# Arendt v. Williams CA3

> California Court of Appeal · September 19, 2023

URL: https://www.frixlaw.com/law-library/cases/9840622

## Case

- **Court:** California Court of Appeal
- **Decided:** September 19, 2023
- **Precedential status:** Unpublished
- **Opinion:** Opinion
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

Filed 9/19/23 Arendt v. Williams 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication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
(Sacramento)
----

JANET ARENDT, C095646

Plaintiff and Respondent, (Super. Ct. No. 34-2021-
00303434-CU-PO-GDS)
v.

KIRSTEN WILLIAMS,

Defendant and Appellant.

To plead a cause of action for malicious prosecution of a criminal matter by a
private individual, the complaint must allege the defendant initiated or procured the
plaintiff’s arrest and prosecution with malice and without probable cause. (Sullivan v.
County of Los Angeles (1974) 12 Cal.3d 710, 720 (Sullivan).) “ ‘The test is whether the
defendant was actively instrumental in causing the prosecution.’ ” (Ibid.)
To be actively instrumental in causing the prosecution, the defendant must have at
least sought out the police or prosecutorial authorities and falsely reported facts to them

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indicating the plaintiff committed a crime. (Sullivan, supra, 12 Cal.3d at p. 720; Hardy v.
Vial (1957) 48 Cal.2d 577, 581 [tort lies for malicious institution of quasi-judicial or
administrative proceedings].)
A defendant may also be liable for malicious prosecution based on how she
participated in the criminal proceeding. Merely giving testimony and responding to law
enforcement inquiries in an active criminal proceeding does not constitute malicious
prosecution. (Zucchet v. Galardi (2014) 229 Cal.App.4th 1466, 1482 (Zucchet).) But if
the defendant took “ ‘an active part in continuing or procuring the continuation of
criminal proceedings initiated by himself or by another,’ ” such as “ ‘by insisting upon or
urging further prosecution,’ ” and did so after learning there was no probable cause to
believe the accused was guilty, the defendant is liable for malicious prosecution. (Id. at
p. 1483, quoting Rest. 2d Torts, § 655 and com. c, pp. 413, 414.)
In this matter, the trial court denied defendant Kirsten Williams’s anti-SLAPP
motion against plaintiff Janet Arendt’s complaint for malicious prosecution. Williams
contends on appeal the trial court erred because Arendt’s complaint did not as a matter of
law adequately plead malicious prosecution. She argues that Zucchet further defined and
expanded the elements of the tort by requiring a plaintiff in all malicious prosecution
actions following a criminal trial to plead that the defendant “actively urged, insisted, or
pressured” the prosecution of the accused. Williams asserts Arendt’s complaint contains
no such allegations, and the trial court erred by determining Zucchet did not apply in this
instance.
Like the trial court, we conclude Zucchet does not apply. Zucchet provides an
alternate path of establishing malicious prosecution based on the defendant’s actions in
continuing the prosecution, especially when the defendant did not initiate or procure the
prosecution. Arendt alleged Williams initiated a criminal prosecution and an
administrative accusation against her by making reports to authorities. Under that
circumstance, Arendt was not required to also plead that Williams took an active part in

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continuing or procuring the continuation of the criminal and administrative matters
against her. We thus affirm the trial court’s denial of Williams’s anti-SLAPP motion.

FACTS AND HISTORY OF THE PROCEEDINGS
Williams attacks only the complaint’s allegations. She did not designate any
evidence submitted by Arendt in opposition to the anti-SLAPP motion to be included in
the appellate record, nor did she include a reporter’s transcript. As a result, this is a
judgment roll appeal. We presume sufficient evidence supports the trial court’s factual
findings and limit our review solely to the legal issue Williams raises. (See Elena S. v.
Kroutik (2016) 247 Cal.App.4th 570, 574-575.)
We note that prior to submitting her opening brief, Williams sought leave to
augment the record with the evidence Arendt had submitted in opposition to the anti-
SLAPP motion. We denied the motion without prejudice to Williams refiling the motion
and showing the evidence submitted with her motion had actually been filed or lodged
with the trial court. Williams did not file a new motion and instead filed her opening
brief. In an abundance of caution, Arendt sought and obtained leave to augment the
record to include the evidence, and she addressed the sufficiency of the evidence in her
respondent’s brief. Nonetheless, Williams in her reply brief insists the dispute on appeal
“is one purely of law” limited to whether a malicious prosecution plaintiff must plead and
prove the defendant was “actively instrumental” in the prosecution in the manner
described in Zucchet. We will limit our review to that question.
The verified complaint alleges that Arendt was employed in 2017 at a child day
care center. At that time, the center provided day care services to Williams’s daughter,
A.
On June 22, 2017, Williams picked her daughter up at the center and complained
about Arendt’s language and behavior. Two days later, while on a family camping trip,
Williams detected bruising on A.’s abdomen for the first time. She falsely accused

