Anderson v. Geist

Filed 4/22/15

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

CONNIE ANDERSON,

Plaintiff and Respondent, E058139

v. (Super.Ct.No. CIVRS1200213)

STEVE GEIST et al., OPINION

Defendants and Appellants.

APPEAL from the Superior Court of San Bernardino County. Gilbert Ochoa,

Judge. Affirmed.

Jean-Rene Basle, County Counsel, and James H. Thebeau, Deputy County

Counsel, for Defendants and Appellants.

No appearance by Plaintiff and Respondent.

Plaintiff and respondent Connie Anderson alleges that deputies of the San

Bernardino Sheriff’s Department unlawfully entered her residence on two occasions,

attempting to arrest her daughter pursuant to a bench warrant that had already been

recalled, and in the process making defamatory statements to her neighbors. Defendants

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and appellants Steve Geist and Daniel Shelton (defendants) are two of the sheriff’s

deputies alleged to have committed these acts.1

Defendants appeal from the trial court’s denial of their special motion to strike the

complaint as a strategic lawsuit against public participation (anti-SLAPP motion)

pursuant to Code of Civil Procedure2 section 425.16 (the anti-SLAPP statute). They

contend they met their burden to show plaintiff’s causes of action arise from activity

protected by the anti-SLAPP statute, and that plaintiff failed to meet her burden of

showing a probability she would prevail on the merits, so the trial court should have

granted their anti-SLAPP motion. This contention rests, however, on a question that no

previous published California case has addressed: whether a peace officer’s execution of

a warrant is protected activity under the anti-SLAPP statute. For the reasons discussed

below, we answer the question in the negative, at least under the circumstances of this

case. We therefore agree with the trial court that defendants did not meet their burden on

the first part of the anti-SLAPP analysis, and affirm the trial court’s ruling.

I. FACTS AND PROCEDURAL BACKGROUND

Plaintiff filed her lawsuit in propria persona on January 10, 2012. In her first

amended complaint, filed on April 23, 2012, she alleges that on December 25, 2010,

three deputy sheriffs, including defendants, entered her residence, seeking to execute a

1 Plaintiff also sued the County of San Bernardino and San Bernardino County
Sheriff, Rod Hoops, as well as unnamed deputy sheriffs sued as Does; Sheriff Hoops was
named as one of the moving parties with respect to the motion at issue in this appeal.
Nevertheless, this appeal was brought only by Mr. Geist and Mr. Shelton.

2 Further undesignated statutory references are to the Code of Civil Procedure
unless otherwise indicated.

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warrant for the arrest her daughter. Neither plaintiff nor her daughter was in the house at

the time; several tenants of plaintiff were present. Plaintiff alleges, among other things,

that in the course of this incident, Deputy Geist made statements “to the neighborhood”

that “everyone” in plaintiff’s residence was a “‘liar[] and criminal[],’” causing a

“distancing of [plaintiff’s] neighbors from the [plaintiff] and her daughter.”

Plaintiff further alleges that the defendants, among other unidentified deputy

sheriffs, returned on December 30, 2010, at approximately 8:00 a.m., again seeking to

execute a warrant for the arrest of her daughter. On this occasion, plaintiff’s daughter

was present, and was arrested.

Plaintiff asserts in the first amended complaint that the warrant at issue on both

occasions had been recalled on December 23, 2010. This allegation, however, is belied

somewhat by an attachment to the first amended complaint, a letter from Sheriff Hoops

describing the results of the internal affairs investigation of a complaint by plaintiff. This

letter states that plaintiff’s allegation that “Deputy Geist arrested Tammi Anderson for a

warrant that was recalled” was “[e]xonerated,” meaning “[t]he investigation clearly

established that the actions of the officer are not violations of law or department policy.”

Evidence submitted in support of defendants’ anti-SLAPP motion establishes that

on December 23, 2010, the appellate division of the superior court ordered execution of

the warrant to be stayed. But the warrant was not recalled until a recall calendar on

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December 30, 2010, at 11:12 a.m., after plaintiff’s daughter had already been arrested.3

Defendants contend they were unaware of the order for stay of execution of the warrant

prior to the time they arrested plaintiff’s daughter. The docket of plaintiff’s daughter’s

case is partially included in the record on appeal in this case, and appears to indicate the

order for stay of execution of the warrant was faxed to the sheriff on December 23, 2010,

or at least that transmission of the order was ordered by the court.4 Nothing in the record,

however, demonstrates that the order was successfully included in sheriff department

files, or that defendants were otherwise actually aware of the order.

