Filed 4/17/19

                             CERTIFIED FOR PUBLICATION


                 COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                      DIVISION ONE

                                 STATE OF CALIFORNIA



 LUCINDA COX,                                        D074893

          Plaintiff and Appellant,

          v.                                         (Super. Ct. No. CIVDS1518147)

 HOLLIS GRIFFIN,

          Defendant and Respondent.


        APPEAL from a judgment of the Superior Court of San Bernardino County, Janet

M. Frangie, Judge. Affirmed; request for judicial notice denied.

        Law Offices of Keith B. Bardellini, Keith B. Bardellini; Drinker Biddle & Reath,

George T. Caplan and Paul M. Gelb for Plaintiff and Appellant.

        Law Office of John M. Kramer, John M. Kramer; Law Offices of Kristen Martin

and Kristen Martin for Defendant and Respondent.

        The lesson in this case is there are important distinctions between the torts of false

imprisonment and malicious prosecution. Lucinda Cox alleged that Hollis Griffin

intentionally filed a false police report accusing Cox of forgery and embezzlement,

leading to Cox's arrest and seven-day incarceration. Cox's attorney asked the court to
instruct the jury on false arrest (false imprisonment) and intentional infliction of

emotional distress. Cox's complaint did not allege a cause of action for malicious

prosecution, and the court did not instruct on malicious prosecution.

       After the jury awarded Cox $450,000 in a general verdict, the trial court granted

Griffin's motion for judgment notwithstanding the verdict (JNOV) because under

Hagberg v. California Federal Bank (2004) 32 Cal.4th 350 (Hagberg), citizen reports of

suspected criminal activity can only be the basis for tort liability on a malicious

prosecution theory. (Id. at pp. 355.) When a citizen contacts law enforcement to report a

suspected crime, the privilege in Civil Code1 section 47, subdivision (b) (hereafter

section 47(b)) bars causes of action for false imprisonment and intentional infliction of

emotional distress, even if the police report was made maliciously. (Mulder v. Pilot Air

Freight (2004) 32 Cal.4th 384, 387 (Mulder); Hagberg, at p. 365.)

       In sum, Cox prevailed on causes of action barred by section 47(b), and she failed

to allege and have the jury instructed on her only potentially viable cause of action,

malicious prosecution.

       Cox's only argument in her opening brief is that the JNOV should be reversed

because "the elements of malicious prosecution were supported by substantial evidence in

the record." We reject Cox's argument because an appellant "cannot challenge a

judgment on the basis of a new cause of action [she] did not advance below." (United




1      All statutory references are to the Civil Code.

                                              2
States Golf Assn. v. Arroyo Software Corp. (1999) 69 Cal.App.4th 607, 623 (United

States Golf.) There is an exception to that rule allowing a change in theory on appeal if

the new theory involves a question of law on undisputed facts. But that exception does

not apply here because the record does not contain undisputed evidence establishing all

elements of malicious prosecution. Accordingly, although the jury found that Griffin

intentionally filed a false police report causing Cox emotional distress, we are compelled

to affirm the defense judgment.

                  FACTUAL AND PROCEDURAL BACKGROUND2

       A. Business Disputes

       In 2008 Cox and Griffin, who had been friends for over 20 years, opened a

cosmetology school together. Cox was one of the school's teachers and Griffin handled

administration.

       In 2010 Cox and Griffin had numerous business disagreements, causing them to

sell the school in 2012. To pay final expenses Cox opened a checking account in July

2012 that required both of their signatures on checks. When the account was opened, the

bank provided three checks, which Cox and Griffin signed in blank; i.e., with no payee,

no date, and no amount. Cox used two of the checks to pay small invoices and kept the

third blank check for future use. Griffin testified that she understood Cox would use that

third check to pay a $20 invoice.



2       Cox's opening brief has a one-page statement of facts. Griffin's brief has a five-
line statement of facts. The factual background in this opinion is, therefore, largely based
on this court's independent review of the record.
                                             3
       B. The $35,200 Check

       About seven months later, in February 2013, Cox issued the remaining presigned

blank check to herself for $35,200, essentially depleting the joint account.

