Opinion
NOT TO BE PUBLISHED
APPEAL from orders of the Superior Court of San Diego County No. 37-2008-00090621- CU-DF-CTL, Judith F. Hayes, Judge.
HUFFMAN, Acting P. J.
Plaintiff and respondent Michael Rood brought this action for damages against defendant and appellant Bill Garcia (including his business entities, Bill Garcia Investigative Services, BGIS and BGIS International, all referred to here as Garcia), to allege invasion of privacy, stalking/harassment, defamation, intentional/negligent infliction of emotional distress, and other theories. In August 2007, Garcia, a private investigator, made two 911 calls to police reporting suspected drunk driving by Rood, and Garcia later discussed the calls with Rood's estranged domestic partner, who was engaged in litigation with Rood. Those communicative acts gave rise to this action.
The matter is before us on Garcia's appeal of the trial court's order denying Garcia's special motion to strike Rood's amended complaint (FAC), under the anti-SLAPP provisions. (Code Civ. Proc., § 425.16, subd. (i).) In his motion to strike, Garcia asserted that the entire action against him, based on the 911 calls and communication about them, arose out of free speech activity and was barred by the absolute privilege of Civil Code section 47, subdivision (b), protecting citizen communications to authorities for reporting suspected criminal activity. Garcia thus argued he sustained his initial burden to show the conduct complained of arose from actions in furtherance of his right to free speech, and the trial court agreed. (Code Civ. Proc., §425.16, subd. (b)(1); Navellier v. Sletten (2002) 29 Cal.4th 82, 88-89 (Navellier).)
The acronym SLAPP has been widely adopted to describe lawsuits affecting speech or petition rights (Strategic Lawsuit Against Public Participation). (Briggs v. Eden Council for Hope & Opportunity (1999) 19 Cal.4th 1106, 1109, fn. 1.)
All further statutory references are to the Civil Code unless otherwise specified.
However, the trial court denied the motion to strike based on its conclusion that Rood had produced sufficient admissible evidence to show his substantial probability of prevailing in the action, in the form of Rood's denials of the alleged drunk driving or any other misconduct evident as of the time of the calls. (Code Civ. Proc., §425.16, subd. (b)(2).) The court ruled that factual issues remained regarding any privileges under section 47, both as to the 911 calls and the subsequent communication about them to Rood's estranged domestic partner, regarding Garcia's good or bad faith. A related demurrer ruling was based on the same grounds.
On appeal, Garcia agrees the trial court correctly found the anti-SLAPP statute was applicable, because "[s]ection 47 establishes a privilege that bars liability in tort for the making of certain statements, " and his 911 calls to police and related communication about them all qualified as speech-related. (Hagberg v. California Federal Bank (2004) 32 Cal.4th 350, 360 (Hagberg).) Garcia next argues the trial court erred as a matter of law in finding that Rood had sufficiently shown a probability of prevailing, and that de novo review of the record will only support a conclusion that Garcia's alleged conduct was privileged, on either an absolute or qualified basis. (§ 47, subds. (b), (c)(2), (3), (d)(1)(C), (D).)
In Hagberg, supra, 32 Cal.4th 350, the court stated that under section 47, subdivision (b), a "pure communication" to a peace officer, requesting an investigation, would be protected by the statutory privilege, which is absolute. (Hagberg, supra, at p. 374, citing Kimmel v. Goland (1990) 51 Cal.3d 202, 211.) There is an exception for malicious prosecution, but otherwise, section 47, subdivision (b) bars civil liability for any tort claim based upon a privileged communication. (Hagberg, supra, at p. 375.)
On de novo review, we agree that Garcia's alleged communicative conduct fell within the ambit of absolute privilege, so that the trial court erroneously denied the motion to strike the FAC. The record requires reversal of the orders with directions to enter a different order granting the motion, as will be explained.
FACTUAL AND PROCEDURAL BACKGROUND
A. Background and Complaint; Related Pending Cases
In determining whether the anti-SLAPP statutory scheme properly applies to this set of allegations, we look to the pleadings and the respective showings on the motion. (Navellier, supra, 29 Cal.4th 82, 89.) We set forth more detailed facts as needed in the discussion portion of this opinion.
