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Audenhove v. Perry

California Court of Appeals, Fourth District, Second Division

May 19, 2017

DIRCK VAN AUDENHOVE, Plaintiff and Appellant,
v.
ROBERT D. PERRY, Defendant and Respondent.

         APPEAL from the Superior Court of Riverside County No. RIC1504570. John Vineyard, Judge. Affirmed.

          Walker Trial Lawyers, Barry M. Walker, and Amy M. Oakden for Plaintiff and Appellant.

          Hitzeman & Evenson and Donald W. Hitzeman for Defendant and Respondent.

          OPINION

          RAMIREZ P. J.

         Dirck Van Audenhove sued Robert Perry for malicious prosecution, alleging that Perry contacted the police and falsely accused him of stalking, and that the police arrested him, but the district attorney's office ultimately declined to prosecute. The trial court sustained a demurrer and dismissed the action, on the ground that the complaint failed to allege a prosecution, as required for a claim of malicious prosecution.

         We will hold that a cause of action for malicious prosecution cannot be premised on an arrest that does not result in formal charges (at least when the arrest is not pursuant to a warrant). Hence, we will affirm. We publish our decision because, to our surprise, we have found no California case on point. However, our conclusion seems to be generally accepted.

         I

         FACTUAL BACKGROUND

         Consistent with the applicable standard of review (see part III, post), we assume the truth of the following facts, which are drawn from the allegations of the operative complaint.

         During part of the year, Van Audenhove and Perry were neighbors at a recreational vehicle resort in Aguanga.

         In April 2013, Perry contacted the Riverside County Sheriff's Department and falsely accused Van Audenhove of stalking both him and his wife. When an officer responded, Perry made additional statements, falsely accusing Van Audenhove of acts constituting the crime of stalking, all with the intent to cause Van Audenhove to be arrested, prosecuted, and convicted. Van Audenhove was a Canadian citizen; Perry's “ultimate intention” was to cause him to be either deported or prevented from re-entering the country.

         As a result, the police arrested Van Audenhove for felony stalking in violation of Penal Code section 646.9, subdivision (a). He was booked, held in jail overnight, and then released. In June 2013, the district attorney's office concluded, “‘[T]his is a neighbor dispute[, ] not a stalking.'” It therefore declined to prosecute Van Audenhove.

         Perry nevertheless continued to make false and defamatory statements about Van Audenhove, including statements accusing him of stalking, “to numerous [f]ederal [a]gencies, [s]uch as Homeland Security, ICA [sic; sc. ICE?] and the U.S. State Department, Senator Feinstein, U.S. Congressmen and [the] U.S. Border Patrol[, ] in an attempt to prevent [Van Audenhove] from re-entering the United States.”

         II

         PROCEDURAL BACKGROUND

         In 2015, Van Audenhove filed this action against Perry. The original complaint is not in the record. Perry filed a demurrer to the complaint, which likewise is not in the record. The trial court sustained the demurrer, with leave to amend.

         Van Audenhove then filed a first amended complaint, asserting a single cause of action for malicious prosecution. Perry filed a demurrer to the first amended complaint on several grounds, including that it failed to allege that Van Audenhove was ever prosecuted. In opposition, [1] Van Audenhove argued that the filing of charges is not an element of malicious prosecution, and that “[a]ll that is required in actions for malicious prosecution against private persons is that the defendant has sought out the police or prosecutorial authorities and falsely reported facts indicating that [the] plaintiff has committed a crime.”

         After hearing argument, the trial court sustained the demurrer without leave to amend. It explained: “[T]here was no actual prosecution and thus [the] claim for malicious prosecution is missing a key element.” It entered a judgment of dismissal.

         III

         STANDARD ...


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