California Court of Appeal Jul 20, 2022 No. E077221Unpublished
Filed 7/20/22 King v. Mabaquio CA4/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
KATHEY KING,
Plaintiff and Respondent, E077221
v. (Super.Ct.No. CIVDS2023930)
PURIFICACION MABAQUIO, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. Thomas S. Garza,
Judge. Affirmed in part, reversed in part, with directions.
Westphal Law Group and Wesley B. Westphal, for Defendant and Appellant.
Law Office of Michelle D. Strickland and Michelle D. Strickland; Arias &
Lockwood and Christopher D. Lockwood for Plaintiff and Respondent.
Defendant and appellant Purificacion Mabaquio gave plaintiff and respondent
Kathey King power of attorney, which Mabaquio contends King misused to steal more
than $70,000 from her. Mabaquio reported the alleged theft to law enforcement, leading
to criminal charges against King. At the prosecution’s request, those charges were
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dismissed without prejudice, and they were never refiled. In this civil suit, King alleges
various causes of action against Mabaquio, including several based on her filing of the
police report and participation in the investigation that culminated in criminal charges
filed against King.
In this appeal, Mabaquio contends that the trial court erred by denying her special
motion to strike portions of King’s complaint (anti-SLAPP motion) pursuant to Code of 1 Civil Procedure section 425.16 (the anti-SLAPP statute). Although she sought to strike
three causes of action through her anti-SLAPP motion, Mabaquio here contests the trial
court’s ruling only as to two of them, for abuse of process and intentional infliction of
emotional distress (IIED). We find the anti-SLAPP motion should have been granted
regarding King’s claims arising from the filing of an allegedly false police report and
cooperation with the ensuing investigation, which includes the entirety of the abuse of
process cause of action and some of the claims asserted within the IIED cause of action.
In other respects, the motion was properly denied. We therefore affirm in part and
reverse in part the trial court’s ruling.
I. BACKGROUND
Mabaquio and King lived in adjacent mobile homes in Loma Linda, California.
According to King, Mabaquio “hired [her] as a Personal Assistant from June 2014
through May 2016” for a monthly $2000 wage. Mabaquio asserts that she thought King
1 Undesignated statutory references are to the Code of Civil Procedure.
2
“was just helping [her] as a friend” with various matters, without any request for 2 compensation.
In February 2015, Mabaquio executed a durable power of attorney in favor of
King. The power of attorney authorized King to act on Mabaquio’s behalf, particularly
with respect to management of certain rental properties Mabaquio owned and a lawsuit in
which Mabaquio was a party, but also with “general authority” to “take full charge of all
[of Mabaquio’s] property, real and personal, tangible and intangible,” and “to do any and
all acts in [Mabaquio’s] name which [Mabaquio] could do if personally present.”
Mabaquio avers that she executed the power of attorney “with the proviso” that King
“could not use the power of attorney or any of [Mabaquio’s] money for King’s own
personal benefit.” That limitation, however, was not express in the power of attorney.
Mabaquio went on an extended trip abroad from September 2015 through April
2016. According to Mabaquio, she discovered upon her return that King had made
various unauthorized transactions with Mabaquio’s bank accounts and credit cards. The
transactions totaled more than $70,000. In May 2016, Mabaquio filed a report with the
San Bernardino County Sheriff’s Office, complaining of the alleged theft. The Sheriff’s
Office conducted an investigation over the next several months and forwarded the results
to the district attorney. In November 2016, King was arrested and charged with 18
criminal counts (17 felonies, one misdemeanor), including forgery, grand theft, theft from
2 In August 2016, Mabaquio apparently told a police investigator that she had paid King $300 a month for helping her, but there had been no agreement about such payments between them. She denied agreeing to pay King $2000 per month.
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an elder/dependent adult (Mabaquio was 77 years old in 2016), and unlawful use of
identifying information.
In July 2019, on the prosecution’s motion, a court dismissed without prejudice the
criminal charges against King. The prosecution stated that it would “determine whether
to refile” after “some more investigation.” The charges were not refiled.
King brought suit against Mabaquio in November 2020, filing a complaint
asserting 10 causes of action, including the abuse of process and IIED causes of action at 3 issue here. In January 2021, Mabaquio filed her anti-SLAPP motion. The anti-SLAPP
motion requested that the trial court strike three of King’s causes of action, for malicious 4 prosecution, abuse of process, and IIED. The trial court denied the motion.