Basically, the record shows Rood and his former domestic partner, Michael Portantino, were undergoing severe conflict in the summer and fall of 2007. Their troubles indirectly gave rise to several related lawsuits brought by Rood that were eventually consolidated in the trial court, of which this is one. This court previously issued an opinion upon an anti-SLAPP motion brought by a media defendant sued by Rood, Steve Yuhas, who was presenting material on his radio show about alleged school district investigative activity concerning Rood's performance as a public school principal, around this time. (Rood v. Yuhas (June 3, 2011, D056840) [nonpub. opn.].) We freely adapt some of those facts to describe this lawsuit.
Another related action was filed by Rood against the Reader newspaper, which carried an article about the alleged school district investigative activity, but Rood dismissed it after a correction was issued. (Rood v. San Diego Reader (Super. Ct., San Diego County, 2009, No. 37-2009-00082111-CU-DF-CTL).) Some of Rood's allegations were overlapping among the different lawsuits. As relevant here, Rood did not oppose this motion by Garcia as it related to issues with the San Diego Reader Magazine, Steve Yuhas, James Holman, the radio show, or invasion of privacy claims arising out of an alleged burglary of plaintiff's home by some unknown person, and certain photographs taken of plaintiff.
"From 1997 to 2003, Rood was employed as a teacher by the San Diego Unified School District (the District). In August 2003, he began serving as the principal of a continuation high school within the District, Mark Twain High School, which serves students who have not been able to complete their degrees in standard District high schools and who have other problems (the high school).
"From September 2005, Rood and Michael Portantino, who was the publisher of the Gay & Lesbian Times (GLT or the "magazine") and the Rocket (now defunct) magazines, lived together as cohabitants. By late 2006, the two men were in a committed relationship and as joint guardians, they took custody of a baby girl (the child) whom they planned to adopt. However, beginning in the spring of 2007, they began to have arguments about real estate and other things, including the coguardianship. After May 2007, Rood acted as the sole caretaker of the child, until the two men reconciled in August 2007."
In the summer of 2007, while Rood was on vacation from school, he participated in selling or bartering advertising on behalf of GLT or the "magazine." Portantino told Rood that he was receiving inquiries from the school district about some kind of work hours/assets investigation or audit that was going on about Rood's activities. Rood told Portantino that he was undergoing a lot of work stress because of this investigation or audit. The two men were also having serious disagreements about parenting and other problems.
As described in Garcia's deposition and declaration, the facts giving rise to the lawsuit were these. On August 24, 2007, defendant Garcia, a licensed private investigator, was sitting in his car at a red curb outside a Hillcrest restaurant waiting to serve a subpoena on a third party. He called police to advise them he had a reason for illegal parking. Garcia then observed people he later learned were Rood and Portantino having an argument there, after which Rood entered a white Ford truck and drove off with the child, who did not seem to be properly restrained (possibly was not buckled into car seat). Garcia called the 911 dispatcher to report that the driver (Rood) appeared to be extremely inebriated and ran a stop signal, and Garcia followed the driver to a residence. Garcia then saw that when the driver got out of the vehicle, he was holding the child strangely and almost dropped her about a three-foot distance, but then caught her before she hit the ground. Garcia next saw the person who had been arguing with the driver (Portantino) drive up and enter the house, so Garcia told the 911 dispatcher that a domestic violence incident might be happening. Garcia left the scene.
On August 26, 2007, Garcia was sitting outside a different restaurant a few miles away when he recognized Rood's white Ford truck, and observed that Rood had an infant with him and seemed reckless and agitated when getting into his truck. Rood drove off, chirping his tires, and Garcia followed him to a residence in La Jolla. Garcia saw him take the child out of the vehicle, then Garcia left to conduct an assignment elsewhere. Later, Garcia drove by the La Jolla location again and saw Rood and the child returning to the vehicle. Garcia said he saw Rood carrying a can of beer as he got into the vehicle and drove away. While following Rood's vehicle, Garcia made a 911 call and notified police that Garcia thought that Rood's car had sideswiped another car, and he had thrown something (a can of beer?) out the window. Garcia continued to follow Rood's truck and told the 911 dispatcher that the vehicle was swerving back and forth between lanes. Garcia left the scene.
In Rood's declaration, he disputed many of the above facts as to both August 2007 incidents, stating that he did not drink to excess at the restaurant, no one in the party became agitated or verbally abusive with each other, Rood did not carry the child in a strange, improper or unsafe manner, and he buckled her into her car seat. Rood denied driving erratically, and when police officers came to the house to investigate, they found nothing was wrong. Additionally, Rood stated he was not reckless or agitated during the next driving incident, he never hit a car or threw a can, and nothing came of the police investigation in that incident either.