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Arendt of physically abusing A. Within the following two weeks, she reported her false
allegations to police and to the state Department of Social Services (Department).
Police subsequently arrested Arendt. She was charged with two felonies and a
misdemeanor based in whole or in part on Williams’s false allegations of child abuse.
Arendt posted a $50,000 bond to be freed from jail.
Near the same time, the Department issued an order prohibiting Arendt from being
at the care center based on the false statements Williams made as part of the
Department’s investigation. The Department subsequently filed an accusation against
Arendt based on Williams’s statements to prohibit Arendt from ever being employed by
any facility the Department licensed.
In 2020, a jury acquitted Arendt of all criminal charges against her.
Also in 2020, the Department held a hearing on its accusation against Arendt.
Following the hearing, the Department dismissed the accusation for lack of evidence.
Arendt brought this action against Williams for malicious prosecution. She
alleged that:
Williams knew the statements she made against Arendt were false. Williams had
no probable cause to make the statements to doctors, police, and the Department. She
knew or should have known her claims were unfounded, but she continued to make false
statements to prosecute Arendt under the complaint and the accusation.
Williams made the statements with the intent to injure Arendt, and she did so with
willful and conscious disregard of Arendt’s rights. Williams knew “there was no
probable cause to prosecute those matters initially, and then to support the false testimony
to the matter to trial and [the Department] but she did so.”
Williams’s conduct caused Arendt to incur damages. Arendt also seeks punitive
damages.
Williams filed an anti-SLAPP motion (a motion against a strategic lawsuit against
public participation) to strike the complaint pursuant to Code of Civil Procedure section

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425.16. She raised her pleading argument under Zucchet for the first time in her reply
brief on the motion. She argued the complaint was insufficient because it did not allege
or imply that Williams “was instrumental, insisted, urged, or persuaded the prosecution
of [Arendt] to continue” as required under Zucchet.
The trial court denied the anti-SLAPP motion. Applying the anti-SLAPP law’s
two-step inquiry, the court first determined that Williams’s alleged statements to police
and the Department were protected communications under the anti-SLAPP law.
On the second step, the court ruled that Arendt’s complaint adequately pleaded a
malicious prosecution claim and that Arendt introduced sufficient admissible evidence to
establish a prima facie case for each of the tort’s elements. Of relevance here, the
complaint was legally sufficient because it pleaded that Williams was actively
instrumental in Arendt’s arrest and prosecution due to her false reports of abuse and that
she acted with malice and without probable cause.
The trial court reviewed Zucchet and rejected its application. The court stated the
opinion was factually distinguishable and not dispositive of the issues raised in
Williams’s motion in light of the holding in Greene v. Bank of America (2013)
216 Cal.App.4th 454 (Greene). Under Greene and Sullivan, supra, 12 Cal.3d at page
720, a malicious prosecution plaintiff had to show that the defendant was actively
instrumental in causing the prosecution of the plaintiff, and a plaintiff could make that
showing by pleading and proving the defendant had sought out the police and falsely
reported facts to them indicating the plaintiff had committed a crime. (Greene, at
pp. 463-464.) The trial court concluded that Arendt’s allegations satisfied the pleading
requirements set forth in Greene.

DISCUSSION
An anti-SLAPP motion is a statutory procedure provided to weed out, at an early
stage, meritless claims arising from constitutionally protected activity. (Baral v. Schnitt