Mabaquio here contests the denial of her anti-SLAPP motion as to the abuse of
process and IIED causes of action only.
II. DISCUSSION
A. Applicable Law
“California's anti-SLAPP statute provides that ‘[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
3 The other eight causes of action are one for malicious prosecution, two for fraud, three for defamation (two slander, one libel), one for “harassment,” and one for “constructive wrongful termination.” 4 The court did not rule on King’s request for attorney fees as the prevailing party, reserving the issue for another day. Our record does not reveal how the trial court ever resolved that issue, or even if it did, and no ruling regarding attorney fees has been challenged in this appeal.
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speech . . . shall be subject to a special motion to strike, unless the court determines . . .
there is a probability that the plaintiff will prevail on the claim.’” (Baral v. Schnitt (2016)
1 Cal.5th 376, 381 (Baral), quoting § 425.16, subd. (b)(1).) The statute “does not
insulate defendants from any liability for claims arising from the protected rights of
petition or speech. It only provides a procedure for weeding out, at an early
stage, meritless claims arising from protected activity.” (Baral, at p. 384.)
“The procedure made available to defendants by the anti-SLAPP statute has a
distinctive two-part structure.” (Rand Resources, LLC v. City of Carson (2019) 6 Cal.5th
610, 619.) “A defendant satisfies the first step of the analysis by demonstrating that the
‘conduct by which plaintiff claims to have been injured falls within one of the four
categories described in subdivision (e) [of section 425.16] [citation], and that the
plaintiff’s claims in fact arise from that conduct [citation].” (Id. at p. 620.) “If the
defendant makes the required showing, the burden shifts to the plaintiff to demonstrate
the merit of the claim by establishing a probability of success . . . . [The court’s inquiry at
this second step] is limited to whether the plaintiff has stated a legally sufficient claim
and made a prima facie factual showing sufficient to sustain a favorable judgment.”
(Monster Energy Co. v. Schechter (2019) 7 Cal.5th 781, 788.) If the challenged claims
do not arise from protected activity, the anti-SLAPP motion may be denied without
considering the second step, regarding probability of success. (C.W. Howe Partners Inc.
v. Mooradian (2019) 43 Cal.App.5th 688, 698 (C.W. Howe); Hylton v. Frank E.
Rogozienski, Inc. (2009) 177 Cal.App.4th 1264, 1271.)
5
Our Supreme Court has recently clarified that “[a]nalysis of an anti-SLAPP
motion is not confined to evaluating whether an entire cause of action, as pleaded by the
plaintiff, arises from protected activity or has merit.” (Bonni v. St. Joseph Health System
(2021) 11 Cal.5th 995, 1010 (Bonni).) “Instead, courts should analyze each claim for
relief—each act or set of acts supplying a basis for relief, of which there may be several
in a single pleaded cause of action—to determine whether the acts are protected and, if
so, whether the claim they give rise to has the requisite degree of merit to survive the
motion.” (Ibid.; see Baral, supra, 1 Cal.5th at pp. 393-395.)
“‘Review of an order granting or denying a motion to strike under section 425.16
is de novo. [Citation.] We consider “the pleadings, and supporting and opposing
affidavits . . . upon which the liability or defense is based.” [Citation.] However, we
neither “weigh credibility [nor] compare the weight of the evidence. Rather, [we] accept
as true the evidence favorable to the plaintiff [citation] and evaluate the defendant's
evidence only to determine if it has defeated that submitted by the plaintiff as a matter of
law.”’” (Flatley v. Mauro (2006) 39 Cal.4th 299, 325-326.)
B. Analysis
1. Waiver
King briefly argues that Mabaquio’s opening brief fails to “accurately summarize
the evidence in the record,” and that she thereby waived appellate review. This argument
does not merit lengthy discussion. Having reviewed the parties’ briefs and the record, we
find that Mabaquio fairly summarized the material evidence in the record. We decline
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King’s invitation to exercise our discretion to deem any issue waived, even assuming
there to be an arguable basis for doing so.
2. Abuse of Process
King’s cause of action for abuse of process arises from allegations that Mabaquio
knowingly filed a false police report and participated in the subsequent criminal
investigation, causing King to be arrested and charged criminally on “false or untenable”
allegations that King had to spend three years contesting. King argues that filing a false
police report or otherwise making a false statement to law enforcement is illegal activity,
so Mabaquio’s conduct falls outside the scope of the anti-SLAPP statute. We are not
persuaded.