"By early September, 2007, Rood and Portantino had broken off their personal relationship and were having ongoing serious disputes about custody of the child. Later in September, 2007, Portantino filed a petition to remove Rood's guardianship status, and he and Rood filed opposing declarations in that case about their personal disputes. (In re Guardianship of S. (Super. Ct. San Diego County, 2007, No P192727; the 'guardianship case.) Portantino filed a declaration in the guardianship case, claiming Rood was at fault for their parenting problems and was behaving erratically, due to Rood's stress that he told Portantino that he was having at work due to an investigation of his professional conduct."
In October 2007, Portantino contacted Garcia and asked to meet with him, to discuss the police reports from the 911 calls that gave Garcia's name as the reporting party. Portantino told Garcia that Rood was his spouse and that they were having some type of a falling out regarding a child. Garcia had recently received a subpoena to testify, apparently from the guardianship litigation, but he did not plan to comply because it was not properly served. At Portantino's request, Garcia talked to him about his 911 calls, to report his observations during the reported incidents.
In Rood's operative complaint, the FAC, he alleges against Garcia and against Doe defendants five claims for (1) invasion of privacy, (2) stalking/harassment, (3) defamation, (4) intentional/negligent interference with prospective economic advantage and contractual relations, and (5) intentional/negligent infliction of emotional distress. Rood alleged that Garcia was acting together with unknown Doe defendants to target him for harassment.
In support of his claim of stalking and harassment, Rood relies on the definitions of section 1708.7, subdivision (a): "A person is liable for the tort of stalking when the plaintiff proves all of the following elements of the tort: [¶] (1) The defendant engaged in a pattern of conduct the intent of which was to follow, alarm, or harass the plaintiff.... [¶] (2) As a result of that pattern of conduct, the plaintiff reasonably feared for his or her safety.... [¶] and (3) One of the following: [¶] (A) The defendant, as a part of the pattern of conduct specified in paragraph (1), made a credible threat with the intent to place the plaintiff in reasonable fear for his or her safety...."
As will further be explained, the first and third causes of action plead the same claims, and the fourth cause of action was not actually pled against Garcia, and it was dismissed (which is not challenged here). We will sometimes refer generally to those remaining combined allegations, all arising out of the same basic facts, as Rood's "tort complaint, " as the theories need not be discussed separately.
The ruling on appeal explains this analytical approach, which has not been challenged and which we accept: "The claims for invasion of privacy [#1] are duplicative of plaintiff's claim for defamation [#3]. The Court will therefore treat them as one cause of action. Further, plaintiff does not oppose the motion as it relates to issues with [nondefendants and abandoned claims, e.g. burglary]. Therefore, the Court grants the motion as to these issues as alleged against Bill Garcia and specifically plaintiff's fourth cause of action for intentional/negligent interference with prospective economic advantage and contractual relations." The other existing claims by Rood are stalking/ harassment [#2] and infliction of emotional distress [#5].
B. Garcia's Motion to Strike
Garcia's motion argued that all allegations of the FAC fell within the scope of anti-SLAPP protections, as protected speech and privileged communications with law enforcement. Moreover, he contended that Rood could not show he would probably prevail, because Garcia's declaration established that all of his communicative acts could not have amounted to stalking, harassment, defamation, etc., but were instead reasonably designed to report potential criminal conduct by Rood (drunk driving). Garcia also noticed a demurrer on similar privilege grounds.
In support of the motion, counsel for Garcia submitted her attorney declaration authenticating deposition excerpts from Garcia that described the 911 calls and included transcripts of the recordings of them. Garcia explained that he calls 911 "quite a bit, " as he is always out driving around and observing other citizens, and his calls usually result in someone being arrested. Garcia made an unopposed request for judicial notice, providing copies of the police reports from the two 911 calls, and requesting judicial notice of information about a highway sign urging drivers to call 911 to report suspected drunk driving by others.
Garcia also supplied his own declaration and declarations from other parties sued by Rood (media defendants Yuhas and Holman), stating that they had had no contact with Garcia about Rood. Numerous discovery disputes were going on among the related cases for over a year, including efforts to depose Portantino. For several reasons, the hearing on Garcia's motion to strike was continued several times, and although orders disallowing any further filings were imposed in the related cases, those orders apparently did not affect this case.
