Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County No. BC387265, Gregory Wilson Alarcon, Judge.
Law Office of Dan Evan Fleischman and Dan Evan Fleischman for Cross-complainant and Appellant.
Davert & Loe, Jason E. Guerra, David C. Loe and Douglass S. Davert for Cross-defendants and Respondents.
MALLANO, P. J.
The trial court granted cross-defendants’ special motion to strike three causes of action of W. W. Smith’s cross-complaint under Code of Civil Procedure section 425.16 (section 425.16) on the ground that the claims for abuse of process and malicious prosecution arose from activities protected by section 425.16 and Smith failed to meet his burden to show a reasonable probability of success on the merits. We agree and affirm the order.
BACKGROUND
This is Smith’s third appeal arising out of a dispute between two factions of the True Faith Missionary Baptist Church of Compton (Church). Smith and some members of Church support the retention of Smith as Church’s pastor, but others, including cross-defendants Donald Harris, Cleveland Owens and Emma V. Smith did not.
Pending this appeal, Emma Smith died.
In a related action (John Redmond et al. v. Donald Harris et al. (Super. Ct. L.A. County, No. BC304823) (hereinafter the Redmond action)), the parties reached a settlement agreement in March 2005 which required Smith to retire as Church’s pastor on April 6, 2007. When Smith did not retire, Harris brought a motion to enforce the agreement pursuant to Code of Civil Procedure section 664.6. On September 14, 2007, the trial court denied Harris’s motion without prejudice. In October 2007, other parties (including Owens and Emma Smith) filed a motion to enforce the agreement. The trial court granted their motion on December 14, 2007, and ordered Smith to retire immediately as Church pastor. Smith appealed and we affirmed the December 14, 2007 order. (Redmond v. Harris (Apr. 28, 2009, B204845) [nonpub. opn.].)
Meanwhile, in March 2008, Smith filed the instant action against Harris and others. (Smith v. Harris et al. (Super. Ct. L.A. County, No. BC387265.) Smith’s complaint contained six causes of action. In August 2008, demurrers were sustained without leave to amend to two causes of action and Harris’s special motion to strike the third cause of action for abuse of process was granted. The third cause of action alleged that Harris called the police to have them enforce the December 14, 2007 order. Smith appealed from the order granting Harris’s special motion to strike. We affirmed the order. (Smith v. Harris (July 17, 2009, B211851) [nonpub. opn.].)
The three causes of action in Smith’s complaint that remain pending against Harris are for defamation, invasion of privacy, and intentional infliction of emotional distress.
The record does not include the complaint in the instant action, but we adopt the trial court’s characterization of the abuse of process cause of action.
In September 2008, Harris, Owens, and Emma Smith filed a cross-complaint against Smith and Church for conversion, constructive fraud, breach of fiduciary duty, and other torts. In October 2008, Smith answered that cross-complaint and filed his own cross-complaint against Harris, Owens, and Emma Smith (hereinafter cross-defendants).
Cross-defendants filed a special motion to strike three causes of action of Smith’s cross-complaint: the third cause of action for abuse of process against Harris (which the trial court found to be the same abuse of process claim asserted in Smith’s complaint and which was stricken in August 2008); the fourth cause of action against cross-defendants for abuse of process; and the fifth cause of action against Harris for malicious prosecution.
A demurrer was sustained to the first two causes of action of Smith’s cross-complaint, dealing with the settlement agreement.
The third cause of action for abuse of process alleged that Harris “intentionally misused or misapplied the December 14, 2007 ruling to involve, deceive and defraud the police for an end other than that which it was designed to accomplish and for the improper purpose and ulterior motive of having [Smith] arrested, threatened with arrest or removed from [Church] property, a procedure which the December 14, 2007 ruling was not designed or intended to achieve....”
The fourth cause of action for abuse of process alleged that cross-defendants filed their September 2008 cross-complaint for an improper purpose and ulterior motive, “to wit, to coerce [Smith] and [Church] to obtain a collateral advantage, not properly involved in this proceeding itself, to attain church or personal property or the payment of money, by the use of the process as a threat or club....”
The fifth cause of action against Harris for malicious prosecution is based on both the denial without prejudice of Harris’s motion to enforce the settlement agreement in the Redmond action and Harris’s filing of the cross-complaint in September 2008 in the instant action. Only the Redmond action is alleged to have terminated in Smith’s favor. Only Harris’s filing of his cross-complaint is alleged to have been without probable cause.
