Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Santa Clara County Super. Ct. No. CV080637
Bamattre-Manoukian, Acting P.J.
I. INTRODUCTION
Respondent Robert Barnes was seriously injured while riding a dirt bike when he ran into a rope that had been stretched across a private road near appellant Edward Anderson’s home. Anderson and two codefendants were criminally prosecuted as a result of the incident. After he was acquitted, Anderson brought an action for malicious prosecution, defamation, and intentional infliction of emotional distress against Barnes and his wife, respondent Wendy Barnes (hereafter, Barnes), based on the allegations that they had made false statements to law enforcement and on television regarding Anderson’s involvement in the incident. Respondents brought a special motion to strike the complaint under Code of Civil Procedure section 425.16, which provides for dismissal of unsubstantiated lawsuits based on claims arising from the defendant’s constitutionally protected speech or petitioning activity. (Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 60 (Equilon).)
All further statutory references are to the Code of Civil Procedure, unless otherwise noted.
The trial court granted the section 425.16 motion and Anderson appeals, contending that the trial court erred because (1) the meritorious malicious prosecution cause of action is based upon illegal conduct, consisting of a false statement to police, that is not constitutionally protected; and (2) the defamation cause of action is also meritorious. Having performed our independent review, we conclude for the reasons stated below that the trial court properly granted the motion to strike the complaint under section 425.16 and we will therefore affirm the order.
II. FACTUAL AND PROCEDURAL BACKGROUND
A. The Underlying Criminal Action
On November 15, 2006, the Santa Clara County District Attorney filed a third amended information charging Anderson and two codefendants, Donna Olsen and Donald Bryant, with two counts of assault with a deadly weapon or by means of force likely to produce great bodily injury. (Pen. Code, § 245, subd. (a)(1).) Barnes was named as the victim in count 1 and Scott Harville was named as the victim in count 2. The information included the allegation that codefendant Olsen had personally inflicted great bodily injury on Barnes by using a rope. A jury trial was held in 2006 that included 12 days of testimony.
We take judicial notice of this court’s opinion in People v. Olsen (June 17, 2008, H031660) [nonpub. opn.]); Evid. Code, § 452, subd. (d).) Our summary of the pertinent factual and procedural background of this case includes some background information that we have taken from our prior opinion.
At trial, testimony was presented concerning the incident in which Barnes was injured. The incident occurred on Loma Chiquita Road, a private road in the mountains above Los Gatos, that Barnes owned with his neighbors. The neighboring coowners included defendant Bryant and defendants Olsen and Anderson, who lived together.
On May 6, 2006, Barnes and several friends got together at his house for a barbeque and dirt bike riding. At approximately 5:00 p.m. the group rode down Loma Chiquita Road. Barnes testified that as they passed Anderson’s house, he saw Anderson, Bryant and Olsen standing in Anderson’s driveway. Anderson and Bryant appeared to be upset and were throwing their hands in the air and yelling.
After taking an injured rider to his home at the intersection of Loma Chiquita Road and Casa Loma Road, Barnes and his friends rode their dirt bikes to the top of Mount Chuai. The group then decided to return to Barnes’s house. According to Barnes’s testimony, as he and other riders approached the Anderson residence on Loma Chiquita Road, Barnes saw Bryant standing outside Anderson’s gate while Anderson was standing just inside the open gate and Olsen was standing near him. When Barnes passed Anderson’s gate he thought he saw rebar (a metal bar about one-half inch in diameter) stretched across the road from Anderson’s fence to a tree or something else.
Barnes was standing on his dirt bike when he thought he saw the rebar. He ducked to avoid the rebar, but he was struck on top of his mouth and thrown from the bike. Another dirt bike rider, Scott Harville, arrived at the scene a few moments later. Harville stopped his dirt bike immediately in front of a yellow rope that was stretched across the road. He saw defendant Olsen holding one end of the rope while the other end was attached to a tree or a telephone pole. After Harville removed Barnes’s helmet, Barnes heard Harville ask Bryant, “ ‘What the fuck did you do?’ ” Barnes also heard Bryant reply, “ ‘That’s what you get for riding motorcycles.’ ” Barnes then heard Harville call to Anderson for help. Anderson walked over to the road from the direction of his house, but did not say or do anything.