C. Opposition; Reply; Evidentiary Objections
In opposition, Rood contended his evidence would demonstrate that he would probably prevail, because the alleged conduct was unprivileged and had harmed him with hurtful falsehoods. He relied on Fenelon v. Superior Court (1990) 223 Cal.App.3d 1476 (Fenelon) (criticized and abrogated in Hagberg, supra, 32 Cal.4th at pp. 359, 366-371), to support his claim that knowingly false reports to law enforcement are not absolutely privileged. Rood also argued that Garcia's 911 calls, referring to the child being unrestrained or partially dropped, amounted to false reports of child abuse or neglect in violation of Penal Code section 11172. Rood suggested that Garcia, as a licensed private investigator, "likely" owed him an independent duty not to inflict emotional distress.
In Rood's declaration, he stated that he had complained to the San Diego Police Department about the 911 calls of August 24 and 26, which he said were false and did not lead to any lengthy detentions or law enforcement activity. Captain Creighton of the police department contacted Garcia and warned him about the consequences of filing false police reports. Rood argued there should be no absolute or qualified privilege attached to Garcia's statements, because any privilege was lost through malice or falsity.
Rood additionally provided a declaration from his grandmother, Jimmie Marie English, whom he visited at the La Jolla location on August 26, while being followed by Garcia. Rood's declaration and that of Ms. English stated that she does not keep alcohol (other than wine) in her home, and that Rood did not drink any alcohol at her house that day.
Counsel for Rood supplied a declaration stating that he needed to conduct further discovery, such as the deposition of Portantino, and he also attached excerpts from Garcia's deposition, to support his separate statement claiming there were disputed facts about privilege, based on the truth or falsity of Garcia's reports.
In his reply papers, defendant Garcia submitted additional evidence, by lodging his entire deposition (previously, only excerpts were presented), and by incorporating documents from the guardianship case (declarations from Portantino and Ms. Wilson, who had been at the restaurant with Rood on August 24, 2007, and who said he was drinking). Garcia filed evidentiary objections to Rood's declarations.
D. Ruling on Merits
After taking the matter under submission, the trial court issued an order on April 27, 2010 denying Garcia's special motion to strike. (This was contrary to the tentative ruling, which had granted the motion.) The final order granted the unopposed requests for judicial notice (police reports from the two 911 calls, and information about a highway sign urging drivers to call 911 regarding suspected drunk driving). With regard to the rulings on evidentiary objections asserted by each side, they are not reargued on this appeal and need not be summarized in detail.
On the merits, the court acknowledged that the operative tort claims included invasion of privacy/defamation (treated as one cause of action), stalking/harassment, and intentional/negligent infliction of emotional distress. With regard to the first prong of the statutory analysis, the court ruled, "There is no dispute that defendant Garcia sustained his initial burden to show the conduct complained of arises from actions in furtherance of Garcia's right to free speech."
The court next concluded that on the second prong of the statutory analysis, Rood had adequately showed a probability of prevailing, as follows: "Taking Rood's evidence in the light most favorable to him, he sustained his minimal burden to show a probability of prevailing on his claims based on his denials of the evidence submitted by Garcia. The motion is also denied because factual disputes exist as to whether Defendant Garcia established application of privilege under the circumstances of this case. (Civil Code section 47; Devis v. Bank of America (1998) 65 Cal.App.4th 1002 [Devis].) Specifically, whether the reports were false or made in bad faith. (Devis, supra [controlling authority establishes that the privilege applies only if the erroneous report to the police is made in good faith].)" (Italics added.)
Next, the court's analysis treated Rood's claims of stalking/harassment, and intentional/negligent infliction of emotional distress, as all being "premised on the 911 calls and any applicable privilege, therefore the SLAPP motion is also denied as to these claims."
Finally, the court stated that the above rulings meant that Garcia's arguments regarding qualified privilege (§ 47, subd. (c)(2), (3) [privilege concerning interested parties]) were ineffective, on the grounds that "there are factual issues concerning whether the 911 calls and whether the subsequent communication of same was made in bad faith." The demurrer was overruled on the same grounds (except the inapplicable fourth cause of action).
Garcia appeals the order denying the motion to strike the complaint. (Code Civ. Proc., § 425.16, subd. (i).)
We need not further address the demurrer ruling, which has become moot. We note that Garcia's briefs seek an award of attorney fees on appeal as prevailing party, or an order for the trial court to conduct further proceedings on the motion. We will decline the requests and return any fees issues to the trial court, if he renews his request. (Code Civ. Proc., § 425.16, subd. (c).)