Smith filed opposition to the special motion to strike, which contained no points and authorities or argument and consisted only of a request to take judicial notice of certain prior rulings and hearings in the matter as well as letters between counsel for the parties. The trial court took judicial notice of the prior proceedings but not of counsel’s letters.
After a hearing on December 23, 2008, the court granted the special motion to strike and awarded cross-defendants attorney fees and costs of $2,840.00. Smith appeals from the order striking the causes of action and awarding attorney fees.
DISCUSSION
“The anti-SLAPP law [section 425.16] involves a two-step process for determining whether a claim is subject to being stricken. In the first step, the moving defendant is required to make a prima facie showing the plaintiff’s action is subject to section 425.16, by showing the defendant’s challenged acts were taken in furtherance of constitutional rights of petition or free speech in connection with a public issue, as defined by the statute.” (Wang v. Wal-Mart Real Estate Business Trust (2007) 153 Cal.App.4th 790, 800.) Once the defendant meets this burden, the burden shifts to the plaintiff to demonstrate the probability that he will prevail on the claim. (Freeman v. Schack (2007) 154 Cal.App.4th 719, 726 (Freeman).)
“The preliminary inquiry in an action like that before us is to determine exactly what act of the defendant is being challenged by the plaintiff. In doing so we review primarily the complaint, but also papers filed in opposition to the motion to the extent that they might give meaning to the words in the complaint. [Citations.]” (Dible v. Haight Ashbury Free Clinics, Inc. (2009) 170 Cal.App.4th 843, 849 (Dible).) “[M]erits based arguments have no place in our threshold analysis of whether plaintiff’s causes of action arise from protected activity.” (Freeman, supra, 154 Cal.App.4th at p. 733.) We review the trial court’s ruling on the motion de novo. (A.F. Brown Electrical Contractor, Inc. v. Rhino Electric Supply, Inc. (2006) 137 Cal.App.4th 1118, 1124.)
“Our Supreme Court has recognized that the anti-SLAPP statute should be broadly construed [citation], and a plaintiff cannot avoid operation of the anti-SLAPP statute by attempting, through artifices of pleading, to characterize an action as a ‘garden variety breach of contract [or] fraud claim’ when in fact the liability claim is based on protected speech or conduct. [Citation.]” (Martinez v. Metabolife Internat., Inc. (2003) 113 Cal.App.4th 181, 187.) It is the gravamen or principal thrust of the claim that determines whether section 425.16 applies. (Martinez, at p. 188.) And the gravamen or principal thrust of the claim is “[t]he allegedly wrongful and injury-producing conduct... that provides the foundation for the claim.” (Id. at p. 189.)
An act in furtherance of the right to petition includes “any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law” (§ 425.16, subd. (e)(1)), and “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” (id., subd. (e)(4)). “Under section 425.16, a defendant moving to strike a cause of action arising from a statement made before, or in connection with an issue under consideration by, a legally authorized official proceeding need not separately demonstrate that the statement concerned an issue of public significance.” (Briggs v. Eden Council for Hope & Opportunity (1999) 19 Cal.4th 1106, 1123.)
We conclude (1) that the gravamen of the instant abuse of process claim in the third cause of action of Smith’s cross-complaint is Harris’s conduct in making a complaint to the police department, protected activity under section 425.16, and (2) that Smith did not meet his burden of establishing a probability that he will prevail on the claim.
Making a report to the police is protected petitioning activity under section 425.16. (Chabak v. Monroy (2007) 154 Cal.App.4th 1502, 1511; Siam v. Kizilbash (2005) 130 Cal.App.4th 1563, 1570 [reporting child abuse is protected activity under section 425.16]; see also Salma v. Capon (2008) 161 Cal.App.4th 1275, 1286–1287 [contacting municipal departments seeking official investigation is protected activity under section 425.16].)