None of the three defendants offered any assistance to Barnes, who attempted to ride his dirt bike home. Harville soon arrived with his truck and took Barnes to the hospital. Barnes’s injuries included a shredded right lip, facial lacerations, missing teeth, a split palate, and multiple fractures to the maxilla (the upper jaw). Medical treatment included at least 200 stitches and four titanium plates to repair the facial injuries. After surgery, Barnes spent six days in the hospital in an induced coma. At the time of trial, the medical evidence showed that Barnes would need at least three additional surgeries.
On December 5, 2006, the jury found Olsen and Bryant guilty on counts 1 and 2, and found the personal use allegation against Olsen to be true. However, the jury found Anderson not guilty on both counts.
B. Anderson’s Malicious Prosecution Action
On April 26, 2007, Anderson filed a verified first amended complaint stating causes of action for malicious prosecution, defamation, and intentional infliction of emotional distress against defendants Robert Barnes and Wendy Barnes (hereafter Barnes or defendants).
The cause of action for malicious prosecution included Anderson’s allegation, on information and belief, that defendants had caused a deputy district attorney to file a criminal complaint against him and had initiated the prosecution without probable cause because “they did not honestly, reasonably, and in good faith believe [Anderson] to be guilty of the crime charged because there was no reasonable and competent evidence and information that showed that [Anderson] was present at the time of the alleged crime or that he actively participated in its outcome in any way.”
The defamation cause of action was based upon Anderson’s allegation that “[d]uring the course of the criminal prosecution, [Robert Barnes] . . . issued several false statements through various news channels and newspapers falsely claiming that [Anderson] stated he was going to ‘lynch him [Barnes],’ just prior to the assault, that [Anderson] was a participant in the above assault on [Barnes’s] person and other false and defamatory statements against [Anderson].”
Anderson further alleged, in the cause of action for intentional infliction of emotional distress, that defendants had “deliberately manipulated and or recklessly presented information to the Santa Clara County District Attorney with the intent of causing [Anderson] great emotional distress.” Anderson also claimed that the criminal prosecution had caused him to be “imprisoned, forced to endure great expense, see his children removed from his home and care, and have the emotional tranquility of his life and his family’s disturbed.”
The complaint sought compensatory and punitive damages, as well as attorney fees and costs.
C. The Section 425.16 Special Motion to Strike the Complaint
On July 31, 2007, defendants filed a “Motion to Strike SLAPP Complaint.” They argued that the entire complaint was subject to a motion to strike under section 425.16 because the claims against them arose from protected First Amendment activity and Anderson could not establish a likelihood of prevailing on the merits as to any cause of action. Defendants also asserted that Anderson had filed his SLAPP action to “to penalize or inhibit” them from pursuing their personal injury action against him.
“ ‘SLAPP is an acronym for “strategic lawsuit against public participation.” ’ [Citation.]” (Flatley v. Mauro (2006) 39 Cal.4th 299, 305, fn.1 (Flatley).)
In regard to the cause of action for malicious prosecution, defendants argued that Anderson could not make the requisite showing that defendants had sought out the police and falsely reported that Anderson had committed a crime. They pointed out that the sheriff’s incident report indicated that the sheriff’s investigation had begun before Robert Barnes regained consciousness and neither he nor Wendy Barnes had identified Anderson as the responsible party.
As to the cause of action for defamation, defendants contended that the alleged defamatory statements to the media had been made in a public forum in connection with an issue under consideration in judicial proceedings, and therefore the defamation cause of action should be struck under section 425.16. Defendants similarly argued that the cause of action for intentional infliction of emotional distress should be struck because the claim was based upon statements to the district attorney that were made in connection with an issue under consideration in judicial proceedings.
In opposition to the motion, Anderson insisted that his claims were not based upon protected First Amendment activity and therefore his complaint could not be struck under section 425.16. He explained that section 425.16 was not intended to shield individuals who made false statements to law enforcement, such as Robert Barnes’s statement to “Sergeant Baker of the Santa Clara County Sheriffs Department that Mr. Anderson was at the scene of the incident, thereby causing Mr. Anderson to be arrested.” Anderson also explained that Barnes “furthered this deception by going to local media outlets and disseminating the false statement that [Anderson] was going to ‘lynch him,’ just prior to [Barnes] striking the rope. Any reasonable person would infer from [Barnes’s] statement that [Anderson] [had] been involved in the crime.”
