Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Monterey County Super. Ct. No. DVH3863
RUSHING, P.J.
Statement of the Case
Plaintiff Charles J. McKee filed an application for a temporary restraining order (TRO) against defendant Eugene E. Forte, and in response Forte filed a motion to strike the application under Code of Civil Procedure section 425.16. The court denied Forte’s motion. He now appeals, claiming the court erred. (§§ 425.16, subd. (i) [order appealable]; 904.1, subd. (a)(13) [same]; see McLellan v. McLellan (1972) 23 Cal.App.3d 343, 357 [TRO immediately appealable].)
Code of Civil Procedure section 425.16 is called the anti-SLAPP statute and allows a defendant to gain early dismissal of a lawsuit that qualifies as a SLAPP, which is an acronym for strategic lawsuits against public participation. (Siam v. Kizilbash (2005) 130 Cal.App.4th 1563, 1568.)
We affirm the order denying Forte’s motion.
Background
McKee is counsel for Monterey County. In January 2005, Forte wrote a letter to McKee asking if he was helping Monterey County District Attorney Dean Flippo and Assistant District Attorney Terry Spitz defend against Forte’s small claims action against them. Apparently, McKee did not respond to Forte’s letter.
In August 2005, Forte wrote to Flippo and accused him and Spitz of conspiring with a Court Commissioner Richard Rutledge to fix his small claims action by having it dismissed without a hearing. He asked Flippo to investigate the matter or report it to proper authorities. Flippo did not respond.
In September 2005, Forte wrote to Flippo and Spitz, claiming they had a conflict of interest because, on the one hand, they were investigating Rutledge for allegedly fixing traffic tickets, and, on the other hand, Rutledge had recently granted them judgment in Forte’s small claims action without holding a hearing. Forte demanded a response and purportedly sent a copy of this letter to the State Attorney General, county counsel, Presiding Judge Sillman, Leon Panetta, Chief Justice Ronald George, the Monterey Herald, The Salinas California and other media, urging them investigate and warning that he would consider them complicit in covering up the matter if they failed to respond.
It appears that only Flippo and Spitz responded, informing Forte that, contrary to his assertion, Rutledge did not rule on Forte’s small claims action. Rather, in May 2005, after a hearing, Commissioner Diane Baker had entered judgment against Forte because he had failed to appear. Forte wrote back that he was unaware of that ruling and suggested that he had not been given proper notice. He also said that he hoped the case file had not already been “shredded.”
In October 2005, Forte went to the Monterey County Superior Court to review the file but found that it was missing. Later, in a letter to Presiding Judge Stephen Sillman, Forte complained about the missing file. He accused the District Attorney’s Office of “being involved with plotting to cover up for DA Flippo and ADA Spitz the obstruction of justice in their own case with Commissioner Rutledge,” and asked Judge Sillman to “alert Federal authorities of the missing files . . . .” Judge Sillman did not respond to Forte’s letter.
Forte sent a similar letter to all of the judges on Monterey County bench asking them to refer Flippo and Spitz along with Judges Sillman, Robert O’Farrell, and Terrence Duncan, members of the Superior Court Executive Committee, to a state or federal grand jury for investigation because they had all failed to take action concerning Flippo and Spitz’s conflict of interest. Forte received no response.
Forte also sent a copy of his letter to Monterey County Deputy Counsel Patrick McGreal, alleging that “your offices have been involved to some extent in the construction and cover-up of [an] unfair tribunal.” He considered McGreal’s inaction in the face of an obvious conflict of interest to be “criminal” and urged McGreal to redress his grievances against public officials. McGreal did not respond.
On November 8, 2005, Forte wrote to McKee and accused Flippo, Spitz, Rutledge, the Monterey County District Attorneys Office, the Monterey County Counsel’s Office, and members of the Monterey County Superior Court Executive Committee of having conspired to obstruct justice in his small claims case by manipulating trial dates and sending notices to the wrong address.
In support of his accusation, he set forth the chronology of events summarized above. In particular, he alleged that Commissioner Rutledge had been scheduled to hear Forte’s small claims case against Flippo and Spitz on January 5, 2005. On that day, Rutledge refused to disqualify himself, and Forte filed a formal motion to disqualify him. Unbeknownst to Forte, the motion was reassigned to another judge; and on March 23, it was denied. Later, on April 27, Forte filed a notice of change of address. On May 16, Rutledge issued an order setting the small claims action for trial on May 23. However, notice was “allegedly” mailed to Forte’s former address. On May 23, Commissioner Baker entered default judgment against Forte because he had failed to appear for trial. On July 18, a notice of entry of judgment was mailed to Forte’s former address.