DISCUSSION
I
ANTI-SLAPP STATUTORY PROVISIONS
Well-accepted authorities establish a two-step process for applying Code of Civil Procedure section 425.16, subdivision (b)(1). " 'First, the court decides whether the defendant has made a threshold showing that the challenged cause of action is one arising from protected activity.... If the court finds such a showing has been made, it then determines whether the plaintiff has demonstrated a probability of prevailing on the claim.' [Citation.]" (Taus v. Loftus (2007) 40 Cal.4th 683, 712 (Taus); Navellier, supra, 29 Cal.4th 82, 88.)
Under Code of Civil Procedure section 425.16, subdivision (b)(1), the trial court, in ruling on such a motion, does not weigh conflicting evidence to determine whether it is more probable than not that plaintiff will prevail on the claim. Rather, the statute was "intended to establish a summary-judgment-like procedure available at an early stage of litigation that poses a potential chilling effect on speech-related activities. [Citations.] Accordingly, when a defendant makes the threshold showing that a cause of action that has been filed against him or her arises out of the defendant's speech-related conduct, the provision affords the defendant the opportunity, at the earliest stages of litigation, to have the claim stricken if the plaintiff is unable to demonstrate both that the claim is legally sufficient and that there is sufficient evidence to establish a prima facie case with respect to the claim." (Taus, supra, 40 Cal.4th 683, 714.)
To assess the trial court's rulings on appeal, we review the record de novo, including the determinations made about the sufficiency of a litigant's showing on liability or defenses (privilege) in its pleadings and affidavits. Those sufficiency rulings present legal questions and issues of law, decided de novo. (Martinez v. Metabolife International, Inc. (2003) 113 Cal.App.4th 181, 186; Damon v. Ocean Hills Journalism Club (2000) 85 Cal.App.4th 468, 474 (Damon).)
II
SECTION 425.16, SUBDIVISION (E): CLAIMS ARISING
FROM PROTECTED ACTIVITY
We first address the trial court's initial ruling on the applicability of the anti-SLAPP statutory scheme, stating as follows: "There is no dispute that defendant Garcia sustained his initial burden to show the conduct complained of arises from actions in furtherance of Garcia's right to free speech." Garcia, of course, agrees with this portion of the ruling.
Rood, however, suggests in his respondent's brief that the court should have found Garcia could not demonstrate the applicability of the anti-SLAPP statutory scheme, because only private, not public, issues were involved in these incidents. Procedurally, Rood argued to the trial court and here that the deposition and declarations Garcia presented in his reply, stating that Rood was drinking and Portantino later discussed the 911 calls with Garcia, should not have been allowed, because they were filed too late and because they pertained only to private issues. However, the record does not support an argument that the reply papers were untimely filed, nor that only private matters were involved.
Code of Civil Procedure section 425.16, subdivision (b)(1) states: "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 Constitution or the 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." (Italics added.)
On de novo review, we reject Rood's challenge to the reasoning of the trial court on this first prong of the test. The trial court correctly interpreted and applied the statutory criteria to determine that this lawsuit is a SLAPP: " 'A defendant meets this burden [Code Civ. Proc., § 425.16, subd. (b)(1)] by demonstrating that the act underlying the plaintiff's cause of action fits one of the categories spelled out in [Code of Civil Procedure] section 425.16, subdivision (e).' [Citation.]" (Navellier, supra, 29 Cal.4th 82, 88.) Code of Civil Procedure section 425.16, subdivision (a), instructs the courts that in making such determinations about the scope of subdivision (e), a broad statutory construction is required.
As relevant here, Code of Civil Procedure section 425.16, subdivision (e) provides: "[An] 'act in furtherance of a person's right of petition or free speech under the... Constitution in connection with a public issue' includes: (1) any written or oral statement... before [an]... executive... proceeding, or any other official proceeding authorized by law; (2) any written or oral statement... 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; [¶]... [¶] or (4) 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." Those elements are present here in the 911 calls and related communication, satisfying this statutory test.
We accordingly turn to the main concern, the interplay of the privilege defenses and anti-SLAPP definitions and principles, with respect to Rood's ability to demonstrate a probability of prevailing on these tort claims.
III
SECOND PRONG: PLAINTIFF'S PROBABILITY OF PREVAILING
A. Applicable Standards
To establish a probability of prevailing on his tort claims, Rood as the plaintiff " ' "must demonstrate that the complaint is both legally sufficient and supported by a sufficient prima facie showing of facts to sustain a favorable judgment if the evidence submitted by the plaintiff is credited." ' " (Code Civ. Proc., § 425.16, subd. (b)(1); Navellier, supra, 29 Cal.4th 82, 89; Taus, supra, 40 Cal.4th 683, 714.)
