Filed 5/16/13
                           CERTIFIED FOR PUBLICATION

                IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                            SECOND APPELLATE DISTRICT

                                    DIVISION FIVE


GARY GREENE,                                     B243638

        Plaintiff and Appellant,                 (Los Angeles County
                                                 Super. Ct. No. BC478655)
        v.

BANK OF AMERICA et al.,

        Defendants and Respondents.



        APPEAL from a judgment of the Superior Court of Los Angeles County.
Frank Johnson, Judge. Affirmed in part; reversed in part.
        Akudinobi & Ikonte, Emmanuel C. Akudinobi, Chijioke O. Ikonte for Plaintiff
and Appellant.
        Severson & Werson, Jan T. Chilton, Andrew S. Elliott for Defendants and
Respondents.
                                   _______________
       Plaintiff and appellant Gary Greene received two checks from State Farm, in
settlement of a claim. He went to a Bank of America branch (the Bank) and attempted to
cash the checks, which were made out to him and drawn on State Farm's Bank of
America account. The Bank refused to cash the larger of the two checks and, after a
time, the branch manager called police and said that plaintiff had threatened to blow up
the Bank. Police responded and arrested plaintiff. He was charged with a violation of
Penal Code section 422 and was acquitted after jury trial.
       Plaintiff sued the Bank and the branch manager, Jenny Casasola,1 for malicious
prosecution. Judgment was entered in respondents' favor after their special motion to
strike (Code Civ. Proc., § 425.16) was granted. We reverse.


                                 Special Motions to Strike
       "When a special motion to strike is filed, the initial burden rests with the defendant
to demonstrate that the challenged cause of action arises from protected activity." (Brill
Media Co., LLC v. TCW Group, Inc. (2005) 132 Cal.App.4th 324, 329.)
       The parties agree that defendants met their initial burden. We thus focus on the
next step. Once defendants show that the cause of action arises from protected activity,
the plaintiff must demonstrate a probability of prevailing on the claim. (Equilon
Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67.)
       In making the showing, "a plaintiff . . . must set forth evidence that would be
admissible at trial. [Citation.] Precisely because the statute (1) permits early intervention
in lawsuits alleging unmeritorious causes of action that implicate free speech concerns,
and (2) limits opportunity to conduct discovery, the plaintiff's burden of establishing a
probability of prevailing is not high: We do not weigh credibility, nor do we evaluate the
weight of the evidence. Instead, we accept as true all evidence favorable to the plaintiff
and assess the defendant's evidence only to determine if it defeats the plaintiff's

       1 Plaintiff sued another bank employee, Yahaira Reyes. Judgment was entered in
her favor, but plaintiff makes no argument concerning her on appeal. Judgment in her
favor is thus affirmed.

                                              2
submission as a matter of law. (Ibid.) Only a cause of action that lacks 'even minimal
merit' constitutes a SLAPP. [Citation.]" (Overstock.com, Inc. v. Gradient Analytics, Inc.
(2007) 151 Cal.App.4th 688, 699-700.)2 "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.' [Citations.]" (Wilson v. Parker, Covert & Chidester (2002) 28
Cal.4th 811, 821.)
       Whether Code of Civil Procedure section 425.16 applies is a legal question which
we review independently on appeal. (ComputerXpress, Inc. v. Jackson (2001) 93
Cal.App.4th 993, 999.)


                                         Evidence
       Plaintiff's trip to the Bank began with a teller, who told him that she could cash the
smaller of his two checks, which was for $40, but not the larger check, which was for
$7,250.97. For that, she needed authorization from her supervisor, Yahaira Reyes.
Reyes either could not or would not cash the larger check. Plaintiff then talked to the
branch manager, Casasola. It was Casasola who called the police and said that plaintiff
was threatening to blow up the Bank. Plaintiff was outside the Bank, smoking a cigarette
and waiting for his checks to be verified, when he was arrested. That much, plaintiff and
defendants agree on.
       Defendants submitted evidence with their motion to strike, and plaintiff submitted
evidence with his response to that motion; their accounts of the events differ.
       Plaintiff declared that on February 25, 2010, he picked up two checks from the
Woodland Hills office of his car insurer, State Farm. Both were on State Farm's Bank of
America account, and they were signed by the same person. The State Farm employee
who gave him the checks told him that he could cash the checks at the Bank of America



       2Given this standard, we must ignore the many portions of defendants' brief which
argue the case as if the only facts were the facts it proposed.

