Lugo v. Pixior

320 Cal.Rptr.3d 285

Saide LUGO, Plaintiff and Respondent,

v.PIXIOR, LLC, et al., Defendants and Appellants.

B324368

Court of Appeal, Second District, Division 8.

April 18, 2024

Saide LUGO, Plaintiff and Respondent,

v.PIXIOR, LLC, et al., Defendants and Appellants.

B324368

Court of Appeal, Second District, Division 8.

April 18, 2024

APPEAL from an order of the Superior Court of Los Angeles County, Mark V. Mooney, Judge. Reversed. Los Angeles County Super. Ct. No. 22STCV17590

Ross, Peter W. Ross, Ira G. Bibbero, Los Angeles; 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.

WILEY, J.

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 logger-heads.

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, 297 Cal. Rptr.3d 253, 515 P.3d 1.)

[1] 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.

[2] 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, 11 Cal.Rptr.3d 877 [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, 131 Cal. Rptr.3d 171 (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, 131 Cal.Rptr.3d 171.)

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. 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, 131 Cal.Rptr.3d 171, 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, 131 Cal. Rptr.3d 171.)

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, 131 Cal.Rptr.3d 171.)

[3] 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, 11 Cal.Rptr.3d 877.)

The trial court was right to rule Pixior’s motion satisfied the first step of anti-SLAPP analysis.

[4] 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 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, 249 Cal.Rptr.3d 295, 444 P.3d 97.)

[5] 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.

[6] 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, 151 P.2d 308.)

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, 56 Cal.Rptr. 536 ["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...