Forte further alleged that on August 24, Forte wrote to Flippo and Spitz. He asked whether they had told anyone that Rutledge was involved in his small claims action against them and complained that they had “an actual conflict of interest in their investigating Commissioner Rutledge for obstruction of justice.” On September 17, Forte again wrote to Flippo and Spitz and other state officials and asked them to explain their conflict of interest. On September 19, they informed Forte that Commissioner Baker had entered judgment against him. Forte was surprised by this information and unaware of the ruling. On October 12, he discovered that the file in the small claims action was missing from the clerk’s office. On October 21, however, the file was “allegedly” found at the courthouse, which was then being supervised by Judge O’Farrell. Before Forte inspected the file, a court clerk told him that his notice of a change of address was not in the file, and as of November 8, it was still not there.
Forte’s November 8 summary of his August 24 letter is inaccurate. He did not ask Flippo and Spitz whether they had mentioned Rutledge’s involvement in the small claims action; nor did Forte state that they had a conflict in investigating Rutledge for obstruction of justice. Rather, as previously noted, Forte accused Flippo and Spitz of conspiring with Rutledge to have his small claims action fixed. Forte also asked Flippo to investigate the matter himself or report it to proper authorities if there was a conflict in investigating himself.
In his November 8 letter, Forte also accused McKee of obstructing justice and violating his public duty. Forte asserted, “You and your offices were fully aware of [the small claims case] and didn’t advise any county public officials during the investigation of Commissioner Rutledge by DA Flippo of the actual conflict. You participated in knowingly covering it up for your client, DA Flippo and ADA Spitz. You represented both DA Flippo and ADA Spitz at the motion to quash their subpoenas in [the small claims case].” Forte cited various federal statutes, which he claimed McKee had violated. Forte then demanded that McKee report the matter or voluntarily surrender to the Salinas police for arrest and booking. McKee did not respond to Forte’s letter.
Forte sent copies of his letter to Senator Jeff Denham, Governor Schwarzenegger, the FBI, and the media.
In January 3, 2006, Forte again wrote to McKee. He said he had waited patiently for McKee’s response. Having not received it, he now asked McKee to provide him with convenient dates on which Forte could arrest him and have him taken to jail. He offered to meet McKee at the police station to save McKee public embarrassment. However, he warned that if McKee failed to provide dates, Forte would arrest him at any time. Forte also sent McKee formal written notice of his intent to execute a citizen’s arrest for misprision of felony (18 U.S.C. § 4) and other unspecified state crimes because McKee had failed to report the obstruction of justice by Flippo, Spitz, Rutledge and others. He warned, “[D]o not resist arrest, because you can and will be held liable even further for this additional violation.” Forte advised McKee that after his arrest, anything he said could be used against him, but he had the right to remain silent and the right to an attorney.
McKee did not personally respond. However, on January 13, 2006, McGreal did so on McKee’s behalf. He explained that McKee represented the County of Monterey in civil actions and answers to and acts at the direction of only the Board of Supervisors. He is not authorized to act on behalf or at the behest of private individuals. McGreal also warned Forte that his communications to McKee were defamatory and any effort to make a citizen’s arrest would subject him to civil and possibly criminal liability for assault, battery, and false imprisonment because there was no factual or legal basis for a citizen’s arrest.
On January 20, 2006, Forte responded to McGreal’s letter. He accused McGreal of threatening him and providing inaccurate and unsound legal advice. He again accused McGreal and McKee of failing to report official misconduct in violation of federal law. Forte purported to send copies of his letter to the FBI, various judges, the Monterey County Sheriff, Leon Panetta, and others.
Also on January 20, Forte wrote to Monterey County Sheriff Mike Kanalakis and requested his assistance in arresting McKee. He attached his previous letters to McKee, and McGreal’s response. He speculated that McKee would “ ‘put up a fight’ ” and accuse Forte of assault and battery “even if [Forte] used the minimum force to either control the situation, or defend [himself].” He told Kanalakis that he had arranged to have the arrest recorded to prevent any problems. Forte asked Kanalakis to confirm by January 30, 2006, that deputies would be available to take McKee into custody after his arrest. Kanalakis did not respond. However, he sent a copy of the letter to McKee.
