Siam v. Kizilbash

31 Cal.Rptr.3d 368

130 Cal.App.4th 1563

Hab SIAM, Plaintiff and Respondent, v. Murtz KIZILBASH, Defendant and Appellant.

No. H027436.

Court of Appeal, Sixth District.

July 15, 2005.

Law Offices of David Yong Chun, David Yong Chun, San Jose, for Plaintiff/Respondent Hab Siam.

Law Offices of J. Byron Fleck, J. Byron Fleck, Finwall Law Offices, Gordon J. Finwall, San Jose, for Defendant/Appellant Murtz Kizilbash.

PREMO, J.

Defendant Murtz Kizilbash accused plaintiff Hab Siam of abusing defendant's two young sons. Defendant reported plaintiff's alleged abuse to law enforcement, school officials, and others. He also filed a civil harassment petition against plaintiff. (Code.Civ.Proc., § 527.6.)¹ Plaintiff denied the allegations and sued defendant for defamation, emotional distress, malicious prosecution, and statutory violations. Defendant filed a special motion to strike. (§ 425.16.) The trial court denied the motion.

On appeal defendant contends, among other things, that plaintiff cannot prevail on his claims because defendant's statements are subject to the litigation privilege (Civ.Code, § 47, subd. (b) (Civ.Code, § 47(b))) and, for policy reasons, a civil harassment petition should not be a permissible basis for a malicious prosecution claim.

We conclude that pursuant to the policy enunciated in Sheldon Appel Co. v. Albert & Oliker (1989) 47 Cal.3d 863, 254 Cal.Rptr. 336, 765 P.2d 498 (Sheldon Appel), a cause of action for malicious prosecution may not be based upon an unsuccessful civil harassment petition. (§ 527.6.) We reject defendant's other arguments, including his assertion of privilege, which we conclude is overridden by the provisions of the Child Abuse and Neglect Reporting Act. (Pen.Code, §§ 11164 et. seq., 11172, subd. (a) (Pen.Code, § 11172(a)).)

We shall reverse the trial court's order denying defendant's special motion to strike and direct the court to enter a new order striking the cause of action for malicious prosecution.

A. FACTUAL AND PROCEDURAL BACKGROUND

This case arose after plaintiff became involved with defendant's former wife, Momina Zaidi. Defendant and Zaidi had been married in Pakistan in 1994 and moved to California shortly thereafter. They were separated in 2000. When Zaidi first decided to end the marriage, defendant allegedly demanded that she agree to an Islamic divorce, give up custody of the couple's two young sons, and relinquish her community property rights. Zaidi states that when she refused these demands defendant swore revenge. A judgment of dissolution was entered in 2003 but the parties continued to litigate custody issues. The custody dispute became very bitter and contentious and defendant was allegedly very hostile and abusive toward Zaidi. According to the first amended complaint, after plaintiff became involved with Zaidi defendant began directing his hostility toward him as well.

Defendant accused plaintiff of abusing his two boys. He reported the alleged abuse to school officials and people involved in the family law matter. Defendant also made reports to the Palo Alto and the East Palo Alto police departments. The resulting law enforcement investigations did not reveal any abuse. Plaintiff also claims that defendant coached the boys to transmit his threats of violence to plaintiff and to say "bad things" about plaintiff to other people so that he would be put in jail. Indeed, the boys' therapist, Louise Burton, initiated a child abuse investigation when she reported something one of the boys told her about plaintiff to the authorities in Santa Clara County. The ensuing case was investigated and closed as unfounded within a couple of weeks.

Approximately two months after the Burton case had been closed, defendant filed a petition in San Mateo County (where plaintiff lived) seeking an injunction prohibiting harassment. (§ 527.6.) In connection with that petition defendant obtained an ex parte temporary restraining order (TRO) against plaintiff by allegedly representing to the judge that the Santa Clara County child abuse investigation initiated by Burton was still open. The TRO prevented plaintiff from coming near the children. The trial court ultimately denied defendant's request for a permanent injunction. The TRO was dissolved and the court awarded plaintiff over $12,000 in attorney's fees.

Plaintiff's first amended complaint contained eight causes of action: (1) libel and libel per se, (2) slander and slander per se, (3) intentional infliction of emotional distress, (4) negligent infliction of emotional distress, (5) making a knowingly false report of child abuse in violation of Penal Code section 11172(a), (6) violation of Civil Code section 51.7 (the Ralph Act), (7) malicious prosecution, and (8) abuse of process. The trial court denied defendant's special motion to strike as to all eight causes of action.

