Crocker v. Blake CA3

Filed 4/11/22 Crocker v. Blake CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication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

THIRD APPELLATE DISTRICT

(Amador)

----

CAMERON CROCKER, C092998

Plaintiff and Respondent, (Super. Ct. No. 19CV11303)

v.

MICHAEL JOSEPH BLAKE,

Defendant and Appellant.

During an altercation, appellant Michael Joseph Blake’s leg was broken. In

connection with that altercation, criminal charges were filed against respondent Cameron

Crocker. Blake testified at the criminal trial, which ended in Crocker’s acquittal. Later,

Crocker sued Blake, raising five causes of action, including slander and malicious

prosecution. Blake filed a special motion to strike under the anti-SLAPP statute (Code

1

Civ. Proc., § 425.16),1 which the trial court denied. On appeal, Blake argues the trial

court erred by not striking Crocker’s slander and malicious prosecution claims. We

agree, and therefore reverse and remand with directions.

BACKGROUND

In July 2017, Crocker and two of his companions were at the Amador County Fair

when the group came across a youth wearing a hat indicating his support for then-

President Donald Trump. One of Crocker’s companions “made an off-hand comment

about Trump not being a good President.” Blake, the youth’s father, confronted the man

who made the comment, and the two “exchanged words in an increasingly aggressive

conversation.” Blake attacked the man, and Crocker and his second companion

“attempted to intervene and break up the fight.” But the “scuffling continued,” and

Blake’s “leg was broken.”

Later, an Amador County prosecutor charged Crocker and his two companions

with assault likely to produce great bodily injury and battery with serious bodily injury

(Pen. Code, §§ 245, subd. (a)(4), 243, subd. (d)), and Blake filed a personal injury lawsuit

against them.

At Crocker’s criminal trial, Blake testified for the prosecution. On cross-

examination by defense counsel, Blake said that he did not see Crocker do anything to

him, and did not know if Crocker (a) ever tried to separate Blake from Crocker’s

companion, (b) “actually struck [Blake] with his fist,” or (c) kicked Blake. Nevertheless,

Blake maintained that he “was attacked by three people,” including Crocker, who “was

every bit of the attack as everybody else.” “[I]t was mayhem,” Blake explained. “I was

trying to protect my life. . . . I cannot tell you what I did not see. And when someone

comes from behind you, I don’t have -- I just can’t.”

1 Further undesignated statutory references are to the Code of Civil Procedure.

2

The criminal prosecution ended in a complete acquittal for all defendants when the

trial court granted a defense motion before the defense presented any evidence. Later,

Blake posted the following text on Facebook, which was “visible” to hundreds of Blake’s

“Facebook friends”: “ ‘So go ahead and smack a kid if they are wearing something that

you don’t agree with. It’s ok now.’ ”

In August 2019, while Blake’s civil action against Crocker was still pending,

Crocker filed the instant civil action against Blake, asserting five claims: libel per se, libel

per quod, slander, false light, and malicious prosecution.

Blake filed a special motion to strike all of Crocker’s claims under the anti-SLAPP

statute, arguing that Crocker’s claims arose out of Blake’s protected activity—“the

People’s criminal complaint and [Blake’s] pending personal injury litigation.” As

relevant here, Blake argued (1) Crocker’s slander claim be stricken because “evidence in

support of [that] cause of action consist[e]d solely of” Blake’s testimony at Crocker’s

criminal trial, and (2) Crocker’s malicious prosecution claim be stricken because there

was (a) “no . . . evidence to support the contention that the People’s case against

[Crocker] lacked probable cause” and (b) “no evidence of malice” by Blake.

The trial court denied Blake’s special motion to strike. Regarding slander, the trial

court determined that Blake’s testimony at Crocker’s criminal trial “clearly [met] the

definition of protected speech under” the anti-SLAPP statute, but Crocker carried his

burden of “demonstrating a probability of prevailing” on the claim. The trial court also

rejected Blake’s contention that his trial testimony was “completely privileged” under

Civil Code section 47 and California case law.

As for the malicious prosecution claim, the trial court similarly ruled that the cause

of action concerned “protected speech by [Blake],” but Crocker carried his burden of

demonstrating a probability of prevailing. The trial court explained that Blake’s evidence

in support of his motion as to this claim (“one additional . . . page of the trial transcript”

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of his testimony) was “competing evidence,” whose probative value the trial court could

not weigh against Crocker’s evidence.

