a criminal
prosecution against her that she defeated. In response to the
malicious prosecution lawsuit, Pixior defendants filed a special
motion to strike, which the trial court erroneously denied. As a
matter of law, Pixior had a winning defense: criminal
prosecutors acted only after an independent investigation. It was
error to deny Pixior’s motion.
Factually, the parties are at loggerheads.
According to Pixior, Lugo was a disgruntled employee who
quit in a huff and, on her way out, spitefully deleted Pixior’s
valuable computer files.
According to Lugo, Pixior invented specious charges, hoping
to make her look bad because her whistleblowing was about to
help Pixior’s foe in an impending dispute.
The parties agree, however, that Pixior complained to
police, who arrested and charged Lugo. They also agree Lugo
ultimately avoided criminal liability: Lugo’s criminal defense
attorney discovered a Pixior employee lied under oath at the
preliminary hearing. This tainted witness’s testimony was
vitally significant: the damage to it convinced the prosecutor to
dismiss the whole case against Lugo as unprovable. The trial
court declared Lugo factually innocent.
A prosecutor nonetheless made remarks Pixior says showed
his continued belief in Lugo’s actual, but unprovable, culpability.
Lugo contests this interpretation.
In any event, Lugo then sued Pixior and some of its
employees for malicious prosecution. The trial court denied the
defense’s special motion to strike.
Our independent review follows familiar standards for anti-
SLAPP analysis. (E.g., Serova v. Sony Music Entertainment
(2022) 13 Cal.5th 859, 871–872.)
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The trial court rightly found Pixior’s special motion to
strike satisfied the first step in anti-SLAPP analysis, which is
whether Lugo’s lawsuit called forth the statute’s protection. The
court concluded her complaint for malicious prosecution
concerned protected activity.
This correct conclusion applied the usual rule: helping to
bring about a criminal prosecution is protected activity under the
statute. (See Dickens v. Provident Life & Accidents Ins. Co.
(2004) 117 Cal.App.4th 705, 707, 713–717 [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]
(Dickens).)
Lugo argues this conclusion was wrong because the statute
does not apply to false statements to police.
Lugo’s authority is Lefebvre v. Lefebvre (2011) 199
Cal.App.4th 696, 701 (Lefebvre), which involved an extraordinary
act by a jury, which prompted the trial court to conclude the
record there “conclusively” showed complainants had engaged in
illegal activity by reporting a man to police. The complaint to
police was that this man had threatened to kill his wife and
children. A jury exonerated the man of these accusations. He
turned around and sued his accusers for malicious prosecution.
The defense filed a special motion to strike, which the trial court
denied. The appellate court affirmed this denial. (Id. at p. 700.)
The extraordinary act in Lefebvre was the jury’s
remarkable and indeed unprecedented post-verdict written
statement: “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.
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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. This jury recommends restitution to the
defendant for costs and fees of defending himself against these
charges. This jury requests that our collective statement be
made available in any [future] legal action relating to these
parties.” (Lefebvre, supra, 199 Cal.App.4th at p. 700, italics
added.)
The trial court evidently thought this unprecedented jury
utterance “conclusively” demonstrated those accusing the man
had engaged in “illegal activity.” (Lefebvre, supra, 199
Cal.App.4th at p. 701.)
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.” (Lefebvre, supra, 199 Cal.App.4th at p.
700.)
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. (Dickens, supra, 117 Cal.App.4th at p.
707.)
The trial court was right to rule Pixior’s motion satisfied
the first step of anti-SLAPP analysis.
We move to the second step, and here the trial court went
astray. This second step required Lugo to demonstrate a
probability of success. In this summary-judgment-like process,
courts do not weigh evidence or resolve conflicting factual claims.
Instead they evaluate whether plaintiffs like Lugo have produced
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evidence to support legally sufficient claims. Accepting that
evidence as true, courts decide whether the motion defeats the
plaintiff’s claims as a matter of law. The motion fails if the
lawsuit has minimal merit. (Monster Energy Co. v. Schechter
(2019) 7 Cal.5th 781, 788.)