5
(2016) 1 Cal.5th 376, 384.) Resolving an anti-SLAPP motion involves two steps. First,
the moving defendant must show that the plaintiff’s claim arises from the defendant’s
exercise of her constitutional rights of speech and petition. (Ibid.; Code Civ. Proc.,
§ 425.16, subds. (a), (e).) The parties agree that Arendt’s action arises from Williams’s
protected activity.
Second, the plaintiff opposing the anti-SLAPP motion must establish the
probability of succeeding on her claim. (Baral v. Schnitt, supra, 1 Cal.5th at p. 384.)
The California Supreme Court has described this step as a “ ‘summary-judgment-like
procedure.’ ” (Ibid.) The trial court determines “whether the plaintiff has stated a legally
sufficient claim and made a prima facie factual showing sufficient to sustain a favorable
judgment.” (Id. at pp. 384-385.) The court accepts the plaintiff’s evidence as true, and it
evaluates the defendant’s showing “only to determine if it defeats the plaintiff’s claim as
a matter of law.” (Id. at p. 385.) We review a trial court’s ruling on an anti-SLAPP
motion de novo. (Monster Energy Co. v. Schechter (2019) 7 Cal.5th 781, 788.)
Williams contends Arendt’s complaint does not state a legally sufficient claim for
malicious prosecution. She argues Zucchet further defined the tort of malicious
prosecution and expanded and amplified the pleading requirements stated in Greene and
other authorities by setting forth what actions a private citizen must take to be found to
have “prosecuted” a criminal action. Under Williams’s reading, Zucchet requires all
malicious prosecution plaintiffs to allege the defendant took actions to affirmatively
prosecute the underlying criminal action “by way of urging, pressuring or encouraging”
the plaintiff’s prosecution. Williams asserts that as a result, Zucchet applies to any civil
claim for malicious prosecution following a criminal trial. She argues the trial court
erred by not applying Zucchet and not finding under Zucchet that Arendt’s complaint was
legally insufficient.

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We disagree with Williams’s argument. Arendt’s complaint sufficiently pleaded
malicious prosecution arising from Williams’s initiation of the criminal prosecution and
administrative accusation against Arendt.
The tort of malicious prosecution is generally defined as “ ‘improperly instituting
or maintaining’ a legal action.” (Leon v. County of Riverside (2023) 14 Cal.5th 910, 921
(Leon), quoting Oren Royal Oaks Venture v. Greenberg, Bernhard, Weiss & Karma, Inc.
(1986) 42 Cal.3d 1157, 1169.) To recover for malicious prosecution, the plaintiff must
plead the underlying action was “(i) initiated or maintained by, or at the direction of, the
defendant, and pursued to a legal termination in favor of the malicious prosecution
plaintiff; (ii) initiated or maintained without probable cause; and (iii) initiated or
maintained with malice.” (Parrish v. Latham & Watkins (2017) 3 Cal.5th 767, 775.)
The claim must be based on “the defendant’s role in bringing the proceedings
about.” (Leon, supra, 14 Cal.5th at p. 921.) A private person may be civilly liable for
malicious prosecution of a criminal action without personally signing the complaint that
initiated the action. (Zucchet, supra, 229 Cal.App.4th at p. 1481.) The test is whether the
defendant was “ ‘actively instrumental in causing the prosecution.’ ” (Sullivan, supra,
12 Cal.3d at p. 720.)
A malicious prosecution defendant may be liable in two different ways. The
defendant may be liable for initiating, instigating, procuring, or being actively
instrumental in putting in motion the criminal action. (Leon, supra, 14 Cal.5th at p. 921;
Pacific Gas & Electric Co. v. Bear Stearns & Co. (1990) 50 Cal.3d 1118, 1131, fn. 11.)
At a minimum, the defendant must have sought out the police or prosecutorial authorities
and falsely reported facts to them indicating the plaintiff committed a crime. (Sullivan,
supra, 12 Cal.3d at p. 720.)
Thus, a person who gives information to prosecuting authorities such that she was
“the inducing cause of the arrest and prosecution” may be liable for malicious
prosecution. (Sandoval v. Southern Cal. Enterprises (1950) 98 Cal.App.2d 240, 248.)

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The defendant need not have personally made the affidavit required for the complaint’s
issuance to be liable. (Ibid.)
A person who did not procure the initiation of a criminal action may also be liable
for malicious prosecution. A defendant may be liable due to the manner in which she
maintained, participated in, or continued the criminal action without probable cause after
its institution. (Leon, supra, 14 Cal.5th at p. 921; Pacific Gas & Electric Co. v. Bear
Stearns & Co., supra, 50 Cal.3d at p. 1131, fn. 11; Nunez v. Pennisi (2015)
241 Cal.App.4th 861, 873.) This is because continuing a malicious prosecution action
without probable cause may inflict additional damage on the plaintiff. (Lujan v. Gordan
(1977) 70 Cal.App.3d 260, 263.)
Zucchet established parameters for determining liability in the second type of
malicious prosecution, when the malicious prosecution defendant maintained or
continued the criminal action against the plaintiff. In the case before us, however, Arendt
did not plead Williams was liable for continuing the criminal action against her; she
pleaded Williams was liable for initiating the action against her. Thus, contrary to
Williams’s argument, Zucchet does not apply here.
A description of Zucchet will make the point. In that case, a federal grand jury
indicted some members of a city council, including Zucchet, and a private business
owner for multiple counts of fraud arising from a scheme between the defendants to
repeal a city ordinance that adversely affected the business owner’s business. (Zucchet,
supra, 229 Cal.App.4th at pp. 1472-1473.) About two years after the indictments were
issued, the owner informed the government he made a $10,000 bribe to the city council
members. (Id. at p. 1473.) At trial, the owner testified as part of a plea bargain that he
made payments of $6,000 and $10,000 to divide among the council members involved in
the scheme. (Ibid.)
The jury acquitted Zucchet of 28 of the 37 counts against him. The district court
granted judgment of acquittal on seven additional counts, and the federal government

