Opinion
A165508
04-15-2024
JOANNA L. PFEISTER, Plaintiff and Respondent, v. STEPHEN ROGERS et al., Defendants and Appellants
NOT TO BE PUBLISHED
(City & County of San Francisco Super. Ct. No. CGC-20-586621)
LANGHORNE WILSON, J.
Plaintiff Joanna L. Pfeister applied for an open seat on the board of her homeowners association. Nearly two years later, she sued the homeowners association and the individual directors of the board-including defendants Giampaolo D'Errico and Stephen Rogers (collectively, defendants)-alleging they engaged in a course of conduct to deter her from serving on the board due to her membership in a protected class. Among other things, she alleged they postponed the board election, made false police reports about her, and prosecuted a meritless civil action against her. Pfeister asserted causes of action for discrimination, abuse of process, malicious prosecution, invasion of privacy, elder abuse, intentional infliction of emotional distress, and various corporate abuses.
The Notice of Appeal also named David Wetzel as an appellant. However, per his request, we dismissed the appeal as to Wetzel in September 2022.
Defendants filed an anti-SLAPP motion to strike those claims. (See Code Civ. Proc., § 425.16.) The trial court denied the motion because it was untimely and because the causes of action either did not arise from protected activity or Pfeister established a probability of prevailing on her claims. Defendants appeal.
"SLAPP" stands for "strategic lawsuit against public participation." (Code Civ. Proc., § 425.18.) All statutory references are to the Code of Civil Procedure unless otherwise specified.
We conclude the order denying defendants' special motion to strike should be granted pertaining to certain claims in Pfeister's second, third, and sixth causes of action because defendants presented a prima facie showing that those claims arose from protected activity, and Pfeister did not establish a probability of prevailing on those claims. Consequently, we reverse and direct the trial court to enter an order granting the motion to strike those claims. In all other respects, we affirm.
I. BACKGROUND
Pfeister owns a condominium unit in a 260-unit common interest development in San Francisco. Every homeowner in the development is a member of the Gramercy Towers Condominium Association (the Association), which is governed by a seven-member board of directors (the Board) comprised of volunteer homeowners. The individual defendants, including D'Errico and Rogers, were directors of the Board at the time of the events giving rise to this action.
A. The Complaint
In 2020, Pfeister filed a lawsuit against the Association. She later filed a first amended complaint, adding the individual directors as defendants. The first amended complaint alleged claims for discrimination, elder abuse, abuse of process, malicious prosecution, intentional infliction of emotional distress, and various corporate abuses against all defendants. After the court sustained the Association's demurrer to the first amended complaint, Pfeister filed a second amended complaint (SAC) asserting the same claims and adding a cause of action for invasion of privacy.
The SAC's first cause of action for discrimination alleged that in December 2018, Pfeister was "duly elected" to the Board. Defendants were aware she was a 75-year-old transgender woman and a disabled veteran, and they conspired to prevent her from exercising her rights as a director of the Board. To that end, they made disparaging remarks about her and encouraged others to act uncooperatively or disrespectfully towards her. They also "invad[ed] her privacy" by hiring attorneys and investigators to obtain her private information; Rogers and other directors made false reports to law enforcement to initiate civil and criminal proceedings against her. Defendants then "misus[ed]" Association funds to finance third-party litigation against her and refused to maintain insurance coverage for her, thereby requiring her to incur costs in defending against the litigation. Additionally, defendants postponed Board meetings and denied her the right to inspect Association records and call and attend Board meetings.
The second cause of action for abuse of process alleged that Rogers and other directors knowingly made false statements to law enforcement about Pfeister's conduct during a settlement meeting for litigation involving the Association. Defendants allegedly did so to instigate criminal and civil proceedings against her. This cause of action further alleged that defendants authorized the use of Association funds to finance that litigation.
The third cause of action for malicious prosecution alleged that defendants made or "ratified" false statements to law enforcement to instigate criminal proceedings against Pfeister and to create a "pretext" to bring a civil harassment action against her, and there were no reasonable grounds to bring either action.
The fourth cause of action for invasion of privacy alleged that defendants hired attorneys and private investigators to "expose[]" Pfeister's private information for the purpose of humiliating her.
The fifth cause of action for elder abuse, as relevant to this appeal, alleged that defendants failed to provide Pfeister insurance coverage to which she was entitled as a "duly elected" director of the Board, thereby exposing her to personal liability for her defense of "unjustified" criminal and civil litigation.
The sixth cause of action for intentional infliction of emotional distress incorporated the allegations in the first five causes of action and asserted that defendants' alleged conduct caused Pfeister severe emotional distress.
The seventh through ninth causes of action and the eleventh cause of action are for various corporate abuses. Those causes of action alleged that defendants violated Association bylaws and state laws by "postpon[ing]" and "refus[ing]" to conduct annual meetings of the Association, "den[ying]" Pfeister her right as a member and director to inspect and copy Association records, "den[ying]" her the right to call and attend executive sessions, and "refus[ing]" to maintain an insurance policy for her, respectively.
Finally, the tenth cause of action for "unauthorized transfer of funds" alleged that each of the defendants "authorized" or "directed" the "unlawful and unauthorized transfers of the Association's funds [] for the purpose of . . . financing litigation against Plaintiff."
B. Defendants' Anti-SLAPP Motion
Defendants filed an anti-SLAPP motion arguing that the SAC and each cause of action therein should be stricken. They asserted that the causes of action arose from their protected activity because they were based on their decisions as directors regarding issues of public interest, the prosecution of a civil action, the hiring of attorneys and investigators for a litigation-related investigation, or their communications with law enforcement.
In opposition, Pfeister argued the motion was untimely and that each cause of action except for her abuse of process and malicious prosecution claims did not arise from protected activity. She further argued that she established a probability of prevailing on her causes of action. Pfeister submitted two declarations stating that defendants made false statements to law enforcement about her, and that those false statements served as the basis for their civil action against her. She also indicated that defendants had postponed the Board election with "no justification," withheld Association records from her, refused to provide her insurance coverage to which she was entitled, and excluded her from Board meetings. Attached to her first declaration were excerpts from the deposition of the Association's manager, which showed that some of the directors had made disparaging remarks about Pfeister and her transgender status.
Defendants asserted several evidentiary objections to Pfeister's declarations. The trial court overruled all but four. Defendants do not challenge the court's ruling on their evidentiary objections on appeal. We therefore consider all evidence presented by Pfeister to which the trial court did not sustain defendants' objections. (See Jimenez v. 24 Hour Fitness USA, Inc. (2015) 237 Cal.App.4th 546, 562, fn. 5.)