In making this inquiry, the trial court considers the pleadings and evidentiary submissions of both the plaintiff and the defendant. (Code Civ. Proc., § 425.16, subd. (b)(2).) However, the court does not weigh the credibility or comparative probative strength of competing evidence, and it should grant the motion if, as a matter of law, the defendant's evidence defeats the plaintiff's attempt to establish evidentiary support for the claim. In making this assessment it is "the court's responsibility... to accept as true the evidence favorable to the plaintiff...." (HMS Capital, Inc. v. Lawyers Title Co. (2004) 118 Cal.App.4th 204, 207, 212.)
B. Scope of Issues Presented by FAC and Motion to Strike
In denying Garcia's motion, the trial court stated there were factual issues remaining about his good or bad faith. The trial court erred in treating this case as presenting only qualified privilege issues. Under section 47, subdivision (c), such a qualified privilege would be extended to certain communications made without malice, as follows: "communication[s]... to a person interested therein, (1) by one who is also interested, or (2) by one who stands in such a relation to the person interested as to afford a reasonable ground for supposing the motive for the communication to be innocent, or (3) who is requested by the person interested to give the information." (§ 47, subd. (c).)
In contrast, "[a]bsolute privilege is based on the necessity of complete protection from the threat of a civil action. When a publication is absolutely privileged, there is no liability even though it is made with actual malice; malice is not a proper subject of inquiry in such a case." (5 Witkin, Summary of Cal. Law (10th ed. 2005) Torts, § 561, p. 818.)
Since the trial court correctly stated that all of Rood's FAC is founded in the allegations about the 911 calls, and the communications Garcia made about them to Portantino at their meeting in October 2007, we should examine the context of the statements, or the occasion for them. By comparison to qualified privilege, the authors of 5 Witkin, Summary of California Law, supra, Torts, section 591, pages 867 to 868 refer to Brown v. Kelly Broadcasting Co. (1989) 48 Cal.3d 711, 723 (Brown), in explaining the relationship between malice and privilege. Specifically, a qualified or conditional privilege under section 47, subdivision (c) can be overcome by a showing of malice. However, since section 47, subdivision (c) defines a privileged communication as one made without malice, "if malice is shown, the privilege is not merely overcome; it never arises in the first instance.... [T]he characterization of the privilege as qualified or conditional is incorrect to the extent that it suggests the privilege is defeasible. It is the occasion giving rise to the publication that is conditionally privileged, i.e., under specified conditions the occasion gives rise to a privilege. If the privilege arises, it is a complete defense." (Brown, supra, at p. 723, fn. 7; italics omitted.) Likewise, the occasions giving rise to the publication (911 calls) are absolutely privileged, and the later discussion of them in the context of litigation is privileged as well. (See Hagberg, supra, 32 Cal.4th at pp. 361-362.)
Before going into detail on such theories of privilege, we reject Rood's arguments that these 911 calls actually amounted to child abuse reports that were unprivileged, under an exception to absolute privilege that is provided by the Child Abuse and Neglect Reporting Act. (Pen. Code, § 11164 et seq., the Act.) Such child abuse reports may become actionable under limited circumstances, where malice is shown, under Penal Code section 11172, subdivision (a). That provision confers limited immunity upon a mandated reporter for reports required or authorized by the Act. Garcia is not a mandated reporter, and Rood is therefore arguing that he may statutorily qualify as "[a]ny other person reporting a known or suspected instance of child abuse or neglect, " who may be exposed to civil or criminal liability for damages as a result of any report authorized by the Act, if "it can be proven that a false report was made and the person knew that the report was false or was made with reckless disregard of the truth or falsity of the report.... " (Pen. Code, § 11172, subd. (a).)
In Hagberg, the Supreme Court expressly referred to the "exceptional and comprehensive scheme" of the Act as not creating any "attempt by the Legislature to deal generally with the subject of the potential civil liability, if any, faced by persons who report crime to the police." (Hagberg, supra, 32 Cal.4th at pp. 370-371, fn. 6.) The specialized provisions of the Act are not significantly implicated by the facts of our case. Rather, the transcript of the 911 calls shows that their gist is the observations leading Garcia to believe that Rood was about to engage in drunken driving or possibly become exposed to or participate in a domestic violence incident, when Portantino also arrived at the site. Garcia's statements about the apparently unrestrained child (not buckled into car seat?) who was almost dropped by the parental figure (Rood) are clearly peripheral to the main thrust of both calls. (See Sipple v. Foundation for Nat. Progress (1999) 71 Cal.App.4th 226, 244-246 (Sipple) [court considers the gist or sting of a publication to consider its defamatory effect].) There is no need for this court to decide issues not fairly presented by the pleadings, such as the applicability of the Act.