                                             3
branch nearby on Canoga Avenue, and that the checks were "preapproved and easily
verifiable based on a long standing agreement between State Farm and Bank of
America."
       Plaintiff went to the branch the State Farm employee recommended and waited in
line for a teller. The teller told him that since he did not have a Bank of America
account, the Bank would charge him to cash the checks. He knew that that might be the
case, and told her that he did not have a problem with that. At the teller's request, he
endorsed the checks. The teller then said that she could cash the smaller check, but that
the larger check needed approval from her supervisor.
       The supervisor, Reyes, came to the window and said that she could not cash the
check unless plaintiff opened an account. Plaintiff told her that he did not want to open
an account, that he needed the money right away (he had arranged to buy a car), and that
State Farm had told him that the checks were preapproved. Reyes said that she could not
verify the signature on the larger check and that he would have to deposit it.
       Plaintiff called State Farm and told a claims adjuster, Charles Gonzalez, what was
going on. Gonzalez asked to speak to Reyes, but she refused to talk to him or to give
plaintiff her phone number, so that Gonzalez could call her. Plaintiff was able to get
Reyes's business card from the teller. He gave Reyes's phone number to Gonzalez, and
shortly thereafter heard Reyes's phone ring.
       Plaintiff submitted State Farm's records concerning the call. Gonzalez wrote that
he spoke to Reyes and told her that he could verify the check, specifying the check
number, amount, and the name of the employee who had signed it. Reyes said that the
Bank had copies of the signatures of all State Farm employees who could issue checks,
and that she could not match the signature on plaintiff's check. Gonzalez expressed
skepticism, never having had any similar problem before. Reyes simply repeated that she
could not verify the signature.
       Plaintiff declared that while Reyes was on the phone and afterward, he took a seat
in the lobby and waited, but after an "appreciable time" got up and asked Reyes about his
money. She ignored him. He asked for his checks back. She ignored him. Plaintiff

                                               4
complained, telling her that he was going to talk to her manager and call the police, who
would make her give him his checks.
       Reyes continued to ignore him. Plaintiff then sought out Casasola, the branch
manager. Casasola was talking to another dissatisfied customer. Plaintiff was frustrated
and "began venting" about the bad customer service at the Bank. He did not, however,
threaten anyone, or make any threat about blowing up the Bank.
       Plaintiff declared that while he waited for Casasola to finish speaking to the other
customer, he saw Reyes approach Casasola's desk and give Casasola his checks. When
he finally was able to speak to Casasola, he told her that he wanted to cash the checks and
gave her his identification and Gonzalez's phone number. She promised to take care of
the problem. Plaintiff thanked her and asked for permission to wait outside, so that he
could smoke. Casasola agreed. Plaintiff went outside to smoke. He was outside,
smoking, when police arrived and arrested him.
       Plaintiff declared that he never balled up his fists, or threatened any person or
bank property with physical harm.
       According to Reyes's and Casasola's declarations, Reyes sought to verify the
signature on the check, using a specified bank system, but could not do so. Plaintiff
became "highly agitated," raised his voice, called Reyes a "bitch," and threatened to
cause a commotion. Plaintiff then approached Casasola.
       Casasola declared that she asked plaintiff to wait, and when he would not, got the
checks from Reyes, whom she observed to be "visibly upset" and "on the verge of tears."
Casasola then told plaintiff to sit down, calm down, and lower his voice. He stood about
10 feet away from her and shouted threats, saying that he was not afraid of the police,
that he was "going to blow shit up," that he was an ex-convict, and that he was not afraid
to blow the place up or break the doors. As he was making these threats, he was balling
his fists, throwing his arms in the air, and taking "an aggressive physical stance."
       It was at this time that Casasola called police.
       In the 911 call, Casasola said that plaintiff was in the Bank branch and "he's
saying he can blow 's' up if I don't help him he's going to do that. I need a unit over here,