The first amended complaint asserts 10 causes of action arising out of defendants’

alleged actions and statements on December 25, 2010, and December 30, 2010, at

plaintiff’s residence. These alleged causes of action are entitled by plaintiff as follows:

(1) illegal search and seizure; (2) actions/abuse of powers under color of authority, 42

U.S.C. Section 1983 et seq.; (3) intentional tort, pursuant to Government Code section

815.3; (4) slander; (5) defamation of character; (6) negligent supervision-training-

respondeat superior; (7) willful neglect of mandatory duty to protect against injury,

Government Code section 815.6; (8) intentional infliction of emotional distress;

(9) property damage; and (10) conversion.

3 Plaintiff’s daughter was wanted on a bench warrant issued for failing to appear
as ordered at a predisposition hearing regarding a misdemeanor charge of driving under
the influence, in violation of Vehicle Code section 23152, subd. (a).

4 The docket entry dated December 23, 2010, adjacent to a notation that the
appellate order for stay of execution of the warrant had been filed, reads as follows: “TO
FAX TO SHERRIF [sic].”

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 Defendants’ anti-SLAPP motion was filed on October 30, 2012, and was heard by

the trial court on December 19, 2012. The trial court took the matter under submission,

and on December 20, 2012, issued a minute order denying the motion on two grounds.

First, the trial court found that “the defendants failed to support their motion with

affidavits or declarations as required.” Second, the trial court found, “In addition, the

defendants have failed to show that the action arises from an act in furtherance of

defendants’ right of petition or free speech.”

II. DISCUSSION

A. Overview of Anti-SLAPP Motions

Courts construe the anti-SLAPP statute broadly to protect the constitutional rights

of petition and free speech. (§ 425.16, subd. (a); Kibler v. Northern Inyo County Local

Hospital Dist. (2006) 39 Cal.4th 192, 199.) In ruling on an anti-SLAPP motion, the trial

court conducts a two-part analysis: The moving party bears the initial burden of

establishing a prima facie case that the plaintiff's cause of action arises from the

defendant’s free speech or petition activity, as defined in the anti-SLAPP statute.

(§ 425.16, subds. (b)(1), (e); Equilon Enterprises v. Consumer Cause, Inc. (2002) 29

Cal.4th 53, 67.) If the moving party meets its burden, the burden shifts to the plaintiff to

establish a probability that he or she will prevail on the merits. (§ 425.16, subd. (b)(1);

Flatley v. Mauro (2006) 39 Cal.4th 299, 314 (Flatley).)

A defendant meets its threshold burden of demonstrating that a cause of action

arises from protected activity by showing that the act or acts underlying the claim fit one

or more of the four categories described in section 426.16, subdivision (e). (Navellier v.

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Sletten (2002) 29 Cal.4th 82, 88.) These categories include “any written or oral statement

or writing” that is “made before a legislative, executive, or judicial proceeding, or any

other official proceeding authorized by law” (§ 425.16, subd. (e)(1)), “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 (id., subd. (e)(2)), or

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

public interest” (id., subd. (e)(3)), as well as “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” (id., subd. (e)(4)).

“‘“A plaintiff cannot frustrate the purposes of the SLAPP statute through a

pleading tactic of combining allegations of protected and nonprotected activity under the

label of one ‘cause of action.’” [Citation.] Conversely, a defendant in an ordinary

private dispute cannot take advantage of the anti-SLAPP statute simply because the

complaint contains some references to speech or petitioning activity by the defendant.

[Citation.] [Thus] it is the principal thrust or gravamen of the plaintiff’s cause of action

that determines whether the anti-SLAPP statute applies [citation], and when the

allegations referring to arguably protected activity are only incidental to a cause of action

based essentially on nonprotected activity, collateral allusions to protected activity should

not subject the cause of action to the anti-SLAPP statute.’ [Citation.]” (Raining Data

Corp. v. Barrenechea (2009) 175 Cal.App.4th 1363, 1369).) Additionally, “a plaintiff

cannot avoid operation of the anti-SLAPP statute by attempting, through artifices of

pleading, to characterize an action as a garden variety tort claim when in fact the liability

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claim is predicated on protected speech or conduct. [Citation.]” (Ramona Unified School

Dist. v. Tsiknas (2005) 135 Cal.App.4th 510, 519.)