Further, it makes no difference that Rood's FAC makes various speculative and conclusory claims that Garcia was acting together with unknown Doe defendants (who have never been identified), in a course of conduct to harass him, when the actual facts as pleaded refer only to the 911 calls and to the Garcia-Portantino conversation about them. In any case, with respect to the 911 calls and discussion of them, Garcia's statements arguably made representations of nonactionable opinion, not fact, on whether Rood appeared to be an intoxicated driver.
We next discuss how the authority of Hagberg, supra, 32 Cal.4th 350, establishes that the calls made by a citizen, including a licensed private investigator, to law enforcement to report suspected criminal conduct, are covered by absolute privilege. (Pt. IV.A. post.) Similarly, as to the Portantino conversation about the calls, it took place within the framework of questioning by Portantino about a deposition subpoena that had been sent to Garcia in the Rood/Portantino litigation, as shown by Garcia in his deposition. We will discuss the follow up conversation in terms of absolute litigation privilege. (Pt. IV.B., post.).
IV
ABSOLUTE PRIVILEGE ISSUES
A. Reports to Law Enforcement Authorities
In Hagberg, supra, 32 Cal.4th 350, the court explains that "under the contemporary interpretation of section 47(b), " an absolute privilege exists to shield "a citizen's report to the police concerning suspected criminal activity of another person." (Hagberg, supra, at p. 375.) " 'An absolute privilege exists to protect citizens from the threat of litigation for communications to government agencies whose function it is to investigate and remedy wrongdoing.' " (Id. at p. 362.) The reason for shielding such communications is to avoid the imposition of a penalty upon statements that (1) urge law enforcement personnel to investigate another person's suspected violation of criminal law or to apprehend a suspected lawbreaker, or (2) report a crime to prosecutorial authorities, even as a preliminary to "any other official proceeding authorized by law." (Evans v. Evans (2008) 162 Cal.App.4th 1157, 1173; see Brown v. Department of Corrections (2005) 132 Cal.App.4th 520, 525-526.)
Garcia contends that his communications to the police in the present case fall within the absolute privilege established by section 47, subdivision (b), which protects "the important public policy of assuring free access to the courts and other official proceedings." (Hagberg, supra, 32 Cal.4th 350, 360, 375.) He meritoriously argues that the trial court's ruling was erroneous in its reliance upon Devis, supra, 65 Cal.App.4th 1002, 1007-1008, for its interpretation of "controlling authority" regarding whether a privilege applies to an erroneous police report, "only if the erroneous report to the police is made in good faith."
Specifically, in Hagberg, supra, 32 Cal.4th 350, 369, footnote 4, the court criticized the holding of Devis, supra, 65 Cal.App.4th 1002, 1007-1008, as a misinterpretation of previous case law on privilege, including Fenelon, supra, 223 Cal.App.3d 1476 (which Rood relied on in opposing the motion to strike). In Devis, the court ruled that the privilege that applies to a report to the police is only a qualified one under section 47, subdivision (b). (Devis, supra, 65 Cal.App.4th 1002, 1008.) There, the Court of Appeal addressed as the "controlling issue" how section 47 should be applied to the causes of action in that complaint (false imprisonment, negligent investigation leading to a report to the police, slander, negligent and intentional infliction of emotional distress). In affirming a dismissal of all causes of action in the complaint, the Court of Appeal in Devis made this interesting comment, essentially in dicta: "Although some recent case law holds that the section 47 privilege is absolute, so that it cannot be defeated by a showing of malice [citations], we believe that controlling authority establishes that the privilege applies only if the erroneous report to the police is made in good faith. [Citing Turner v. Mellon (1953) 41 Cal.2d 45, 48; Du Lac v. Perma Trans Products, Inc. (1980) 103 Cal.App.3d 937, 941.] The distinction is not critical here, however, since appellants have not alleged that the Bank acted without good faith." (Devis, supra, at p. 1008; italics added.)