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voluntarily dismissed the remaining two counts. (Zucchet, supra, 229 Cal.App.4th at
pp. 1473-1474.)
Zucchet then filed a malicious prosecution action against the business owner.
(Zucchet, supra, 229 Cal.App.4th at p. 1475.) He alleged the owner falsely told the U.S.
Attorney’s office that he had bribed council members with $10,000 in cash, and that the
owner falsely testified to that bribery at trial as part of his plea bargain. (Ibid.) The
business owner filed an anti-SLAPP motion. The trial court denied the motion, but the
court of appeal reversed. (Id. at pp. 1471, 1475.)
The court of appeal stated the issue was whether the business owner was in the
position of someone who was actively instrumental in causing Zucchet’s prosecution by
informing prosecutors of the $10,000 bribe after the criminal proceedings had begun and
testifying about that payment after entering into a plea agreement. (Zucchet, supra,
229 Cal.App.4th at p. 1482.) The court determined the owner was not actively
instrumental in causing the prosecution. His role was always limited to being a trial
witness and providing information to authorities in an ongoing investigation, and those
actions were not sufficient to establish liability. (Id. at p. 1485.) “Merely giving
testimony and responding to law enforcement inquiries in an active criminal proceeding”
was not the equivalent of instigating or being actively instrumental in causing the
prosecution and thus did not constitute malicious prosecution. (Id. at p. 1482; see
Cedars–Sinai Medical Center v. Superior Court (1988) 206 Cal.App.3d 414.)
The court of appeal then relied on the Restatement Second of Torts (Restatement)
to help it define what type of conduct would qualify as malicious prosecution after the
criminal prosecution had begun. (Zucchet, supra, 229 Cal.App.4th at p. 1483.) The court
stated, “According to section 655 of the Restatement, ‘[a] private person who takes an
active part in continuing or procuring the continuation of criminal proceedings initiated
by himself or by another is subject to the same liability for malicious prosecution as if he
had then initiated the proceedings.’ (Restatement, § 655.) More specifically, the

9
Restatement comments that, ‘In order that there may be liability under the rule stated in
this Section, the defendant must take an active part in their prosecution after learning that
there is no probable cause for believing the accused guilty. It is not enough that he
appears as a witness against the accused either under subpoena or voluntarily, and
thereby aids in the prosecution of the charges which he knows to be groundless. His
share in continuing the prosecution must be active, as by insisting upon or urging further
prosecution.’ (Restatement, § 655, com. c, p. 414.)” (Zucchet, at p. 1483, italics added.)
Other treatises were in agreement. (Ibid.)
From this, the court of appeal determined the business owner was not liable for
actively continuing the prosecution. Although the Restatement acknowledged that
someone could be liable for maliciously continuing a prosecution rather than maliciously
initiating a prosecution, there was “no evidence or allegation that [the owner] insisted
upon or urged further prosecution of the case against Zucchet, or that he gave advice to
the prosecutors or placed pressure on the government to continue the case against
Zucchet.” (Zucchet, supra, 229 Cal.App.4th at pp. 1484, 1485.) Although the owner’s
testimony had been valuable, the significance of his testimony did not transform him
“into an active participant who urged that the government continue to prosecute
Zucchet.” (Ibid.)
This explanation of Zucchet exposes Williams’s mistaken reliance on the case. No
where did the Zucchet court hold that a plaintiff in all malicious prosecution actions had
to allege the defendant took actions to affirmatively prosecute the underlying criminal
action by way of urging, pressuring, or encouraging the plaintiff’s prosecution. The court
distinguished between liability for maliciously initiating a prosecution and maliciously
continuing a prosecution, and it was only in the latter case when the complaint had to
allege that the defendant’s share in continuing the prosecution was “ ‘active, as by
insisting upon or urging further prosecution.’ (Restatement, § 655, com. c, p. 414.)”
(Zucchet, supra, 229 Cal.App.4th at p. 1483.)

