*1567 Opinion
Defendant Murtz Kizilbash accused plaintiff Hab Siam of abusing defendant’s two young sons. Defendant reported plaintiff’s alleged abuse to law enforcement, school officials, and others. He also filed a civil harassment petition against plaintiff. (Code. Civ. Proc., § 527.6.) 1 Plaintiff denied the allegations and sued defendant for defamation, emotional distress, malicious prosecution, and statutory violations. Defendant filed a special motion to strike. (§ 425.16.) The trial court denied the motion. Defendant appeals from that order. (§ 904.1, subd. (a)(13).)
On appeal defendant contends, among other things, that plaintiff cannot prevail on his claims because defendant’s statements are subject to the litigation privilege (Civ. Code, § 47 subd. (b) (Civil Code section 47(b)) and, for policy reasons, a civil harassment petition should not be a permissible basis for a malicious prosecution claim.
We conclude that pursuant to the policy enunciated in
Sheldon Appel Co. v. Albert & Oliker
(1989)
We shall reverse the trial court’s order denying defendant’s special motion to strike and direct the court to enter a new order striking the cause of action for malicious prosecution.
A. Factual and Procedural Background
This case arose after plaintiff became involved with defendant’s former wife, Momina Zaidi. Defendant and Zaidi had been married in Pakistan in 1994 and moved to California shortly thereafter. They were separated in 2000. When Zaidi first decided to end thе marriage, defendant allegedly demanded that she agree to an Islamic divorce, give up custody of the couple’s two young sons, and relinquish her community property rights. Zaidi states that when she refused these demands defendant swore revenge. A judgment of dissolution was entered in 2003 but the parties continued to litigate custody issues. The custody dispute became very bitter and contentious and defendant was allegedly very hostile and abusive toward Zaidi. According to the first amended complaint, after plaintiff became involved with Zaidi defendant began directing his hostility toward him as well.
*1568 Defendant accused plaintiff of abusing his two boys. He reported the alleged abuse to school officials and people involved in the family law matter. Defendant also made reports to the Palo Alto and the East Palo Alto Pоlice Departments. The resulting law enforcement investigations did not reveal any abuse. Plaintiff also claims that defendant coached the boys to transmit his threats of violence to plaintiff and to say “bad things” about plaintiff to other people so that he would be put in jail. Indeed, the boys’ therapist, Louise Burton, initiated a child abuse investigation when she reported something one of the boys told her about plaintiff to the authorities in Santa Clara County. The ensuing case was investigated and closed as unfounded within a couple of weeks.
Approximately two months after the Burton case had been closed, defendant filed a petition in San Mateo County (where plaintiff lived) seeking an injunction prohibiting harassment. (§ 527.6.) In connection with that petition defendant obtained an ex parte temporary restrаining order (TRO) against plaintiff by allegedly representing to the judge that the Santa Clara County child abuse investigation initiated by Burton was still open. The TRO prevented plaintiff from coming near the children. The trial court ultimately denied defendant’s request for a permanent injunction. The TRO was dissolved and the court awarded plaintiff over $12,000 in attorney fees.
Plaintiff’s first amended complaint contained eight causes of action: (1) libel and libel per se, (2) slander and slander per se, (3) intentional infliction of emotional distress, (4) negligent infliction of emotional distress, (5) making a knowingly false report of child abuse in violation of Penal Code section 11172(a), (6) violation of Civil Code section 51.7 (the Ralph Act), (7) malicious prosecution, and (8) abuse of process. The trial court denied defendant’s special motion to strike as to all eight causes of action.
B. Legal Framework and Standard of Review
A special motion to strike under section 425.16, the so-called antiSLAPP statute, allows a defendant to gain early dismissal of a lawsuit that qualifies as a SLAPP. “SLAPP is an acronym for ‘strategic lawsuits against public participation.’ ”
(Jarrow Formulas, Inc.
v.
LaMarche
(2003)
In the present case, defendant contends that he should have prevailed on both prongs of the test. Plaintiff does not address the first prong. Nevertheless, since our standard of review is de novo
(Equilon Enterprises
v.
Consumer Cause, Inc.