                                              5
please." She said that plaintiff was "threatening associates," and that he had "threatened
to blow up the Bank" and to break her glasses (or break the glass) as he left the Bank.
The dispatcher got plaintiff's description and Casasola's name, and told her that "if
anything changes call us back." The dispatcher also asked if Casasola had plaintiff's
name. She said, "No, but I can get it as soon as I sit down with him."
       Casasola did sit down with plaintiff, who, according to her declaration, calmed
down and sat at her desk. Casasola left plaintiff, went to Reyes's work station, and told
her to continue trying to verify the checks. At that point, plaintiff told Casasola that he
was going outside to smoke.
       After plaintiff posted bail, he took the checks (which police had retrieved and
given to him) to another bank branch, where the manager verified the checks by calling a
bank hotline. Plaintiff had his cash in less than five minutes.
       Plaintiff also submitted Casasola's testimony in the criminal proceedings. At the
preliminary hearing, Casasola testified that plaintiff said, "If you don't cash this check for
me, I am not afraid to blow up this place" and that plaintiff said that he would blow up
the banking center if she did not cash his check. She also testified that after she called
police she sat with plaintiff at her desk, and that in the five to seven minutes it took for
police to arrive, she was worried about her safety and the safety of others in the Bank.
She did not, however, evacuate the Bank, warn customers or employees, look for security
guards who might help, or lock the doors after plaintiff went outside. She also testified
that she needed to verify the larger check because it was for an amount in excess of
$10,000.
       In addition to the evidence previously summarized, defendants submitted a portion
of plaintiff's preliminary hearing transcript in which he testified that while he was at the
Bank, he said, in a loud voice, that he was so frustrated that he felt like kicking over a
cardboard display in the Bank, although he did not go near the display. He also testified
that he had "yelled at the teller," "mouthed off," and "abused the peace of the Bank,"
explaining that he abused "the tranquility," and that "I was loud," but that he did not call
anyone names. He also testified that when Reyes refused to give his checks back, he told

                                               6
her, "you are afraid that I will complain about you; . . . you have control issues." He was
trying to put her "on blast," or embarrass her for providing bad customer service. 3
       Defendants also submitted a different portion of the trial transcript, where an
unidentified witness, presumably a police officer, testified that when the witness spoke to
Casasola, she was visibly shaken, so that the witness had to advise her to take a deep
breath, and that "it's okay, we're here."


                                            Discussion
       Defendants' motion argued that plaintiff could not prevail on the merits because
they were immune from suit under the The Annunzio-Wylie Anti-Money Laundering
Act, and because plaintiff did not present prima facie proof of malicious prosecution.


       1. The Annunzio-Wylie Anti-Money Laundering Act, 31 United States Code
       section 5318(g)
       "Congress enacted the Annunzio-Wylie Anti-Money Laundering Act in order to
facilitate cooperation between domestic financial institutions and the United States
government to stop the global movement of drug money. Large criminal enterprises
depend on their ability to conceal the proceeds of their criminal endeavors, and the
Annunzio-Wylie Act seeks to make concealment much more difficult by encouraging
financial institutions to disclose suspicious activity and cooperate with law enforcement
efforts. But, because disclosure of financial information – either spontaneously or after a
request from the government – could possibly lead to litigation with disgruntled
customers . . . , the Annunzio-Wylie Act granted immunity to banks making disclosures."
(Coronado v. BankAtlantic Bancorp, Inc. (11th Cir. 2000) 222 F.3d 1315, 1319; Union
Bank of California, N.A. v. Superior Court (2005) 130 Cal.App.4th 378.)




       3 Defendants at times argue that plaintiff testified that at the Bank, he spoke of a
"blast," but that is not the state of the evidence.