The trial court denied the motion as untimely as to all causes of action except the invasion of privacy claim because defendants filed the motion more than 60 days after they were served with the first amended complaint. The trial court also denied the motion on the merits, concluding that for each claim, Pfeister demonstrated a probability of prevailing, or the claim was not based on protected activity.
II. DISCUSSION
Defendants challenge the denial of their anti-SLAPP motion on two grounds. We address each in turn.
A. Timeliness of Anti-SLAPP Motion
Defendants first contend the trial court abused its discretion in denying their motion as untimely. Even though defendants filed the motion more than 60 days after they were served with the first amended complaint (§ 425.16, subd. (f)), we agree.
1. Additional Background
Pfeister filed the lawsuit against the Association in September 2020. Over a year later, she filed the first amended complaint, adding the individual defendants. D'Errico was personally served with the first amended complaint on November 24, 2021. Rogers was served by substitute service, and the complaint and summons were mailed to him on November 29, 2021, meaning service was effective on him on December 9, 2021. (§ 415.20, subd. (a).)
By January 3, 2022, D'Errico had retained counsel, who asked Pfeister for an extension to file a response to the first amended complaint. Instead of granting an extension, Pfeister requested entry of D'Errico's default on January 6. D'Errico attempted to file an anti-SLAPP motion the following day, but the trial court rejected the filing because of the pending request for default. The court entered D'Errico's default on January 12, just 49 days after he was personally served with the first amended complaint. The court entered Rogers's default on January 14, only 36 days after service was effective on him.
D'Errico moved to set aside his default a week later, on January 20. The following day, he filed an ex parte application to advance the hearing and shorten time to hear the motion to set aside the default. Attached to the application was a proposed answer to the first amended complaint and an anti-SLAPP motion.
On January 27, 2022, the court denied D'Errico's ex parte application, citing the "procedural posture of [the] case," apparently because on that same day, the court sustained with leave to amend the Association's demurrer to the first amended complaint. The SAC was not filed for another month, on February 28, 2022.
The individual defendants filed their anti-SLAPP motion on March 8, 2022, a little over three months after D'Errico was personally served with the first amended complaint, and 90 days after service of the first amended complaint was effective on Rogers.
2. Analysis
A special motion to strike must be filed within 60 days of the service of the complaint or, in the court's discretion, at any later time upon terms it deems proper. (§ 425.16, subd. (f).) In exercising its "considerable discretion" (Platypus Wear, Inc. v. Goldberg (2008) 166 Cal.App.4th 772, 787), the trial court is primarily concerned with whether allowing a party to file an untimely anti-SLAPP motion would be consistent with the "purposes" and policies underlying the statute's timeliness requirement. (San Diegans for Open Government v. Har Construction, Inc. (2015) 240 Cal.App.4th 611, 624 (San Diegans).) Those purposes and policies are (1)" '" 'to prevent [meritless claims falling within the anti-SLAPP statute] by ending them early and without great cost to the SLAPP target,'" '" and (2) to minimize the" 'possibility for abuse of the anti-SLAPP statute,'" (Newport Harbor Ventures, LLC v. Morris Cerullo World Evangelism (2018) 4 Cal.5th 637, 645 (Newport Harbor)) especially the "tactical manipulation of the stays that attend anti-SLAPP proceedings" (San Diegans, at pp. 624-625).
Thus, the statute contemplates a "point [in time] beyond which an anti-SLAPP motion simply cannot perform its intended function," at which point the trial court would have no discretion but to deny the motion on that ground. (Hewlett-Packard Co. v. Oracle Corp. (2015) 239 Cal.App.4th 1174, 1189.) To determine whether that point has been reached, courts consider several factors, including "the length of the delay, the reasons for the late filing, and any undue prejudice to the plaintiff." (San Diegans, supra, 240 Cal.App.4th at p. 624.) "[T]he most important consideration is whether the filing advances the anti-SLAPP statute's purpose of examining the merits of covered lawsuits in the early stages of the proceedings." (Ibid.)
We review the trial court's ruling denying defendants' anti-SLAPP motion for an abuse of discretion. (Platypus Wear, Inc. v. Goldberg, supra, 166 Cal.App.4th at p. 782.) The trial court abuses its discretion where "the application to the facts of [the] case is outside the range of discretion conferred upon [it] under [section 425.16], read in light of its purposes and policy." (Olsen v. Harbison (2005) 134 Cal.App.4th 278, 285.)
Here, the motion was untimely as to all causes of action in the SAC except the invasion of privacy claim (Newport Harbor, supra, 4 Cal.5th at p. 645), but it should be allowed anyway because all the factors weigh in favor of hearing the merits. The motion was late by approximately four to six weeks, and it was late due largely to a combination of circumstances outside of defendants' control-the court declining to rule on D'Errico's motion to set aside his default and the month-long delay in filing the SAC after the court had sustained the Association's demurrer to the first amended complaint with leave to amend. Until the SAC was filed, defendants' defaults remained in place (Julius Schifaugh IV Consulting Services, Inc. v. Avaris Capital, Inc. (2008) 164 Cal.App.4th 1393, 1398), and they could not file their anti-SLAPP motion (W.A. Rose Co. v. Municipal Court for Oakland-Piedmont Judicial Dist. Alameda County (1959) 176 Cal.App.2d 67, 72). Moreover, D'Errico's counsel attempted to file a response to the first amended complaint and acted promptly to set aside his default once discovered, prior to the expiration of his 60 days to file an anti-SLAPP motion. While Rogers never moved to set aside his default, he still had almost two weeks to file an anti-SLAPP motion when the court sustained the Association's demurrer to the first amended complaint. Thus, the record does not indicate an intent to harass Pfeister or manipulate the stays afforded by the anti-SLAPP statute. Additionally, the anti-SLAPP motion was made before the parties had incurred any substantial time and expense in litigating the claims against the individual defendants.
In contrast, cases affirming denials of anti-SLAPP motions as untimely involved much longer delays (Hewlett-Packard Co. v. Oracle Corp., supra, 239 Cal.App.4th at p. 1189 [motion filed 558 days after 60-day period ended]) or no good cause for the delay (Olsen v. Harbison, supra, 134 Cal.App.4th at p. 280 [appeal dismissed as frivolous where motion filed 278 days after service of amended complaint with no good cause for the delay]; Morin v. Rosenthal (2004) 122 Cal.App.4th 673, 678, 681 [motions filed 90 days after remand from federal bankruptcy court; "[I]nstead of attempting to promptly expose and dismiss Morin's suit as a SLAPP, defendants chose to devote their time, energy and resources to moving the case from state court to federal court and, after remand from the federal court, moving the case from one branch of the superior court to another and then from one judge to another in the chosen branch," which "consumed" seven months].)
