Disieno v. Nohr CA2/6

Filed 3/29/22 Disieno v. Nohr CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 SIX

JULIA DISIENO, 2d Civ. No. B311576
(Super. Ct. No. 20CV02397)
Plaintiff and Appellant, (Santa Barbara County)

v.

MARY NOHR et al.,

Defendants and Respondents.

Appellant Julia DiSieno operated a non-profit animal
rescue facility out of her backyard in Solvang. A series of heated
confrontations with neighbors over the facility resulted in the
District Attorney filing criminal charges against DiSieno for
stalking, criminal threats, and assault and battery. A jury
acquitted her of the charges. This matter arises from DiSieno’s
subsequent civil action against neighbors Mary Nohr, Richard
Nohr, and Jay Bardessono for malicious prosecution and other
claims based on allegations they provided false information to
law enforcement about DiSieno’s behavior.
 DiSieno appeals the trial court’s dismissal of her malicious
prosecution cause of action as a strategic lawsuit against public
participation (“SLAPP”). (Code Civ. Proc., § 425.16.)1 We
disagree in part with the court’s analysis but reach the same
result. The order is affirmed.
FACTUAL AND PROCEDURAL BACKGROUND
DiSieno and the Nohrs live next to each other in a semi-
rural neighborhood east of Solvang, California. DiSieno began
operating a licensed rescue facility on her property in 2009 that
housed wild animals such as coyotes, bobcats, foxes, and owls, as
well as domestic cats and dogs. The relationship between the
neighbors was tense from the start. DiSieno came to believe the
Nohrs were trying to close the facility by falsely reporting zoning
violations and “petty . . . activities and conditions on [her]
property” like barking dogs. The Nohrs felt they could no longer
spend time in their garden or entertain outside because of the
noise and odor from DiSieno’s yard.
The dispute escalated in March of 2017 when DiSieno
yelled profanities at the Nohrs as they checked their mailbox. In
the following months, the Nohrs heard what they believed to be
rocks hitting their house coming from the direction of DiSieno’s
property followed by yelling and banging on the boundary fence.
The Nohrs installed a security camera in the side yard that
captured DiSieno throwing rocks against the boundary fence and
making lengthy, profanity-laced tirades in which she baited the
Nohrs about the noise and their complaints to police. The Nohrs
sent police a recording in which they allegedly heard her say
“you’re going down” and then make machine gun noises. DiSieno

We cite the Code of Civil Procedure unless noted
1

otherwise.

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explained she was talking to her dogs about “going down” to be
fed; she identified the gun noises as the gobbling of her resident
turkey.
DiSieno blamed another neighbor, Jay Bardessono, for
making similar complaints about the conditions on her property.
Another confrontation occurred in March of 2018 when
Bardessono allegedly “flipped off” DiSieno with both hands as he
drove past her house. She followed him in her truck to nearby El
Rancho Market so she could ask him why he was harassing her.
She pulled up next to him and saw his dog leap out of the car and
start running down an alley next to the market. Bardessano got
out, caught the dog, and began walking back toward the cars. As
he approached DiSieno’s driver side window, she gunned the
accelerator. Bardessono claimed the truck clipped his shoulder
as it sped past. A short time later Police interviewed him and
market employees about the incident but were unable to reach
DiSieno.
The District Attorney charged DiSieno with misdemeanor
stalking and criminal threats based on her alleged behavior
towards the Nohrs. She was later charged with battery and
assault with a deadly weapon in connection with the El Rancho
Market incident. A jury acquitted DiSieno of these charges in
June of 2018. A year later she filed a civil complaint against the
Nohrs and Bardessono for malicious prosecution, invasion of
privacy, and both intentional and negligent infliction of emotional
distress. DiSieno’s verified first amended complaint contained
causes of action for: (1) malicious prosecution (all defendants); (2)
invasion of privacy – eavesdropping (Nohr defendants only, based
on their use of a security camera); (3) invasion of privacy – public
disclosure of private facts (all defendants, based on Facebooks
posts about DiSieno); (4) intentional infliction of emotional

