(Super. Ct. No. CV101423)
The opinion of the court was delivered by: Hull , Acting P. J.
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Robert Milbrodt filed a verified complaint alleging malicious prosecution and similar causes of action against his former spouse, Rachel Milbrodt. Rachel (we will use the parties' respective first names in this opinion in the interest of clarity and brevity) filed a special motion to strike Robert's complaint under the anti-SLAPP statute (Code Civ. Proc., § 425.16; statutory references that follow are to the Code of Civil Procedure unless specified otherwise). The trial court granted her motion, and Robert brought this appeal. We affirm the order striking Robert's complaint.
In 2007, Rachel reported to a deputy sheriff that she and Robert had argued over child-rearing issues and, during the confrontation, Robert pushed her down and held her on the bed with his hand on her neck, choking her. Robert was arrested and charged with battery and misdemeanor false imprisonment. The criminal trial of those charges resulted in a hung jury and the court declared a mistrial. The matter was recalendared several times, and the district attorney ultimately dismissed the charges in 2009.
Robert then filed a verified complaint initiating the instant action. He denied attacking Rachel, and alleged that her law enforcement report--and her subsequent testimony to the same effect in the criminal proceedings and dissolution of marriage proceedings--were false, fabricated by Rachel to improve her position in the marriage dissolution proceedings and to "destroy" Robert financially, professionally and emotionally. The complaint asserted causes of action against Rachel for malicious criminal prosecution, defamation (both slander and libel) and intentional infliction of emotional distress.
Rachel moved to strike Robert's complaint pursuant to section 425.16, arguing that all Robert's claims are based on her report of an alleged crime to law enforcement, which qualifies as a protected activity under section 425.16. Rachel also asserts Robert cannot demonstrate a probability of prevailing on his malicious prosecution claim, because Robert did not "prevail" in the criminal action; nor can he prevail on any claim because statements made to police officers regarding criminal activity are absolutely privileged under Civil Code section 47. In support of her motion, Rachel submitted a declaration describing the choking incident and Robert's criminal prosecution.
The only opposition brief in the record on appeal is Robert's "supplemental opposition" to Rachel's motion to strike. There, Robert did not dispute that his claims arose from Rachel's report to law enforcement, but argued a false report to police, maliciously made, is unprivileged. In addition, he argued, he will likely prevail: (1) on his claim for malicious prosecution because he obtained a finding of factual innocence; (2) on his claims for defamation because he was falsely arrested, and Rachel continues to spread "false rumors" about him by which he has been damaged; and (3) on his claim for intentional infliction of emotion distress, because Rachel's false accusation of domestic violence has injured his relationships and his health, and facilitated his "patently false indictment." Robert's opposition did not include any evidence he had obtained a factual finding of innocence of the criminal charges. Nor did the opposition describe the rumors or statements Rachel allegedly made to the couple's children or other individuals.
After a hearing at which both sides argued (no transcript of which appears in the record on appeal), the trial court granted Rachel's motion to strike the complaint. It found Robert's suit arises from Rachel's constitutionally protected activities (reporting an alleged crime to police and testifying about it in court), and Robert failed to provide admissible evidence showing he has a probability of prevailing on the merits of his claims.
I Governing Legal Principles and Standard of Review
The California Legislature passed section 425.16 after finding "there has been a disturbing increase in lawsuits brought primarily to chill the valid exercise of the constitutional rights of freedom of speech and petition for the redress of grievances" and "it is in the public interest to encourage continued participation in matters of public significance, and that this ...