Pfeister insists this case is "akin" to those cases where leave to file a late anti-SLAPP motion was denied. (See Hewlett-Packard Co. v. Oracle Corp., supra, 239 Cal.App.4th at pp. 1186-1187 [suggesting denial of leave to file untimely motion is not immediately appealable].) However, "[a] party's request [for leave to file an untimely motion] is not a prerequisite to a trial court's exercise of its discretion to hear an otherwise untimely anti-SLAPP motion." (Symmonds v. Mahoney (2019) 31 Cal.App.5th 1096, 1105, fn. 4.) Here, the trial court not only denied the motion as untimely but also addressed the merits of the motion as to each cause of action in the SAC.
In sum, hearing defendants' motion on the merits will advance, rather than defeat, the purposes of the anti-SLAPP statute's timeliness requirement to eliminate meritless lawsuits at the outset, before the defendant spends significant time and resources litigating the case, and to prevent abuses of the statute. We therefore conclude that this is a rare case where the trial court abused its discretion in denying the motion on untimeliness grounds. In so holding, we do not suggest that the time to file an anti-SLAPP motion is automatically tolled by the time a defendant is in default. Rather, our determination is based on the policies and purposes of the statute and whether hearing the motion on the merits would serve those polices and purposes, considering the circumstances of the case.
B. Merits of Motion
Next, defendants contend their motion should have been granted because the SAC is based on protected activity, and Pfeister is not likely to prevail on her claims.
"Courts analyze anti-SLAPP motions using a familiar two-step analysis." (Area 51 Productions, Inc. v. City of Alameda (2018) 20 Cal.App.5th 581, 592.) "First, the defendant must establish that the challenged claim arises from activity protected by section 425.16." (Baral v. Schnitt (2016) 1 Cal.5th 376, 384 (Baral).) Section 425.16, subdivision (e) enumerates four categories of protected conduct including, as relevant here, communications made in connection with an issue under consideration by a judicial proceeding or any other conduct in furtherance of petitioning or free speech activity in connection with a public issue or an issue of public interest. (§ 425.16, subd. (e)(2), (4).) If the defendant makes the required showing at the first step, the "burden shifts to the plaintiff to demonstrate the merit of the claim by establishing a probability of success." (Baral, at p. 384.)
Many of Pfeister's causes of action are based on several different actions allegedly taken by defendants, some of which constitute unprotected activity. With so-called" 'mixed cause[s] of action,'" causes of action based on allegations of both protected and unprotected activity (Baral, supra, 1 Cal.5th at pp. 381-382), the focus of analysis shifts from evaluating the cause of action as a whole to evaluating individual claims so that the court can determine whether a claim, rather than a cause of action, constitutes a "proper subject of a special motion to strike" (id. at pp. 382, 395). For purposes of the anti-SLAPP statute, a claim refers to a set of facts allegedly giving rise to relief. (Ibid.)
Because defendants' anti-SLAPP motion purported to challenge individual claims within the SAC's causes of action, we determine whether the anti-SLAPP statute applies to those portions of Pfeister's causes of action. We review the order denying defendants' special motion to strike de novo. (Flatley v. Mauro (2006) 39 Cal.4th 299, 325.)
1. Prong One
Defendants argue they satisfied the first prong of the anti-SLAPP analysis because Pfeister's claims arise from their litigation-related activities, their communications with law enforcement, and/or the decisions they made as directors of the Board regarding issues of public interest. We address each claim below.
In their opening brief, defendants list several "litigation-related" activities that Pfeister alleged in her first cause of action for discrimination, but for some of those activities, they present no argument that the alleged conduct constitutes protected activity or gives rise to Pfeister's discrimination claim. We therefore do not address any assertion that defendants met prong one of the anti-SLAPP analysis for those claims. (See Lee v. Kim (2019) 41 Cal.App.5th 705, 721.)
a. Investigation of Pfeister's Personal Information
Pfeister's fourth cause of action for invasion of privacy alleged that defendants "invaded" her privacy by hiring attorneys and investigators to "expose" her private information "to humiliate and embarrass [her], and discourage and prevent her from serving on the Board." Defendants argue they satisfy the first prong of the anti-SLAPP analysis for this claim because the hiring of attorneys and investigators and the resulting investigation were related to litigation. We conclude that defendants failed to meet their burden to establish this conduct constitutes protected activity under section 425.16.
Defendants were required to make a prima facie showing that the hiring of investigators and attorneys and the investigation constituted protected activity as enumerated in the statute. (§ 425.16, subd. (e)(1)-(4).) Without citing the statutory provision, defendants appear to suggest, as they did below, that the alleged conduct falls under subdivision (e)(1) or (e)(2) of section 425.16-statements made "before a . . . judicial proceeding" and statements made "in connection with an issue under consideration or review by a . . . judicial body," respectively-because they argue that the hiring of attorneys and investigators and the subsequent investigation of Pfeister were "litigation-related." There is no indication Pfeister's claim seek redress for any statements made "before" a court, so our focus is on subdivision (e)(2) of section 425.16. (§ 425.16, subd. (e)(1).)
Section 425.16, subdivision (e)(2) "does not accord anti-SLAPP protection to suits arising from any act having any connection, however remote, with an official proceeding." (Paul v. Friedman (2002) 95 Cal.App.4th 853, 866, abrogated on other grounds by Jacob B. v. County of Shasta (2007) 40 Cal.4th 948, 960-962.) A statement is "in connection with" litigation under that subdivision "if it relates to the substantive issues in the litigation and is directed to persons having some interest in the litigation." (Neville v. Chudacoff (2008) 160 Cal.App.4th 1255, 1266.) For example, the Second District reversed an order granting the defendant's special motion to strike where the plaintiff's lawsuit was based on allegations the defendant "conducted a harassing investigation that extended far beyond the scope of the issues subject to [the parties'] arbitration." (Paul, at p. 866.) Because the defendant presented no evidence showing that his investigation was related to the claims under consideration in the arbitration, the court concluded he did not make a prima facie showing the investigation was in connection with "an issue under consideration or review" by the arbitrators. (Id. at p. 868.)
Likewise, here, Pfeister alleged defendants hired investigators and attorneys to investigate her for the purposes of humiliating her and discouraging her from serving on the Board. Defendants cite no evidence in the record showing that the hiring of attorneys and investigators and their subsequent investigation of Pfeister were related to substantive issues in litigation. To the contrary, the record indicates they began conducting a "criminal background" investigation of Pfeister before the events that gave rise to the criminal and civil actions against her, and this investigation eventually included her "financial issues," information that defendants have not shown were related to the substantive issues in any action against Pfeister.