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distress (all defendants); and (5) negligent infliction of emotional
distress (all defendants). She also alleged they conspired to make
false accusations to law enforcement as a way to harm or
interfere with her animal rescue operation. Her acquittal, she
alleged, constituted a favorable and final termination of the four
charges arising from the accusations. She sought damages as
well as attorney’s fees incurred defending the case.
The Nohrs and Bardessono moved to dismiss DiSieno’s
cause of action for malicious prosecution pursuant to the Anti-
SLAPP statutes. The trial court granted both motions. DiSieno
appeals the ruling. The remaining causes are not the subject of
this appeal.
DISCUSSION
A. Anti-SLAPP Motions
“A SLAPP suit has been described as ‘a meritless suit filed
primarily to chill the defendant’s exercise of First Amendment
rights.’” (Macias v. Hartwell (1997) 55 Cal.App.4th 669, 672.)
Such suits are subject to a special motion to strike, i.e., an anti-
SLAPP motion. (§ 425.16, subd. (b)(1).) The moving party must
first show the challenged claim arises from an act in furtherance
of their right of petition or free speech in connection with a public
issue. (Olive Properties, L.P. v. Coolwaters Enterprises, Inc.
(2015) 241 Cal.App.4th 1169, 1174.) If the moving party meets
this threshold, the complaining party must then establish a
probability of prevailing on the claim. (Ibid.)
DiSieno concedes respondents’ reports to police were made
“in furtherance of the . . . right of petition or free speech . . . in
connection with a public issue.” (§ 425.16, subd. (b)(1).) Our
analysis thus focuses on the second prong of the anti-SLAPP
analysis, i.e., the probability she will prevail on her malicious
prosecution claim. We “accept as true all evidence favorable to

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the plaintiff and assess the defendant’s evidence only to
determine if it defeats the plaintiff's submission as a matter of
law.” (Overstock.com, Inc. v. Gradient Analytics, Inc. (2007) 151
Cal.App.4th 688, 699-700.) She need only show a “minimum level
of legal sufficiency and triability.” (Linder v. Thrifty Oil Co.
(2000) 23 Cal.4th 429, 438, fn. 5; see Navellier v. Sletten (2002) 29
Cal.4th 82, 93 [anti-SLAPP statute “poses no obstacle to suits
that possess [even] minimal merit”].)
B. Trial Court’s Finding that DiSieno Would Not Prevail
on Her Malicious Prosecution Claim
Reports to police about suspected criminal activity are
considered privileged pre-litigation communications under Civil
Code section 47(b), even if false. (Hagberg v. California Federal
Bank (2004) 32 Cal.4th 350, 364; Johnson v. Ralphs Grocery Co.
(2012) 204 Cal.App.4th 1097, 1104.)2 The only remedy available
to a party aggrieved by an allegedly false police report is to file a
file a civil action for malicious prosecution against the reporting
party. (Hagberg, at p. 361; see Cox v. Griffin (2019) 34
Cal.App.5th 440, 449 [reports “designed to instigate or prompt an
investigation, can only be the basis for tort liability if the plaintiff
can establish the tort of malicious prosecution”].) This requires

2 The Legislature recently amended section 47 to exclude
knowingly false police reports, as well as those made “with
reckless disregard” for their truth or falsity, from those types of
communications considered privileged. (Civil Code, § 47, subd.
(b)(5).) This appeal concerns communications made prior to the
amendment’s effective date of January 1, 2021. We apply the law
as it existed at the time of the alleged tort. (See Evangelatos v.
Superior Court (1988) 44 Cal.3d 1188, 1207 [“‘[it] is an
established canon of interpretation that statutes are not to be
given a retrospective operation unless it is clearly made to appear
that such was the legislative intent’”].)

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the plaintiff to prove the criminal case was: (1) commenced by or
at the direction of the defendant and terminated in plaintiff’s
favor; (2) brought without probable cause; and (3) initiated with
malice. (Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th
260, 292.) The absence of just one element disposes of the claim.
(Zucchet v. Galardi (2014) 229 Cal.App.4th 1466, 1481 (Zucchet).)
The trial court granted respondents’ anti-SLAPP after
finding DiSieno failed to prove: (a) her prosecution was
commenced at the direction of respondents; and (b) the charges
were brought without probable cause.3 We review these findings
de novo and reverse. (Oasis West Realty, LLC v. Goldman (2011)
51 Cal.4th 811, 820.) In doing so, we part ways with the trial
court on the first finding but concur on the second.
C. Whether the Criminal Case Was Commenced
at the Direction of Respondents
The district attorney, not respondents, decided to charge
DiSieno. Establishing their civil liability for this decision
requires DiSieno to show they were “‘“‘actively instrumental in
causing the prosecution.’”’” (Zucchet, supra, 229 Cal.App.4th at
pp. 1481-1482.) Respondents must have “‘presse[d] the police to
apply for a complaint or take[n] some affirmative action to
encourage the prosecution by way of advice or pressure, as
opposed to merely providing information’” to law enforcement.
(Id. at p. 1483, quoting 52 Am.Jur.2d (2011) Malicious
Prosecution, Caution, foll. § 23, p. 209, italics omitted.) We
assess whether the evidence before the trial court, taken as true,

3 Respondents conceded below that DiSieno’s acquittal
satisfied the “favorable termination” element of DiSieno’s
malicious prosecution claim. We need not address the issue on
appeal.

