Opinion
A140278 A140352
02-27-2017
CAROL A. TRUFANT, Plaintiff and Appellant, v. CITY AND COUNTY OF SAN FRANCISCO ET AL., Defendants and Respondents.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (City & County of San Francisco Super. Ct. Nos. CGC-13-529354, CGC-13-529357)
In this consolidated action, plaintiff Carol A. Trufant (Trufant), representing herself in propria persona, appeals from orders granting defendants' special motions to strike filed pursuant to Code of Civil Procedure section 425.16, the anti-SLAPP statute. We affirm.
Unless otherwise indicated, all further statutory references are to the Code of Civil Procedure. SLAPP is an acronym for strategic lawsuit against public participation. (Briggs v. Eden Council for Hope & Opportunity (1999) 19 Cal.4th 1106, 1109 & fn. 1.) Following a transfer from Division Two, we consolidated the appeals in A140278 and A140352 for purposes of decision.
I. BACKGROUND
This appeal concerns two lawsuits filed by Trufant. Both actions arise out of the same course of events, namely Trufant's belief that police did not correctly handle her complaints of suspected identity fraud. A. Underlying Claims
On February 13, 2013, Trufant met with Police Service Agent Michael Basurto (PSA Basurto) of the San Francisco Police Department (SFPD) at the Southern Station located at 850 Bryant Street. PSA Basurto prepared an incident report based on Trufant's claim that she had been the victim of identity theft. The incident report named PSA Basurto as the reporting officer. Frank Harrell was listed as the reviewing officer and officer in charge. The incident report referenced that Trufant did not have a local address. However, in her written statement, Trufant reported that she lived at the Next Door Shelter on 1001 Polk Street in San Francisco and that she had a post office box in Alameda as her mailing address.
On February 21, 2013, Trufant went back to the Southern Station. Officer Ronald McGoldrick was working at the front counter when Trufant walked in the station. According to the incident report prepared by Officer McGoldrick, "Trufant began to ramble on about an incident and how an unknown officer took a previous report. Trufant was talking incoherently, and not making much sense. Trufant was able to explain that she wanted to add a statement to a report tak[en] on an earlier date." Officer McGoldrick gave Trufant a blank statement form. Trufant filled out the form and handed it back to Officer McGoldrick. According to the incident report, Officer McGoldrick "attempted to read the statement but the writing was illegible and didn't make sense." Officer McGoldrick asked Trufant if she could explain the statement, but "she just rambled on incoherently." When Officer McGoldrick asked Trufant to repeat something back to him, "she became frustrated and walked away from the window."
On or about February 25, 2013, Trufant filed a citizen complaint naming, among others, PSA Basurto and Officer McGoldrick. In the citizen complaint, Trufant claimed that both PSA Basurto and Officer McGoldrick lied in their reports. She claimed that Officer McGoldrick falsely besmirched her character in retaliation for seeking to supplement the original incident report. B. The Complaints
On March 7, 2013, Trufant filed two complaints, naming the SFPD and various individual officers as defendants. The complaints were based on Trufant's interactions with police regarding her initial report (first complaint) and her supplemental report (second complaint). Each complaint alleged a single cause of action for fraud. Trufant alleged that she had suffered damage to her personal and professional reputation. Attached to each complaint were various handwritten documents prepared by Trufant, including a notice of related cases. In her notice of related cases, Trufant stated that she won a case against two police officers in or about 2007. She also stated that she won a case against the United States Air Force in or about 1992. Trufant believed that her former boss, a lieutenant colonel in the Air Force, has an ex-husband who "may have been a cop or a fireman." Trufant requested discovery on this issue because these two groups "continue to harass [her] constantly anyway they can." C. The Special Motions to Strike
On or about May 13, 2013 and August 5, 2013, defendants filed special motions to strike Trufant's complaints.
Neither the defense motions nor the transcripts from the hearings on the motions are included in the record on appeal.