Defendants have therefore failed to establish Pfeister's claim they hired attorneys and investigators arises from protected litigation activities under section 425.16, subdivision (e).
b. Board-Related Decisions
As previously mentioned, under her first cause of action for discrimination, her fifth cause of action for elder abuse, and her seventh, ninth, tenth, and eleventh causes of action for various corporate abuses, Pfeister seeks to hold defendants liable for discriminating against her and violating their duties under Association bylaws and state law by (1) postponing and refusing to conduct annual meetings, resulting in the postponement of the Board election by a few months; (2) refusing to maintain insurance coverage for Pfeister; (3) denying her the right to call and attend Association meetings; and (4) "authorizing]" the "unlawful" transfer of Association funds to finance third-party litigation against her. Defendants contend these claims are subject to the anti-SLAPP statute because they arise from defendants' decisions as directors of the Board over matters of public interest-"Association governance and management." We are not persuaded.
As defendants are claiming this conduct is protected because it was made in connection with an issue of public interest, we determine whether their alleged wrongdoing falls under section 425.16, subdivision (e)(3) or (e)(4). Subdivision (e)(3) protects statements and writings "made in a place open to the public or a public forum in connection with an issue of public interest." (§425.16, subd. (e)(3).) Subdivision (e)(4) protects "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)(4).)
To come within those subdivisions, the conduct or statements must have been made (1) "in furtherance of' the defendant's constitutional right of petition or the constitutional right of free speech, and (2) "in connection with a public issue or an issue of public interest." (§ 425.16, subds. (b)(1), (e)(3) &(4).) Regarding the first element, defendants make no effort to show how Pfeister's claims for refusal to conduct annual meetings and provide insurance, denial of the right to call and attend meetings, and unauthorized transfers of association funds are based on acts "in furtherance of' their petitioning or speech rights. (§ 425.16, subd. (b)(1); see Talega Maintenance Corp. v. Standard Pacific Corp. (2014) 225 Cal.App.4th 722, 729 (Talega) [board members' expenditure of homeowner association funds in violation of their fiduciary duties not protected under anti-SLAPP statute]; Turner v. Vista Pointe Ridge Homeowners Assn. (2009) 180 Cal.App.4th 676, 686 [homeowners association's refusal to grant a homeowner a variance, its demand that the homeowner pay for the variance, and its failure to comply with covenants were not actions in furtherance of association's speech or petitioning rights].) For that reason alone, they have not satisfied their burden on prong one of the anti-SLAPP analysis on Pfeister's claims that concern their conduct as directors. (Park v. Board of Trustees (2017) 2 Cal.5th 1075, 1072 (Park).)
In any event, the second element of section 425.16, subdivision (e)(3) and (4)-that defendants' conduct was made "in connection with a public issue"-proves fatal to defendants' claims of error. An issue of "public interest" includes "not only governmental matters, but also private conduct that impacts a broad segment of society." (Damon v. Ocean Hills Journalism Club (2000) 85 Cal.App.4th 468, 479 (Damon), disapproved of on another ground by Weinberg v. Feisel (2003) 110 Cal.App.4th 1122, 1131 &fn. 4.) Where the issue is not of interest to the general public but rather to a" 'limited, but definable portion of the public (a private group, organization, or community), the constitutionally protected activity must, at a minimum, occur in the context of an ongoing controversy, dispute or discussion, such that it warrants protection by a statute that embodies the public policy of encouraging participation in matters of public significance.'" (Colyear v. Rolling Hills Community Assn. of Rancho Palos Verdes (2017) 9 Cal.App.5th 119, 131 (Colyear), italics added.)
Issues concerning Association governance and management are undoubtedly matters of interest to a definable portion of the public-i.e., the community governed by the Association. However, defendants have not shown that the "ongoing controversy" requirement was met with respect to their Board-related conduct. (Colyear, supra, 9 Cal.App.5th at p. 131.)
Talega, supra, 225 Cal.App.4th 722 is instructive. There, after hiking trails were damaged by rain, three board members of a homeowners association represented that the association was responsible and expended association funds to pay for the repairs. (Id. at p. 726.) Years later, independent board members discovered that two developers were responsible for the damage. (Id. at pp. 726-727.) The association sued its former board members for fraud, negligence, and breach of their fiduciary duties. (Id. at p. 725.) The former board members moved to strike the complaint, claiming the causes of action arose from protected statements they made at homeowners association board meetings. (Id. at p. 726.)
The Fourth District disagreed, concluding the fraud cause of action was not based on protected activity because the allegedly fraudulent statements were not made in connection with an issue of public interest. (Talega, supra, 225 Cal.App.4th at p. 734.) "There is no indication in the record that there was any controversy, dispute, or discussion surrounding the [board members'] representation that the HOA was liable to pay the repair costs." (Ibid.) To the contrary, the evidence showed that other board members believed the defendant board members' allegedly fraudulent statements. (Ibid.) Thus, given the absence of any discussion or controversy regarding the issue of who was responsible for paying for the repairs, the court concluded the defendants had not met their burden on prong one of the anti-SLAPP analysis as to the fraud cause of action. (Ibid.)
As in Talega, the record does not reveal any controversy or discussion about the directors' postponement of the election by a few months, their refusal to provide Pfeister insurance coverage and allow her to call and attend meetings, and their use of Association funds to finance litigation against her. Although Pfeister may have taken issue with those actions (or inaction) after-the-fact, defendants have not shown this dispute was part of any ongoing discussion about matters that could affect the community as a whole.
Defendants' reliance on cases involving the fundamental governance of homeowners associations is misplaced. In Damon, supra, 85 Cal.App.4th 468, statements made at a homeowners association board meeting and in the association newsletter criticizing the association's manager involved "issues of public interest" because "they concerned the very manner in which this group of more than 3,000 individuals would be governed-an inherently political question of vital importance to each individual and to the community as a whole." (Id. at p. 479.) In Ruiz v. Harbor View Community Assn. (2005) 134 Cal.App.4th 1456, letters from the homeowners association's lawyer to a member involved issues of public interest because they were part of an ongoing dispute over whether the homeowners association was evenhandedly enforcing its architectural guidelines. (Id. at pp. 1468-1470.) The statements in Damon were "designed to persuade" members of the community to act on issues of interest to the community, while the statements in Ruiz were made in the context of a dispute regarding association governance, the outcome of which would necessarily affect the larger community, and thus they served "the anti-SLAPP statute's purpose of encouraging participation in an ongoing controversy, debate or discussion." (Du Charme v. International Brotherhood of Electrical Workers (2003) 110 Cal.App.4th 107, 118.)