Blake timely appealed.

DISCUSSION

I

Background Legal Principles and Procedures

The anti-SLAPP statute and procedures

Section 425.16 allows for a “special motion to strike” when there is 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.” (§ 425.16, subd. (b)(1).) Such claims

must be stricken “unless the court determines that the plaintiff has established that there

is a probability that the plaintiff will prevail on the claim.” (Ibid.)

Section 425.16, subdivision (e) explains what kind of activity the statute protects:

“ ‘[A]ct in furtherance of a person’s right of petition or free speech . . . in connection with

a public issue’ includes: (1) any written or oral statement or writing made before a

legislative, executive, or judicial proceeding, or any other official proceeding authorized

by law, (2) any written or oral statement or writing 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, (3) any written or oral statement or writing made

in a place open to the public or a public forum in connection with an issue of public

interest, 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.” (§ 425.16, subd. (e).)

“When the first two subparts of section 425.16, subdivision (e) are at issue (i.e.,

speech or petitioning before a legislative, executive, judicial or other official proceeding;

or statements made in connection with an issue under review or consideration by an

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official body), the moving party is not required to independently demonstrate that the

matter is a ‘ “public issue” ’ within the statute’s meaning.” (Zucchet v. Galardi (2014)

229 Cal.App.4th 1466, 1476, fn. 6 (Zucchet).)

“Thus, ruling on an anti-SLAPP motion involves a two-step procedure. First, the

‘moving defendant bears the burden of identifying all allegations of protected activity,

and the claims for relief supported by them.’ [Citation.] At this stage, the defendant

must make a ‘threshold showing’ that the challenged claims arise from protected activity.

[Citation.]

“Second, if the defendant makes such a showing, the ‘burden shifts to the plaintiff

to demonstrate that each challenged claim based on protected activity is legally sufficient

and factually substantiated.’ [Citation.] Without resolving evidentiary conflicts, the

court determines ‘whether the plaintiff’s showing, if accepted by the trier of fact, would

be sufficient to sustain a favorable judgment.’ [Citation.] The plaintiff’s showing must

be based upon admissible evidence. [Citation.] The court ‘considers the pleadings and

evidentiary submissions of both the plaintiff and the defendant (§ 425.16, subd. (b)(2));

though the court does not weigh the credibility or comparative probative strength of

competing evidence, it should grant the motion if, as a matter of law, the defendant’s

evidence supporting the motion defeats the plaintiff’s attempt to establish evidentiary

support for the claim.’ [Citation.] Thus, the second step of the anti-SLAPP process

‘establishes a procedure where the trial court evaluates the merits of the lawsuit using a

summary-judgment-like procedure at an early stage of the litigation.’ [Citation.]”

(Litinsky v. Kaplan (2019) 40 Cal.App.5th 970, 979-980 (Litinsky).)

We review the trial court’s ruling de novo. (Litinsky, supra, 40 Cal.App.5th at

p. 980.)

The litigation privilege

“The litigation privilege embodied in Civil Code section 47, subdivision (b) serves

broad goals of guaranteeing access to the judicial process, promoting the zealous

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representation by counsel of their clients, and reinforcing the traditional function of the

trial as the engine for the determination of truth.” (Flatley v. Mauro (2006) 39 Cal.4th

299, 324 (Flatley).)

“ ‘[I]n immunizing participants from liability for torts arising from

communications made during judicial proceedings, the law places upon litigants the

burden of exposing during trial the bias of witnesses and the falsity of evidence, thereby

enhancing the finality of judgments and avoiding an unending roundelay of litigation, an

evil far worse than an occasional unfair result.’ [Citation.] [¶] To accomplish these

objectives, the privilege is ‘an “absolute” privilege, and it bars all tort causes of action

except a claim of malicious prosecution.’ [Citation.] The litigation privilege has been

applied in ‘numerous cases’ involving ‘fraudulent communication or perjured

testimony.’ ” (Flatley, supra, 39 Cal.4th at p. 322.)