Anderson also argued that his malicious prosecution action was valid because Barnes’s false statements to the police were the “precipitating cause” in Anderson’s arrest and prosecution, that malice could be inferred from the statements, and the criminal prosecution had terminated in Anderson’s favor.
As to the defamation claim, Anderson asserted that Barnes had the “tacit approval” of Wendy Barnes when he disseminated the false statement to the media that Anderson stated he was going to “ ‘Lynch Him’ ” before Barnes struck the rope. The statement was false, according to Anderson, because Barnes testified at trial that he did not hear Anderson say anything. Anderson therefore asserted the defamation claim was meritorious.
Finally, Anderson argued that his claim for intentional infliction of emotional distress was likely to succeed for the same reason that his malicious prosecution action would succeed.
D. The Trial Court’s Order
In its order of October 3, 2007, the trial court granted defendant’s special motion to strike the complaint.
First, the trial court found that defendants had met their burden to show that each cause of action arose from defendants’ exercise of free speech or petition rights, as defined in section 425.16. Specifically, the court determined that the malicious prosecution action cause of action was based on the allegation that defendants had committed a tort by filing a lawsuit; the defamation cause of action was based upon Robert Barnes’s statement to the media about threats made prior to the assault, which was a statement made in connection with an official proceeding (the law enforcement investigation); and the cause of action for intentional infliction of emotional distress was based upon defendants’ statements to the district attorney, which were likewise made in connection with an official proceeding.
Second, having determined that the complaint was based upon allegations of defendants’ protected First Amendment activity, the trial court further determined that Anderson had failed to meet his burden under section 425.16 to show a probability of prevailing on any of his claims.
The court found that Anderson had failed to demonstrate a probability of prevailing on his malicious prosecution cause of action because the evidence showed that Anderson was charged because he was the “owner of the rope and the property, not because of anything [the Barnes] said to prosecutorial authorities.” The court also found that Anderson’s evidence “merely establishes what [Barnes] testified at trial, but there is no evidence that he said anything to the police or prosecutorial authorities that was contrary to his trial testimony.”
Anderson also failed to show a probability of prevailing on his cause of action for defamation, the trial court found, because his evidence showed that Robert Barnes’s statement to the media did not identify Anderson as the speaker, since the exact statement was “ ‘they came running out, yelling we’re coming to get you, you wait, we’ll lynch you.’ ”
Because the cause of action for intentional infliction of emotional distress was based upon statements made by Barnes to the district attorney during the course of the criminal prosecution, the trial court determined that the statements were protected by the absolute litigation privilege provided by Civil Code section 47, subdivision (b), and therefore Anderson could not prevail on that claim.
The trial court denied Anderson’s motion for attorney fees and costs and granted defendants’ motion for attorney fees and costs in the amount of $5,090.
E. The Motion for Reconsideration
Anderson filed a motion for reconsideration of the October 3, 2007, order granting defendants’ special motion to strike his complaint. In support of his motion, Anderson submitted additional documentation to demonstrate the probability of prevailing on his claims for malicious prosecution and defamation. The additional documentation included a partial transcript of the preliminary hearing testimony of Scott Harville, which Anderson asserted showed that Anderson was inside the house at the time Barnes struck the rope, contrary to Barnes’s statement to the police that Anderson was standing outside and then ran towards his house. On that basis, Anderson argued that Barnes’s false statement was “ ‘actively instrumental’ ” in initiating his arrest and prosecution.
Anderson also submitted a copy of a KTVU.com website page posted on May 17, 2006, in which KTVU reported that “Robert Barnes told KTVU that suspect Edward Anderson told [sic] that ‘we’ll lynch’ you just hours before he was injured by roadside rope clothes-line ambush last Saturday.” Anderson argued that these additional facts showed that Barnes had specifically implicated him by making a false statement that was contrary to his trial testimony that he did not hear Anderson say anything.
Defendants argued in opposition to the motion for reconsideration that Anderson had failed to meet the requirements of Code of Civil Procedure section 1008, which authorizes reconsideration of prior rulings upon a showing of new facts or law where there is a satisfactory explanation of the failure to present the new facts or law in the earlier proceeding. Defendants noted that Anderson had failed to provide any explanation for his failure to present his new facts, which were contained in documents that existed prior to the filing of his opposition to the special motion to strike the complaint.