No such fundamental governance issues are raised in the SAC. While the expenditure of Association funds may be of concern to other Association members, there was no showing that there was any controversy about the directors' decision to use Association funds to finance litigation against Pfeister (other than from Pfeister herself). And Pfeister's dispute with the directors, as described in the SAC, concerned their efforts to exclude her from the Board in violation of Association bylaws and state law, rather than issues of Association governance or management that could affect the entire community. We therefore cannot conclude from defendants' prong one showing that their alleged wrongful acts were made in connection with issues of public interest under section 425.16, subdivision (e)(3) or (e)(4).
Lee v. Silveira (2016) 6 Cal.App.5th 527, another case relied on by defendants, is distinguishable. There, three directors on a homeowners association board sued the other six directors, seeking a declaratory judgment that the board had to obtain at least three bids for association projects. (Id. at pp. 530, 532-534.) The record showed that the action stemmed from a board meeting at which the directors debated whether to renew a contract for management of the association's common areas without obtaining other bids first. (Id. at pp. 532-533.) The plaintiffs voted against renewal, while the defendants voted for renewal. (Id. at p. 535.) On appeal from the denial of the defendants' anti-SLAPP motion, the Fourth District concluded the defendants satisfied prong one because the complaint was based on the "defendants' decisionmaking on 'public issues' . . . that divided the board." (Id. at pp. 531, 542.) Thus, the defendants' allegedly wrongful acts-voting on matters that could affect the association community and which were subject to debate-were clearly in furtherance of their petitioning and speech rights.
c. Communications with Law Enforcement
Defendants argue they satisfy the first prong of the anti-SLAPP analysis as to Pfeister's second cause of action for abuse of process and third cause of action for malicious prosecution because they are based on allegations that they knowingly made false reports to law enforcement. We agree that defendants' communications with law enforcement constituted protected activity under section 425.16. (See Comstock v. Aber (2012) 212 Cal.App.4th 931, 941.) And Pfeister does not dispute that her abuse of process and malicious prosecution claims arise, at least in part, from those communications.
She argues, however, that false reports to law enforcement are not subject to anti-SLAPP protection, citing Lefebvre v. Lefebvre (2011) 199 Cal.App.4th 696, 704-706. That case is inapposite because the defendant wife did not "contest that she submitted an illegal, false criminal report." (Id. at p. 705.) In comparison, defendants are claiming that the reports made to law enforcement regarding Pfeister were truthful. "[W]hen allegations of making false reports are controverted, they are insufficient to render that alleged conduct unlawful as a matter of law and outside the protection of section 425.16." (Kenne v. Stennis (2014) 230 Cal.App.4th 953, 967; see Chabak v. Monroy (2007) 154 Cal.App.4th 1502, 1512 [defendant's allegedly false report to police that plaintiff inappropriately touched her was deemed protected activity because there was no uncontroverted evidence showing the report was false].)
Accordingly, defendants have met their burden on prong one to show that Pfeister's claim for abuse of process and malicious prosecution based on their communications with law enforcement arises from protected activity under the anti-SLAPP statute.
d. Maintaining a Civil Lawsuit
Defendants next contend Pfeister's third cause of action for malicious prosecution arises in part from allegations they filed or maintained a civil action against her based on false statements defendants made to law enforcement, and thus it is subject to the anti-SLAPP statute. We agree. A fair reading of the SAC is that the malicious prosecution claim is based not only on a criminal prosecution, but also on the filing and maintenance of a civil action that "each of" the defendants brought against her. Pfeister's evidence confirms she is seeking redress for the wrongful filing of a civil action. (See Jarrow Formulas, Inc. v. LaMarche (2003) 31 Cal.4th 728, 735.) Pfeister does not seriously dispute that the filing and maintenance of a civil lawsuit is protected activity under section 425.16. (See Wilson v. Cable News Network, Inc. (2019) 7 Cal.5th 871, 888.) Defendants have therefore satisfied prong one for this claim.
e. Financing Litigation
Defendants argue that Pfeister's second cause of action for abuse of process and one of her corporate abuse causes of action-the tenth cause of action for "unauthorized transfer of funds"-are based on protected activity because they arise from the Association's funding of litigation against Pfeister. To the extent these claims are based on defendants' decision to fund litigation, we agree they are subject to the anti-SLAPP statute. (Sheley v. Harrop (2017) 9 Cal.App.5th 1147, 1166, disagreed with on another ground by Optional Capital, Inc. v. Akin Gump Strauss, Hauer &Feld LLP (2017) 18 Cal.App.5th 95, 111 &fn. 5.) That appears to be the case for Pfeister's abuse of process claim, as she alleged that defendants' "authorization" of the "use of Association funds to instigate and finance" litigation against her was the abuse of process that harmed her. (See Manlin v. Milner (2022) 82 Cal.App.5th 1004, 1019 (Manlin) [the"' "requirement is to demonstrate that the defendant's conduct by which plaintiff claims to have been injured falls within one of the four categories described in subdivision (e)."' "].) We conclude, however, that defendants have not met their burden on prong one to show that Pfeister's tenth cause of action for unauthorized transfer of funds arises from their decision to fund litigation.
Pfeister contends her tenth cause of action for unauthorized transfer of funds does not arise from defendants' decision to fund litigation, but rather from the "unauthorized, wrongful transfer of funds" or defendants' "misuse of Association funds." We agree it is important to distinguish between claims arising from a defendant's decision to fund litigation and those based on the defendant's misuse or wrongful transfer of corporate funds. (See, e.g., Starr v. Ashbrook (2023) 87 Cal.App.5th 999, 1024 [beneficiaries' breach of fiduciary claim did not arise out of funding litigation, but out of misuse of trust assets].) To make this distinction, we look to the elements of the claim and "what actions by the defendants supply those elements . . . and consequently form the basis for liability." (Park, supra, 2 Cal.5th at p. 1063.) If the act of transferring funds "completes" the claim, then the use to which the funds were transferred is merely incidental to the claim, and prong one of the anti-SLAPP analysis is not met. (See Manlin, supra, 82 Cal.App.5th at p. 1020.)