“The litigation privilege is also relevant to the second step in the anti-SLAPP

analysis in that it may present a substantive defense a plaintiff must overcome to

demonstrate a probability of prevailing. (See, e.g., Kashian v. Harriman (2002)

98 Cal.App.4th 892, 926-927 [where the plaintiff’s defamation action was barred by Civil

Code section 47, subdivision (b), the plaintiff cannot demonstrate a probability of

prevailing under the anti-SLAPP statute]; Dove Audio, Inc. v. Rosenfeld, Meyer &

Susman (1996) 47 Cal.App.4th 777, 783-785 [the defendant’s prelitigation

communication was privileged and trial court therefore did not err in granting motion to

strike under the anti-SLAPP statute].)” (Flatley, supra, 39 Cal.4th at p. 323.)

II

Blake’s trial testimony was “protected activity” under the anti-SLAPP statute

To the extent Crocker argues the trial court erred in ruling that Blake’s testimony

at Crocker’s criminal trial fell within section 425.16, subdivision (e)(1), that argument

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clearly lacks merit.2 (See Zucchet, supra, 229 Cal.App.4th at p. 1477 [citing multiple

California cases for the proposition that “trial testimony and statements made to

prosecutors preparing for a trial fall under the definition of activity in furtherance of the

right to free speech or petition as defined in the anti-SLAPP statute”].) Thus, we agree

with the trial court that the merits of Blake’s special motion to strike the slander and

malicious prosecution claims depend on an analysis of the second step of the anti-SLAPP

procedure.

III

Slander

“ ‘Slander is a form of defamation (Civ. Code, § 44), consisting of a false and

unprivileged oral publication (Civ. Code, § 46). To establish a prima facie case for

slander, a plaintiff must demonstrate an oral publication to third persons of specified false

matter that has a natural tendency to injure or that causes special damage.’ ” (City of

Costa Mesa v. D’Alessio Investments, LLC (2013) 214 Cal.App.4th 358, 375-376, italics

added.)

Additional background

In his opposition to Blake’s special motion to strike the slander claim, Crocker

argued that Blake “made statements” to others “when he testified that [Crocker]

2 On appeal, Crocker insists that his slander claim “is not limited to just what

[Blake] stated during the criminal proceeding, but also includes” the statements that

Blake posted on Facebook after the criminal trial ended. Setting aside this apparent

change in Crocker’s theory of liability, Blake observes correctly that a written Facebook

post is not an oral publication, and therefore cannot form the basis of a slander claim.

(See Civ. Code, § 46 [“Slander is a false and unprivileged publication, orally uttered, and

also communications by radio or any mechanical or other means (italics added)”].)

Crocker contends that his malicious prosecution claim concerns “statements made

by [Blake] within the criminal proceeding and statements provided by [Blake] to law

enforcement.” But, as Blake observes, there is no evidence in the appellate record of

Blake’s statements to law enforcement.

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physically attacked him” but “[f]ailed to [u]se [r]easonable [c]are in [d]etermining” the

truth of that testimony, as Blake “admitted in his trial testimony that he did not see

[Crocker] strike him.” As evidentiary support, Crocker cited to seven lines of testimony

in a transcript of Blake’s testimony at the criminal trial, and attached the page as an

exhibit to his opposition.

Analysis

The litigation privilege—which “ ‘bars all tort causes of action except a claim of

malicious prosecution’ ”—bars Crocker’s slander claim against Blake that arises out of

Blake’s trial testimony. (Flatley, supra, 39 Cal.4th at p. 322 [the litigation privilege “is

‘an “absolute” privilege,’ ” that “has been applied in ‘numerous cases’ involving . . .

‘perjured testimony’ ”].) The trial court erred in ruling otherwise.

In rejecting Blake’s argument that the litigation privilege applied, the trial court

determined that our Supreme Court in Flatley “did not find the privilege to be so

absolute.” The trial court quoted Flatley: “ ‘[W]e reject [the] contention that, because

some forms of illegal litigation-related activity may be privileged under the litigation

privilege, that activity is necessarily protected under the anti-SLAPP statute.’ ”

But the trial court did not explain in its written order why it determined that

Blake’s trial testimony falls into the category of “some forms” of litigation-related

activity not entitled to the anti-SLAPP statute’s protection. And we see no viable theory

under which the litigation privilege does not bar the claim.