With respect to the second part of the anti-SLAPP analysis—reached only if the

defendant satisfies its burden on the first part—the plaintiff's evidence in support of its

showing of a probability of prevailing must be sufficient to support a judgment in its

favor if proved at trial. (Lam v. Ngo (2001) 91 Cal.App.4th 832, 845.) Under section

425.16, the merits of the lawsuit are evaluated “using a summary-judgment-like

procedure at an early stage of the litigation.” (Varian Medical Systems, Inc. v. Delfino

(2005) 35 Cal.4th 180, 192.) It is well established that “a plaintiff opposing an anti-

SLAPP motion cannot rely on allegations in the complaint, but must set forth evidence

that would be admissible at trial.” (Overstock.com, Inc. v. Gradient Analytics, Inc.

(2007) 151 Cal.App.4th 688, 699.)

“‘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.” [Citation.]’ [Citation.]” (Flatley, supra, 39 Cal.4th at pp. 325-326.)

B. Analysis

The gravamen of many of plaintiff’s asserted causes of action at least arguably is

alleged actions by defendants during the course of executing the warrant for the arrest of

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her daughter. 5 Defendants assert that a peace officer’s execution of an arrest warrant is

protected activity under the anti-SLAPP statute, specifically, section 425, subdivision

(e)(4). They argue on that basis that they satisfied the first prong of the anti-SLAPP

analysis with respect to plaintiff’s causes of action arising from such activity. They have

not cited, however, any published California case directly on point, analyzing whether

execution of a warrant is protected activity under the anti-SLAPP statute. We have

discovered none. Considering the issue as a matter of first impression, we disagree with

defendants’ analysis, and conclude that execution of a warrant is not protected activity

under the anti-SLAPP statute, at least under the circumstances of this case.

The anti-SLAPP statute is designed to protect the “valid exercise” of a person’s

rights of petition and free speech against lawsuits brought “primarily to chill” such

exercise, and to “encourage continued participation in matters of public

significance . . . .” (§ 425.16, subd. (a).) The statutory definition is broad enough to

encompass some acts by governmental entities and their representatives. (See Schaffer v.

City and County of San Francisco (2008) 168 Cal.App.4th 992, 1002 (Schaffer).) And

the scope of the anti-SLAPP statute is generally to be “construed broadly” to accomplish

its ends. (§ 425.16, subd. (a).)

5 It is perhaps arguable whether or not the gravamen of a cause of action for
conversion, for example, is the execution of an arrest warrant, even if the conversion is
alleged to have been committed by a peace officer during the course of executing an
arrest warrant. For purposes of the present appeal, however, we need not delve into that
analysis, and instead accept arguendo defendants’ characterization of the gravamen of
plaintiff’s claims.

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 Nevertheless, we are not convinced by defendants’ arguments regarding the scope

of the anti-SLAPP statute. Execution of an arrest warrant is of course “an act in

furtherance of a criminal prosecution,” as defendants put it. But that does not necessarily

make it “conduct in furtherance of the exercise of the constitutional right of petition” in

the meaning of section 425, subdivision (e)(4). At base, the execution of a warrant is not

an exercise of rights by the peace officer; it is the performance of a mandatory duty, at

the direction of the court. (See Barnett v. State Farm General Ins. Co. (2011) 200

Cal.App.4th 536, 546 [“‘A search warrant is not an invitation that officers can choose to

accept, or reject, or ignore, as they wish, or think, they should. It is an order of the

court.’”].) Because peace officers have no discretion in whether or not to execute a

warrant issued by the court, it seems unlikely that a lawsuit asserting claims arising from

such activity could have the chilling effect that motivated the legislature to adopt the anti-

SLAPP statute, or that extending protections of the anti-SLAPP statute to such activity

would serve the statute’s goals. (See § 425.16, subd. (a).)