(2002)
C. Discussion
1. The Applicability of Section 425.16
A defendant meets the burden of showing that a plaintiff’s action arises from a protected activity by showing that the acts underlying the plaintiff’s cause of action fall within one of the four categories of conduct described in section 425.16, subdivision (e).
(Dowling v. Zimmerman
(2001)
With the exception of the sixth cause of action for violation of Civil Code section 51.7, the aсts underlying plaintiff’s claims fall into the first or second of these categories. The first five causes of action are based upon defendant’s reports of child abuse to “people who were legally required to report any child abuse allegations ... in an attempt to manufacture corroboration” for his own false allegations. That is, the statements were designed to prompt
*1570
action by law enforcement or child welfare agencies. Communications that are preparatory to or in anticipation of commencing official proceedings come within the protection of the anti-SLAPP statute.
(Dove Audio, Inc. v. Rosenfeld, Meyer & Susman
(1996)
The sixth cause of action, however, does not describe conduct arising from a protected activity. This cause of action for violation of Civil Code section 51.7 is based upon allegations that defendant committed violence and made threats of violence against plaintiff based upon his religion. These allegations do not describe acts in furtherance of defendant’s rights of petition or free speech and are not encompassed by the anti-SLAPP statute. (§ 425.16, subd. (e).) The trial court was correct in denying defendant’s motion as to the sixth cause of action. As to the remaining causes of action, we proceed to the second prong of the analysis.
2. Plaintiff’s Likelihood of Success on the Merits
In the second prong of the anti-SLAPP analysis the plaintiff’s burden of demonstrating a probability of prevailing is subject to a standard similar to that used in deciding a motion for nonsuit, directed verdict, or summary judgment.
(ComputerXpress, Inc. v. Jackson, supra,
Defendant argues that, for several reasons, plaintiff’s causes of action fail as a matter of law. We begin our analysis by considering defendant’s legal challеnge to the malicious prosecution cause of action.
*1571 a. The Seventh Cause of Action for Malicious Prosecution
Defendant argues that as a matter of policy a petition for an injunction prohibiting harassment (§ 527.6) is not a proper basis for a malicious prosecution claim. To date, no published opinion has expressly ruled upon the question. (See
Thomas
v.
Quintero
(2005)
Malicious prosecution has been termed a “disfavored cause of action.”
(Sheldon
Appel, supra,
There is concern about the volume of litigation in American courts, but the courts and the Legislature tend to agree that expanding the reach of malicious prosecution actions is not the best remedy for the problem.
(Sheldon
Appel, supra,
Bidna
v.
Rosen
(1993)
On the other side of the equation, Bidna noted that exempting family law proceedings from the scope of a malicious prosecution claim would deprive litigants of a means of redress in some of the most egregious cases. The court concluded, however, that the remedy for egregious conduct “is for the family law bench to nip it in the bud with appropriate sanctions, not to expand tort liability for malicious prosecution to the family law bar.” (Bidna, supra, 19 Cal.App.4th at pp. 29, 30, 36.)
Another type of proceeding exempted from the scope of a malicious prosecution claim is a small claims action.
(Pace v. Hillcrest Motor Co.
(1980)
The reasoning of
Bidna
and
Pace
is applicable here. Section 527.6 is used where the victim has been stalked, threatened or otherwise seriously harassed.
(Grant
v.
Clampitt
(1997)
It is true that by declining to extend the malicious prosecution tort to unsuccessful section 527.6 petitions we deprive an aggrieved defendant of a remedy for some of the harm he or she has suffered as a result of a malicious petition. However, the harm should be fairly minimal. Section 527.6 was passed to provide quick relief to harassment victims threatened with great or irreparable injury.
(Smith v. Silvey
(1983)
Another important consideration is that a section 527.6 petition is not an ordinary civil action. (See
Nicholson v. Fazeli
(2003)
*1574
We recognize that the Supreme Court has recently explained that just because malicious prosecution suits are disfavоred they should not be barred for that reason alone.