Flatley concerned a demand letter by an attorney to a well-known entertainer,

which letter was “conclusively demonstrated to have been illegal as a matter of law”

(because it was extortionate)—a proposition the attorney did not dispute in our Supreme

Court. (Flatley, supra, 39 Cal.4th at pp. 305, 320.) “Assuming without deciding that the

litigation privilege may apply to such threats,” our Supreme Court concluded that such

threats “are nonetheless not protected under the anti-SLAPP statute because the litigation

privilege and the anti-SLAPP statute are substantively different statutes that serve quite

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different purposes, and it is not consistent with the language or the purpose of the anti-

SLAPP statute to protect such threats.” (Id. at p. 322, italics added.)

Here, it has not been conclusively demonstrated that Blake’s testimony was

“illegal as a matter of law,” and Blake has never conceded that he testified falsely.

Accordingly, Flatley’s “illegal activity” holding is inapplicable, and the trial court erred

by relying on it to reject Blake’s argument that the litigation privilege applies. (Cf.

Zucchet, supra, 229 Cal.App.4th at p. 1478 [“Our Supreme Court has emphasized that the

exception for illegal activity is very narrow and applies only in undisputed cases of

illegality”].)

The litigation privilege gives Blake a substantive defense that Crocker must

overcome to demonstrate a probability of prevailing on his slander claim (under the

second step of the anti-SLAPP procedure). (Flatley, supra, 39 Cal.4th at p. 323.)

Crocker has not overcome Blake’s substantive defense, and the trial court erred by failing

to strike the slander claim.3

IV

Malicious Prosecution

“To establish a cause of action for malicious prosecution, ‘a plaintiff must

demonstrate “that the prior action (1) was commenced by or at the direction of the

defendant and was pursued to a legal termination in his, plaintiff’s, favor [citations]; (2)

was brought without probable cause [citations]; and (3) was initiated with malice

[citations].” ’ [Citations.] Our Supreme Court has explained that ‘[a]lthough the

3 Crocker presents an unpersuasive policy argument in support of his position. He

contends that if we agree with Blake’s position that statements given in a judicial

proceeding are immune from all tort causes of action except a claim for malicious

prosecution, such a state of affairs “would give rise to people using the judicial forum to

propagate defamatory statements without civil or criminal repercussions.” Not so. The

litigation privilege does not bar criminal prosecution for perjury. (See Silberg v.

Anderson (1990) 50 Cal.3d 205, 218-219.)

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malicious prosecution tort has ancient roots, courts have long recognized that the tort has

the potential to impose an undue “chilling effect” on the ordinary citizen’s willingness to

report criminal conduct or to bring a civil dispute to court, and, as a consequence, the tort

has traditionally been regarded as a disfavored cause of action.’ ” (Litinsky, supra,

40 Cal.App.5th at p. 980.)

Regarding the first element of this tort, “merely giving testimony and responding

to law enforcement inquiries in an active criminal proceeding does not constitute

malicious prosecution.” (Zucchet, supra, 229 Cal.App.4th at p. 1482.) “ ‘[T]he

defendant must take an active part in the[ ] prosecution after learning that there is no

probable cause for believing the accused guilty.’ ” (Id. at p. 1483.)

Regarding the second element, “[w]hen . . . the claim of malicious prosecution is

based upon initiation of a criminal prosecution, the question of probable cause is whether

it was objectively reasonable for the defendant . . . to suspect the plaintiff . . . had

committed a crime.” (Ecker v. Raging Waters Group, Inc. (2001) 87 Cal.App.4th 1320,

1330.) This objective inquiry “ ‘calls on the trial court to . . . determine whether, on the

basis of the facts known to the defendant, the institution of the prior action was legally

tenable.’ ” (Litinsky, supra, 40 Cal.App.5th at p. 981.)

Analysis

Here, the pleadings and evidentiary submissions of both parties (§ 425.16, subd.

(b)(2)) reflect it is undisputed that Blake testified that he did not see Crocker attack him,

and did not know if Crocker attacked him or ever tried to separate Blake from Crocker’s

companion. Crocker maintains on appeal that these undisputed facts “clearly show” it

was unreasonable for Blake to suspect Crocker committed a crime. Blake “knew or had

reason to know that [Crocker] did not harm him (i.e., cause the breaking of his leg), but

continued to” assist in Crocker’s prosecution, Crocker asserts.

But another undisputed fact illuminates why it was objectively reasonable for

Blake to suspect Crocker committed a crime: Blake was attacked from behind. This

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explains why Blake did not see who broke his leg, and why it was objectively reasonable

for Blake to suspect that Crocker was the person who broke his leg.

