APPEAL from an order of the Superior Court of Los Angeles County. Craig D. Karlin, Judge. (Los Angeles County Super. Ct. No. SC102490)
The opinion of the court was delivered by: Bigelow, P. J.
CERTIFIED FOR PUBLICATION
Jon Lefebvre filed a complaint alleging malicious prosecution and similar causes of action against his former spouse, Alice Lefebvre, and an alleged civil co-conspirator, Nancy Toothman.*fn1 Alice and Toothman filed a special motion to strike Jon's complaint under the anti-SLAPP statute. (Code Civ. Proc., § 425.16.)*fn2 The trial court entered an order denying the anti-SLAPP motion, and Alice and Toothman then filed this appeal. We affirm the trial court's order.
Jon and Alice married in August 1995; they have two minor children. Over a period of years prior to August 2005, Alice began reading books on the subjects of divorce and money, including at least one book which included information about using false criminal accusations against a spouse in a divorce proceeding. During the same time period, Alice and Toothman conspired to bring false criminal accusations against Jon. On August 17, 2005, in furtherance of the conspiracy, Alice reported to a sheriff deputy that Jon had recently threatened to kill her and their children, and Toothman confirmed Alice's criminal report to the deputy.
On August 26, 2005, authorities with the Sheriff's Department, acting in reliance upon the criminal reports from Alice and Toothman, filed a criminal case against Jon, charging him with a violation of Penal Code section 422, making a criminal threat. The charge was tried to a jury and Jon was found not guilty.
At the time of the verdict, the jurors, acting of their own volition, selected the jury foreperson to read the following statement into the record: "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. 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. . . ." The judge who presided over Jon's criminal trial granted Jon's motion for a finding of factual innocence pursuant to Penal Code section 851.8, subdivision (e).
Jon thereafter filed a complaint in the local federal district court against Alice and Toothman. The district court dismissed Jon's federal action without prejudice to refilling his claims in state court. Jon then filed a complaint against Alice and Toothman alleging causes of action for malicious prosecution, false arrest and imprisonment, negligent statements without justification, intentional infliction of emotional distress, and for damages for violation of his civil rights pursuant to Civil Code section 52.1.
In summary, Jon's complaint alleges that Alice and Toothman conspired to bring a false criminal report against him, that their statements to police precipitated the underlying criminal action, that they repeated their false accusation at trial, and that the trial ended with his acquittal, and the subsequent finding of factual innocence.
Alice and Toothman filed a joint special motion to strike Jon's complaint under the anti-SLAPP statute. (§ 425.16.) The parties argued the anti-SLAPP motion to the trial court, and the court took the matter under submission. The court entered an order denying the anti-SLAPP motion. Broadly summarized, the court's six-page order sets forth the court's reasons for concluding that Alice and Toothman failed to meet their initial burden under the anti-SLAPP procedure because they did not show that the reports they filed with the police authorities constituted "protected activity" within the meaning of the anti-SLAPP statute. The trial court found that the record "conclusively" established that Alice's and Toothman's statements to the police were an "illegal activity" under Penal Code section 148.5, and, as such, not a "protected activity" within the meaning of the anti-SLAPP statute. (See Flatley v. Mauro (2006) 39 Cal.4th 299, 322-325 (Flatley).) Having determined that Alice and Toothman failed to meet their initial burden under the anti-SLAPP statute of showing a "protected activity," the court found it unnecessary to address their contention that they will win their case in the end based on the "litigation privilege" established in Civil Code section 47, subdivision (b).
Alice and Toothman filed a timely notice of appeal.
Alice and Toothman (hereafter collectively Alice) contend the order denying the anti-SLAPP motion must be reversed. First, because all of Jon's claims arise from Alice's criminal report to the police and, second, because her report was a "privileged communication" under Civil Code section 47, making it also a "protected activity" under the anti-SLAPP statute. Alice further argues that a privileged communication under Civil Code section 47 cannot give rise to liability, thus defeating any possibility that Jon has a ...