(Casa Herrera, Inc. v. Beydoun
(2004)
We conclude that the unsuccessful filing of a petition for an injunction under section 527.6 may not form the basis for a malicious prosecution action. Since plaintiff’s cause of action for malicious prosecution is based upon defendant’s unsuccessful section 527.6 petition, the cause of action fails as a matter of law. It follows that the trial court erred in denying defendant’s special motion to strike as it applied to the seventh cause of action.
b. The Litigation Privilege
Turning to the remaining causes of action, defendant contends that plaintiff cannot prevail as a matter of law because defendant’s communications are subject to the litigation privilege of Civil Code section 47(b). 3 He argues that Penal Code section 11172(a), which imposes liability for knowingly filing false reports of child abuse, does not override the litigation privilege because it is unconstitutional or otherwise invalid. We reject thesе arguments.
i. Penal Code Section 11172(a) Is Not Unconstitutional
Penal Code section 11172(a) is part of the Child Abuse and Neglect Reporting Act. (Pen. Code, § 11164 et seq.) Penal Code section 11172(a) provides: “No mandated [child abuse] reporter shall be civilly or criminally liable for any report required or authorized by this article .... Any other person reporting a known or suspected instance of child abuse or neglect shall not incur civil or criminal liability as a result of any report authorized by this article unless it can be proven that a false report was made and the *1575 person knew that the report was false or was made with reckless disregard of the truth or falsity of the report, and any such person who makes a report of child abuse or neglect known to be false or with reckless disregard of the truth or falsity of the report is liable for any damages caused.” Thus, Penal Code section 11172(a) provides that those who knowingly or recklessly file false child abuse reports may be sued for a knowingly false report of abuse unless they are among the persons listed as mandatory reporters. A parent is not a mandatory reporter. (Pen. Code, § 11165.7.) Defendant argues that this disparity in protection is a content-based regulation of speech and is impermissible under the First Amendment of the United States Constitution. 4
Defendant argues that even though a knowingly false statement of fact is not constitutionally protected speech, Penal Code section 11172(a) impermissibly discriminates by imposing liability only upon voluntary reporters. We perceive no free speech issue under these circumstances since the statute does not discriminate based upon the content of the speech.
R.A.V. v. St. Paul
(1992)
Even if imposing liability only upon nonmandated reportеrs may be construed as content-based regulation, such a scheme is not unconstitutional. As R.A.V. explained, a government is not prohibited from selectively discriminating within a prescribable class of speech in all cases. “The rationale of the general prohibition [upon governmental regulation of speech], after all, is that content discrimination ‘raises the specter that the Government may *1576 effectively drive certain ideas or viewpoints from the marketplace,’ [citations]. But content discrimination among various instances of a class of prescribable speech often does not pose this threat.” (R.A.V., supra, 505 U.S. at pp. 387-388.) One such instance is where “the nature of the content discrimination is such that there is no realistic possibility that official suppression of ideas is afoot.” (Id. at p. 390.)
People v. Stanistreet
(2002)
Defendant refers us to
Walker
v.
Kiousis
(2001)
*1577 ii. Penal Code Section 11172(a) Overrides the Litigation Privilege
Defendant also argues that even if we find Penal Code section 11172(a) to be constitutional, the section does not trump the absolute privilege of Civil Code section 47(b). Defendant acknowledges that
Begier v. Strom
(1996)
The issue in
Hagberg
was whether statements made to law enforcement personnel about suspected criminal activity are subject to the qualified privilege of Civil Code section 47, subdivision (c), which grants immunity fоr certain communications made without malice, or whether such reports were absolutely privileged under Civil Code section 47(b), which applies regardless of malicious intent.
Hagberg
concluded that such statements made to law enforcement personnel are absolutely privileged.
(Hagberg, supra,
Like Civil Code section 47, Penal Code section 11172(a) grants an absolute privilege in some situations and a qualified privilege in others. The dissent in
Hagberg
argued that the Legislature’s grant of absolute immunity for mandatory reporters under Penal Code section 11172(a) would be unnecessary if the absolute privilege of Civil Code section 47(b) applies in such cases already.