This is so, because (a) accepting as true the intimation in Crocker’s complaint that

Blake initiated the altercation by attacking Crocker’s companion, and (b) accepting as

true the assertion in Crocker’s complaint that Crocker “attempted to end the fighting by

separating” Blake from Crocker’s companion, (c) Blake nevertheless reasonably could

have believed that (d) his leg was broken because Crocker used excessive force in trying

to “end the fighting,” (e) making Crocker criminally liable for assault. (Cf. People v.

Lloyd (2015) 236 Cal.App.4th 49, 52, 63 [defendant in assault prosecution entitled to

“not guilty” verdict if there is reasonable doubt defendant acted in self-defense or defense

of another]; CALCRIM No. 3470 [defendant acts in lawful defense of another if, inter

alia, the “defendant used no more force than was reasonably necessary to defend against”

the imminent danger that someone else would suffer bodily injury].)

One of the trial court’s mistakes in analyzing this claim was the rejection of

Blake’s evidence (an additional page of trial testimony, reflecting Blake’s testimony that

he was attacked from behind) as “competing evidence” that the trial court could not

“weigh the probative value of.” Blake’s testimony that he was attacked from behind was

not disputed. Accordingly, there was no “competing evidence” on that point, and the

operative question was whether—on the basis of the facts known to Blake—it was

objectively reasonable for him to suspect that Crocker used excessive force in trying to

end the fight between Blake and Crocker’s companion. (See Litinsky, supra,

40 Cal.App.5th at p. 980 [under a “ ‘summary-judgment-like procedure,’ ” “ ‘the court

does not weigh the credibility or comparative probative strength of competing

evidence,’ ” but “ ‘it should grant the motion if, as a matter of law, the defendant’s

evidence supporting the motion defeats the plaintiff’s attempt to establish evidentiary

support for the claim,’ ” first italics in original, second italics added]; id. at p. 981

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[analyzing whether probable cause existed for a prior legal action requires an objective

determination on the basis of the facts known to the defendant].)

Because Blake knew that (a) he was attacked from behind during an altercation,

(b) Crocker was a member of the group of (three) people with which Blake had the

altercation, and (c) Blake’s leg was broken during the altercation, Blake had an

objectively reasonable basis to suspect that Crocker assaulted him, even though he did

not see Crocker assault him.

Accordingly, “because [Blake] has established his burden under the first prong of

the anti-SLAPP statute to establish that [Crocker’s] malicious prosecution claim arises

from protected activity, and [Crocker] has not met his burden to make a prima facie case

that he has a meritorious malicious prosecution claim against [Blake], we conclude on

our de novo review that the trial court erred in denying the special motion to strike under

the anti-SLAPP statute.”4 (Zucchet, supra, 229 Cal.App.4th at p. 1486.)

4 Given our conclusion that Crocker has not met his burden to make a prima facie

case as to the second element of a malicious prosecution claim, we need not address

Blake’s contentions regarding the other two elements of the claim. (See Zucchet, supra,

229 Cal.App.4th at p. 1481 [plaintiff’s failure to meet his burden on a single element of a

claim sufficient for moving defendant in anti-SLAPP motion to prevail].)

Indeed, though Blake suggests in his reply brief that Crocker failed to meet his

burden on the first element of the tort of malicious prosecution, Blake did not raise this

argument in the trial court or in his opening brief. Accordingly, that argument is

forfeited. (See Flatley, supra, 39 Cal.4th at p. 321, fn. 10 [moving defendant in anti-

SLAPP motion who invoked § 425.16, subd. (e)(1) & (e)(4), “may not change his theory

of the case for the first time on appeal” by invoking § 425.16, subd. (e)(2)]; Tellez v. Rich

Voss Trucking, Inc. (2015) 240 Cal.App.4th 1052, 1066 [“ ‘ “points raised in the reply

brief for the first time will not be considered, unless good reason is shown for failure to

present them before” ’ ”].)

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DISPOSITION

The order denying the special motion to strike is reversed, and this matter is

remanded with directions for the trial court to enter an order granting the special motion

to strike as to the slander and malicious prosecution claims. Costs on appeal are awarded

to Blake. (Cal. Rules of Court, rule 8.728(a)(1) & (2).)

/s/

RAYE, P. J.

We concur:

/s/

BLEASE, J.

/s/

KRAUSE, J.

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