M.K. v. Smith 6/12/03 CA2/2

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State: California

Court: 1st District Court of Appeal 1st District Court of Appeal

Docket No: B160120

Case Date: 08/20/2003

Preview:Filed 6/12/03 M.K. v. Smith CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION TWO M.K., a Minor, etc., Defendant and Appellant, v. JAMES SMITH, Plaintiff and Respondent. (Super. Ct. No. MC013256) B160120

APPEAL from a judgment of the Superior Court of Los Angeles County, Frank Y. Jackson, Judge. Reversed and remanded. Veatch, Carlson, Grogan & Nelson, Mark A. Weinstein, Craig H. Bell and Steve R. Segura for Defendant and Appellant. Stephen C. Moore for Plaintiff and Respondent.

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Respondent, James Smith, brought a defamation action against appellant M.K., a minor. Smith alleged that M.K., at eight years of age, falsely reported to the police that Smith had sexually molested her. When M.K.'s Code of Civil Procedure section 425.161 special motion to strike (anti-SLAPP2 motion) was denied, this appeal followed. We hold that section 425.16 applies to Smith's defamation action, and that because the litigation privilege set forth in Civil Code section 47, subdivision (b) (Civil Code section 47(b)) bars Smith's defamation lawsuit, he cannot demonstrate a reasonable probability of success on the merits. We therefore conclude the trial court erred in denying M.K.'s anti-SLAPP motion. Accordingly, we reverse. I. FACTUAL AND PROCEDURAL BACKGROUND Smith alleges that in November and December 2000, M.K., then eight years of age, falsely accused Smith of "performing various sexually deviant acts" upon her person. These statements were made to the police. It is also alleged that at the time M.K. made each of the statements she knew them to be false. As a result of M.K's allegedly false accusations, Smith was arrested, booked and jailed.3 On January 10, 2001, the

All further statutory references will be to the Code of Civil Procedure unless otherwise indicated. "SLAPP" stands for "strategic lawsuit against public participation." (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1127.)
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To the complaint Smith attached police reports and other documents describing relevant events.

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criminal complaint was dismissed pursuant to Penal Code section 1385.4 On January 7, 2002, Smith filed suit against M.K. for defamation.5 M.K. filed an anti-SLAPP motion, urging that Smith's lawsuit, based on M.K.'s responses to questions posed to her by police officers investigating reports of child molestations by Smith, was the type of SLAPP lawsuit that can have a chilling effect on M.K.'s exercise of her constitutional rights to seek governmental redress, and which the anti-SLAPP statute was specifically designed to safeguard. M.K. also argued that because the defamation action was based on her statements to investigating officers, those statements were absolutely privileged under Civil Code section 47(b), such that Smith could not establish the "probability of success" necessary to avoid the striking of his complaint. The trial court, relying primarily on Begier v. Strom (1996) 46 Cal.App.4th 877 (Begier), denied M.K.'s anti-SLAPP motion. In so doing, the court held, in essence, that minors who report sexual abuse are permissive reporters under Penal Code section 11166, subdivision (e)6 of the Child Abuse and Neglect Reporting Act (Act ) (Pen. Code,

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