Alternatively, defendants asserted that Anderson’s new facts did not demonstrate that he had a probability of prevailing on his malicious prosecution and defamation claims. According to defendants, Anderson failed to establish that they had made any false statement that caused him to be prosecuted and also failed to show that Barnes had actually made the allegedly defamatory statement that Anderson had said “ ‘we’ll lynch you.’ ”
The trial court denied the motion for reconsideration in its order of November 28, 2007, agreeing with defendants that Anderson had failed to present a satisfactory explanation for his failure to provide the additional evidence in opposition to the special motion to strike the complaint. The court accordingly determined that there were no new facts or circumstances justifying reconsideration of its prior order.
III. DISCUSSION
On appeal, Anderson challenges the trial court’s order granting Barnes’s special motion to strike the complaint under section 425.16 only as to the malicious prosecution cause of action and the defamation cause of action. He raises no appellate issues regarding the cause of action for intentional infliction of emotional distress, the order awarding attorney fees, or the order denying his motion for reconsideration.
We will begin our evaluation of the issues on appeal by reviewing the legal framework that governs a motion to dismiss under section 425.16 and the applicable standard of review.
A. Legal Framework
The anti-SLAPP statute, section 425.16, was enacted in 1992 in response to a “disturbing increase” in lawsuits brought for the strategic purpose of chilling a defendant’s rights of petition and free speech. (§ 425.16, subd. (a).) SLAPPs are unsubstantiated lawsuits based on claims arising from defendant’s constitutionally protected speech or petitioning activity. (Equilon, supra, 29 Cal.4th at p. 60; Navellier v. Sletten (2002) 29 Cal.4th 82, 89 (Navellier.) The anti-SLAPP statute provides a means for the trial court to evaluate the merits of a possible SLAPP “using a summary-judgment-like procedure at an early stage of the litigation.” (Varian Medical Systems, Inc. v. Delfino (2005) 35 Cal.4th 180, 192.) Under the procedure authorized in the statute a defendant can stay discovery before litigation costs mount, obtain early dismissal of the lawsuit, and recover attorney’s fees. (Kibler v. Northern Inyo County Local Hospital Dist. (2006) 39 Cal.4th 192.)
Section 425.16 applies to any cause of action against a person “arising from any act of that 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 . . . .” (§ 425.16, subds. (b)(1), (e).) The stated purpose of section 425.16 is to encourage protected speech by permitting a court to promptly dismiss unmeritorious actions or claims that are brought “primarily to chill the valid exercise of the constitutional rights of freedom of speech and petition for the redress of grievances.” (§ 425.16, subd. (a).) In order to achieve these ends, a 1997 amendment to the statute added the proviso that the statute “shall be construed broadly.” (§ 425.16, subd. (a), as amended by Stats. 1997, ch. 271, § 1; Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260, 279 (Soukup).)
A defendant seeking the protection of the anti-SLAPP statute must make the initial showing that the lawsuit arises from conduct “in furtherance of [a] person’s right of petition or free speech under the United States or California Constitution in connection with a public issue . . . .” (§ 425.16, subds. (b)(1), (e); Navellier, supra, 29 Cal.4th at p. 88.) The statute describes four categories of conduct that will qualify: “(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).)
When the defendant’s alleged acts fall under subdivisions (e)(1) or (e)(2) of section 425.16, defendant is not required to make a separate showing that the matter is “an issue of public interest,” as is necessary under subdivisions (e)(3) and (e)(4). (Briggs v. Eden Council for Hope & Opportunity (1999) 19 Cal.4th 1106, 1113-1123 (Briggs).) This is because the concept of what constitutes a public issue is deemed to include speech activity that takes place before, during, or in connection with an “official proceeding authorized by law.” (§ 425.16, subd. (e)(1), (e)(2); Briggs, supra, 19 Cal.4th at pp. 1116-1117.)
Once the defendant shows that the plaintiff’s claim arises from one of the section 425.16, subdivision (e) categories of protected activity, the burden shifts to the plaintiff to demonstrate a probability of prevailing on the claim. (§ 425.16, subd. (b)(1); Navellier, supra, 29 Cal.4th at p. 88.) Thus, “ ‘[s]ection 425.16 posits . . . a two-step process for determining whether an action is a SLAPP. First, the court decides whether the defendant has made a threshold showing that the challenged cause of action is one arising from protected activity . . . . If the court finds that such a showing has been made, it must then determine whether the plaintiff has demonstrated a probability of prevailing on the claim.’ [Citation.] ‘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.’ [Citation.]” (Soukup, supra, 39 Cal.4th at pp. 278-279.)