(Hagberg, supra,
*1578 ill. Penal Code Section 11172(a) Applies to Defendant’s Reports
Defendant further contends that even if Penal Code section 11172(a) trumps the litigation privilege, it does so only with respect to statements made to the agencies listed in the Child Abuse and Neglect Reporting Act, i.e., “to any police department or sheriff’s department, . . . county probation department, ... or the county welfare department.” (Pen. Code, § 11165.9.) According to defendant, therefore, his communications to school personnel and others in connection with the family law proceedings remain privileged under Civil Code section 47(b). Again we disagree.
Although we have found no authority directly on point, there are cases that hold that the immunity extended to mandatory reporters encompasses more than just the act of reporting the suspected abuse. For example,
Storch v. Silverman
(1986)
The Legislature crafted the disparate treatment of mandated and voluntary reporters in order to balance “the public interest in ferreting out cases of child abuse” against “the policy of protecting the reputations of those who might be falsely accused.”
(Begier, supra,
In sum, the Utigation privilege of Civil Code section 47(b) does not protect defendant from the liability imposed by Penal Code section 11172(a).
*1579 c. The Fourth Cause of Action for Negligent Infliction of Emotional Distress
Defendant contends that the facts supporting plaintiff’s cause of action for negligent infliction of emotional distress do not fall within accepted categories of the “direct victim” version of the tort. (Sеe
Christensen v. Superior Court
(1991)
d. The Eighth Cause of Action for Abuse of Process
Defendant also argues that plaintiff’s cause of action for abuse of process is insufficient as a matter of law because it does not contain the requisite elements. Defendаnt misreads the claim.
There are two main elements of a cause of action for abuse of process: “ ‘ “first, an ulterior purpose, and second, a wilful act in the use of the process not proper in the regular conduct of the proceeding.” ’ ”
(Oren Royal Oaks Venture v. Greenberg, Bernhard, Weiss & Karma, Inc.
(1986)
Plaintiff’s eighth cause of action alleges that defendant obtained a TRO by falsely representing to the court that plaintiff was being investigated for child abuse. The cause of action goes on to allege that after the court denied defendant’s request for a permanent injunction he nevertheless referred to the TRO to corroborate his allegations when he spoke with others about plain *1580 tiff’s alleged abuse. Thus, the element of improper use is satisfied by the allegation that defendant improperly used the TRO after it was issued.
e. Plaintiff’s Evidence
We finally come to the question of whether plaintiff has demonstrated a probability of prevailing upon the six remaining causes of action. Before turning to plaintiff’s evidence we first consider defendant’s concern that the trial court did not rule on his evidentiary objections.
Plaintiff submitted three declarations—his own declaration, Zaidi’s declaration, and the declaration of San Mateo County Sheriff’s Deputy Dwayne K. Earles. Defendant raised over 200 separate written objections to this evidence. The trial judge did not make specific formal rulings on each individual objection. Rather, when defendant’s counsel orally reminded the court that it had not ruled on his objections the court answered: “By implication those have been overruled and sustained in my order.” The court’s written order states: “[Plaintiff] has submitted the declarations of himself, of Momina Zaidi, and of [S]an Mateo County Sheriff’s Deputy Dwayne K. Earles. For purposes of discussion of this motion only, the Court will not consider Deputy Earle’s declaration.” Defendant argues that this ruling was inadequate and he urges this court to make the specific evidentiary rulings he sought below. Plaintiff contends that defendant did not obtain a ruling because he failed to press his objections with sufficient vigor and, therefore, that he waived the objections. (See
Ann M. v. Pacific Plaza Shopping Center
(1993)
Although the trial court did not rule upon each of defendant’s objections individually, the court did make a blanket ruling of sorts. That is, in expressly declining to consider the Earles declaration the court implicitly sustained defendant’s objections to that evidence. But even though defendant failed to obtain a ruling on his remaining objections, we do not believe he waived the objections. Defendant filed written objections and orally requested a ruling. He cannot be faulted merely because the trial court did not provide the response he sought. (See
City of Long Beach v. Farmers & Merchants Bank of Long Beach
(2000)
*1581
Although defendant did not waive the objections below, he does not describe them in detail on appeal. He states only that the declarations are “full of argument, conclusions, opinions, hearsay and irrelevant information” and directs us to the papers he filed in the court below. He further argues that if we sustain all of his objections there would remain insufficient admissible evidence to support a prima facie case. We think a more efficient approach would begin with a search for admissible evidence. This is not a summary judgment case like
Sambrano v. City of San Diego
(2001)
Before we consider the evidence, we review the elements that plaintiff must prove to establish his claims. The first and second causes of action for libel and slander require evidence of false and unprivileged publications that have a tendency to injure a person in the manner described in the statutes. (Civ. Code, §§ 45, 46.) The third and fourth causes of action for intentional and reckless infliction of emotional distress must be supported by evidence of “(1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress; (2) the plaintiff’s suffering severe or extreme emotional distress; and (3) actual and proximate causation of the emotional distress by the defendant’s outrageous conduct.”