1. First Complaint
In her opposition to the motion to strike the first complaint, Trufant speculated that PSA Basurto and his supervisor, Lieutenant Harrell, have been protected by the SFPD internal affairs, "the City Attorney's office, and possibly the Police Chief himself." Trufant claimed that PSA Basurto wrote a false report because he failed to include all of the facts she presented in her incident report. She stated that PSA Basurto failed to attach a letter from the Internal Revenue Service (IRS) to the San Francisco Superior Court regarding her claim of identity theft and also failed to include her completed IRS form 14039 (Identity Theft Affidavit). Trufant stated that by PSA Basurto's repeated refusal to give her a copy of his report, she knew "something was amiss . . . ." The following week, Trufant received a call from adult protective services, advising her that an identity theft complaint had been received, but it contained "hardly any information" about her. Trufant's suspicions were confirmed when she went to obtain a copy of her report from SFPD. According to Trufant, the report failed to include her address, date of birth, or age despite her completed incident report that provided all such details. Trufant was particularly troubled by the reference in the report that she had " ' no known address.' " She also claimed that, as a then police service aide, PSA Basurto was not a police officer authorized to prepare an incident report on his own and that Lieutenant Harrell had "failed in his job" to supervise PSA Basurto.
Trufant asserted that defendants' special motion to strike was frivolous and appeared "to be part of a huge cover-up of a crime committed by a civilian who was questionably authorized to . . . make [a] report, generally and definitely not without close supervision[.]"
In support of her opposition, Trufant included her written report and PSA Basurto's report. She claimed her written incident report was "uncontroverted evidence conclusively showing" that PSA Basurto's report was unlawful and, as such, she satisfied her burden of proof. As further proof, Trufant included, among other things, a printout of the job description for a police service aide, as well as an article from the Harvard Business School, entitled "How to Spot a Liar."
2. Second Complaint
In her opposition to defendants' special motion to strike the second complaint, Trufant stated her intention to dismiss the anti-SLAPP motion, based on her claim that defendants did not engage in protected activity. Trufant did not submit any evidence in support of this claim. Instead, she stated her belief that a false police report had been filed. Trufant also stated that she had "no conversation" with "the said officer." D. The Trial Court's Orders
On August 12, 2013, the trial court denied Trufant's discovery request, finding she failed to establish good cause. In her motion for reconsideration of the order denying her discovery request, Trufant averred that she is "a licensed psychologist in California, and Wisconsin, and is a licensed marriage and family therapist" in California. She further stated that she had been looking for work as a psychologist and that the licensure board could "at any time look at behavior considered unbecoming to a psychologist and begin to investigate."
On September 9, 2013, the trial court granted defendants' special motion to strike the first complaint pursuant to section 425.16 and denied Trufant's motion for reconsideration. A month later, the court granted defendants' special motion to strike the second complaint and denied Trufant's request for additional discovery. Thereafter, the trial court granted defendants' motion for attorney fees in each action and entered judgments for defendants. The instant appeals followed.
II. DISCUSSION
A. Preliminary Matters
We begin with the general principle of appellate practice that an " 'order of the lower court is presumed correct.' " (Denham v. Superior Court (1970) 2 Cal.3d 557, 564, italics omitted.) This general principle means that (1) " '[a]ll intendments and presumptions are indulged to support [the order] on matters as to which the record is silent' " (ibid.), and (2) the appellant must affirmatively show error occurred (ibid.). To affirmatively show that error occurred, an "appellant must present meaningful legal analysis supported by citations to authority and citations to facts in the record that support the claim of error. [Citations.] . . . [Citations.] . . . [C]onclusory claims of error will fail." (In re S.C. (2006) 138 Cal.App.4th 396, 408.) In other words, it is simply not sufficient for an "appellant to point to the error and rest there." (Santina v. General Petroleum Corp. (1940) 41 Cal.App.2d 74, 77.) An appellant also has a duty to provide an adequate record on appeal. (In re Marriage of Wilcox (2004) 124 Cal.App.4th 492, 498.)
Although Trufant represents herself on appeal, we note that "[p]ro. per. litigants are held to the same standards as attorneys. (See Rappleyea v. Campbell (1994) 8 Cal.4th 975, 985 ['A doctrine generally requiring or permitting exceptional treatment of parties who represent themselves would lead to a quagmire in the trial courts, and would be unfair to the other parties to litigation'] . . .)." (Kobayashi v. Superior Court (2009) 175 Cal.App.4th 536, 543.)