On February 13, 2006, Forte wrote a second letter to Kanalakis. Noting Kanalakis’s failure to respond, Forte stated, “Apparently, you would rather have me handcuff [McKee] and throw him into the trunk of my car and bring him to your station. [¶] If I have not heard back from you within the next 72 hours I will take that as an affirmation that [that] is the procedure you would like to have me follow.” Kanalakis sent a copy of the letter to McKee.
On February 14, 2006, McKee applied for an ex parte TRO against Forte based on Forte’s statements. On February 16, the court issued an ex parte TRO and set the matter for a formal hearing on March 9, 2006. Forte filed an answer, in which he declined to agree to a TRO and disputed the alleged basis for one. On February 28, 2006, Forte filed an anti-SLAPP motion to strike McKee’s application.
On July 27, 2006, Judge Lee E. Cooper, a retired out-of-county judge sitting by assignment in the Monterey County Superior Court, conducted a hearing on Forte’s motion. Thereafter, Judge Cooper denied Forte’s anti-SLAPP motion, finding that his constitutional rights were not implicated by McKee’s application for a TRO.
At a previous hearing on March 2, 2006, the court was informed that Forte had objected to the matter being heard by a commissioner, and the commissioner had honored his objection. The matter was then referred to the presiding judge for assignment.
Discussion
Section 425.16 allows defendants to gain early dismissal of SLAPP lawsuits, which are lawsuits intended “to chill or punish a party’s exercise of constitutional rights to free speech and to petition the government for redress of grievances.” (Rusheen v. Cohen (2006) 37 Cal.4th 1048, 1055; see Siam v. Kizilbash, supra, 130 Cal.App.4th at p. 1568; § 425.16, subd. (a).)
Section 425.16 provides, in relevant part, “(b)(1) A 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 shall be 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. [¶] (2) In making its determination, the court shall consider the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based. [¶] . . . . [¶] (e) As used in this section, ‘act 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’ includes: (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.”
In evaluating an anti-SLAPP motion, the trial court conducts a two-step process. The court first 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 defendant satisfies that burden, then the court determines whether the plaintiff has demonstrated a probability of prevailing on the claim. (Siam v. Kizilbash, supra, 130 Cal.App.4th at p. 1569.) “ ‘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.]” (Ibid.)
On appeal, we review the ruling on an anti-SLAPP motion de novo (Kyle v. Carmon (1999) 71 Cal.App.4th 901, 907) and independently determine whether the anti-SLAPP statute applies to the challenged claim—i.e., whether the challenged claim is based on acts in furtherance of the right of petition or free speech in connection with a public issue—and, if so, (2) whether the plaintiff has established a reasonable probability of success on merits of the claim. (Thomas v. Quintero (2005) 126 Cal.App.4th 635, 645; Kashian v. Harriman (2002) 98 Cal.App.4th 892, 906.)
In determining whether the anti-SLAPP statute applies in a given situation, we analyze whether “the defendant’s act underlying the plaintiff’s cause of action itself was an act in furtherance of the right of petition or free speech. [Citation.] In the anti-SLAPP context, the critical point is whether the plaintiff’s cause of action itself was based on an act in furtherance of the defendant’s right of petition or free speech.” (City of Cotati v. Cashman (2002) 29 Cal.4th 69, 78, italics in City of Cotati; accord, Navellier v. Sletten (2002) 29 Cal.4th 82, 89.) In other words, “we focus on the specific nature of the challenged protected conduct, rather than generalities that might be abstracted from it. [Citation.] The ‘principal thrust or gravamen’ of the claim determines whether section 425.16 applies. [Citation.]” (Dyer v. Childress (2007) 147 Cal.App.4th 1273, 1279, quoting Martinez v. Metabolife Internat., Inc. (2003) 113 Cal.App.4th 181, 188, italics in Martinez.)
As a general proposition, an application for a TRO under section 527.6 can be considered a SLAPP and form the basis for an anti-SLAPP motion. (City of Los Angeles v. Animal Defense League (2006) 135 Cal.App.4th 606, 617; Thomas v. Quintero, supra, 126 Cal.App.4th at p. 652.)
Here, McKee based his application for a TRO on the statements in Forte’s second letter to Kanalakis that if Kanalakis did not respond to the letter within 72 hours, then Forte would interpret his silence as implied direction and permission to “handcuff [McKee] and throw him in the trunk of my car and bring him to your station.”
The first question before us therefore is whether those statements were protected activity in furtherance of Forte’s right of petition or free speech.