Applying these principles, defendants have not satisfied their burden to show the tenth cause of action for unauthorized transfer of funds arises from their protected litigation funding decisions. It is not clear from the record the basis for defendants' liability under that claim, and they do not set forth the elements of the claim or state what acts supply those elements. (See Wilson v. Cable News Network, Inc., supra, 7 Cal.5th at p. 887 [defendant has burden to "demonstrate that the activity supplies one or more elements of a plaintiff's claim"].) Other than vague references to "unauthorized" and "unlawful" transfers, the SAC does not allege in the tenth cause of action that defendants violated Association bylaws or state law by transferring the funds, nor does it appear to assert any basis for imposing liability on defendants for their decision to fund litigation.
In sum, defendants have not met their burden under prong one of the anti-SLAPP analysis to show that Pfeister's tenth cause of action for unauthorized transfer of funds arises from their protected litigation funding decisions. (See Turnbull v. Lucerne Valley Unified School District (2018) 24 Cal.App.5th 522, 534-535 [prong one not met where it is unclear from the record and the "vague" complaint that the cause of action arises from the defendant's protected activity].) But prong one is satisfied as to the second cause of action for abuse of process because it is clear from the SAC that Pfeister is claiming that defendants' decision to fund litigation is one of the abuses of process that harmed her.
f. Denying Inspection of Association Records
Defendants argue that Pfeister's eighth cause of action for "denial to inspect association documents" is based on protected activity because it concerns documents defendants withheld from her on the grounds of attorney-client privilege. Without citing any authority, they argue this claim is "part and parcel of protected litigation activities." This vague reference to protected litigation activities is insufficient to show the applicability of the anti-SLAPP statute.
In any event, litigation-related conduct is usually protected under section 425.16, subdivisions (e)(1) or (e)(2), which apply to a "written or oral statement or writing made before a . . . judicial proceeding" or "in connection with an issue under consideration or review by a . . . judicial body." (Italics added.) Pfeister's eighth cause of action is not based on a "statement or writing" made by defendants. Rather, it arises from defendants' violation of Association bylaws and state law by denying her the right to inspect and copy Association records. (See Graffiti Protective Coatings, Inc. v. City of Pico Rivera (2010) 181 Cal.App.4th 1207, 1218 [prong one not met where claim was not based on a" 'statement or writing'" made by the defendant but on the defendant's alleged violation of state and municipal laws by failing to engage in competitive bidding].) That defendants may have communicated to Pfeister that the documents they withheld from her were privileged would be" 'merely incidental' or 'collateral'" to her claim. (Baral, supra, 1 Cal.5th at p. 394.) Moreover, the evidence defendants cite as support for their argument does not show that they claimed attorney-client privilege as to all the Association records they withheld from Pfeister.
Defendants therefore have not met their burden on prong one of the anti-SLAPP analysis for Pfeister's eighth cause of action.
g. Discriminatory Acts
Finally, defendants argue their protected communications with law enforcement and their filing of a civil action constitute some of the discriminatory acts giving rise to Pfeister's first cause of action for discrimination, and therefore they met prong one of the anti-SLAPP analysis as to those claims. In response, Pfeister insists defendants' actions are merely evidence of their discriminatory purpose; they do not form the basis of her claim for discrimination. (See Park, supra, 2 Cal.5th at p. 1060.) We need not address this issue because even if defendants have satisfied their burden on prong one, Pfeister has established a probability of prevailing on her discrimination claim against them, as we explain below in section 2.a. (Oasis West Realty, LLC v. Goldman (2011) 51 Cal.4th 811, 820 [inherent authority to proceed to second step].)
2. Prong Two
Because defendants met their initial burden on Pfeister's claims for abuse of process, malicious prosecution and, we are assuming, certain discriminatory acts, based on various allegations of protected activity, the burden shifted to Pfeister to establish a probability she would prevail on those claims. We also reach the second prong of the anti-SLAPP analysis as to Pfeister's claim for intentional infliction of emotional distress because it arises from the same allegations of protected activities.
The second step of the anti-SLAPP analysis follows a "summaryjudgment-like procedure." (Varian Medical Systems, Inc. v. Delfino (2005) 35 Cal.4th 180, 192.) We "consider the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based." (§ 425.16, subd. (b)(2).) Looking at those affidavits, "[w]e do not weigh credibility, nor do we evaluate the weight of the evidence. Instead, we accept as true all evidence favorable to the plaintiff and assess the defendant's evidence only to determine if it defeats the plaintiffs submission as a matter of law." (Overstock.com, Inc. v. Gradient Analytics, Inc. (2007) 151 Cal.App.4th 688, 699-700 (Overstock.com).) a. Discrimination
Turning to the second prong of the anti-SLAPP analysis, we conclude the trial court did not err in finding that Pfeister established a probability of prevailing against Rogers and D'Errico on her discrimination claim under the Unruh Civil Rights Act (UCRA).
Pfeister also asserted a claim under the Ralph Civil Rights Act. Defendants do not address this claim on appeal, and thus we presume the trial court did not err in determining that Pfeister established a probability of prevailing on that claim.
The UCRA creates a cause of action for any person who is denied the right to "full and equal accommodations, advantages, facilities, privileges, or services in all business establishments of every kind whatsoever" based on that person's membership in a protected class, including race, sex, and sexual identity. (Civ. Code, §§ 51, subd. (b), 52.) Under the UCRA, the dispositive question is whether the plaintiff suffered unequal treatment because of his or her membership in a protected class. (Smith v. BP Lubricants USA Inc. (2021) 64 Cal.App.5th 138, 154.)
Defendants do not dispute that the UCRA protects parties from discrimination based on their transgender status or that volunteer directors for a homeowners association can be held liable under the UCRA for discriminating against other members. They argue only that Pfeister presented no evidence that her membership in a protected class was a "substantial motivating factor" for their protected activities. We therefore assume without deciding that the UCRA applies here, and the only question presented by defendants' brief is whether Pfeister has made a prima facie showing of "intentional discrimination." (Harris v. Capital Growth Investors XIV (1991) 52 Cal.3d 1142, 1175, superseded by statute on other grounds as stated in Munson v. Del Taco (2009) 46 Cal.4th 661, 664.)
Our de novo review is limited to those issues adequately raised and briefed in defendants' opening brief. (Lee v. Kim, supra, 41 Cal.App.5th at p. 721.) For that reason, we also find forfeited any argument that Civil Code section 47's litigation privilege barred Pfeister's discrimination claim. It is well-established that the privilege applies to all torts except malicious prosecution (Hagberg v. California Federal Bank (2004) 32 Cal.4th 350, 375), but our high court in Hagberg declined to resolve "whether proof that a business establishment has called for police assistance . . . based on racial or ethnic prejudice could give rise to liability under the [UCRA] notwithstanding the provisions of section 47(b)." (Hagberg, at p. 376). Defendants mention the litigation privilege but do not brief the viability of any claim that the privilege immunizes conduct from liability for violating the UCRA. We therefore do not reach the issue.