                                                7
       Thus, 31 United States Code section 5318(g) "Reporting of suspicious
transactions" provides, under the heading "(3) Liability for disclosures": "Any financial
institution that makes a voluntary disclosure of any possible violation of law or regulation
to a government agency or makes a disclosure pursuant to this subsection or any other
authority, and any director, officer, employee, or agent of such institution who makes, or
requires another to make any such disclosure, shall not be liable to any person under any
law or regulation of the United States, any constitution, law, or regulation of any State or
political subdivision of any State, or under any contract or other legally enforceable
agreement (including any arbitration agreement), for such disclosure or for any failure to
provide notice of such disclosure to the person who is the subject of such disclosure or
any other person identified in the disclosure."
       Defendants do not contend that this case involves a suspicious transaction, or
disclosure of financial information. Instead, their argument is that the Annunzio-Wylie
Act (the Act) applies to a bank or bank employee's reports of any violation of law. In
support, they cite cases which hold that the Act applies to disclosures of matters other
than money laundering. However, the cited cases do not hold that the Act applies to
situations like the one before us, which have nothing to do with banking transactions.
       For instance, Lopez v. First Union Nat'l Bank (11th Cir. 1997) 129 F.3d 1186, held
that a bank's disclosure of electronic fund transfers and information held in electronic
storage was "not outside the scope" of the Act, and that "the three safe harbors provided
by § 5318(g)(3) supply an affirmative defense to claims against a financial institution for
disclosing an individual's financial records or account-related activity." (Id. at p. 1191,
italics added.)
       Stoutt v. Banco Popular de P.R. (1st Cir. 2003) 320 F.3d 26, held that under the
Act, a bank which informed the FBI of a suspicion that a borrower had engaged in a
check-kiting scheme, a violation of federal bank fraud laws, was immune from tort
liability. In Nevin v. Citibank, N.A. (S.D.N.Y. 2000) 107 F.Supp.2d 333, a department
store security guard suspected that a customer was using a stolen credit card. He called
the bank which issued the card, and the bank "authorized" the store to detain the customer

                                             8
and said that the card might be stolen. The store called police, who investigated by going
to the customer's house. She sued for slander, infliction of emotional distress, and other
causes of action. The bank claimed the protection of the Act, but the district court found
that although the Act "encompasses the complete ambit of criminal behavior, whether
money laundering by international drug kingpins or credit card fraud at a shopping
mall," the bank was not immune, because the communication was between the bank and
a private entity, the store. (Id. at p. 341, italics added.) Coronado v. BankAtlantic
Bancorp, Inc., supra, 222 F.3d 1315, concerns a bank's compliance with facially valid
grand jury subpoenas for customer records.
       The immunity provisions of the Act must be viewed in the context of the Act and,
no matter how broadly they apply to "disclosures" concerning financial transactions, they
cannot be read to immunize any report to law enforcement, by any bank "director, officer,
employee, or agent." Indeed, the Supreme Court recently reiterated the principle that,
"'[i]n all pre-emption cases, and particularly in those in which Congress has
"legislated . . . in a field which the States have traditionally occupied," . . . we "start with
the assumption that the historic police powers of the States were not to be superseded by
the Federal Act unless that was the clear and manifest purpose of Congress."'
[Citations.]" (Wyeth v. Levine (2009) 555 U.S. 555, 565.) The Act contains no clear
language manifesting an intention on the part of Congress to preempt California's
malicious prosecution laws when a bank employee makes a false report to police in order
to quiet an angry customer.