Citing Brown v. Department of Corrections (2005) 132 Cal.App.4th 520, Forte claims his statements were constitutionally protected activity. He asserts that they fell within the litigation privilege in Civil Code section 47, subdivision (b), in that they were part of an effort to make a lawful citizen’s arrest, delegate responsibility for taking McKee into custody to Kanalakis, and initiate an investigation concerning criminal obstruction of justice. We disagree.
Civil Code section 47 provides, in relevant part, “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 and reviewable pursuant to Chapter 2 (commencing with Section 1084) of Title 1 of Part 3 of the Code of Civil Procedure . . . ”
In Brown v. Department of Corrections, supra, 132 Cal.App.4th 520 at pages 525-526, the court explained, “ ‘ “[S]ection 47 gives all persons the right to report crimes to the police, the local prosecutor or an appropriate regulatory agency, even if the report is made in bad faith.” ’ [Citations.] ‘ “[A] communication concerning possible wrongdoing, made to an official governmental agency such as a local police department, and which communication is designed to prompt action by that entity, is as much a part of an ‘official proceeding’ as a communication made after an official investigation has commenced. [Citation.] After all, ‘[t]he policy underlying the privilege is to assure utmost freedom of communication between citizens and public authorities whose responsibility it is to investigate and remedy wrongdoing.’ [Citation.] . . . The importance of providing to citizens free and open access to governmental agencies for the reporting of suspected illegal activity outweighs the occasional harm that might befall a defamed individual. Thus the absolute privilege is essential.” ’ [Citations.] In short, the [Civil Code] section 47(b) absolute privilege applies to ‘communications intended to instigate official investigation into [suspected] wrongdoing.’ [Citation.] Statements made to prompt an official investigation that may result in the initiation of judicial proceedings fall within the [Civil Code] section 47(b) privilege as well. [Citation.].”
If there is no dispute as to the operative facts, the applicability of the litigation privilege is a question of law. (Kashian v. Harriman, supra, 98 Cal.App.4th 892, 912.) Here, the operative facts—Forte’s two letters to Kanalakis—are not in dispute, and they speak for themselves.
Unlike Forte’s letters to Flippo, Spitz, McKee, and numerous other state officials, which both reported alleged obstruction of justice and sought to prompt an investigation, Forte’s two letters to Kanalakis did not report any criminal activity or suspected wrongdoing. Nor did the letters refer to potential litigation or a criminal investigation. Nor can the letters reasonably be read as an effort to prompt an investigation of McKee that might result in judicial proceedings. Rather, Forte’s letters simply requested that Kanalakis help him arrest McKee. In this regard, Forte provided no explanation or legal justification for an arrest; and in his second letter, Forte simply presented an ultimatum: if Kanalakis did not respond to his request, Forte would assume authority and permission to handcuff McKee, throw him into the trunk of his car, and bring him to the police station.
We note, however, that Forte purportedly sent Kanalakis a copy of his reply to McGreal’s letter; and in that reply, Forte accused numerous people, including McKee and McGreal, of criminal conduct in failing to report or investigate alleged obstruction of justice by various public officials. If we assume that Forte sent a copy of his reply, then it together with Forte’s first letter to Kanalakis requesting help in arresting McKee arguably came within the litigation privilege because they can reasonably be construed as an effort to prompt some official action to address some allegedly unlawful activity.
Nevertheless, in Action Apartment Ass’n, Inc. v. City of Santa Monica (2007) 41 Cal.4th 1232, the court explained that “ ‘[t]he principal purpose of [the litigation privilege] is to afford litigants and witnesses [citation] the utmost freedom of access to the courts without fear of being harassed subsequently by derivative tort actions. [Citations.]’ [Citation.] In order to achieve this purpose of curtailing derivative lawsuits, we have given the litigation privilege a broad interpretation. The litigation privilege ‘derives from common law principles establishing a defense to the tort of defamation.’ [Citation.] ‘Its placement in the Civil Code immediately following the statutory provisions defining the elements of the twin defamation torts of libel and slander [citations] makes clear that, at least historically, the section was primarily designed to limit an individual’s potential liability for defamation.’ [Citation.] Beginning with Albertson v. Raboff [(1956) 46 Cal.2d 375 (Albertson)], which involved an action for defamation of title, we first extended the litigation privilege to apply to torts other than defamation. [Citation.] As we observed in Silberg [v. Anderson (1990) 50 Cal.3d 205], the litigation privilege has since ‘been held to immunize defendants from tort liability based on theories of abuse of process [citations], intentional infliction of emotional distress [citations], intentional inducement of breach of contract [citations], intentional interference with prospective economic advantage [citation], negligent misrepresentation [citation], invasion of privacy [citation], negligence [citation] and fraud [citations].’ [Citation.] [¶] The litigation privilege, however, is not without limit. For example, in Albertson, we did not extend the privilege to actions for malicious prosecution, explaining that ‘[t]he policy of encouraging free access to the courts that underlies the absolute privilege applicable in defamation actions is outweighed by the policy of affording redress for individual wrongs when the requirements of favorable termination, lack of probable cause, and malice are satisfied.’ [Citation.]” (Id. at pp. 1241-1242.)