       Cox testified that Griffin had no further interest in the business and told Cox to

take the money to pay the school's debts. Cox also testified that she disbursed the

$35,200 to pay the school's debts and did not keep "a single dime" for herself.

       Griffin disagreed, testifying that she never authorized Cox to issue herself a

$35,200 check. In September 2013 Griffin sent Cox an e-mail asking her to explain how

this money was taken out of the joint account "without [her] signature" and "[c]an you

please tell [me] what is going on?" Cox did not reply.

       C. Griffin's Crime Report and Cox's Arrest

       In October 2013 Griffin reported to the San Bernardino County Sheriff's

Department that Cox had forged her signature on the $35,200 check. The sheriff's

department investigated and a warrant was issued for Cox's arrest.

       Griffin has law enforcement contacts. Her husband works for a district attorney's

office. Griffin also owns a gun shop, sold firearms to the deputy who took the crime

report, and knows the detective assigned to investigate her criminal complaint.

       The detective asked Griffin to notify the sheriff's department if she saw Cox. On

December 23, 2014, at about 8 p.m., Griffin and her husband reported that Cox was at a




                                             4
residence owned by one of Cox's clients.3 A deputy arrested Cox there and later booked

her into jail on Christmas Eve. Cox was unable to raise her $250,000 bail and spent

several days in jail with only a thin mat for a bed.4 She was "freezing cold" and except

for an apple each day, Cox ate nothing because "[e]verything else was either very sloppy

or inedible." Cox feared for her life, heard people screaming "day and night," and saw

rats outside her cell.

       At trial, Griffin acknowledged that Cox had not forged her signature on the

$35,200 check. Griffin testified that when she contacted police in October 2013, she had

forgotten that seven months earlier she had signed the blank check. Griffin testified that

although the check was not forged, it was fraudulent because Cox wrongfully used

Griffin's share of the $35,200 to pay Cox's personal expenses.

       An accountant testified that as a result of errors in the school's tax returns, Griffin

received tax benefits at Cox's expense. In closing argument, Cox's attorney argued that

Griffin sought to chill Cox's attempts to file amended tax returns by making a false police

report about the $35,200 check.




3      Cox testified that Griffin knew she was regularly at that client's house "for many
years on a certain day of the week"—from which the jury could infer that Griffin planned
the arrest to occur near Christmas.

4      In closing argument, Cox's lawyer stated, "[N]o one has been able to explain how
the bail was at $250,000 except strangely [Griffin's] husband worked at the [district
attorney's] office that sets the bail."
                                              5
       D. Procedural History

       In December 2015 Cox filed a form complaint against Griffin containing one

cause of action entitled "Intentional Tort," alleging:

          "Hollis Griffin, knowingly and intentionally, filed a false police
          report for the purpose of causing the false incarceration of Plaintiff,
          Lucinda Cox, alleging that the Plaintiff had committed a forgery and
          had embezzled money from Hollis Griffin and did it for the purpose
          of causing Plaintiff, Lucinda Cox, to be unlawfully and intentionally
          incarcerated. On December 23, 2014, on the basis of the false police
          report filed by Hollis Griffin, Plaintiff Cox was arrested and
          incarcerated for 7 days, causing extreme emotional distress, loss of
          wages, medical and physical injuries and loss of earning capacity."

       During trial, the court granted Cox's motion to amend the complaint to conform to

proof to add a cause of action for intentional infliction of emotional distress. The record

does not indicate that Cox sought to amend the complaint to add a malicious prosecution

cause of action.

       Cox's attorney asked the court to instruct on (1) intentional infliction of emotional

distress and (2) false arrest with warrant. On the false arrest cause of action, the court

instructed the jury as follows:

          "Plaintiff Lucinda Cox claims that she was wrongfully arrested by
          the San Bernardino County Sheriff's department as a result of a false
          police report filed by the Defendant Hollis Griffin. To establish this
          claim, Plaintiff must prove all of the following:

          "1. That Hollis Griffin intentionally caused Lucinda Cox to be
          wrongfully arrested;

          "2. That Hollis Griffin intentionally filed a false police report that
          lead directly to incarceration of Lucinda Cox;

