California Court of Appeal Jul 9, 2015 No. D066637Unpublished
Filed 7/9/15 Perez v. Blackman CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
MICHAEL H. PEREZ, D066637
Plaintiff and Appellant,
v. (Super. Ct. No. 37-2013-00074164- CU-DF-NC) LARRY M. BLACKMAN et al.,
Defendants and Respondents.
APPEAL from an order of the Superior Court of San Diego County, Earl. H. Maas
III, Judge. Affirmed.
Miller & Steele, Robert M. Steele and Stephen M. Hogan for Plaintiff and
Appellant.
Gary S. Baum for Defendants and Respondents.
Michael H. Perez appeals from an order granting Larry and Zachary Blackman's
(Larry and Zachary, respectively, and together, defendants) motion to strike Perez's
malicious prosecution cause of action pursuant to Code of Civil Procedure section
425.16, known as the anti-SLAPP (strategic lawsuit against public participation) statute.
1
On appeal, Perez contends that the trial court erred when it found that Perez did
not present sufficient facts to support a malicious prosecution claim. Specifically, Perez
argues that the trial court erred in finding (1) that his lawful arrest could not give rise to a
malicious prosecution claim, (2) defendants had probable cause to initiate a criminal
investigation against him, and (3) defendants acted without malice. Perez further
contends that the trial court improperly weighed the credibility of the evidence in
determining whether he had made a prima facie showing of malicious prosecution. We
affirm the order.
FACTUAL BACKGROUND1
The parties' dispute arose during a recreational basketball game. Perez and
defendants played on opposing teams. In the first half of the game, Zachary received a
technical foul and was aggressive towards Perez. During the second half of the game,
Zachary pushed Perez to get a rebound and when the play stopped, he charged Perez.
Perez felt threatened, instinctively placed Zachary in a headlock, and asked him to stop
because he didn't want anyone to get hurt. Perez did not strike Zachary and told him he
was only "doing it to avoid things getting out of hand" and to "keep things from
escalating." Perez's intent was to keep Zachary from striking him or others and "starting
a larger fight between the teams." When Perez let Zachary go, Zachary began to wind up
to throw a punch so Perez placed him in a headlock again.
1 In deciding the merits of an anti-SLAPP motion, "we accept as true all evidence favorable to the plaintiff and assess the defendant's evidence only to determine if it defeats the plaintiff's submission as a matter of law." (Greene v. Bank of America (2013) 216 Cal.App.4th 454, 458 (Greene).) Therefore, we take the facts in large part from Perez's declaration in opposition to defendants' motion to strike his complaint.
2
While the referees and multiple players tried to separate the two, Perez and
Zachary landed on the ground. Larry then jumped on Perez's back and punched and
struck him, yelling, "that is my fucking son let go of him." After Larry was pulled off of
Perez, everyone was able to separate. Larry repeatedly screamed at Perez, "fuck you why
don't you fight me!" As Perez left the gym, Larry continued yelling, "Fuck you, get out
of here!" Perez and Larry were ejected from the game, Zachary was not.
The next day, Zachary reported the incident to the San Diego Police Department
and an officer interviewed him, Larry, and Zachary's roommate, who was also present at
the basketball game. The officer completed an incident report.
Weeks later, Perez received a call from a detective asking him to come to the
police department to discuss the reported incident. Upon arrival, Perez was handcuffed
and read his rights.2 The detective told Perez he was under arrest, being charged with "a
felony for aggressive assault threatening the life of another person," and showed him a
typed report stating Perez was being arrested for a felony battery and another charge
Perez does not recall. He also told Perez that he had examined Zachary's eyes and neck
and that he had not seen any visible signs of Zachary being choked.
Perez explained his side of the story and produced an email with an attached report
from a referee, who "was closest to the incident that evening." After the referee
confirmed Perez's story over the phone, the detective told Perez he was free to go.
2 Miranda v. Arizona (1996) 384 U.S. 436. 3
PROCEDURAL BACKGROUND
On November 4, 2013, Perez filed a complaint against defendants for false arrest,
malicious prosecution, intentional infliction of emotional distress, negligence, and
defamation. Defendants' filed an anti-SLAPP motion. In a tentative ruling on the
motion, the trial court found that all of the causes of action, with the exception of the
malicious prosecution claim, were barred by the litigation privilege under Civil Code
section 47, subdivision (b). The ruling further stated that the malicious prosecution claim
failed because an investigation that does not lead "to the filing of a formal criminal or
civil complaint does not give rise to a cause of action for malicious prosecution."
After oral argument, the trial court vacated the tentative ruling and granted
plaintiff's discovery requests. Perez conceded that all of the causes of action, except for
the malicious prosecution claim, were barred. The court held a subsequent hearing on the
anti-SLAPP motion to address whether Perez was "arrested" or "interviewed voluntarily"
for purposes of the malicious prosecution claim.
The trial court granted defendants' anti-SLAPP motion after finding that Perez did
not present sufficient evidence to "support each of the elements of the tort of malicious
prosecution." Specifically, the trial court found that (1) plaintiff's declaration established
only a "potential arrest," which cannot give rise to a malicious prosecution cause of
action, (2) defendants had reason to believe they had grounds to have Perez arrested
because "putting a player in a choke hold is not part of the game of basketball," and (3)
there was no evidence that defendants acted other than to bring Perez to justice. Perez
appeals.