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established the respondents encouraged law enforcement and
prosecutors in this manner.
The parties’ affidavits present conflicting accounts of the
events leading up to DiSieno’s prosecution. Respondents describe
doing no more than candidly reporting a neighbor’s erratic and
threatening behaviors to police. DiSieno denies their accounts
and asserts they campaigned for her prosecution by peppering
law enforcement with lies. We need not resolve or reconcile these
divergent stories. The undisputed portions of these affidavits
establish the Nohrs telephoned law enforcement several times
about DiSieno during the period of March 2017 and October 2017.
The last of these calls, and, specifically, their providing security
camera footage, prompted the District Attorney to file charges.
Bardessono’s report of the El Rancho Market incident likewise
initiated an investigation and resulted in additional charges
against DiSieno.
We distinguish Zucchet where defendant provided allegedly
false information to police and prosecutors during an ongoing
corruption investigation of a city councilmember. The Nohrs and
Bardessono were not approached by police during an existing
investigation, nor were they simply evidentiary components of a
broader case against DiSieno. It was they who initiated the
investigations by reporting their neighbor’s threatening
behaviors and statements at the outset. The information and
evidence respondents provided to police, regardless of truth or
falsity, was the impetus for the criminal charges later brought
against DiSieno. The record therefore confirms they were “active
instruments” in causing her prosecution.
D. Whether DiSieno Established a Lack of Probable Cause
Respondents’ active role in causing DiSieno’s prosecution
was actionable only if the criminal charges were brought without

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probable cause. Here again the undisputed evidence guides our
analysis. The Nohrs attested to providing police with security
camera media containing, among other things, footage of DiSieno
throwing rocks at her boundary fence, ranting profanely about
Mary Nohr, and goading her to “[c]all the police” and “[c]all 911.”
DiSieno did not dispute the authenticity of these materials or
deny prosecutors pursued charges against her based in whole or
in part because of them. Similarly unchallenged are key parts of
Bardessono’s account of the El Rancho Market in which he
described DiSieno following him in her car from her home to the
market; parking next to him; and accelerating past him close
enough for him to be struck by her side mirror (his version) or for
him to hit the side of her truck with his hand (her version). The
police report attached to his declaration reveals the investigating
officer’s review of video footage and witness interviews
corroborated Bardessono’s account.
DiSieno’s contrary account of the events giving rise to her
prosecution, even if assumed true, does not demonstrate the
charges against her were brought without probable cause when
considered in conjunction with the very troubling evidence
presented to prosecutors by respondents and the police. (See
Penal Code, §872, subd. (a) [criminal defendant held to answer
for charges at preliminary hearing if “it appears from the
examination that a public offense has been committed, and there
is sufficient cause to believe that the defendant is guilty”]; Cooley
v. Superior Court (2002) 29 Cal.4th 228, 251 [sufficient cause
exists where “a reasonable person could harbor a strong suspicion
of the defendant’s guilt”].) Having found DiSieno did not
establish this second element of malicious prosecution, we
conclude she could not prevail on that claim. The trial court
properly granted the anti-SLAPP motion.

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 DISPOSITION
The order granting the anti-SLAPP motion is affirmed.
Respondents shall recover their costs on appeal.
NOT TO BE PUBLISHED.

PERREN, J.

We concur:

GILBERT, P.J.

YEGAN, J.

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 James F. Rigali, Judge
Superior Court County of Santa Barbara
______________________________

Tardiff Law Offices, Neil S. Tardiff, for Plaintiff and
Appellant.
MacDonald & Cody, Gregory J. Bramlage; Trusted Legal,
Naomi R. Dewey, for Defendants and Respondents Mary Nohr
and Richard Nohr.
Henderson & Borgeson, David Tedesco and Jay Borgeson;
Trusted Legal, Naomi R. Dewey, for Defendant and Respondent
Jay Bardessono.

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