Friday, April 24, 2015
Suit Over Execution of Search Warrant No SLAPP, C.A. Rules
By KENNETH OFGANG, Staff Writer
Attorneys for two San Bernardino County sheriff’s deputies failed to show that a lawsuit accusing them of illegally attempting to serve a recalled warrant, and of defaming the mother of the warrant’s subject while doing so, arose from protected activity under the anti-SLAPP statute, the Fourth District Court of Appeal has ruled.
Div. Two Wednesday affirmed a San Bernardino Superior Court judge’s denial of the motion by deputies Steve Geist and Daniel Shelton.
Connie Anderson, who represented herself in the trial court and did not respond to the appeal, filed suit against the two deputies and Sheriff Rod Hoopes in 2012. She alleged that Geist, Shelton, and another deputy came to her house on Christmas Day 2010, seeking to arrest her daughter.
Five days after that, according to the complaint, Geist, Shelton, and other deputies came to the residence again and arrested Anderson’s daughter. The arrest was illegal, Anderson alleged, because the warrant was recalled on Dec. 23.
In moving to strike the complaint, the defendants said that while the warrant had been ordered stayed by the court on Dec. 23, it was not recalled until a court hearing on Dec. 30, after the plaintiff’s daughter had been arrested that morning. The deputies said they were unaware of the stay at the time of the arrest.
A court document indicated that the court ordered transmission of the stay to the sheriff on Dec. 23, but there was no evidence that it was actually placed in a file or communicated to the deputies.
Judge Gilbert Ochoa denied the motion, finding that “the defendants failed to support their motion with affidavits or declarations as required” and “failed to show that the action arises from an act in furtherance of defendants’ right of petition or free speech.”
Justice Thomas Hollenhorst, writing for the Court of Appeal, said that execution of a search warrant is not protected activity within the meaning of Code of Civil Procedure §425.16, “at least under the circumstances of this case,” so the trial judge’s ruling was correct.
“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,” the justice wrote. “...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.”
The defense also failed to explain how “a routine misdemeanor warrant in a case that apparently attracted precisely zero public interest or discussion” qualifies as “a public issue or an issue of public interest” as the statute requires, Hollenhorst wrote.
He distinguished Kemps v. Beshwate (2009) 180 Cal.App.4th 1012, which held that a defense attorney’s application to the court for a bench warrant to compel the attendance of a witness in a criminal case constituted petitioning activity protected by the anti-SLAPP statute.
“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,” Hollenhorst explained.
The justice went on to say Anderson’s defamation claim did not arise from protected activity either. There was no showing that the statement was made as part of or in anticipation of a judicial proceeding, or that the daughter’s misdemeanor case was an issue of public interest, he wrote.
The case is Anderson v. Geist, 15 S.O.S. 2004.
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