The court further explained that the litigation privilege does not apply to various crimes, including perjury and subornation of perjury, explaining that the statutes proscribing those offenses are “more specific than the litigation privilege and would be significantly or wholly inoperable if its enforcement were barred when in conflict with the privilege.” (Action Apartment Ass’n, Inc. v. City of Santa Monica, supra, 41 Cal.4th at p. 1246.)
A similar analysis applies to Forte’s second letter to Kanalakis, which was the specific basis for the TRO. Section 527.6 permits a person to seek a TRO against “ ‘harassment,’ ” which is defined as “unlawful violence, a credible threat of violence, or a knowing and willful course of conduct directed at a specific person that seriously alarms, annoys, or harasses the person, and that serves no legitimate purpose.” (§ 527.6, subd. (b), italics added.)
Like criminal statutes, section 527.6 is more specific than the litigation privilege, and it is intended to protect individuals by restraining those who have committed acts of violence or made credible threats. (See Russell v. Douvan (2003) 112 Cal.App.4th 399, 403 [“Section 526.7 intended ‘to protect the individual’s right to pursue safety, happiness and privacy as guaranteed by the California Constitution’ ”].) The statute would be rendered partially inoperable and its purpose thwarted if, for example, Forte could insulate a credible threat of violence against McKee by simply including it in a letter to Kanalakis seeking his assistance in making an arrest. Indeed, Forte cites, and we are aware of, no authority suggesting that the litigation privilege (or the anti-SLAPP statute for that matter) was intended to help shield those who make credible threats of violence from restraining orders designed to protect the people who were threatened. On the contrary, “[i]n California, speech that constitutes ‘harassment’ within the meaning of section 527.6 is not constitutionally protected, and the victim of the harassment may obtain injunctive relief.” (Huntingdon Life Sciences, Inc. v. Stop Huntingdon Animal Cruelty USA, Inc. (2005) 129 Cal.App.4th 1228, 1250.)
Forte concedes that a credible threat of violence within the meaning of section 526.7 is not protected activity. (See City of Los Angeles v. Animal Defense League, supra, 135 Cal.App.4th at p. 622, fn. 14 [threats of violence fall outside the protection of the First Amendment].) However, he claims that his statements were not a credible threat because they did not separately violate Penal Code section 71, which proscribes threatening public officials and employees and school officials. That statute requires (1) a threat to inflict an unlawful injury upon any person or property, (2) direct communication of the threat to a public officer or employee, (3) the intent to influence the performance of the officer or employee’s official duties, and (4) the apparent ability to carry out the threat. (In re Ernesto H. (2005) 125 Cal.App.4th 298, 308.) Forte notes that he did not send his letter directly to McKee or ask Kanalakis to forward it to him, and Kanalakis did not arrest or even investigate him for threatening a public official.
Penal Code section 71 provides, in relevant part, “Every person who, with intent to cause, attempts to cause, or causes, any officer or employee of any public or private educational institution or any public officer or employee to do, or refrain from doing, any act in the performance of his duties, by means of a threat, directly communicated to such person, to inflict an unlawful injury upon any person or property, and it reasonably appears to the recipient of the threat that such threat could be carried out, is guilty of a public offense . . . .”
Forte’s argument fails because he erroneously assumes section 527.6 applies only to unlawful threats—i.e., threats that violate a criminal statute. He provides no authority for this view, and we reject it. Whereas the definition of “ ‘harassment’ ” in section 527.6, subdivision (b) expressly specifies “unlawful violence,” its does not likewise include unlawful threats or otherwise suggest that a threat of violence be unlawful or a violation of a criminal statute to be considered actionable harassment. Rather, the threat need only be credible, that is, a statement “that would place a reasonable person in fear for his or her safety, or the safety of his or her immediate family, and that serves no legitimate purpose.” (§ 527.6, subd. (b).)