Generally, communicating with law enforcement regarding an alleged crime, such
as by filing a police report, is conduct that falls within the scope of the anti-SLAPP
statute. Such communications fall under section 425.16, subdivision (e)(1) and (e)(2), as
statements made in, or in connection with matters under review by, an official proceeding
or body. (Comstock v. Aber (2012) 212 Cal.App.4th 931, 941-942.) This general rule
occasionally collides with the principle that illegal activity is not protected by the anti-
SLAPP statute. (Flatley v. Mauro, supra, 39 Cal.4th at pp. 311-333.) It is well
established, however, that the “mere allegation that [the defendant] engaged in
unlawful . . . activities is insufficient to render [the defendant’s alleged actions unlawful
as a matter of law and outside the protection of . . . section 425.16.” (Dwight R. v.
Christy B. (2013) 212 Cal.App.4th 697, 712.)
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Thus, making a statement to law enforcement that is admittedly false, or that
uncontroverted evidence shows to be false, is conduct that is unlawful as a matter of law
and outside the protection of section 425.16. (E.g., Lefebvre v. Lefebvre (2011) 199
Cal.App.4th 696, 703-705 [wife’s report to police about husband was admittedly false
and therefore illegal, so it was not conduct in furtherance of constitutional rights of
petition or free speech].) “If, however, a factual dispute exists about the legitimacy of the
defendant’s conduct, it cannot be resolved within the first step [of the anti-SLAPP
analysis] but must be raised by the plaintiff in connection with the plaintiff’s burden to
show a probability of prevailing on the merits.” (Flatley v. Mauro, supra, 39 Cal.4th at p.
316; see, e.g., Kenne v. Stennis (2014) 230 Cal.App.4th 953, 966 [making of allegedly
false police reports “can be protected petitioning activity under the first prong of the anti-
SLAPP statute if the falsity of the report is controverted”]; Chabak v. Monroy (2007) 154
because no uncontroverted evidence showed report to be false].)
Mabaquio has not conceded that any statements she made to law enforcement,
including the police report, were false, intentionally or otherwise, and there is no
uncontroverted evidence that they were. The criminal prosecution against King was
dismissed at the prosecution’s request, but our record does not show that she ever sought
or was granted an adjudication of her actual innocence. (Cf. Lefebvre v. Lefebvre, supra,
199 Cal.App.4th at p. 700 [husband had been granted judicial finding of actual
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innocence].) The general rule that filing a police report is protected conduct under the
anti-SLAPP statute therefore applies here.
Our next question, then, is whether King showed a likelihood of success on her
abuse of process cause of action. She did not. The filing of a police report is not only
protected conduct under the anti-SLAPP statute, but also is a statement that falls within
the “absolute privilege” established by section 47, subdivision (b) of the Civil Code.
(Hagberg v. California Federal Bank (2004) 32 Cal.4th 350, 355, 364.) Civil Code
section 47, subdivision (b), provides that a statement made “[i]n any (1) legislative
proceeding, (2) judicial proceeding, (3) in any other official proceeding authorized by
law, or (4) in the initiation or course of any other proceeding authorized by law and
reviewable [by writ of mandamus]” is privileged, with certain exceptions that are
inapplicable here. The absolute privilege bars “all tort causes of action except for a claim
of malicious prosecution.” (Hagberg, supra, 32 Cal.4th at p. 360.) The absolute
privilege applies “without respect to the good faith or malice of the person who made the
statement.” (Id. at p. 361; see also Jacob B. v. County of Shasta (2007) 40 Cal.4th 948,
955-956 [privilege applies “regardless of malice”].) Thus, as a matter of law, King
cannot show a likelihood of succeeding on an abuse of process cause of action arising
from the filing of a false police report or cooperation with the subsequent investigation.
It follows that the trial court should have granted Mabaquio’s anti-SLAPP motion as to
King’s abuse of process cause of action.
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3. IIED
King’s IIED cause of action arises in part from her contention that Mabaquio filed
a false police report. Insofar as it does so, our analysis above as to her abuse of process
cause of action applies with equal force. Mabaquio’s filing of the report and cooperation
with the subsequent investigation falls within the scope of the anti-SLAPP statute, and
King cannot show a likelihood of success on an IIED cause of action based on that
conduct because it falls within the absolute privilege of Civil Code section 47,
subdivision (b). The anti-SLAPP motion therefore should have been granted as to that
portion of King’s IIED cause of action.