Trufant's status as a propria persona litigant does not exempt her from the rules of appellate procedure or lessen her burden on appeal. (Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1246-1247.) We are required to treat propria persona litigants as any other party, affording them " 'the same, but no greater consideration than other litigants and attorneys. [Citation.]' [Citation.]" (Id. at p. 1247.) The judgment is presumed correct on appeal, and it is the burden of the party challenging it, whether represented by counsel or in propria persona, to "affirmatively demonstrate prejudicial error." (People v. Garza (2005) 35 Cal.4th 866, 881.) As we shall explain, Trufant cannot overcome the presumption of correctness of the trial court's decisions as she has not affirmatively demonstrated error on an adequate record. B. Special Motions to Strike
1. Applicable Law Standard of Review
"A SLAPP suit—a strategic lawsuit against public participation—seeks to chill or punish a party's exercise of constitutional rights to free speech and to petition the government for redress of grievances. [Citation.] The Legislature enacted . . . section 425.16—known as the anti-SLAPP statute—to provide a procedural remedy to dispose of lawsuits that are brought to chill the valid exercise of constitutional rights. [Citation.]" (Rusheen v. Cohen (2006) 37 Cal.4th 1048, 1055-1056.) The statute provides: "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 shall be subject to a special motion to strike, unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim." (§ 425.16, subd. (b)(1).) Subdivision (e) elaborates the four types of acts within the ambit of a SLAPP, including, as pertinent here, "(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 . . . ." The Legislature has directed that the language of the statute be "construed broadly." (§ 425.16, subd. (a).)
A court's consideration of an anti-SLAPP motion involves a two-step process. "First, the court decides whether the defendant has made a threshold showing that the challenged cause of action is one arising from protected activity. The moving defendant's burden is to demonstrate that the act or acts of which the plaintiff complains were taken 'in furtherance of the [defendant]'s right of petition or free speech under the United States or California Constitution in connection with a public issue,' as defined in the statute. (§ 425.16, subd. (b)(1).) If the court finds such a showing has been made, it then determines whether the plaintiff has demonstrated a probability of prevailing on the claim." (Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67.)
We review the trial court's decision to grant or deny an anti-SLAPP motion de novo, therefore we conduct an independent review of the entire record. (Flatley v. Mauro (2006) 39 Cal.4th 299, 325 (Flatley); Terry v. Davis Community Church (2005) 131 Cal.App.4th 1534, 1544.) In doing so, we consider "the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based." (§ 425.16, subd. (b)(2).) " '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 p. 326.)
2. The Consolidated Actions Arise from Protected Activity
Defendants contend that Trufant's complaints are within the SLAPP statute under section 425.16, subdivision (e)(2) because the alleged false statements were made in connection with an official proceeding. We agree.
Our colleagues in Division Two succinctly described the SLAPP law and its application to statements to the police in Comstock v. Aber (2012) 212 Cal.App.4th 931, 941-942:
"The law is that communications to the police are within SLAPP. (Walker v. Kiousis (2001) 93 Cal.App.4th 1432, 1439 [complaint to police is 'made in connection with an official proceeding authorized by law']; Chabak v. Monroy (2007) 154 Cal.App.4th 1502, 1511 [an action by physical therapist against client alleging false report of child abuse, client's 'statements to the police clearly arose from protected activity']; see generally ComputerXpress, Inc. v. Jackson (2001) 93 Cal.App.4th 993, 1009 [filing complaint with a government agency constitutes a 'statement before an official proceeding' within section 425.16, subdivision (e)(1) ]; Lee v. Fick (2005) 135 Cal.App.4th 89, 97 [complaint to the government is itself 'part of the official proceedings'].)"
Trufant's claims all stem from statements made to or by law enforcement in connection with an official proceeding authorized by law. They all arise out of the filing of the initial police report and supplement thereto. Consequently, they are within the ambit of section 425.16, subdivision (e), and are therefore subject to anti-SLAPP protection. (Brenton v. Metabolife Internat., Inc. (2004) 116 Cal.App.4th 679, 685 ["[T]he 'arising from' prong encompasses any action based on protected speech or petitioning activity as defined in the statute . . . ."].)
Citing Flatley, supra, 39 Cal.4th 299, Trufant asserts the statements by the police were not protected activity under the anti-SLAPP statute because the police purportedly "lied" and engaged in "illegal" conduct. However, the illegality exception to section 425.16 articulated by Flatley is quite narrow. The party opposing the anti-SLAPP motion must either show that the other party concedes to the illegal activity, or that the alleged illegality is conclusively established by uncontroverted evidence. (Flatley, supra, 39 Cal.4th at p. 320.) In Flatley, our Supreme Court determined that section 425.16 did not apply to the defendant's speech, which it determined to be extortion as a matter of law. (Flatley, supra, at p. 333.) There, the defendant did not dispute that he sent the letters that the court later determined was extortion as a matter of law, nor did he contest the contents. (Id. at pp. 328-329.) The defendant also did not contest the version of the telephone calls he allegedly made as set forth in the plaintiff's opposition to the motion to strike. (Ibid.) Consequently, the court determined that the evidence was uncontroverted. (Ibid.)