4
DISCUSSION
The anti-SLAPP statute provides as follows: "A cause of action against a person
arising from any act of that person in furtherance of the person's right of petition or free
speech under the United States or 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
Therefore, to defeat defendants' anti-SLAPP motion, Perez had to make a prima
facie showing of facts to support a malicious prosecution claim. (Chavez, supra,
94 Cal.App.4th at p. 1089.) "A claim for malicious prosecution is established by
showing that the action was (1) commenced by or at the direction of defendant and was
pursued to a legal termination in favor of the plaintiff; (2) was brought without probable
cause; and (3) was initiated with malice." (Mattel, Inc. v. Luce, Forward, Hamilton &
Scripps (2002) 99 Cal.App.4th 1179, 1190.) We need not address Perez's argument that 6
his lawful arrest can give rise to a malicious prosecution action or his assertion that
defendants acted with malice, because we find that defendants had probable cause to
initiate the investigation of Perez. (White v. Brinkman (1937) 23 Cal.App.2d 307, 312-
313 (White) [explaining that "[i]f probable cause exists, it is an absolute protection
against an action for malicious prosecution, even when express malice is proved"].)
Perez argues that defendants did not reasonably believe he had committed a crime
because defendants were the aggressors. A defendant acts without probable cause if "no
reasonable person in [the defendant]'s circumstances would have believed that there were
grounds for causing [the plaintiff] to be arrested or prosecuted." (CACI No. 1500
(2008).) " '[P]robable cause does not depend upon the possession of facts which
satisfactorily prove the guilt of an accused person. It has reference of the common
standard of human judgment and conduct. It exists if one is possessed of information or
facts which are sufficient to cause a reasonable person to honestly believe the charge is
true.' " (Greene, supra, 216 Cal.App.4th at p. 465.) In other words, "[b]elief alone,
however sincere, is not sufficient, for it must be founded on circumstances which make
the belief reasonable." (White, supra, 23 Cal.App.2d at p. 312.) Nonetheless, "[p]roof
that no crime was committed or that the accused is innocent does not negat[e] the
existence of probable cause." (Northrup v. Baker (1962) 202 Cal.App.2d 347, 354.)
When the facts relied upon to show probable cause are undisputed, whether those
facts constitute probable cause is a matter of law to be decided by the court pursuant to an
objective standard. (Sheldon Appel Co. v. Albert & Oliker (1989) 47 Cal.3d 863, 880-
881 (Sheldon).) Conversely, " '[w]hen the evidence bearing on the question of probable 7
cause is in conflict, it is the province of the jury to determine whether facts exist which
will warrant or reject an inference of probable cause.' " (Greene, supra, 216 Cal.App.4th
at p. 465.) Essentially, " '[w]hat facts and circumstances amount to probable cause is a
pure question of law. Whether they exist or not in any particular case is a pure question
of fact. The former is exclusively for the court, [and] the latter for the jury.' " (Sheldon,
supra, at p. 877.)
In the instant case, it is undisputed that Perez placed Zachary in a "choke hold."
The referee report produced by Perez stated that Perez grabbed Zachary and put him in a
"choke hold." When multiple players tried to separate them, Zachary and Perez were
pushed onto the floor, but Perez did not release the "choke hold." Larry then jumped on
top of Perez and punched him, saying, "that is my fucking son[,] let go of him!"
Moreover, Perez confirmed these key facts in his account of the incident, in spite of his
allegation that defendants were the aggressors and his use of the word "headlock" instead
of "choke hold." Defendants further verified that Perez had Zachary in a "choke hold"
and that numerous players and Larry tried to intervene.
Taking the evidence produced by Perez and known to the defendants as true, we
find it was reasonable for the defendants to have believed that Perez committed a crime.
The undisputed facts show that Zachary was placed in a "choke hold" by Perez. Multiple
players perceived the situation as serious enough to justify becoming involved in the
fracas, and Perez did not release Zachary when they fell to the ground. Larry's
exclamation further confirms Perez did not readily let go of Zachary despite efforts to
separate the two. We thus find that under these circumstances it was objectively
8
reasonable for defendants to presume they had grounds to have Perez arrested, and
defendants had probable cause to report the incident to the police. The fact that criminal
proceedings were not initiated against Perez as a result does not negate the existence of
probable cause.
Based on the foregoing findings, we conclude that the undisputed facts in the
record defeat Perez's malicious prosecution claim because they demonstrate that
defendants acted with probable cause. Since Perez did not make a prima facie showing
of facts demonstrating a probability of prevailing on an essential element of a malicious
prosecution claim, the trial court properly granted defendants' anti-SLAPP motion.
DISPOSITION
The order is affirmed. Defendants are entitled to costs on appeal.
McCONNELL, P. J.
WE CONCUR:
NARES, J.
HALLER, J.
9
AI Brief
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Holding. The court held that the trial court properly granted the defendants' anti-SLAPP motion because the plaintiff failed to establish a prima facie case for malicious prosecution, as the defendants had probable cause to report the incident to the police.
Issues
Whether the trial court erred in finding that the plaintiff failed to present sufficient evidence to support a malicious prosecution claim.
Whether the defendants had probable cause to initiate a criminal investigation against the plaintiff.
Whether the trial court properly applied the anti-SLAPP statute to the plaintiff's malicious prosecution claim.
Disposition. Affirmed.
Quotations verified verbatim against the opinion
“Since Perez did not make a prima facie showing of facts demonstrating a probability of prevailing on an essential element of a malicious prosecution claim, the trial court properly granted defendants' anti-SLAPP motion.”