“When one part of a statute contains a term or provision, the omission of that term or provision from another part of the statute indicates the Legislature intended to convey a different meaning. [Citation.] A court may not rewrite a statute, either by inserting or omitting language, to make it conform to a presumed intent that is not expressed. [Citations.]” (Cornett v. Department of Transportation (2001) 26 Cal.4th 63, 73-74.) Accordingly, we decline to rewrite the definition of “harassment” and restrict it to only threats that separately constitute criminal offenses. Thus, the fact that Kanalakis did not arrest or investigate Forte for making a criminal threat does not suggest that Forte’s statement was not “ ‘harassment’ ” or a “credible threat of violence” under section 527.6.
Even if we assume for purposes of argument only that section 527.6 required a criminal threat of violence, Forte’s argument would fail. Insofar as Forte directly communicated to Kanalakis a threat of violence against McKee with the specific intent to make Kanalakis perform an official duty, Forte’s conduct arguably violated Penal Code section 71. Even then, however, the fact that Kanalakis took no action against Forte and simply forwarded the letter to McKee would not establish, or even suggest, that Forte’s threat was not unlawful. In general, Kanalakis has no mandatory duty to investigate all citizen complaints of possible criminal activity except perhaps reports of child molestation. (Alejo v. City of Alhambra (1999) 75 Cal.App.4th 1180, 1183-1184 [mandatory duty under Penal Code section 11166, subd. (a)].) Rather the decision to investigate a citizen’s complaint is generally a matter within a police officer’s discretion. (McCarthy v. Frost (1973) 33 Cal.App.3d 872, 875.)
Forte alternatively claims that his statements did not constitute a credible threat of violence because they would not have put a reasonable person in fear for his or her safety. According to Forte, his statement was obviously a mocking, facetious, sarcastic, and joking expression of frustration and effort to trigger a response from Kanalakis and not a reflection of a serious intent to handcuff McKee and throw him in the trunk of his car. He notes that in his previous letters, he made it clear that he wanted the arrest to be safe and peaceful and protect himself against accusations of assault and battery. Thus, he argues that it is “[u]tterly ridiculous” to think that he would have taken Kanalakis’s failure to respond as permission to handcuff McKee, throw him into the trunk of his car, and then bring him to the police station. We are not persuaded.
As noted, “ ‘[c]redible threat of violence’ ” is defined as “a knowing and willful statement . . . that would place a reasonable person in fear for his or her safety, or the safety of his or her immediate family, and that serves no legitimate purpose.” (§ 527.6, subd. (b)(2).) This definition establishes an objective test, and Forte’s alleged undisclosed rhetorical intent is irrelevant. (Cf. Berkemer v. McCarty (1984) 468 U.S. 420, 442 [test for custody is objective, and officer’s subjective intent is irrelevant]; People v. Smith (2003) 31 Cal.4th 1207, 1216 [same for determining entrapement]; Beard v. Goodrich (2003) 110 Cal.App.4th 1031, 1039-1040 [same for determining mutual consent in contract]; Flanagan v. Flanagan (2002) 27 Cal.4th 766, 774-775 [same re determining confidentiality].)
This objective test mirrors that test for determining whether a threat is protected speech under the First Amendment: “ ‘whether a reasonable person would foresee that the statement would be interpreted by those to whom the maker communicates the statement as a serious expression of intent to harm or assault. [Citations.]’ [Citations.]” (In re Steven S. (1994) 25 Cal.App.4th 598, 608, quoting U.S. v. Orozco-Santillian (9th Cir. 1990) 903 F.2d 1262, 1265; see In re M.S. (1995) 10 Cal.4th 698, 710 [“When a reasonable person would foresee that the context and import of the words will cause the listener to believe he or she will be subjected to physical violence, the threat falls outside First Amendment protection”]; People v. Toledo (2001) 26 Cal.4th 221, 233 [same].)
“Context is everything in threat jurisprudence.” (United States v. Bell (9th Cir. 2002) 303 F.3d 1187, 1192.) Thus, in determining whether a statement is a credible threat of violence, we may consider the entire factual context, which can include surrounding events and the reaction of the listeners. (Huntingdon Life Sciences, Inc. v. Stop Huntingdon Animal Cruelty USA, Inc., supra, 129 Cal.App.4th at p. 1252; cf. People v. Falck (1997) 52 Cal.App.4th 287, 298 [determining threat for purposes of stalking statute].)