The same result was achieved in Lefebvre v. Lefebvre (2011) 199 Cal.App.4th 696 (Lefebvre), also cited by Trufant. In Lefebvre, the court held that knowingly making a false police report was not protected activity under section 425.16, where the defendant did not contest the illegality and falsity of a criminal report she filed. (Id. at pp. 705-706.)
However, in a case where, as here, a factual dispute concerning the illegality of the statements are at issue, the Flatley exception is inapplicable. (Seltzer v. Barnes (2010) 182 Cal.App.4th 953, 965-967 (Seltzer).) For example, in Seltzer, the plaintiff failed to conclusively establish the illegality of settlement negotiations at issue as there were several factual disputes, including the defendant's intent, during the proceedings. (Id. at p. 965.) "[C]onduct that would otherwise be protected by the anti-SLAPP statute does not lose its coverage simply because it is alleged to have been unlawful. [Citation.]" (Hansen v. Department of Corrections & Rehabilitation (2008) 171 Cal.App.4th 1537, 1545 (Hansen).) The burden is on the party opposing a special motion to strike to show that no factual dispute exists as to the illegality of the conduct underlying the complaint. (Seltzer, supra, 182 Cal.App.4th at p. 965.)
Here, however, Trufant provides no evidence, other than her own statements, that the officers knowingly made false statements in the police reports or otherwise acted in a fraudulent manner. Trufant must do more than merely allege illegal conduct, she must establish it is conclusively established by uncontroverted evidence. (Flatley, supra, 39 Cal.4th at p. 320; Hansen, supra, 171 Cal.App.4th at p. 1545.) This she has not done.
Accordingly, we conclude that the fraud actions arise out of protected activity within the meaning of the anti-SLAPP statute.
3. Trufant Did Not Establish a Probability of Prevailing
Having concluded that the fraud actions arise from protected activity as defined in the anti-SLAPP statute, the second step in our analysis is to determine whether Trufant has met her burden to demonstrate a probability of prevailing on her claims. " 'In order to establish a probability of prevailing on the claim (§ 425.16, subd. (b)(1)), a plaintiff responding to an anti-SLAPP motion must " 'state[] and substantiate[] a legally sufficient claim.' " [Citations.] Put another way, the plaintiff "must demonstrate that the complaint is both legally sufficient and supported by a sufficient prima facie showing of facts to sustain a favorable judgment if the evidence submitted by the plaintiff is credited." ' " (Taus v. Loftus (2007) 40 Cal.4th 683, 713-714.)
Trufant did not carry her burden in this regard. Among other problems she faces, the actions of the officers who prepared or reviewed the initial incident report, including those involved in the preparation of the addendum, are subject to immunities under the Tort Claims Act.
For example, Government Code section 821.6, provides, "A public employee is not liable for injury caused by his instituting or prosecuting any judicial or administrative proceeding within the scope of his employment, even if he acts maliciously and without probable cause." (Gov. Code § 821.6.) This immunity is not limited to prosecutors and law enforcement personnel, but has been applied to a variety of public employees acting in an array of functions. (See e.g., Hardy v. Vial (1957) 48 Cal.2d 577, 583 [school personnel investigating molestation allegations]; Gensburg v. Miller (1994) 31 Cal.App.4th 512, 518 [social worker investigating child abuse allegations]; White v. Towers (1951) 37 Cal.2d 727, 732 [investigator of Fish & Game Department]; Stearns v. County of Los Angeles (1969) 275 Cal.App.2d 134, 137 [county coroners]; Dawson v. Martin (1957) 150 Cal.App.2d 379, 382 [members of county board of supervisors].) The immunity also has been applied to a crime victim's claims against police officers for false imprisonment and intentional and negligent infliction of emotional distress. (See Amylou R. v. County of Riverside (1994) 28 Cal.App.4th 1205, 1211-1212.)
Trufant's fraud claims are based entirely on actions by SFPD personnel while preparing incident reports—actions taken in their official capacity as law enforcement officials and in the course and scope of their employment. Under Government Code section 821.6, no civil liability can be based on this conduct.
Thus, on statutory immunity grounds, alone, Trufant failed to demonstrate a probability of prevailing. Accordingly, the trial court did not err in granting the defendants' special motions to strike the first and second complaints in their entirety.