"Proof of discriminatory intent often depends on inferences rather than direct evidence." (Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243, 283, abrogated on another ground by Reid v. Google, Inc. (2010) 50 Cal.4th 512, 517, 534.) A defendant's discriminatory intent may be proven in a number of ways, including a defendant's overt expressions of bias and specific instances of the defendant treating the plaintiff differently from others who are similarly situated, which may give rise to an inference of discriminatory intent. (See Smith v. BP Lubricants USA Inc., supra, 64 Cal.App.5th at p. 154; McGrory v. Applied Signal Technology, Inc. (2013) 212 Cal.App.4th 1510, 1535.) In the context of a discrimination claim brought under the Fair Employment and Housing Act, for example, we concluded that evidence the defendant employer's general manager "made several comments suggesting he held a discriminatory animus toward" the plaintiff employee and had some involvement in the decision to fire her satisfied the plaintiff's burden at the summary judgment stage to raise an inference of intentional discrimination against the employer. (Cornell v. Berkeley Tennis Club (2017) 18 Cal.App.5th 908, 936-937.)
Liability for violations of the UCRA "extends beyond the business establishment itself to the business establishment's employees responsible for the discriminatory conduct." (North Coast Women's Care Medical Group, Inc. v. Superior Court (2008) 44 Cal.4th 1145, 1154.) Moreover, a defendant may be liable "if the evidence shows that it was a party to an agreement or concerted action to inflict the wrong complained of." (Wagner v. O'Bannon (1969) 274 Cal.App.2d 121, 132.) In this case, the SAC alleged that each of the defendants "agreed . . . to continue a course of action intended to exclude [Pfeister] from serving in her position on Board."
Bearing in mind that Pfeister's burden is not high (Overstock.com, supra, 151 Cal.App.4th at p. 699), we conclude she made a prima facie factual showing of intentional discrimination on the part of Rogers and D'Errico.
Pfeister presented two declarations and excerpts from the deposition of the Association's manager, which showed that it was widely known Pfeister was a transgender woman, and that Rogers had said "the homeowners did not want transgender people like [her] on the Board." Additionally, the "board members" had "warned" the manager about Pfeister, and "[m]ultiple people"-including the president of the Board-had made derogatory remarks about her transgender status. Pfeister's declaration further showed that when she applied for an open seat on the Board, the defendant directors postponed the annual meeting at which the election was to occur without "justification." Shortly thereafter, Rogers and some of the other defendants made statements to law enforcement that she had assaulted a commissioner, statements that Pfeister declared were untrue. Her evidence showed that those allegedly false statements formed the basis for a civil action against her, the filing of which "was directed by defendants." Defendants took other actions that undermined her rights as a member, such as denying her the right to inspect Association records.
Pfeister's declarations and their attachments, which we must accept as true, were prima facie evidence that Rogers and D'Errico intentionally discriminated against her. This evidence tended to show that discriminatory animus against Pfeister based on her status as a transgender woman was widespread among the Board. It also tended to show that defendants, including Rogers and D'Errico, used their positions as directors of the Board to take adverse actions against Pfeister. Pfeister's evidence therefore supports an inference that Rogers and D'Errico were acting in concert or in agreement with the other director defendants to deter Pfeister from serving on the Board based on her membership in a protected class.
Without citing any authority, Rogers and D'Errico argue their actions were not discriminatory because they were carried out for legitimate purposes. But given the standard of review on anti-SLAPP motions, we must indulge Pfeister's evidence that they were motivated to discourage her from serving on the Board by their discriminatory animus towards her. (See Overstock.com, supra, 151 Cal.App.4th at pp. 699-700.)
In sum, the record presents triable issues of fact with respect to the intentional discrimination element of Pfeister's UCRA claim against Rogers and D'Errico. In light of her minimal burden at this stage of the inquiry, we conclude the trial court did not err in finding that Pfeister demonstrated a probability of prevailing on her UCRA claim.
b. Abuse of Process
As previously discussed, defendants met their burden on prong one of the anti-SLAPP analysis as to Pfeister's abuse of process cause of action because it arises from their protected litigation funding decisions and communications with law enforcement. Regarding prong two of the analysis, they argue that Pfeister cannot meet her burden to establish a probability of prevailing because their protected activities cannot form the basis of a claim for abuse of process. We agree.
While a malicious prosecution claim challenges the wrongful initiation of a lawsuit, the tort of abuse of process is founded upon "subsidiary activity within the lawsuit." (Adams v. Superior Court (1992) 2 Cal.App.4th 521, 528 (Adams), italics added.) The elements of an abuse of process claim are"' "an ulterior purpose" '" and"' "a willful act in the use of the process not proper in the regular conduct of the proceeding." '" (Oren Royal Oaks Venture v. Greenberg, Bernhard, Weiss &Karma, Inc. (1986) 42 Cal.3d 1157, 1168 (Oren).) "Process is action taken pursuant to judicial authority. . . . [¶] Merely obtaining or seeking process is not enough; there must be subsequent abuse, by a misuse of the judicial process for a purpose other than that which it was intended to serve. [Citations.] The gist of the tort is the improper use of the process after it is issued." (Adams, at pp. 530-531.)
Here, statements made to police prior to the commencement of litigation cannot constitute "the improper use of the process after it is issued." (Adams, supra, 2 Cal.App.4th at pp. 530-531.) Nor does defendants' decision to finance third-party litigation against Pfeister demonstrate "the misuse of the tools the law affords litigants once they are in a lawsuit" as it is not an action done under the authority of the court. (Bidna v. Rosen (1993) 19 Cal.App.4th 27, 40.) "[T]he mere filing or maintenance of a lawsuit-even for an improper purpose-is not a proper basis for an abuse of action." (Oren, supra, 42 Cal.3d at p. 1169.) The police reports and defendants' litigation funding decisions therefore cannot serve as a basis for Pfeister's abuse of process cause of action against Rogers and D'Errico. Accordingly, the abuse of process claims against Rogers and D'Errico must be stricken.
c. Malicious Prosecution
We determined defendants satisfied prong one of the anti-SLAPP analysis for Pfeister's malicious prosecution cause of action because it arose from their protected activity in communicating with law enforcement and filing a civil action. They argue that Pfeister cannot establish a probability of prevailing on those claims because the civil action does not support a malicious prosecution claim, and their statements to law enforcement predated the criminal and civil actions. As we will explain, we agree with defendants' first contention. We conclude, however, that Pfeister has made a prima facie showing she will prevail on her malicious prosecution claim against Rogers based on his communications with law enforcement.