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Zucchet agreed with Greene and Sullivan that if the malicious prosecution plaintiff
claimed the defendant was liable for maliciously initiating the criminal action, the
plaintiff had to allege the defendant at a minimum “ ‘ “sought out the police or
prosecutorial authorities and falsely reported facts to them indicating that plaintiff has
committed a crime.” ’ ” (Zucchet, supra, 229 Cal.App.4th at p. 1482, quoting Sullivan,
supra, 12 Cal.3d at p 720, and Greene, supra, 216 Cal.App.4th at pp. 463-464.) But such
a plaintiff need not also plead that the defendant urged, pressured, or encouraged further
prosecution of the criminal matter.
Although not a model of clarity, Arendt’s complaint sufficiently pleaded that
Williams was liable for malicious prosecution by initiating the criminal and
administrative proceedings against Arendt. The complaint alleged that Williams reported
false allegations of child abuse against Arendt to police and the Department. As a result,
those agencies prosecuted Arendt, and both actions concluded in Arendt’s favor. The
complaint also alleged Williams made her reports with malice and without probable
cause. The complaint thus adequately pleaded a cause of action for malicious
prosecution, and the trial court correctly denied Williams’s anti-SLAPP motion.
Williams contends this holding raises significant public policy concerns. She
asserts that affirming the trial court’s order will chill citizens’ willingness to report child
abuse and assist with the investigation and prosecution of the crime. Unlike persons
mandated by statute to report suspected child abuse who are given absolute immunity for
reporting, ordinary citizens have no similar absolute immunity. (Pen. Code, § 11172,
subd. (a).) Williams asserts that without providing them that protection under the law,
the state’s public policy to protect children will not be served.
Courts have traditionally regarded the tort of malicious prosecution as a disfavored
cause of action. (Sheldon Appel Co. v. Albert & Oliker (1989) 47 Cal.3d 863, 872.) It
may potentially chill an ordinary citizen’s willingness to report criminal conduct or bring
a civil action. (Ibid.) However, this legitimate concern does not defeat a legitimate cause

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of action for malicious prosecution. (Siebel v. Mittlesteadt (2007) 41 Cal.4th 735, 740.)
Maliciously commencing a criminal or civil action “ ‘is actionable because it harms the
individual against whom the claim is made, and also because it threatens the efficient
administration of justice. . . . [¶] The judicial process is adversely affected . . . not only
by the clogging of already crowded dockets, but by the unscrupulous use of the courts by
individuals “. . . as instruments with which to maliciously injure their fellow men.”
[Citation.]’ (Bertero v. National General Corp. (1974) 13 Cal.3d 43, 50-51 [], fn.
omitted.) ‘[W]hen the litigation is groundless and motivated by malice the balance tips
in favor of the policy of redressing the individual harm inflicted by that litigation.’
(Crowley v. Katleman (1994) 8 Cal.4th 666, 695 [].)” (Siebel, at pp. 740-741.)
The interests are no different when a person falsely accuses another of child abuse.
Indeed, in that circumstance, the Legislature has sought “to balance, on the one hand, the
public interest in ferreting out cases of child abuse so that the child victims can be
protected from harm and, on the other hand, the policy of protecting the reputations of
those who might be falsely accused. [Citation.] The Legislature has struck that balance
by withholding immunity from those who knowingly make false reports of child abuse.”
(Begier v. Strom (1996) 46 Cal.App.4th 877, 885, fn. omitted.) As a result, and as a
matter of statute, any person who is not a mandated reporter who knowingly or with
reckless disregard makes a false report of child abuse is liable for any damages caused.
(Pen. Code, § 11172, subd. (a).) Thus, Williams’s policy arguments about the risks
raised by malicious prosecution actions in child abuse cases and the need to protect all
non-mandated reporters from liability are best addressed to the Legislature, not us.

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DISPOSITION
The trial court’s order denying the anti-SLAPP motion is affirmed. Costs on
appeal are awarded to Arendt. (Cal. Rules of Court, rule 8.278(a).)

HULL, J.

We concur:

EARL, P. J.

RENNER, J.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9840622. Public record. Not legal advice.