CAN A PLAINTIFF PURSUE MALICIOUS PROSECUTION DESPITE CC § 47?
CAN A PLAINTIFF PURSUE MALICIOUS PROSECUTION DESPITE CC § 47?
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CAN A PLAINTIFF PURSUE MALICIOUS PROSECUTION DESPITE CC § 47?

| Apr 18, 2019 | Firm News

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The lesson in this case is there are important distinctions between the torts of false imprisonment and malicious prosecution. Lucinda Cox alleged that Hollis Griffin intentionally filed a false police report accusing Cox of forgery and embezzlement, leading to Cox’s arrest and seven-day incarceration. Cox’s attorney asked the court to instruct the jury on false arrest (false imprisonment) and intentional infliction of emotional distress. Cox’s complaint did not allege a cause of action for malicious prosecution, and the court did not instruct on malicious prosecution.

After the jury awarded Cox $450,000 in a general verdict, the trial court granted Griffin’s motion for judgment notwithstanding the verdict (JNOV) because under Hagberg v. California Federal Bank (2004) 32 Cal.4th 350  citizen reports of suspected criminal activity can only be the basis for tort liability on a malicious prosecution theory. (Id. at pp. 355.) When a citizen contacts law enforcement to report a suspected crime, the privilege in Civil Code section 47, subdivision (b) (hereafter section 47(b)) bars causes of action for false imprisonment and intentional infliction of emotional distress, even if the police report was made maliciously. (Mulder v. Pilot Air Freight (2004) 32 Cal.4th 384, 387; Hagberg, at p. 365.)

There are important distinctions between the intentional torts of false imprisonment and malicious prosecution. The elements of a cause of action for false imprisonment are (1) an arrest without legal process, (2) imprisonment, and (3) damages. (Ramsden v. Western Union (1977) 71 Cal.App.3d 873, 879.) “[T]he provocation, motive and good faith of the defendant are irrelevant to pleading a cause of action for false imprisonment.” (Wilson v. Houston Funeral Home (1996) 42 Cal.App.4th 1124, 1135.) In contrast, malicious prosecution is procuring the prosecution of another under lawful process, but from malicious motives and without probable cause. Unlike false imprisonment, malice and lack of probable cause, plus a favorable termination of the proceedings on the merits, are the gist of the action for malicious prosecution. (Singleton v. Perry (1955) 45 Cal.2d 489, 494; Lane v. Bell (2018) 20 Cal.App.5th 61, 63-64 (Lane).) “False imprisonment and malicious prosecution are mutually inconsistent torts . . . . In a malicious criminal prosecution, the detention was malicious but it was accomplished properly, i.e., by means of a procedurally valid arrest. In contrast, if the plaintiff is arrested pursuant to a procedurally improper warrant or warrantless arrest, the remedy is a cause of action for false imprisonment.” (Cummings v. Fire Ins. Exchange (1988) 202 Cal.App.3d 1407, 1422.)

Section 47(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. (Hagberg, supra, 32 Cal.4th at p. 360.) This privilege applies even if the statement was false and made with malice. (Jacob B. v. County of Shasta (2007) 40 Cal.4th 948, 955- 956 [privilege applies even to civil actions based on perjury].) “[T]he only tort claim . . . falling outside the privilege established by section 47(b) is malicious prosecution.” (Hagberg, supra, 32 Cal.4th at p. 361.) “[T]he absolute privilege established by section 47(b) serves the important public policy of assuring free access to the courts and other official proceedings. It is intended to ‘”assure utmost freedom of communication between citizens and public authorities whose responsibility is to investigate and remedy wrongdoing.'” (Silberg v. Anderson (1990)] 50 Cal.3d [205,] 212, italics added.) . . . Hence, without respect to the good faith or malice of the person who made the statement, or whether the statement ostensibly was made in the interest of justice, ‘courts have applied the privilege to eliminate the threat of liability for communications made during all kinds of truth-seeking proceedings: judicial, quasi-judicial, legislative and other official proceedings.'” (Hagberg, supra, 32 Cal.4th. at pp. 360-361.)

In sum, Cox prevailed on causes of action barred by section 47(b), and she failed to allege and have the jury instructed on her only potentially viable cause of action, malicious prosecution. Cox’s only argument in her opening brief is that the JNOV should be reversed because “the elements of malicious prosecution were supported by substantial evidence in the record.” The California Court of Appeal rejected Cox’s argument because an appellant “cannot challenge a judgment on the basis of a new cause of action [she] did not advance below.” (United States Golf Assn. v. Arroyo Software Corp. (1999) 69 Cal.App.4th 607, 623.) There is an exception to that rule allowing a change in theory on appeal if the new theory involves a question of law on undisputed facts. But that exception does not apply here because the record does not contain undisputed evidence establishing all elements of malicious prosecution. Accordingly, although the jury found that Griffin intentionally filed a false police report causing Cox emotional distress, the California Court of Appeal was compelled to affirm the defense judgment.

Lesson? Plaintiff should have pursued a malicious prosecution claim.

See Cox v. Griffin.  

Falsely bringing criminal charges against a citizen is a serious matter and private individuals can be held liable. If you are faced with such a situation, you need a knowledgeable and skilled attorney to represent your claims.

Robert Rodriguez has litigated malicious prosecution and civil rights claims under 42 U.S.C. § 1983 in the California U.S. District Courts. Robert Rodriguez has litigated well over 100 family law cases and civil litigation matters including personal injury motor vehicle cases, dog bite and slip & fall cases, breach of contract, defamation & invasion of privacy, fraud, unfair business practice, workplace and employment matters including sexual harassment, wrongful termination, wage & hour violations, discrimination pursuant to the FEHA, Gov’t Code §§ 12940 et seq., violations of the FMLA & Pregnancy Leave, Civil Rights discrimination pursuant Title VII of the 1964 Civil Rights Act in the State of California and California federal district courts.

* Disclaimer – Robert Rodriguez is licensed to practice only in the State of California & this analysis is applied only under State of California law.  Robert D. Rodriguez is also admitted to practice in the U.S. District Courts, Central, Northern & Eastern Districts of California.  Robert Rodriguez has practiced in the State of California Court of Appeal.

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