B. The Standard of Review
“ ‘Review of an order granting or denying a motion to strike under section 425.16 is de novo. [Citation.] We consider “the pleadings, and supporting and opposing affidavits upon which the liability or defense is based.” (§ 425.16, subd. (b)(2).) However, we neither “weigh credibility [nor] compare the weight of the evidence. Rather, . . . [we] accept as true the evidence favorable to the plaintiff [citation] and evaluate the defendant’s evidence only to determine if it has defeated that submitted by the plaintiff as a matter of law.” [Citation].’ [Citation.]” (Flatley, supra, 39 Cal.4th at pp. 325-326; Paulus v. Bob Lynch Ford, Inc. (2006) 139 Cal.App.4th 659, 672.)
C. The Cause of Action for Malicious Prosecution
1. Protected Activity
Anderson’s first contention on appeal is that Barnes did not meet the defendant’s initial burden under section 425.16, subdivision (e) to show that the malicious prosecution cause of action arises from constitutionally protected activity. According to Anderson, section 425.16 does not protect speech or petition activity that is illegal, such as Barnes’s allegedly false statement to law enforcement that after he struck the rebar, he saw Anderson standing outside and then running towards his house. Anderson relies on Penal Code section 148.5, subdivision (b), which provides in part that “Every person who reports to any other peace officer . . . that a felony or misdemeanor has been committed, knowing the report to be false, is guilty of a misdemeanor if (1) the false information is given while the peace officer is engaged in the performance of his or her duties as a peace officer and (2) the person providing the false information knows or should have known that the person receiving the information is a peace officer.”
Barnes responds that it is well established that a malicious prosecution action is subject to a motion to strike the complaint under section 425.16. Barnes further argues that the malicious prosecution cause of action is premised upon statements protected under subdivision (e)(2) of section 425.16, since the statements to police and prosecutors were obviously 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.” (§425.16, subd. (e)(2).)
For several reasons, we agree with Barnes that they met their initial burden to show that Anderson’s malicious prosecution cause of action arises from speech or petitioning activity that is protected under section 425.16. The California Supreme Court has instructed that a malicious prosecution action falls within the ambit of section 425.16, subdivision (b)(1), “because every such action arises from an underlying lawsuit, or petition to the judicial branch. By definition, a malicious prosecution suit alleges that the defendant committed a tort by filing a lawsuit.” (Jarrow Formulas, Inc. v. LaMarche (2003) 31 Cal.4th 728, 734-735 (Jarrow).) A malicious prosecution action may be based upon an underlying criminal prosecution, where, as here, the allegation is that the defendant initiated or procured the arrest and prosecution of the plaintiff without probable cause and with malice. (Sullivan v. County of Los Angeles (1974) 12 Cal.3d 710, 720.) Thus, a malicious prosecution action that is premised upon the allegation that the defendants made false statements to law enforcement that were instrumental in bringing about the prosecution of the plaintiff is subject to an anti-SLAPP motion under section 425.16. (Dickens v. Provident Life & Accident Ins. Co. (2004) 117 Cal.App.4th 705, 714-715.)
We are not convinced by Anderson’s argument that his malicious prosecution cause of action is based upon illegal activity that is not protected under section 425.16 because he alleged that Barnes made false statements to law enforcement regarding Anderson’s involvement in the crime. The issue of whether assertedly illegal speech or petitioning activity is protected under section 425.16 was addressed by the California Supreme Court in Flatley, supra, 39 Cal.4th 299 and Soukup, supra, 39 Cal.4th 260.
In Flatley, the entertainer Michael Flatley brought a tort action against an attorney, D. Dean Mauro, that was based upon the allegation that Mauro had sent a demand letter to Flatley on behalf of Tyna Marie Robertson, who claimed that Flatley had raped her. (Flatley, supra, 39 Cal.4th at p. 305.) The demand letter included threats “to publicly accuse Flatley of rape and to report and publicly accuse him of other unspecified violations of various laws unless he ‘settled’ by paying a sum of money to Robertson of which Mauro would receive 40 percent.” (Id. at p. 329.) Mauro also made telephone calls to Flatley’s attorney in which he reiterated his demand and threats. (Id. at pp. 329-330.)