Our summary of Forte’s letter campaign reveals the circumstances and context leading up to his second letter to Kanalakis. As our summary reveals, Forte was convinced that Flippo and Spitz had conspired with Rutledge to fix his small claims court action and that later Flippo and/or Spitz were somehow responsible for removing or tampering with the file in his small claims action. When no one acted on Forte’s claims of obstruction of justice, Forte thought that judges and additional public officials were part of an effort to cover-up the underlying obstruction of justice to protect themselves and others who might be implicated. Stymied by the refusal of local public officials to perform what he considered their legal duty, Forte tried to enlist the help of the State Attorney General, the Chief Justice of the California Supreme Court, and the Governor; and to prod their response, and he warned that they too would be considered part of the conspiracy if they ignored him. However, they too failed to respond. In his series of unsuccessful letters to county and state public officials, Forte used language that was at times sarcastic, strident, hyperbolic, and aggressive, if not hostile, especially his later letters to McKee and McGreal.
Finally, frustrated and aggravated by McKee’s failure to act on the evidence of obstruction and respond to Forte’s demand that he voluntarily surrender himself to police for violating federal law, Forte indicated his intent to take matters into his own hands and make a citizen’s arrest. He first notified McKee and asked for his acquiescence and cooperation. Again, McKee ignored Forte’s request. Moreover, McGreal warned Forte that he could face civil and criminal liability if he pursued what would be an unlawful citizen’s arrest. Forte scoffed at McGreal’s response and legal analysis and decided to press on, writing to Kanalakis for help in arresting McKee. When Kanalakis failed to respond, Forte sent him the second letter containing the ultimatum.
Next, we note that Forte’s letters show that he was absolutely convinced of his right and authority to arrest McKee for violating section 4 of title 18, of the United States Code, in that McKee had failed to report a criminal obstruction of justice. However, as we explain below, Forte lacked both the statutory authority and legal justification for an arrest of McKee and his belief to the contrary was unreasonable.
A violation of section 4 of title 18 of the United States Code requires proof that (1) someone has, in fact, committed and completed a crime; (2) the defendant was fully aware that the crime had been committed (3) the defendant failed to notify authorities; and (4) the defendant took affirmative steps to conceal the crime. (U.S. v. Ciambrone (9th Cir. 1984) 750 F.2d 1416, 1417.)
In his November 8, 2005, letter to McKee, Forte outlined the facts concerning the underlying crime that McKee then allegedly failed to report. In that letter, Forte accused Flippo, Spitz, Rutledge, the Monterey County Attorneys Office, and members of the Monterey County Superior Court Executive Committee of obstructing justice. However, Forte did not relate any direct evidence that such a crime had in fact been committed. He simply enumerated a chronology of circumstances, including the reassignment of his small claims action, notices sent to his former address, Flippo and Spitz’s alleged conflict of interest, a missing file, and a missing change of address form. However, his allegations do not demonstrate that obstruction of justice had, in fact occurred, or even establish probable cause to believe that it had. Rather, Forte’s accusation of an obstruction of justice amounted to no more than speculative inferences tied together with conspiracy theory.
“Probable cause to arrest exists if the facts known to the arresting officer would lead a person of ordinary care and prudence to entertain an honest and strong suspicion that an individual is guilty of a crime.” (People v. Kraft (2000) 23 Cal.4th 978, 1037; (People v. Price (1991) 1 Cal.4th 324, 410.) Where, as here, the facts are undisputed, the issue of probable cause is a question of law. (Ecker v. Raging Waters Group, Inc. (2001) 87 Cal.App.4th 1320, 1332; Hamilton v. City of San Diego (1990) 217 Cal.App.3d 838, 844.)
Thus, although Forte’s November 8 letter may have put McKee on notice of certain circumstances, it was unreasonable for Forte to believe that McKee had knowledge of an actual crime, failed to report that crime, and took affirmative steps to conceal it. Indeed, Forte does not now indicate what affirmative steps McKee took to conceal it. Indeed, there is no evidence that McKee concealed anything.