Lugo failed utterly to defeat Pixior’s air-tight defense that,
before the district attorney filed charges, police conducted an
investigation that was independent of Pixior. Therefore the
decision to prosecute Lugo was a superseding cause that
insulated Pixior from liability, as a matter of law.
A separate investigation that is independent protects a
complainant from liability for malicious prosecution. (Werner v.
Hearst Publications, Inc. (1944) 65 Cal.App.2d 667, 670–673.)
Lugo accepts this basic rule but argues the prosecutors’
investigation in her case was not truly independent. Lugo claims
the detective testifying at the preliminary hearing in the
underlying case relied “almost entirely” on false statements from
four Pixior employees. Lugo asserts the prosecutors showed no
independence but were simply slothful pawns of Pixior. (See
Miley v. Harper (1967) 248 Cal.App.2d 463, 468–469 [“For all we
know the only thing that the investigator did was to talk to [the
complainant], which of course, would not be an ‘independent’
investigation.”].)
Contrary to Lugo’s argument, undisputed facts in Lugo’s
own evidence show the police investigation was fully
independent.
The sheriff’s office received a report of criminal conduct in
May 2018. In June 2018, detective Samuel Taylor interviewed
employees at the Pixior office in Commerce, California. The
following month, Taylor served a search warrant at Lugo’s home.
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Taylor was looking for shipping documents and digital evidence
he suspected Lugo might possess.
Taylor alerted two other detectives, who arrested and
booked Lugo. They also seized her phone and flash drive.
Taylor mirandized Lugo, who agreed to speak without a
lawyer.
In this interrogation, Taylor quizzed Lugo about her
version of events. Taylor found Lugo so convincing that he
decided to release her on the spot, which is hardly the standard
outcome of a police interview after an arrest.
Taylor wrote in a report that he chose to let Lugo go under
section 849(b)(1) of the Penal Code, which authorizes an officer’s
release of an arrestee when “[t]he officer is satisfied that there
are insufficient grounds for making a criminal complaint against
the person arrested.”
Taylor wrote he would “follow up with Pixior regarding the
information [Lugo] provided in the interview . . . .” Taylor
decided “to continue the investigation.”
Taylor obtained Lugo’s work computer from a Pixior
employee and took it to the Homeland Security Digital Forensics
Lab, where he gave it to Special Agent Aaron Kwon for analysis.
Kwon gave Taylor the results of his analysis. On October 29,
2018, Taylor wrote a supplementary report recounting his further
investigation.
Taylor interviewed more Pixior employees. He authorized
a search warrant of Lugo’s phone and flash drive on October 12,
2018. Taylor “parse[d] through the vast amounts of data located
on the phone.” Nothing on the phone seemed to refer to deleting
data, and Taylor could not find anything significant on the flash
drive.
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But Taylor did find a possibly relevant message from Pixior
security guard Jose Montalvo. Taylor contacted Montalvo and
asked about the message. Taylor also made another inquiry
based on the phone data.
Later in October, Taylor obtained an updated loss estimate
from Pixior.
In writing, Taylor summarized his personal impressions of
the case, as follows. Lugo was a Pixior employee who quit after
an argument with another employee. Montalvo saw Lugo delete
items from her computer and take files when she left. Lugo’s co-
worker had heard Lugo joke about deleting data if she left Pixior.
Another co-worker recalled a similar incident with Lugo at their
previous employment. Pixior’s information technology technician
said he could testify about who deleted what data.
Taylor concluded his report by writing the “case will be
forwarded to the district attorney’s office for filing consideration.”
That office then filed a criminal complaint against Lugo for
deleting data.
As a matter of law, this investigation was independent of
Pixior.
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.
After Pixior’s report of what it claimed was Lugo’s criminal
activity, the initiative and discretion governing the investigation
resided entirely with the Los Angeles Sheriff’s Department. No
facts showed the detective was Pixior’s cat’s paw.
Lugo’s claim the detective was the dupe of Pixior is
contrary to Lugo’s own evidence. The independent investigation
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defense completely shielded the Pixior parties from liability,
meaning the special motion to strike had merit and must end this
lawsuit.
DISPOSITION
We reverse the order and award costs to the appellants.
WILEY, J.
We concur:
GRIMES, Acting P. J.
VIRAMONTES, J.
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