       2. Prima facie case for malicious prosecution
       Defendants first argue that plaintiff will not be able to prevail on the merits
because he cannot prove that the action was commenced at their direction. The relevant




                                                9
law is clear:4 "One may be civilly liable for malicious prosecution without personally
signing the complaint initiating the criminal proceeding." (Centers v. Dollar Markets
(1950) 99 Cal.App.2d 534, 544.) "The test is whether the defendant was actively
instrumental in causing the prosecution." (Sullivan v. County of Los Angeles (1974) 12
Cal.3d 710, 720; 5 Witkin, Summary of Cal. Law (10th ed. 2005) Torts, § 476.) "Cases
dealing with actions for malicious prosecution against private persons require that the
defendant has at least sought out the police or prosecutorial authorities and falsely
reported facts to them indicating that plaintiff has committed a crime." (Sullivan v.
County of Los Angeles, supra, at p. 720.)
        Defendants' argument is that California law does not hold a citizen responsible for
initiating criminal proceedings unless he or she knowingly reported false facts to the
police. They argue that plaintiff has no evidence that Casasola knowingly lied. In
defendants' view, plaintiff's own declaration that he never made any threat, let alone a
threat to blow up the Bank, is not enough to prove a likelihood of success, but merely
creates a "he said, she said," situation which provides no basis for a finding that Casasola
lied.
        Defendants mistake the applicable legal standard. In response to the special
motion to strike, plaintiff presented his declaration that he never threatened to blow up
the Bank, and on our review, we must "accept as true all evidence favorable to the
plaintiff." (Overstock.com, Inc. v. Gradient Analytics, Inc., supra, 151 Cal.App.4th at pp.
699-700.) Thus, "he said" is a prima facie case, and in this case, he said that Casasola
told police that he threatened to blow up the Bank, although he had made no such
statement. As defendants concede, they may be liable for malicious prosecution if
Casasola knowingly made a false report to the police.

        4Defendants are not assisted by their citation to a New York case which holds that
"'"[t]he mere reporting of a crime to police and giving testimony are insufficient"' to
show a defendant's initiation of a criminal proceeding. [Citation.]" (Du Chateau v.
Metro-North Commuter R.R. Co. (N.Y. App. Div. 1999) 253 A.D.2d 128, 131 [688
N.Y.S.2d 12].) Whatever the merits of that rule in New York, it is not a correct statement
of California law.

                                             10
       Defendants also cite plaintiff's preliminary hearing testimony that he screamed,
and argue that "Casasola could easily have misinterpreted [plaintiff's] outraged cries."
The "could have," says it all. Defendants may seek to convince a jury that Casasola
misheard plaintiff's statements, but a jury could also conclude from the evidence that
Casasola deliberately lied, in order to induce police to make the call a priority, or to
ensure that when they did arrive plaintiff would be arrested, because she disliked plaintiff
for the way he behaved, or for another reason.
       This is also our response to defendants' contention that plaintiff cannot prove
malice, another element of malicious prosecution. (Centers v. Dollar Markets, supra, 99
Cal.App.2d at p. 539.) "For purposes of a malicious prosecution claim, malice 'is not
limited to actual hostility or ill will toward the plaintiff. . . .' [Citation.]" (Sycamore
Ridge Apartments LLC v. Naumann (2007) 157 Cal.App.4th 1385, 1407.) "[I]f the
defendant had no substantial ground for believing in the plaintiff's guilt, but, nevertheless,
instigated proceedings against the plaintiff, it is logical to infer that the defendant's
motive was improper." (5 Witkin, Summary of Cal. Law (10th ed. 2005) Torts, § 485,
p. 710.) At the special motion to strike, plaintiff presented evidence, through his own
declaration, which would allow a jury to find that Casasola deliberately lied. That would
establish malice.
       Along the same lines, defendants argue that plaintiff cannot show lack of probable
cause, another of the elements of malicious prosecution. "When, as here, the claim of
malicious prosecution is based upon initiation of a criminal prosecution, the question of
probable cause is whether it was objectively reasonable for the defendant . . . to suspect
the plaintiff . . . had committed a crime." (Ecker v. Raging Waters Group, Inc. (2001) 87
Cal.App.4th 1320, 1330.) For purposes of a malicious prosecution action, "[p]robable
cause does not depend upon the possession of facts which satisfactorily prove the guilt of
an accused person. It has reference of the common standard of human judgment and
conduct. It exists if one is possessed of information or facts which are sufficient to cause
a reasonable person to honestly believe the charge is true [citation]." (Northrup v. Baker
(1962) 202 Cal.App.2d 347, 354.)