Mauro responded to Flatley’s lawsuit by filing an anti-SLAPP motion to strike the complaint under section 425.16. (Flatley, supra, 39 Cal.4th at p. 305.) In ruling upon the motion, the Supreme Court evaluated Mauro’s conduct and determined that the demand letter and subsequent telephone calls constituted criminal extortion as a matter of law, citing Penal Code section 519, subdivisions 2 and 3. (Id. at p. 330.) The court concluded that “consistent with the legislative intent underlying the anti-SLAPP statute as revealed by the statutory language, and consistent with our existing anti-SLAPP jurisprudence, a defendant whose assertedly protected speech or petitioning activity was illegal as a matter of law, and therefore unprotected by constitutional guarantees of free speech and petition, cannot use the anti-SLAPP statute to strike the plaintiff’s complaint.” (Id. at p. 305.) For that reason, the Supreme Court concluded that the trial court had properly denied Mauro’s anti-SLAPP motion because Mauro had failed to show that Flatley’s lawsuit was based upon speech or petitioning activity that was protected under section 425.16. (Id. at p. 333.)
In so ruling, the Supreme Court set a high standard for the showing that must be made before an anti-SLAPP motion may be denied on the ground that the defendant’s speech or petitioning activity was illegal and therefore unprotected under section 425.16. “[W]here a defendant brings a motion to strike under section 425.16 based on a claim that the plaintiff’s action arises from activity by the defendant in furtherance of the defendant’s exercise of protected speech or petition rights, but either the defendant concedes, or the evidence conclusively establishes, that the assertedly protected speech or petition activity was illegal as a matter of law, the defendant is precluded from using the anti-SLAPP statute to strike the plaintiff’s action.” (Flatley, supra, 39 Cal.4th at p. 320.)
“Accordingly, once the defendant has made the required threshold showing that the challenged action arises from assertedly protected activity, the plaintiff may counter by demonstrating that the underlying action was illegal as a matter of law because either the defendant concedes the illegality of the assertedly protected activity or the illegality is conclusively established by the evidence presented in connection with the motion to strike. In doing so, the plaintiff must identify with particularity the statute or statutes violated by the filing and maintenance of the underlying action. [Citation.]” (Soukup, supra, 39 Cal.4th at pp. 286-287.) The Supreme Court clarified that where “a factual dispute exists about the legitimacy of the defendant’s conduct, it cannot be resolved within the first step but must be raised by the plaintiff in connection with the plaintiff’s burden to show a probability of prevailing on the merits.” (Flatley, supra, 39 Cal.4th at p. 316.)
In the present case, we have independently reviewed the evidence presented in connection with Barnes’s anti-SLAPP motion. We determine for several reasons that Anderson failed to meet his burden to conclusively establish that Barnes’s allegedly false statements to law enforcement regarding Anderson’s involvement in the crime were illegal as a matter of law.
Anderson’s evidence in support of his opposition to the motion to strike the complaint included a portion of the transcript of Robert Barnes’s trial testimony, in which Barnes testified that before he hit the “rebar” on Loma Chiquita Road, he saw Anderson “behind the gate.” The evidence submitted by Barnes in support of the motion to strike the complaint included the Santa Clara County Sheriff’s report regarding the May 6, 2006 incident. The report included a summary of the officer’s interview with Robert Barnes, which took place on May 15, 2006, after Barnes came out of a coma on May 12, 2006. Barnes told the officer that before he hit what he perceived to be a length of rebar, he saw Anderson “standing on the side of the road, watching him approach.” Barnes also told the officer that after falling off his motorcycle, “he saw Ed Anderson run toward his residence and go inside.” After Scott Harville arrived, Barnes recalled, Harville was “yelling at Ed Anderson, who was still inside the house. [Barnes] saw [Anderson] step out of the house.”
Anderson contends that Barnes’s statements to law enforcement placing Anderson at the scene immediately before Barnes struck the rope were false because the statements were contradicted by the trial testimony of Scott Harville and Barnes’s trial testimony on cross-examination, which showed that Anderson was not present. At trial, Barnes agreed that he “didn’t see Mr. Anderson anywhere until Scott Harville called for him to come out of his house . . . .” However, we find that the incomplete transcript of Barnes’s trial testimony that was submitted in connection with the anti-SLAPP motion is insufficient to show that Barnes contradicted his statements in his earlier interview with the officer. Therefore, the evidence submitted in connection with the anti-SLAPP motion does not conclusively establish that the Barnes’s statements to law enforcement were false. Moreover, the partial transcript of Harville’s testimony cannot be considered because it was submitted by Anderson in support of his motion for reconsideration, not in support of his opposition to the motion to strike the complaint.