Smith faults Harris for failing to support the special motion to strike with admissible evidence. But merits-based arguments are not pertinent to the threshold issue of whether the alleged activity falls within the protection of section 425.16, and this issue is properly determined from the allegations of the cross-complaint alone. (Dible, supra, 170 Cal.App.4th at p. 849.) Given the allegations of the third cause of action of the cross-complaint, we conclude that the gravamen of this claim is Harris’s conduct in making a complaint to the police department. Smith’s opening brief also admits as much by characterizing the abuse of process action as one involving Harris’s “calling the police.” Smith argues that this claim is based not only on Harris’s calling the police, but on Harris’s “using his attorney’s fraudulently obtained December 14, 2007 order issued to the ‘other Defendants’ as a pretext to call, then deceive the Compton police into falsely arresting or removing Reverend Smith from his church.” We rejected the same argument in the prior appeal involving the abuse of process claim in Smith’s complaint, stating that “[t]his distinction is specious because Smith cannot separate Harris’s summoning the police from his abuse of process [claim].... Stated another way, Smith would have no basis for his complaint if Harris had not contacted the police department.” (Smith v. Harris, supra, B211851, p. 7.)
Citing Weinberg v. Feisel (2003) 110 Cal.App.4th 1122, Smith maintains that making false accusations of criminal conduct to the police is not protected by section 425.16. But Weinberg did not involve petitioning activity. The claims of libel and slander in Weinberg involved statements that were not made in a public forum nor to the police. (Weinberg, at pp. 1126–1127.) Weinberg is thus inapposite.
The gravamen of the fourth cause of action against cross-defendants (labeled abuse of process) is the filing of their cross-complaint against Smith. The filing of a cross-complaint is protected petitioning activity under the anti-SLAPP statute. “The gravamen of the claim is misconduct in the underlying litigation. Indeed, that is the essence of the tort of abuse of process — some misuse of process in a prior action — and it is hard to imagine an abuse of process claim that would not fall under the protection of the statute. Abuse of process claims are subject to a special motion to strike.” (Booker v. Roundtree (2007) 155 Cal.App.4th 1366, 1370; see also Rusheen v. Cohen (2006) 37 Cal.4th 1048, 1056 [a cause of action arising from litigation activity may be the subject of a special motion to strike].)
Smith asserts that a compulsory cross-complaint is not subject to a special motion to strike, citing language in Church of Scientology v. Wollersheim (1996) 42 Cal.App.4th 628 (Church of Scientology) that “[a] compulsory cross-complaint on a ‘related cause of action’ against the plaintiff [citation] would rarely, if ever, qualify as a SLAPP suit arising from petitioning activity.” (Id. at p. 651.) When the foregoing language is placed in its proper context, it does not support Smith’s assertion.
In Church of Scientology, the church’s complaint sought to set aside a prior judgment Wollersheim had obtained against the church in a prior action. The trial court dismissed the church’s complaint under section 425.16, and the Court of Appeal affirmed on the grounds that the church’s complaint fell within the protection of section 425.16 because it challenged Wollersheim’s petition activity (the prior action and judgment) and the church failed to establish a probability of success on the merits. (Church of Scientology, supra, 42 Cal.App.4th at pp. 649, 655.)
The Court of Appeal in Church of Scientology discussed the issue of compulsory cross-complaints in response to the church’s argument that a broad application of section 425.16 to all litigation activity would subject all cross-complaints to a special motion to strike. The court rejected such a proposition, pointing out that “[o]nly those cross-complaints alleging a cause of action arising from the plaintiff’s act of filing the complaint against the defendant and the subsequent litigation would potentially qualify as a SLAPP action.” (Church of Scientology, supra, 42 Cal.App.4th at p. 651.)
Here, the gravamen of the fourth cause of action is the cross-defendants’ filing of their cross-complaint. Subjecting such a claim to the protections of the anti-SLAPP statute is thus consistent with Church of Scientology.
Finally, we reject Smith’s argument that the fifth cause of action against Harris for malicious prosecution of his cross-complaint and of the Redmond action arose from nonprotected activity. A malicious prosecution claim falls within the purview of section 425.16. (Jarrow Formulas, Inc. v. LaMarche (2003) 31 Cal.4th 728, 735, 741.)
Smith presented no evidence to establish a probability that he would prevail on any of the foregoing causes of action, so the trial court properly granted the special motion to strike.
Smith’s only argument with respect to the award of attorney fees is that it should fall upon reversal of the order. As we affirm the order, the award is also affirmed.
DISPOSITION
The order of December 23, 2008, is affirmed. Cross-defendants are entitled to costs on appeal.
We concur: ROTHSCHILD, J., CHANEY, J.