Also within her IIED cause of action, however, King alleges that Mabaquio
“contacted numerous business contacts of [King], negatively interfering with [King’s]
credit accounts, causing them to be shut down, interfering with [King’s] mobile home
park manager, [King’s] other employer, neighbors and friends by verbalizing her false
claims.” She alleges that this conduct, in addition to the filing of the police report,
caused her “humiliation, mental anguish, and emotional and physical distress.”
Statements between private individuals may sometimes fall within the scope of
section 425.16. (See Briggs v. Eden Council for Hope & Opportunity (1999) 19 Cal.4th
1106, 1116.) Neither in her anti-SLAPP motion, however, nor in briefing on appeal, has
Mabaquio asserted that these allegations describe conduct that is protected under the anti-
SLAPP statute, and we see no basis for a reasonable argument that they do. As such,
insofar as King’s IIED claim arises from this unprotected activity, it cannot be struck by
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an anti-SLAPP motion. (See Bonni, supra, 11 Cal.5th 995, 1010 [requiring separate
analysis for “each act or set of acts supplying a basis for relief”].) Thus, we need not and
do not address Mabaquio’s arguments aimed at demonstrating that King failed to show a 5 likelihood of prevailing on an IIED claim arising from that activity. (See C.W. Howe,
supra, 43 Cal.App.5th at p. 698; Hylton v. Frank E. Rogozienski, Inc., supra, 177
Cal.App.4th at p. 1271.)
Mabaquio seeks to strike King’s entire IIED cause of action because the cause of
action “is plainly bottomed on [Mabaquio’s] communications with law enforcement
which [King] alleges to be false,” while the other alleged communications are
“surplusage.” This reasoning, however, is inconsistent with Bonni’s instruction that we
examine separately each “act or set of acts” described within a cause of action, rather
than trying to discern the “‘gravamen’ or ‘principal thrust’ of the cause of action.”
(Bonni, supra, 11 Cal.5th at pp. 1010, 1012; see Baral, supra, 1 Cal.5th at p. 393-396.)
Certainly, as Mabaquio emphasizes, an anti-SLAPP motion “cannot be defeated by
showing a likelihood of success on the claims arising from unprotected activity.” The
converse, however, is also true; claims arising from unprotected activity are not subject to
being stricken on an anti-SLAPP motion, even if they are alleged within a cause of action
that also includes some allegations of protected activity.
5 Of course, Mabaquio may raise such arguments on demurrer or summary judgment, where a showing that the claim arises from protected conduct is not a prerequisite. We note that Mabaquio initially filed a demurrer to King’s entire complaint, but withdrew the demurrer as to the three causes of action at issue in the anti-SLAPP motion.
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III. DISPOSITION
The denial of Mabaquio’s anti-SLAPP motion is affirmed in part and reversed in
part. The matter is remanded to the trial court with directions to enter a revised order
consistent with this opinion, granting the anti-SLAPP motion as to (1) King’s abuse of
process cause of action and (2) King’s IIED cause of action to the extent it arises from
protected conduct, specifically, Mabaquio’s filing of a police report and participation in
the resulting criminal investigation. The revised order shall deny the anti-SLAPP motion
in all other respects. The parties shall bear their own costs on appeal.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAPHAEL J.
We concur:
MILLER Acting P. J.
MENETREZ J.
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AI Brief
AI-generated · verify before citing
Holding. The court held that the defendant's anti-SLAPP motion should have been granted regarding claims arising from the filing of a police report and cooperation with the investigation, as such conduct is protected and privileged, but denied regarding other alleged tortious conduct.
Issues
Whether the defendant's filing of a police report and participation in a criminal investigation constitute protected activity under the anti-SLAPP statute.
Whether the plaintiff demonstrated a probability of prevailing on her abuse of process and IIED claims arising from the defendant's report to law enforcement.
Whether the trial court erred in denying the anti-SLAPP motion as to the entire IIED cause of action when it included both protected and unprotected conduct.
Disposition. Affirmed in part, reversed in part, and remanded.
Quotations verified verbatim against the opinion
“We find the anti-SLAPP motion should have been granted regarding King’s claims arising from the filing of an allegedly false police report and cooperation with the ensuing investigation”
“The absolute privilege bars “all tort causes of action except for a claim of malicious prosecution.””
“claims arising from unprotected activity are not subject to being stricken on an anti-SLAPP motion, even if they are alleged within a cause of action that also includes some allegations of protected activity.”