We therefore do not consider the other asserted deficiencies in Trufant's fraud claims. --------
4. The Trial Court Properly Awarded Attorney's Fees
In passing, Trufant alleges that the attorney fees awarded should be reversed and instead "assigned" to her because the special motions to strike were "illegal and inappropriate." Trufant must do more than merely claim error. Rather, she must, by cogent legal analysis and appropriate citation to the record, establish error. (Bullock v. Philip Morris USA, Inc. (2008) 159 Cal.App.4th 655, 685 ["appellant must affirmatively demonstrate error through reasoned argument, citation to the appellate record, and discussion of legal authority"]; People ex rel. Dept. of Alcoholic Beverage Control v. Miller Brewing Co. (2002) 104 Cal.App.4th 1189, 1200 ["appellant must present a factual analysis and legal authority on each point made or the argument may be deemed waived"].) This she has not done. We are not required to develop Trufant's arguments for her. (In re Marriage of Falcone & Fyke (2008) 164 Cal.App.4th 814, 830; see also Cal. Rules of Court, rule 8.204(a)(1)(B).) Trufant's failure to adequately cite to the record and provide any legal analysis regarding the award of attorney fees forfeits this issue on appeal. (In re Marriage of Falcone & Fyke, supra, 164 Cal.App.4th at p. 830 ["The absence of cogent legal argument or citation to authority allows this court to treat the contentions as waived. [Citations.]") C. Other Issues
In her remaining arguments, Trufant argues that the trial court violated her rights to due process and equal protection when it granted defendants' anti-SLAPP motion and denied her request for discovery. She claims that the filing of the "false crime report . . . besmirches [her] personal and . . . professional character [and] is . . . a violation of her vested rights [and her] 14th amendment rights to equal protection under the law . . . ." Trufant further asserts that the court abused its discretion in denying her request for discovery and "deliberately ignored" her vested rights as applied to her "professional status." According to Trufant, the mere listing of herself as a "professional" in her complaint was sufficient good cause to grant her discovery request.
Setting aside for the moment the questionable merit of these arguments, Trufant did not raise these constitutional challenges below; the trial court consequently was not given the opportunity to rule on them. " ' "No procedural principle is more familiar to this Court than that a constitutional right," or a right of any other sort, "may be forfeited in criminal as well as civil cases by the failure to make timely assertion of the right before a tribunal having jurisdiction to determine it." [Citation.]' [Citation.]" (People v. Saunders (1993) 5 Cal.4th 580, 589-590, quoting United States v. Olano (1993) 507 U.S. 725, 731.) The purpose of the forfeiture doctrine " 'is to encourage a defendant to bring errors to the attention of the trial court, so that they may be corrected or avoided and a fair trial had . . . .' " (People v. Walker (1991) 54 Cal.3d 1013, 1023, overruled on another point in People v. Villalobos (2012) 54 Cal.4th 177, 183.) Our high court has applied the doctrine of forfeiture in a variety of contexts to bar claims not preserved in the trial court in which the appellant had asserted an abridgement of fundamental constitutional rights. (See, e.g., People v. Williams (1997) 16 Cal.4th 153, 250 [forfeited objection that admission of gang paraphernalia violated defendant's associational rights]; People v. Padilla (1995) 11 Cal.4th 891, 971, disapproved on another ground in People v. Hill (1998) 17 Cal.4th 800, 823, fn. 1 [due process claim forfeited where defendant failed to request instruction and there was no sua sponte duty to instruct]; People v. Rodrigues (1994) 8 Cal.4th 1060, 1116, fn. 20 [due process, fair trial, reliable guilt determination claims concerning admissibility of a videotape forfeited in a capital case]; People v. Alexander (2010) 49 Cal.4th 846, 880, fn. 14 [claim that denial of motion to exclude testimony based upon possible hypnosis of witness violated equal protection forfeited].)
Based on our review of the limited record provided on appeal, Trufant's alleged constitutional violations were not raised below. Further, Trufant raises no arguments that we should reach the merits in spite of her failure to preserve the claims. We are not inclined to exercise any discretion to do so under these circumstances. Accordingly, like other unpreserved challenges, we conclude that Trufant's claims cannot be maintained on appeal. (People v. Alexander, supra, 49 Cal.4th at p. 880, fn. 14.)
Even were we to address Trufant's claims, they would fail for failure to present a meaningful legal analysis supported by applicable authority and citations in the record that support her claims. (See In re S.C., supra, 138 Cal.App.4th at p. 408.)
III. DISPOSITION
The orders striking the complaints are affirmed.
/s/_________
REARDON, J. We concur: /s/_________
RUVOLO, P. J. /s/_________
STREETER, J.