It is important here to note that both of the cases relied on in Devis in its statements (summarized above), were expressly disapproved by the court in Hagberg, supra, 32 Cal.4th 350, 375 in its footnote 8. (See Devis, supra, 65 Cal.App.4th 1002, 1006-1008.) Thus, there is no remaining support, after Hagberg, for the position taken in Devis, that the section 47, subdivision (b) privilege applies only to "good faith" reports to police. The trial court should not have relied upon Devis in this manner, since it relied in turn on distinguishable false imprisonment case authority, and for all intents and purposes, only set forth dicta on this point. Although the court in Hagberg did not expressly overrule the opinion in Devis, it abrogated it and almost completely undermined its authority, except possibly in false imprisonment cases where aiding and abetting by a private citizen is alleged to have resulted in a peace officer's arrest of another. (Devis, supra, at pp. 1006-1008.) In any case, it is well established that our review does not evaluate the reasoning of the trial court, but instead its legal conclusions and application of statutory criteria to the established facts.
We also emphasize that in applying the doctrine of absolute privilege for citizen contact with law enforcement to report suspected criminal activity, it is not necessary for the trial court or this court to determine whether certain allegations were ever substantiated, such as whether Rood was actually drinking and driving that day. Instead, the absolute privilege analysis should focus on whether the communications to law enforcement were of the protected character, regardless of their truth or falsity. (See Brown, supra, 48 Cal.3d 711, 723.) "The privilege is not restricted to statements made once a proceeding has been commenced, but may apply to statements made in advance." (Garamendi v. Golden Eagle Ins. Co. (2005) 128 Cal.App.4th 452, 478.)
In Evans, supra, 162 Cal.App.4th 1157, 1173, this court noted that there are safeguards against any repeated filing of false complaints with police: "Government agencies can establish reasonable requirements before an individual may be permitted to file a complaint. If the [police] Department believes the complaints are unwarranted or burdensome, it has the authority to take administrative action to address these problems." (Ibid.) The 911 calls are not actionable here, and Rood cannot demonstrate those allegations in the FAC are legally sufficient, nor supported by sufficient prima facie evidentiary showings to sustain a judgment in his favor. (Code Civ. Proc., § 425.16, subd. (b)(1).)
B. Litigation Privilege; Attorney Fees
Section 47, subdivision (b) generally renders publications made in "judicial proceedings" to be absolutely privileged. (5 Witkin, Summary of Cal. Law, supra, Torts, § 567, p. 826.) Those authors state: " 'The usual formulation' of the scope of the so-called 'litigation privilege' is that it 'applies to any communication made (a) in judicial or quasi-judicial proceedings; (b) by litigants or other participants authorized by law; (c) to achieve the objects of the litigation; and (d) having some connection or logical relation to the action.' (Silberg v. Anderson (1990) 50 Cal.3d 205, 212.) [¶]... [¶] Under Rubin v. Green (1993) 4 Cal.4th 1187 [citation], the appropriate inquiry is whether an activity is communicative 'in its essential nature.' " (5 Witkin, Summary of Cal. Law, supra, Torts, § 567, pp. 827-828.) Such privileged publications include "statements made prior to the filing of a lawsuit, whether in preparation for anticipated litigation or to investigate the feasibility of filing a lawsuit." (Hagberg, supra, 32 Cal.4th 350, 361, citing to Rubin v. Green, supra, 4 Cal.4th 1187, 1194-1195 [preliminary interviews and conversations related to contemplated action are covered by privilege].)
Under those standards, the communications Garcia made about the 911 calls to Portantino, at their meeting requested by Portantino in October 2007, appear to fall well within the context of conversations that prepare for litigation, and litigation privilege applies as a matter of law as a defense for Garcia. The trial court erred in its determination that Rood's evidentiary showing supplied proof by clear and convincing evidence of disqualifying falsity. (Sipple, supra, 71 Cal.App.4th 226, 248.) There was no basis to apply qualified privilege standards to the allegations of the FAC, and the motion to strike should have been granted. Rood has not supported his claim that he is entitled to carry on any further discovery that would meaningfully affect these legal issues.
Finally, the record does not demonstrate that any award of attorney fees was made by the trial court under Code of Civil Procedure section 425.16, subdivision (c). On appeal, Garcia's brief requests such an award. Any request for fees should be addressed by the trial court on remand.
DISPOSITION
The order is reversed with directions to enter a new order granting the motion to strike the entire FAC against Garcia. Appellant is entitled to costs on appeal.
WE CONCUR: McINTYRE, J., AARON, J.