We further point out that a private citizen may make an arrest if, but only if, a public offense has, in fact, been committed. (People v. Piorkowski (1974) 41 Cal.App.3d 324, 328; People v. Aldapa (1971) 17 Cal.App.3d 184, 188; Pen. Code, §§ 834, 837.) Mere probable cause to believe a crime may have been committed is not enough to authorize and justify a citizen’s arrest. Here, the record does not support a finding of probable cause to believe that a violation of section 4 of title 18 of the United States Code had occurred, let alone establish that such a violation had, in fact, occurred. Again, Forte’s belief that he was authorized to arrest McKee was based on speculation, a misunderstanding of the law, and his failure to heed McGreal’s warning.
Penal Code section 834 provides, “An arrest is taking a person into custody, in a case and in the manner authorized by law. An arrest may be made by a peace officer or by a private person.”
Finally, we note that although Kanalakis did not personally take legal action against Forte, he obviously considered Forte’s statements sufficiently serious to alert McKee so that he could take protective action if he considered it necessary. McKee, in turn, immediately sought a TRO, indicating that he considered Forte’s statements to be a credible threat of violence.
In sum, when we view Forte’s statements in light of (1) his zealous belief in an ever-widening conspiracy against him, (2) his unsuccessful crusade to get public officials involved in investigating obstruction of justice in his small claims action; (3) his evident frustration and escalating rhetoric, (4) his clear intention to arrest McKee despite McGreal’s warning, (5) the lack of both a factual basis to believe that McKee had committed a crime and legal justification to arrest him, and (6) Kanalakis’s and McKee’s reaction to Forte’s statements, we find that they would place a reasonable person in fear for his or her safety and lacked any legitimate purpose. Thus, notwithstanding Forte’s claim that he was simply being sarcastic and facetious to prompt Kanalakis to respond, we conclude that his statements constituted a “credible threat of violence” and “harassment” under section 527.6 and, therefore, were not protected activity within the meaning of the anti-SLAPP statute. Accordingly, the trial court correctly found that McKee’s application for a TRO did not implicate Forte’s constitutional rights and properly denied Forte’s anti-SLAPP motion.
In his statement of facts, Forte notes that Judge Cooper dismissed Forte’s purported motion to disqualify him and refused to recuse himself. Forte provides no record citations to the alleged motion to disqualify Cooper in this case and offers no legal citations or argument to support a claim that Judge Cooper erred in failing to recuse himself. Consequently, we need not address any such claim. (See Jones v. Superior Court (1994) 26 Cal.App.4th 92, 99 [“Issues do not have a life of their own: if they are not raised or supported by [substantive] argument or citation to authority, we consider the issues waived”]; e.g., In re S.C. (2006) 138 Cal.App.4th 396, 406-407; [appellate court can deem a contention unsupported by a record citation to be without foundation and, thus, forfeited]; Dabney v. Dabney (2002) 104 Cal.App.4th 379, 384 [“We need not consider an argument for which no authority is furnished”]; Badie v. Bank of America (1998) 67 Cal.App.4th 779, 784-785 [“When an appellant . . . asserts [a point] but fails to support it with reasoned argument and citations to authority, we treat the point as waived”].)
Disposition
The order denying Forte’s anti-SLAPP motion is affirmed. McKee is entitled to his costs on appeal.
WE CONCUR: PREMO, J., BAMATTRE-MANOUKIAN, J.
All further unspecified statutory references are to the Code of Civil Procedure.
Later, at the hearing on March 27, 2006, Forte purported to disqualify Judge Cooper. However, Judge Cooper dismissed the effort, noting, among other things, that the motion to disqualify had been in an unrelated action and not McKee’s action.
The anti-SLAPP statute and the litigation privilege are coextensive. Thus if the litigation privilege applies, the anti-SLAPP statute also applies. (Department of Fair Employment & Housing v. 1105 Alta Loma Road Apartments, LLC (2007) 154 Cal.App.4th 1273, 1288, fn. 23; Sylmar Air Conditioning v. Pueblo Contracting Services, Inc. (2004) 122 Cal.App.4th 1049, 1058.)
On the other hand, Forte’s statements could not reasonably be considered a terrorist threat in violation of Penal Code section 422 because Forte did not directly communicate them to McKee, and the record does not indicate that he intended for Kanalakis to relate those statements to McKee. (In re Ryan D. (2002) 100 Cal.App.4th 854, 861 [conviction requires direct threat to target with specific intent to have threat communicated by third person].)
Penal Code section 837 provides, “A private person may arrest another: [¶] 1. For a public offense committed or attempted in his presence. [¶] 2. When the person arrested has committed a felony, although not in his presence. [¶] 3. When a felony has been in fact committed, and he has reasonable cause for believing the person arrested to have committed it.” (Italics added.)