Accordingly, we determine that Barnes’s met their initial burden to show that Anderson’s malicious prosecution cause of action arises from activity that is protected under section 425.16. We next evaluate whether Anderson met his burden to demonstrate a probability of prevailing on his malicious prosecution claim. (§ 425.16, subd. (b)(1); Navellier, supra, 29 Cal.4th at p. 88.)
2. The Probability of Prevailing
To demonstrate a probability of prevailing on a claim subject to an anti-SLAPP motion, “ ‘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.” ’ [Citation.]” (Jarrow, supra, 31 Cal.4th at p. 741.)
Anderson asserts that he has shown a probability of prevailing on his malicious prosecution cause of action because Barnes’s false statements “to the police were the precipitating factor in [Anderson’s] arrest and rendering of an information.” Anderson further argues the elements of a malicious prosecution claim are satisfied because Barnes lacked probable cause to initiate the prosecution, malice may inferred because Barnes gave false information to law enforcement regarding Anderson’s presence at the scene of the incident, and the underlying criminal prosecution terminated in his favor.
Barnes argues to the contrary that the malicious prosecution claim must fail because Anderson cannot show that Barnes was “ ‘actively instrumental’ ” in initiating his prosecution. According to Barnes, Anderson was also linked to the assault by other witness statements and physical evidence. Barnes additionally maintains that his statements to law enforcement were absolutely privileged under Civil Code section 47, subdivision (b), which provides in part that “A privileged publication or broadcast is one made: [¶] (b) In any (1) legislative proceeding, (2) judicial proceeding, (3) in any other official proceeding authorized by law, or (4) in the initiation or course of any other proceeding authorized by law . . . .”
At the outset, we note that the absolute litigation privilege of Civil Code section 47, subdivision (b), does not apply in a malicious prosecution action. “ ‘[S]ection 47(b) operates to bar civil liability for any tort claim based upon a privileged communication, with the exception of malicious prosecution . . . .’ ” (Hagberg v. California Federal Bank (2004) 32 Cal.4th 350, 375; Silberg v. Anderson (1990)50 Cal.3d 205, 266.) Nevertheless, we agree with Barnes that Anderson has failed to demonstrate a probability of prevailing on his malicious prosecution cause of action.
“Malicious prosecution ‘consists of initiating or procuring the arrest and prosecution of another under lawful process but from malicious motives and without probable cause . . . .’ ” (Sullivan v. County of Los Angeles, supra, 12 Cal.3d at p. 720.) “ ‘The test is whether the defendant was actively instrumental in causing the prosecution.’ [Citation.] Cases dealing with actions for malicious prosecution against private persons require that the defendant has at least sought out police or prosecutorial authorities and falsely reported facts to them indicating that plaintiff has committed a crime. [Citations.]” (Ibid.; Cedars-Sinai Medical Center v. Superior Court (1988) 206 Cal.App.3d 414, 417.)
Having reviewed the evidence submitted in connection with the motion to strike the complaint, we determine that Anderson failed to make a “ ‘sufficient prima facie showing of facts to sustain a favorable judgment . . . .’ ” (Jarrow, supra, 31 Cal.4th at p. 742.) Nothing in the evidence shows that Barnes was actively instrumental in causing Anderson to be prosecuted or that Barnes sought out police or prosecutorial authorities and falsely reported that Anderson had committed a crime. To the contrary, the sheriff’s incident report establishes that Barnes was interviewed by an officer because Barnes was a victim who had been seriously injured in the incident.
We may properly consider the sheriff’s incident report attached to the declaration of Barnes’s counsel in determining whether Anderson made a prima facie showing in support of his malicious prosecution claim because Anderson did not object. (See Gallagher v. Connell (2004) 123 Cal.App.4th 1260, 1268-1269.)
Moreover, while the sheriff’s incident report included the officer’s statement that Barnes’s interview had “provided probable cause to arrest Edward Anderson as an active participant in the circumstances that caused the injury to Robert Barnes,” that statement does not support a finding that Barnes was actively instrumental in causing the prosecution. There is nothing in the incident report or the other evidence submitted in connection with the anti-SLAPP motion that establishes that Barnes sought a police interview in order to procure Anderson’s arrest and prosecution. Additionally, the sheriff’s investigation included interviews with a number of other witnesses, examination of the scene and related photographs, and collection of physical evidence. In short, we believe that the evidence shows that Anderson’s arrest and prosecution was the result of the entirety of the sheriff’s investigation and was not procured by Barnes.