Moreover, to qualify for protection under section 425.16, subdivision (e)(4), the

conduct at issue must be “in connection with a public issue or an issue of public

interest”—that is, it must “concern[] a topic of widespread public interest and

contribute[] in some manner to a public discussion of the topic.” (Hall v. Time Warner,

Inc. (2007) 153 Cal.App.4th 1337, 1347; § 425.16, subd. (e)(4).) In their briefing on

appeal, defendants fail to make any argument as to why their execution of a warrant in

the circumstances of this case—a routine misdemeanor warrant in a case that apparently

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attracted precisely zero public interest or discussion—might meet this standard, and we

find nothing in the record that might support an argument to that effect.

Defendants cite Kemps v. Beshwate (2009) 180 Cal.App.4th 1012, 1017-1018

(Kemps), for the proposition that “[p]rocurement of a warrant has been held to be

protected activity under [section] 425.16.” True enough, so far as it goes. But

defendants’ implied analogy to the facts of this case does not hold water. In Kemps, the

claims at issue arose from a defense attorney’s application to the court for a bench

warrant to compel the attendance of a witness in a criminal case. (Id. at p. 1016.) It was

hardly a stretch for the Court of Appeal in Kemps to conclude that the defense attorney’s

application to the court was protected petitioning activity under the anti-SLAPP statute.

(Kemps, supra, at p 1018.) But the opinion does not speak to whether execution of a

bench warrant is also petitioning activity: Unlike the case at bar, in Kemps the peace

officers who executed the warrant were not parties, and none of the claims at issue related

to the execution of the warrant.

Defendants’ reliance on Schaffer, supra, 168 Cal.App.4th at p. 992, is also

misplaced. They read Schaffer to hold that “any activity by public employees in

connection with a matter under consideration by an executive agency, there the district

attorney, is protected under [section 425.16,] subdivision (e).” In our view, this is a

broader reading than is reasonably supported by the text of the opinion. In Schaffer, the

plaintiff brought suit against the police officers who arrested her, among others. (Id. at p.

996.) The claims asserted, however, were not based on the execution of the arrest

warrant by the officers, but rather a memorandum to the district attorney allegedly

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prepared by one officer, urging that the plaintiff be prosecuted, and two affidavits by

another officer, submitted in support of a complaint filed by the district attorney. (Id. at

pp. 996.) The Schaffer court found that these documents constituted written statements

made in connection with an issue under consideration by the district attorney (whether to

bring charges against the plaintiff), and entitled on that basis to protection under the anti-

SLAPP statute. (Schaffer, supra, at pp. 1004-1005.) The opinion does not speak to

whether execution of an arrest warrant—as distinguished from urging that a district

attorney bring charges and subsequently seek an arrest warrant, or submitting written

statements in support of charges—is protected activity under the anti-SLAPP statute.

Bradbury v. Superior Court (1996) 49 Cal.App.4th 1108 (Bradbury) also has no

bearing on the outcome here. In that case, a deputy sheriff was investigated by a district

attorney following a fatal shooting during the execution of a search warrant, after which

the district attorney’s office issued a report doubting the veracity of the deputy sheriff’s

search warrant affidavit. (Id. at pp. 1112-1113.) The deputy sheriff brought suit against

the county, the district attorney, and the assistant district attorneys involved with the

report, alleging a variety of claims, including defamation. (Id. at p. 1112.) The Court of

Appeal reversed the denial of the defendants’ anti-SLAPP motion, finding that the

statements in the public report at issue were made in connection with an official

investigation, and were protected activity under the anti-SLAPP statute on that basis.

(Bradbury, supra, at p. 1119.) Bradbury does not speak to whether execution of a

warrant— as distinguished from conducting an official investigation regarding the

execution of a warrant, and issuing a public report of the results of that investigation—is

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protected activity under the anti-SLAPP statute. Defendants’ counsel’s statement at oral

argument that he saw nothing to distinguish Bradbury from the facts of this case is, to say

the least, unconvincing.