                                               11
       "When the evidence bearing on the question of probable cause is in conflict, it is
the province of the jury to determine whether facts exist which will warrant or reject an
inference of probable cause." (Centers v. Dollar Markets, supra, 99 Cal.App.2d at
p. 541.) As we have seen, there was a conflict of the evidence on whether Casasola
honestly believed that plaintiff had threatened to blow up the Bank, or whether she
deliberately lied. If she lied, she did not have probable cause.
       Defendants argue, however, that the evidence that plaintiff raised his voice, said
that he felt like kicking the cardboard display (in their view, this was a threat to destroy
bank property), and in plaintiff's words "abused the peace of the Bank," means that they
had grounds to suspect him of committing some crime, and that a defendant which has
reasonable grounds for suspecting some crime5 has probable cause, no matter what crime
is reported.
       They rely on two cases, Ecker v. Raging Waters Group, Inc., supra, 87
Cal.App.4th 1320, and Roberts v. McAfee, Inc. (9th Cir. 2011) 660 F.3d 1156.
       In Ecker v. Raging Waters, supra, 87 Cal.App.4th 1320, the plaintiff was detained
by security guards at an amusement park, after several adolescent boys complained that
plaintiff was following and videotaping them. Security observed plaintiff, saw that he
was surreptitiously videotaping juveniles and, once he was in the security office, looked
at the tape in his camera and saw that the videotape consisted exclusively of shots of the
bodies of adolescent boys. They contacted law enforcement. Plaintiff was taken into
custody for the misdemeanor of annoying or molesting a child under the age of 18,
charged with that offense, and acquitted after jury trial. He sued for malicious
prosecution, but was nonsuited on the ground of probable cause. The appellate court
affirmed, finding that given all the facts, "it was objectively reasonable to suspect that
[plaintiff's] actions of following male juveniles and videotaping their bodies in a secretive


       5Defendants do not specify the crime they had reason to suspect, but they are
presumably referring to Penal Code section 415, commonly referred to as "disturbing the
peace." We note, however, that plaintiff's testimony, in the criminal trial, that he "abused
the peace of the Bank" is not an admission to a violation of Penal Code section 415.

                                              12
manner –actions which clearly disturbed and upset the boys who had complained – were
criminal." (Id. at p. 1331.) Plaintiff's argument to the contrary relied on the security
guard's testimony that he was not sure which park rule or which law had been violated.
The court held that the fact that the guard "was uncertain of the precise crime [plaintiff]
may have committed is irrelevant to the determination of probable cause. The issue is
whether it was objectively reasonable to suspect [plaintiff] had committed a crime. It
was. Determination of the crime(s) to be charged is authority properly vested in a
prosecuting agency, not a private amusement park . . . ." (Id. at p. 1332.)
       In Roberts v. McAfee, Inc., supra, 660 F.3d 1156, plaintiff was prosecuted for
fraud, on allegations, which originated with his employer, concerning his participation in
a stock option backdating scheme. His malicious prosecution case included allegations
that the employer had falsified and withheld evidence to make his culpability seem
clearer than it really was. The court held that the employer nonetheless had probable
cause, noting that the employer "had probable cause to accuse [plaintiff] of participating
in the illegal backdating of three stock option grants . . . regardless of whether [the
employer] . . . or its agents misrepresented evidence to government investigators." (Id. at
p. 1164.)
       We cannot see that either case holds that a defendant with – at best – some belief
that a misdemeanor is being committed can make up evidence of an entirely different and
much more serious crime. We note in this regard that under the facts before us, a police
officer responding to a disturbing the peace complaint would not have arrested plaintiff,
who was manifestly not disturbing the peace when officers arrived. (Pen. Code, § 836,
subd. (a)(1).)




                                              13
                                       Disposition
      The judgment in favor of Reyes is affirmed; the judgment in favor of the Bank and
Casasola is reversed. Appellant to recover costs on appeal.
      CERTIFIED FOR PUBLICATION



                                                ARMSTRONG, J.


We concur:



             TURNER, P. J.



             MOSK, J.




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