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Gary Greene v. Bank of America et al

May 16, 2013

GARY GREENE, PLAINTIFF AND APPELLANT,
v.
BANK OF AMERICA ET AL., DEFENDANTS AND RESPONDENTS.



(Los Angeles County Super. Ct. No. BC478655) APPEAL from a judgment of the Superior Court of Los Angeles County. Frank Johnson, Judge.

The opinion of the court was delivered by: Armstrong, J.

CERTIFIED FOR PUBLICATION

Affirmed in part; reversed in part.

Plaintiff and appellant Gary Greene received two checks from State Farm, in settlement of a claim. He went to a Bank of America branch (the Bank) and attempted to cash the checks, which were made out to him and drawn on State Farm's Bank of America account. The Bank refused to cash the larger of the two checks and, after a time, the branch manager called police and said that plaintiff had threatened to blow up the Bank. Police responded and arrested plaintiff. He was charged with a violation of Penal Code section 422 and was acquitted after jury trial.

Plaintiff sued the Bank and the branch manager, Jenny Casasola,*fn1 for malicious prosecution. Judgment was entered in respondents' favor after their special motion to strike (Code Civ. Proc., § 425.16) was granted. We reverse.

Special Motions to Strike

"When a special motion to strike is filed, the initial burden rests with the defendant to demonstrate that the challenged cause of action arises from protected activity." (Brill Media Co., LLC v. TCW Group, Inc. (2005) 132 Cal.App.4th 324, 329.)

The parties agree that defendants met their initial burden. We thus focus on the next step. Once defendants show that the cause of action arises from protected activity, the plaintiff must demonstrate a probability of prevailing on the claim. (Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67.)

In making the showing, "a plaintiff . . . must set forth evidence that would be admissible at trial. [Citation.] Precisely because the statute (1) permits early intervention in lawsuits alleging unmeritorious causes of action that implicate free speech concerns, and (2) limits opportunity to conduct discovery, the plaintiff's burden of establishing a probability of prevailing is not high: We do not weigh credibility, nor do we evaluate the weight of the evidence. Instead, we accept as true all evidence favorable to the plaintiff and assess the defendant's evidence only to determine if it defeats the plaintiff's submission as a matter of law. (Ibid.) Only a cause of action that lacks 'even minimal merit' constitutes a SLAPP. [Citation.]" (Overstock.com, Inc. v. Gradient Analytics, Inc. (2007) 151 Cal.App.4th 688, 699-700.)*fn2 "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.]" (Wilson v. Parker, Covert & Chidester (2002) 28 Cal.4th 811, 821.)

Whether Code of Civil Procedure section 425.16 applies is a legal question which we review independently on appeal. (ComputerXpress, Inc. v. Jackson (2001) 93 Cal.App.4th 993, 999.)

Evidence

Plaintiff's trip to the Bank began with a teller, who told him that she could cash the smaller of his two checks, which was for $40, but not the larger check, which was for $7,250.97. For that, she needed authorization from her supervisor, Yahaira Reyes. Reyes either could not or would not cash the larger check. Plaintiff then talked to the branch manager, Casasola. It was Casasola who called the police and said that plaintiff was threatening to blow up the Bank. Plaintiff was outside the Bank, smoking a cigarette and waiting for his checks to be verified, when he was arrested. That much, plaintiff and defendants agree on.

Defendants submitted evidence with their motion to strike, and plaintiff submitted evidence with his response to that motion; their accounts of the events differ.

Plaintiff declared that on February 25, 2010, he picked up two checks from the Woodland Hills office of his car insurer, State Farm. Both were on State Farm's Bank of America account, and they were signed by the same person. The State Farm employee who gave him the checks told him that he could cash the checks at the Bank of America branch nearby on Canoga Avenue, and that the checks were "preapproved and easily verifiable based on a long standing agreement between State Farm and Bank of America."

Plaintiff went to the branch the State Farm employee recommended and waited in line for a teller. The teller told him that since he did not have a Bank of America account, the Bank would charge him to cash the checks. He knew that that might be the case, and told her that he did not have a problem with that. At the teller's request, he endorsed the checks. The teller then said that she could cash the smaller check, but that the larger check needed approval from her supervisor.

The supervisor, Reyes, came to the window and said that she could not cash the check unless plaintiff opened an account. Plaintiff told her that he did not want to open an account, that he needed the money right away (he had arranged to buy a car), and that State Farm had told him that the checks were preapproved. Reyes said that she could not verify the signature on the larger check and that he would have to deposit it. Plaintiff called State Farm and told a claims adjuster, Charles Gonzalez, what was going on. Gonzalez asked to speak to Reyes, but she refused to talk to him or to give plaintiff her phone number, so that Gonzalez could call her. Plaintiff was able to get Reyes's business card from the teller. He gave Reyes's phone number to Gonzalez, and shortly thereafter heard Reyes's phone ring.

Plaintiff submitted State Farm's records concerning the call. Gonzalez wrote that he spoke to Reyes and told her that he could verify the check, specifying the check number, amount, and the name of the employee who had signed it. Reyes said that the Bank had copies of the signatures of all State Farm employees who could issue checks, and that she could not match the signature on plaintiff's check. Gonzalez expressed ...


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