For these reasons, we conclude that Anderson failed to make the showing required under section 425.16 to defeat an anti-SLAPP motion, and therefore Barnes’s special motion to strike the complaint was properly granted as to the cause of action for malicious prosecution.
D. The Cause of Action for Defamation
By failing to argue the issue on appeal, Anderson implicitly concedes that defendants, as the moving parties, met their initial burden to show that the defamation cause of action arises from constitutionally protected activity under section 425.16. However, Anderson argues that the trial court erred in granting the anti-SLAPP motion because he met his burden to show that he has a probability of prevailing on his defamation claim.
According to Anderson, “defendant Robert Barnes with the tacit approval of defendant Wendy Barnes went onto KTVU Channel Two, disseminating the following statement: ‘[W]e went by Mr. Anderson’s house and they came running out, yelling we’re coming to get you, you wait, we’ll lynch you.’ This statement directly imputed appellant Anderson as the speaker of ‘lynch you’ as it referred to Mr. Anderson’s property.”
The record on appeal includes the declaration of Anderson’s attorney, Christopher D’Anjou, which includes the following sentence: “In reference to the defendant’s statement that plaintiff Anderson was going to ‘Lynch [sic] Mr. Anderson’s house and they come running out, yelling we’re coming to get you, you wait, we’ll lynch you.’ ” However, the parties agree that the statement at issue is “ ‘[W]e went by Mr. Anderson’s house and they came running out, yelling we’re coming to get you, you wait, we’ll lynch you.’ ”
Barnes disagrees, asserting that the trial court correctly determined that the statement does not identify Anderson as the speaker of the statement, and therefore the statement, even if false, does not show that Barnes defamed Anderson. For that reason, Barnes argues that Anderson failed to meet his burden to show that he has a probability of prevailing on his defamation claim. We agree.
The tort of defamation includes both libel and slander. (Civ. Code, § 44.) Slander is statutorily defined, in pertinent part, as “a false and unprivileged publication, orally uttered, and also communications by radio or any mechanical or other means which: [¶] 1. Charges any person with crime, or with having been indicted, convicted, or punished for crime; [¶] . . . [¶] 3. Tends directly to injure him in respect to his office, profession, trade or business, either by imputing to him general disqualification in those respects which the office or other occupation peculiarly requires, or by imputing something with reference to his office, profession, trade, or business that has a natural tendency to lessen its profits; [¶] . . . [¶] 5. Which, by natural consequence, causes actual damage.” (Civ. Code, § 46; Monterey Plaza Hotel v. Hotel Employees & Restaurant Employees (1999) 69 Cal.App.4th 1057, 1064.)
Here, Anderson alleged in his first amended complaint that “[d]uring the course of the criminal prosecution, [Robert Barnes] . . . issued several false statements through various news channels and newspapers falsely claiming that [Anderson] stated he was going to ‘lynch him [Barnes],’ just prior to the assault, that [Anderson] was a participant in the above assault on [Barnes’s] person and other false and defamatory statements against [Anderson].” However, the evidence Anderson submitted in opposition to the motion to strike the complaint indicated that the false statements at issue were limited to Robert Barnes’s alleged oral utterance on television that “ ‘[w]e went by Mr. Anderson’s house and they came running out, yelling we’re coming to get you, you wait, we’ll lynch you.’ ” As the trial court correctly determined, this statement does not expressly attribute the “yelling” of “we’re coming to get you, you wait, we’ll lynch you” to Anderson. Moreover, based on our review of the evidence submitted in connection with the anti-SLAPP motion, we cannot reasonably infer that Anderson was among those persons who made the lynching threat. Consequently, Anderson failed to make a prima facie showing that he has a probability of prevailing on his claim that defendants committed the tort of defamation by slandering him.
For these reasons, we conclude that the trial court properly granted defendants’ special motion to strike the complaint under section 425.16.
IV. DISPOSITION
The October 3, 2007 order granting defendants’ special motion to strike the complaint is affirmed. Costs on appeal are awarded to respondents.
WE CONCUR: MIHARA, J., MCADAMS, J.