In the recent Johnson v. Ralph's Grocery Store (filed 4/5/12 No. D058312) 2011 DJDAR 4385, the court revisited Wang v. Hartunian (2003) 111 Cal.App.4th 744 regarding the issue of whether malicious prosecution claims arising from a citizen's arrest are subject to anti-SLAPP treatment under CCP 425.16. In 2003, I filed an amicus letter petitioning for Supreme Court review of the Wang decision because I believed that all malicious prosecution actions were subject to anti-SLAPP treatment on prong one and that the Wang court's rational - i.e. that Hartunian's citizen's arrest constituted "noncommunicative conduct" - is fundamentally flawed. In Wang, Hartunian called police to report Wang's violation of a restraining order on his property. When police arrived they were not convinced that Wang had committed a crime and declined to arrest him. The police asked if Hartunian wanted to make a citizen's arrest. Hartunian said he did and filled the required form for making a citizen's arrest. At this point, police merely took Wang into custody pursuant to Penal Code 847(a) and then released him thereafter. The court noted that while the police are never required to make an arrest at the request of a private citizen, they are required to take persons into custody who have been subjected to a citizen's arrest. Wang relied heavily on Drum v. Bleau, Foz & Assoc. (2003) 107 Cal.App.4th 1009 overruled by (Rusheen v. Cohen (2006) 37 Cal.4th 1048) for the proposition that Hartunian's citizen's arrest was "noncommunicative conduct" and thus neither subject to the litigation privilege of CC 47(b) nor the anti-SLAPP statute. Although Hartunian's request to take Wang into custody was clearly communicative, Hartunian had already made a citizen's arrest of Wang. Thus, the gravamen of a citizen's arrest was noncommunicative. But as we shall see, our High Court in Rusheen, supra, turned Drum and Wang on their heads. If communicative conduct to a government agency is inextricably iontertwined with noncommunicative as it is with levying on a bank account because it requires court papers to execute, then the gravamen is communicative and the activity is protected by the anti-SLAPP statute and may be subject to dismissal under the litigation privilege of CC 47(b).
The basic rule of prong one anti-SLAPP jurisprudence has not changed in light of Johnson or Wang - all malicious prosecution actions are subject to anti-SLAPP treatment under subdivisions (e)(1) and (e)(2) (SLAPPback malicious prosecutions under CCP 425.18 are subject to limited anti-SLAPP treatment) even if they are alleged to arise from a so-called "citizen's arrest". The Johnson court distinguished Wang on the ground that Wang alleged a claim for false arrest based on the allegedly wrongful citizen's arrest. But Wang also alleged causes of action for malicious prosecution and abuse of process based solely on Hartunian's citizen's arrest of Wang. See Wang, supra, 111 Cal.App.4th 749 (fn 1). But Wang completely ignored the effect of the malicious prosecution and abuse of process claims as if they were not pleaded and failed to address those claims entirely. Johnson distinguished Wang in that (1) the former did not allege a false arrest claim based on the citizen's arrest but alleged only malicious prosecution and IIED claims based thereupon; (2) even if Johnson had alleged a false arrest claim, the malicious prosecution claims would still be subject to anti-SLAPP treatment based on the allegedly wrongful criminal proeedings that had been initiated against Johnson and stricken for failure to show a probability of prevailing.; (3) In Wang, the only conduct alleged was Hartunian's allegedly wrongful citizen's arrest whereas Johnson alleged that a wrongful criminal prosecution terminated in her favor, that it was initiated without probable cause and malice by Ralph's and its employees and agents.
So what is the lesson from this morass? First, to the extent the malicious prosecution and abuse of process claims in Wang are based on the allegedly wrongful citizen's arrest, Wang is highly suspect in light of Rusheen. Secondly, all malicious prosecution and abuse of process claims are subject to anti-SLAPP treatment on prong one. In Johnson, the malicious prosecution claim was based on wrongful criminal proceedings initiated against her. In Wang, no criminal proceedings were ever initiated against Wang.
If a wrongful citizen's arrest is alleged to have resulted in wrongful proceedings, the gravamen is a malicious prosecution claim and will be treated as such and subject to anti-SLAPP scrutiny. If, however, a claim for false arrest is alleged based on a wrongful citizen's arrest as happened in Wang, I believe that under Rusheen, the false arrest or any other claim based on a wrongful citizen's arrest may be subject to anti-SLAPP treatment because a citizen's arrest necessarily involves a communication to police and an attempt to prompt government action as a matter of law even though other aspects of the arrest may be "noncommunicative" just as the act of levying on a judgment involves mixed noncommunicative and communicative acts to achieve a governmental purpose.
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