Defendants argue for the first time in their reply that they cannot be held liable for any tortious conduct committed in their capacity as directors absent a consideration of, among other things, the business judgment rule. We decline to address those arguments since defendants could have raised them in their opening brief. (See Shade Foods, Inc. v. Innovative Products Sales & Marketing, Inc. (2000) 78 Cal.App.4th 847, 895, fn. 10.)
The tort of malicious prosecution is generally defined as" 'improperly instituting or maintaining' a legal action." (Leon v. County of Riverside (2023) 14 Cal.5th 910, 921.) To recover for malicious prosecution, the plaintiff must plead the underlying action was "(i) initiated or maintained by, or at the direction of, the defendant, and pursued to a legal termination in favor of the malicious prosecution plaintiff; (ii) initiated or maintained without probable cause; and (iii) initiated or maintained with malice." (Parrish v. Latham &Watkins (2017) 3 Cal.5th 767, 775.)
As shown by her evidence, Pfeister's malicious prosecution cause of action arises from two separate proceedings-a criminal action and a petition to obtain a workplace violence restraining order under section 527.8. We agree with defendants that a petition to obtain a workplace violence restraining order does not support a cause of action for malicious prosecution. (Robinzine v. Vicory (2006) 143 Cal.App.4th 1416, 1423-1424 (Robinzine).) Section 527.8 provides a "streamlined process" for obtaining a restraining order and preliminary injunction. (Robinzine, at p. 1424.) Permitting a malicious prosecution claim to follow an unsuccessful section 527.8 petition" 'would frustrate this streamlined procedure' and potentially dissuade victims of harassment from seeking relief." (Robinzine, at p. 1423.)
Regarding the criminal proceeding, a defendant may be liable for malicious prosecution of a criminal action where he or she instigated or procured the criminal action. (Leon v. County of Riverside, supra, 14 Cal.5th at p. 921.) At a minimum, the defendant must have sought out the police and falsely reported facts to them indicating the plaintiff committed a crime. (Sullivan v. County of Los Angeles (1974) 12 Cal.3d 710, 720.) The test is whether the defendant was" 'actively instrumental in causing the prosecution.'" (Ibid.)
Pfeister has made a prima facie case that Rogers was" 'actively instrumental'" in instigating the criminal proceedings against her. The evidence shows that Rogers told police at a settlement conference that Pfeister was asked to leave but she refused. She "escalated both physically and verbally" and she "pushed past the commissioner." Pfeister stated in her declaration that these statements were false, as she did not force her way into the courthouse, refuse to leave, argue with the commissioner, or push or shout at anyone.
Though other parties-including the commissioner overseeing the settlement conference-made statements similar to those made by Rogers, we do not weigh the evidence or assess credibility. Rather, we must accept as true the evidence favorable to Pfeister unless defendants' evidence defeats her showing as a matter of law. (Overstock.com, supra, 151 Cal.App.4th at pp. 699-700.)
We cannot say the same for D'Errico, however. Pfeister alleged that each of the defendants "approv[ed]" or "ratif[ied]" the criminal action against Pfeister and made false statements to law enforcement, but her evidence shows only that Rogers and some of the other defendants made statements to the police. She presented no evidence indicating that D'Errico was" 'actively instrumental in causing the prosecution.'" (Sullivan v. County of Los Angeles, supra, 12 Cal.3d at p. 720.)
In sum, the malicious prosecution cause of action against D'Errico must be stricken, along with the claim in that cause of action against Rogers that is based on the filing of a civil action.
d. Intentional Infliction of Emotional Distress
This cause of action does not allege any specific acts taken by defendants and instead incorporated by reference the allegations in the first five causes of action, including the discrimination, abuse of process, and malicious prosecution claims. It further alleged that "[b]y their conduct as hereinabove alleged," defendants "acted outrageously" and caused Pfeister "to suffer severe and extreme emotional distress." The "conduct as hereinabove alleged" presumably includes defendants' protected activities that also give rise to Pfeister's claims for discrimination, abuse of process, and malicious prosecution, though the allegations that we have determined must be struck from the SAC are "similarly eliminated from the causes of action into which [they have] been incorporated." (Kajima Engineering &Construction, Inc. v. City of Los Angeles (2002) 95 Cal.App.4th921, 931.)
The remaining allegations of protected activities-Rogers's communications with law enforcement and defendants' filing of a civil action-are barred by the litigation privilege under Civil Code section 47, subdivision (b), and therefore Pfeister cannot rely on those allegations to support her intentional infliction of emotional distress claim against Rogers and D'Errico. Police reports, even false ones made in bad faith, and the filing of litigation are absolutely privileged under that section. (See Kenne v. Stennis, supra, 230 Cal.App.4th at p. 971.) While the privilege does not apply to malicious prosecution claims, it applies to all other tort causes of action, including intentional infliction of emotional distress. (Ribas v. Clark (1985) 38 Cal.3d 355, 364.) Therefore, the motion should be granted as to those claims in Pfeister's intentional infliction of emotional distress cause of action. All other claims presented by that cause of action remain because they do not arise out of protected activity. (See Bonni v. St. Joseph Health System (2021) 11 Cal.5th 995, 1010-1011.)
Pfeister notes that the Legislature recently amended Civil Code section 47 to exclude knowingly false police reports. (Civil Code, §47, subd. (b)(5).) This appeal concerns communications made prior to the amendment's effective date of January 1, 2021. We apply the law as it existed at the time of the alleged wrongdoing, as there is nothing in the statute to indicate the amendment is to apply retroactively. (See Evangelatos v. Superior Court (1988) 44 Cal.3d 1188, 1207 [" '[it] is an established canon of interpretation that statutes are not to be given a retrospective operation unless it is clearly made to appear that such was the legislative intent' "].)
III. DISPOSITION
The order denying defendants' special motion to strike is reversed in part. The matter is remanded to the trial court with directions to enter an order granting the motion to strike as to (1) the second cause of action against Rogers and D'Errico for abuse of process, to the extent it is based on communications with law enforcement and their decision to fund litigation; (2) the third cause of action against Rogers and D'Errico for malicious prosecution based on them filing a civil action against Pfeister; (3) the third cause of action for malicious prosecution claim against D'Errico based on his communications with law enforcement; and (4) the sixth cause of action against Rogers and D'Errico for intentional infliction of emotional distress based on their communications with law enforcement and them filing and financing litigation. The order denying defendants' motion to strike is affirmed as to all other claims in the SAC. Each side shall bear its own costs.
WE CONCUR: HUMES, P. J. BANKE, J.