In short, we are not persuaded that execution of an arrest warrant constitutes

“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” in the meaning of section 425.16, subdivision (e)(4), at least under the

circumstances of this case.6

We also are not persuaded that the anti-SLAPP statute applies to plaintiff’s causes

of action based on alleged defamatory statements by Deputy Geist. Defendants assert

that the alleged defamatory statements are protected under section 425.16, subdivisions

(e)(1), (2), and (3). But the alleged statements—comments to plaintiff’s neighbors made

during the course of executing the arrest warrant for plaintiff’s daughter—were not made

in a judicial proceeding, or in preparation for litigation, so as to fall under section 425.16,

subdivision (e)(1). (See § 425.16, subd. (e)(1); Briggs v. Eden Council for Hope &

Opportunity (1999) 19 Cal.4th 1106, 1115 [communications preparatory to or in

anticipation of litigation are protected by anti-SLAPP statute]. Perhaps a statement that

people in a residence are “liars and criminals” might be viewed as “in connection with an

issue under consideration or review by a . . . judicial body” in some sense of the phrase,

6 At oral argument, defendants expressed concern that a flat statement that
execution of a warrant could never be protected activity under the anti-SLAPP statute
was overbroad. We are not persuaded that is so. Nevertheless, we here decide the case
before us, and remain open to persuasion regarding application of the law in other cases,
involving distinguishable facts or claims.

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so long as at least one of the people referred to is facing criminal charges. (See § 425,

subd. (e)(2).) But we doubt the alleged statements fall within the meaning of the phrase

as it is used in the anti-SLAPP statute. (Ibid.) The phrase “in connection with” implies

that the statement must be aimed to achieve the objects of the litigation. (See Flatley,

supra, 39 Cal.4th at p. 323 [noting courts have examined the scope of the litigation

privilege to determine whether a given communication falls within the ambit of

subdivisions (e)(1) and (2) of section 425.16]; Silberg v. Anderson (1990) 50 Cal.3d 205,

212 [to fall within litigation privilege, a communication must, among other things, be a

communication “to achieve the objects of the litigation”].) There is no basis in the record

to find the statements at issue were made with such intent.7 Finally, as discussed above,

there is no appropriate basis to conclude that plaintiff’s daughter’s misdemeanor charge

constitutes an “issue of public interest,” so as to potentially fall within the “in connection

with an issue of public interest” requirement of section 425.16, subdivision (e)(3).8

7 Again, Bradbury, supra, 49 Cal.App.4th 1108 has no bearing on the analysis,
defendants’ suggestion at oral argument to the contrary notwithstanding. The alleged
statements—essentially, remarks made as an aside to neighbors who apparently
witnessed the execution of a warrant—are plainly distinguishable from statements made
in a public report detailing the results of an official investigation.

8 Moreover, defendants’ argument in support of their assertion that the alleged
defamatory statements fall within the protections of the anti-SLAPP statute is virtually
devoid of any cogent legal argument in support of the proposition. “[T]o demonstrate
error, an appellant must supply the reviewing court with some cogent argument supported
by legal analysis and citation to the record.” (City of Santa Maria v. Adam (2012) 211
Cal.App.4th 266, 286-287.) We doubt that an assertion, supported by a paraphrase of
statutory language and a string cite to case law that is at least distinguishable, if not
inapposite, without any further analysis, is reasonably viewed as cogent argument.

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 In sum, defendants did not meet their burden with respect to the first part of the

anti-SLAPP analysis, to show that plaintiff’s claims arise from activity protected under

the anti-SLAPP statute. We therefore need not consider defendants’ arguments that

plaintiff failed to establish a probability of prevailing on the merits; the burden never

shifted to plaintiff to do so. (See, e.g., Flatley, supra, 39 Cal.4th at p. 314.) Of course,

defendants may be correct that plaintiff’s causes of action will turn out to be fatally

flawed for one reason or another, including the statutory immunities afforded to peace

officers and public employees generally, or failures of pleading or proof on the part of

plaintiff. Their arguments regarding the merits of plaintiff’s claims may properly be

raised through pretrial procedural vehicles other than an anti-SLAPP motion, or at trial.

III. DISPOSITION

The order appealed from is affirmed.9 The parties shall bear their own costs on

appeal.

CERTIFIED FOR PUBLICATION

HOLLENHORST
J.
We concur:

RAMIREZ
P.J.

CODRINGTON
J.

9 Although plaintiff has prevailed on the merits in this appeal, she did so despite
failing to file a responsive brief. We decline, therefore, to award her costs. (California
Rules of Court, rule 8.278, subd. (a)(5).)

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