B. LEGAL FRAMEWORK AND STANDARD OF REVIEW

A special motion to strike under section 425.16, the so-called anti-SLAPP statute, allows a defendant to gain early dismissal of a lawsuit that qualifies as a SLAPP. "SLAPP is an acronym for `strategic lawsuits against public participation.'" (Jarrow Formulas, Inc. v. LaMarche (2003) 31 Cal.4th 728, 732, fn. 1, 3 Cal.Rptr.3d 636, 74 P.3d 737.) A SLAPP arises "from any act of [a] person in furtherance of the person's right of petition or free speech under the United States or California Constitution in connection with a public issue" and is subject to a special motion to strike "unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim." (§ 425.16, subd. (b)(1).) Thus, evaluation of an anti-SLAPP motion requires a two-step process in the trial court. "First, the court decides whether the defendant has made a threshold showing that the challenged cause of action is one `arising from' protected activity. (§ 425.16, subd. (b)(1).) If the court finds such a showing has been made, it then must consider whether the plaintiff has demonstrated a probability of prevailing on the claim." (City of Cotati v. Cashman (2002) 29 Cal.4th 69, 76, 124 Cal.Rptr.2d 519, 52 P.3d 695.) "Only a cause of action that satisfies both prongs of the anti-SLAPP statute—i.e., that arises from protected speech or petitioning and lacks even minimal merit—is a SLAPP, subject to being stricken under the statute." (Navellier v. Sletten (2002) 29 Cal.4th 82, 89, 124 Cal.Rptr.2d 530, 52 P.3d 703.)

In the present case, defendant contends that he should have prevailed on both prongs of the test. Plaintiff does not address the first prong. Nevertheless, since our standard of review is de novo (Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67, 124 Cal.Rptr.2d 507, 52 P.3d 685), we shall conduct the complete analysis.

C. DISCUSSION

1. The Applicability of Section 425.16

A defendant meets the burden of showing that a plaintiff's action arises from a protected activity by showing that the acts underlying the plaintiff's cause of action fall within one of the four categories of conduct described in section 425.16, subdivision (e). (Dowling v. Zimmerman (2001) 85 Cal.App.4th 1400, 1417, 103 Cal.Rptr.2d 174.) Those four categories are: "(1) any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law; (2) any written or oral statement or writing made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official proceeding authorized by law; (3) any written or oral statement or writing made in a place open to the public or a public forum in connection with an issue of public interest; (4) or any other conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest." (§ 425.16, subd. (e).)

With the exception of the sixth cause of action for violation of Civil Code section 51.7, the acts underlying plaintiff's claims fall into the first or second of these categories. The first five causes of action are based upon defendant's reports of child abuse to "people who were legally required to report any child abuse allegations . . . in an attempt to manufacture corroboration" for his own false allegations. That is, the statements were designed to prompt action by law enforcement or child welfare agencies.

Communications that are preparatory to or in anticipation of commencing official proceedings come within the protection of the anti-SLAPP statute. (Dove Audio, Inc. v. Rosenfeld, Meyer & Susman (1996) 47 Cal.App.4th 777, 784, 54 Cal.Rptr.2d 830; Briggs v. Eden Council for Hope & Opportunity (1999) 19 Cal.4th 1106, 1109-1110, 81 Cal.Rptr.2d 471, 969 P.2d 564; ComputerXpress, Inc. v. Jackson (2001) 93 Cal.App.4th 993, 1009, 113 Cal.Rptr.2d 625.) Thus, defendant's reports of child abuse to persons who are bound by law to investigate the report or to transmit the report to the authorities are protected by the statute. (§ 425.16, subd. (e)(2).) The seventh cause of action for malicious prosecution is recognized as being susceptible to an anti-SLAPP motion. (Jarrow Formulas, Inc. v. LaMarche, supra, 31 Cal.4th at p. 741, 3 Cal.Rptr.3d 636, 74 P.3d 737.) And the eighth cause of action for abuse of process is also subject to the statute since it arises from the exercise of the right of petition.

The sixth cause of action, however, does not describe conduct arising from a protected activity. This cause of action for violation of Civil Code section 51.7 is based upon allegations that defendant committed violence and made threats of violence against plaintiff based upon his religion. These allegations do not describe acts in furtherance of defendant's rights of petition or free speech and are not encompassed by the anti-SLAPP statute. (§ 425.16, subd. (e).) The trial court was...