Casey v. Thrifty Payless CA2/1

Filed 5/29/13 Casey v. Thrifty Payless CA2/1 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION ONE

TRACI M. CASEY, B242206

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. BC478867) v.

THRIFTY PAYLESS, INC.,

Defendant and Appellant.

APPEAL from an order of the Superior Court of Los Angeles County. Rolf M. Treu, Judge. Reversed. Manning & Kass, Ellrod, Ramirez, Trester, Jeffrey M. Lenkov, Martin D. Holly, and Julie Fleming for Defendant and Appellant. No appearance for Plaintiff and Respondent.

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Plaintiff was arrested after defendant reported to police that plaintiff was trafficking in prescription drugs. Plaintiff sued defendant for, inter alia, defamation and false imprisonment, alleging its report to police was false. Defendant denied the allegations and specially moved to strike the complaint as a strategic lawsuit against public participation (SLAPP) pursuant to Code of Civil Procedure section 425.16, arguing its police report constituted protected activity and plaintiff could not establish a probability of prevailing on the merits. Plaintiff filed no opposition to the motion but the trial court nevertheless denied it, concluding it had to accept as true the allegation that the police report was false and finding defendant’s making of a false report was unprotected activity. The trial court erred. Although making a false police report is not protected activity, when a defendant specially moves to strike a complaint under Code of Civil Procedure section 425.16 the court cannot accept as true plaintiff’s mere allegation that defendant’s police report was false. If no admission or uncontroverted evidence, as opposed to bare allegations, establishes that a police report was false, the making of the report is protected activity subject to the protections of the anti-SLAPP statute. Because defendant’s conduct was protected and plaintiff failed to demonstrate a reasonable probability of prevailing on the merits, defendant’s motion to strike should have been granted. We therefore reverse the trial court’s ruling. BACKGROUND We take the facts from the complaint. On February 10, 2010, plaintiff Traci Casey arrived at a Rite Aid store owned by defendant Thrifty Payless, Inc. (hereafter Rite Aid) with written authorization to pick up prescription medication for a patient. Forewarned by a Rite Aid employee, Los Angeles County Sheriff’s deputies were waiting, dressed as Rite Aid employees. After Casey obtained the medication, deputies arrested her on suspicion of drug trafficking, ignoring the documentation authorizing her to obtain the medication and her request that they phone the physician who had prescribed the medication or the patient to whom it was to be delivered. Sheriff’s deputies later released her, apparently without charging her.