(Cervantez v. J.C. Penney Co.
(1979)
Turning finally to the evidence, we conclude that it is sufficient to meet plaintiff’s burden. Defendant admits that he made reports to mandatory reporters, law enforcement, and other third parties in which he accused plaintiff of physically and mentally abusing defendant’s children. The crucial evidence that plaintiff submits is that he never abused the children. Zaidi provides support for the element of malice and outrageous conduct in her description of defendant’s threats and abusive behavior. Plaintiff and Zaidi both recount numerous instances in which they observed or experienced defendant’s abusive and antagonistic behavior toward plaintiff. Evidence to support the abuse of process claim is Zaidi’s statement that sometime after the San Mateo County court denied defendant’s petition for a permanent injunction, she was present when defendant told a third party that plaintiff was subject to a restraining order preventing him from being near the children. Finally, plaintiff describes the harm he has suffered as including sleeping and eating disturbances, fear for his safety and the safety оf his own son, fear of being arrested, anxiety over his finances and reputation, loss of time and productivity at work, headaches, and panic attacks.
None of defendant’s objections applies to this evidence. The evidence is based upon the declarants’ personal knowledge. It does not contain argument, opinion, or legal conclusions and it is unquestionably relevant. The evidence is sufficient to permit a jury to find that defendant misused the results of court proceedings, made knowingly false reports of child abuse, and caused plaintiff to suffer serious mental distress. In short, plaintiff has demonstrated a probability of prevailing on his claims for defamation, emotional distress, violation of Penal Code section 11172, and abuse of process.
D. Conclusion
Plaintiff’s fifth cause of action for violation of Civil Cоde section 51.7 is not subject to a section 425.16 special motion to strike and the trial court was correct in denying defendant’s motion as to it. Of the remaining causes of action, plaintiff has shown a probability of prevailing on all but the seventh— his cause of action for malicious prosecution. As to the seventh cause of action, plaintiff cannot prevail because a petition for an injunction prohibiting harassment (§ 527.6) cannot form the basis for a malicious prosecution claim. The trial court erred, therefore, in denying defendant’s anti-SLAPP motion with respect to the seventh cause action but was correct in denying it as to the remaining claims.
*1583 E. Disposition
The order of the superior court denying defendant’s special motion to strike is reversed. The trial court is instructed to enter a new order granting defendant’s motion in part and striking the seventh cause of action from the first amended complaint. The parties shall bear their own costs on appeal.
Rushing, R J., and Elia, J., concurred.
Notes
Further statutory references are to the Code of Civil Procedure unless otherwise specified.
Bidna’s fourth reason was that the availability of malicious prosecution actions would raise malpractice insurance premiums for family law lawyers. (Bidna, supra, 19 Cal.App.4th at pp. 35-36.)
Civil Code section 47(b) provides in pertinent part: “A privileged publication or broadcast is one made: [ft] . . . [ft] (b) In any (1) legislative proceeding, (2) judicial proceeding, (3) in any other official proceeding authorized by law.”
Defendant did not raise this constitutional issue below. The general rule is that appellate courts will not consider matters raised for the first time on appeal.
(Bayside Timber Co.
v.
Board of Supervisors
(1971)
Defendant also argues that there is no reason to exclude parents from the absolute immunity granted to mandated reporters. Defendant offers no legal basis for revising the Legislature’s judgment on this point. Accordingly, we decline to consider the question. (See Cal. Const., art. III, § 3.)