          "3. That Lucinda Cox[] was harmed; and


                                              6
           "4. That Hollis Griffin's conduct was a substantial factor in causing
           Lucinda Cox'[s] harm."5

       In closing argument, Cox's attorney told the jury, "So we have two causes of

action . . . intentional infliction of emotional distress [and] . . . false arrest." In his

rebuttal closing, Cox's attorney reiterated that "[t]his case is about false arrest, false

imprisonment, and intentional infliction of emotional distress."6

       The jury returned a general verdict in Cox's favor for $450,000. After the court

entered judgment on the verdict, Griffin filed a JNOV motion asserting that under

Hagberg, supra, 32 Cal.4th 350, section 47(b) "provides an absolute privilege for

statements made to law enforcement personnel to report suspected criminal

activity . . . and the only basis of tort liability possibly available is . . . a cause of action

for malicious prosecution." Additionally, Griffin asserted insufficient evidence supported

a malicious prosecution claim. Griffin also asked the court to take judicial notice of an

order stating that Cox was held to answer for two counts after her preliminary hearing.7

       Cox opposed the JNOV motion, asserting that section 47(b) did not immunize

"intentionally false statements to law enforcement." In reply, Griffin again cited



5      We express no opinion on the correctness of this instruction; that issue has not
been raised and is not before us.

6      False arrest and false imprisonment are the same tort. False arrest is a way of
committing false imprisonment. (Gillan v. City of San Marino (2007) 147 Cal.App.4th
1033, 1049, fn.6.) Cox's attorney referred to this tort as false arrest and, at other times, as
false imprisonment. We refer to it only as false imprisonment.

7      We are unable to find a ruling on this request for judicial notice.
                                                 7
Hagberg, supra, 32 Cal.4th 350, stating that the privilege "cannot be defeated by a

showing of malice."

       After conducting a hearing, the court granted the JNOV motion, ruling that section

47(b) "provides a complete defense to Cox's causes of action." Cox appealed from the

defense judgment.

                                       DISCUSSION

                      I. THE COURT CORRECTLY ENTERED JNOV

       A. No Forfeiture from Designation of Reporter's Transcript

       An appellant who elects to proceed with a reporter's transcript may choose to

designate less than all the testimony given in the superior court. However, if the

appellant does so, the designation must state the points to be raised on appeal, and the

appeal is "then limited to those points unless, on motion, the reviewing court permits

otherwise." (Cal. Rules of Court,8 rule 8.130(a)(2).)

       In Cox's amended notice designating the record, she identified the proceedings to

be included in the reporter's transcript and checked the box indicating that the

proceedings so designated "do not include all of the testimony in the superior court."

Cox specified the issue to be raised on appeal as: "[I]ntentional misrepresentations are

not covered by [section] 47(b)."

       In her opening brief, Cox asserts that section 47(b) does not bar an action for

malicious prosecution, and "the elements of malicious prosecution were supported by



8      Citations to rules are to the California Rules of Court.
                                              8
substantial evidence in the record." This is not the issue Cox specified in her record

designation. Moreover, Cox has not brought a motion to raise appellate issues not

identified in her designation. Griffin argues that as a result Cox has forfeited the

malicious prosecution issue raised in the opening brief.

       Cox's reply brief does not address this argument. An appellate court is not

required to make arguments for parties. (Paterno v. State of California (1999) 74

Cal.App.4th 68, 106.) Nevertheless, our review of the record shows that although Cox's

trial attorney checked the box indicating that the proceedings designated did not include

all of the trial testimony, this was apparently a misunderstanding because counsel

designated all the trial testimony in the amended designation of record.9

       Because we discovered this on our own, we asked the parties to submit

supplemental briefs addressing this question. Cox's brief states that the reporter's

transcript contains all the testimony given in the superior court. Griffin's attorneys state

they do not know because they did not purchase a copy of the reporter's transcript.

Because the reporter's transcript contains all the testimony given in the superior court, we

reject Griffin's forfeiture argument and turn to the merits.




9       Cox designated proceedings occurring on February 7, 8, 9, and 10. Cox testified
on February 7 and 8. Griffin testified beginning in the afternoon on February 8. Griffin's
testimony was interrupted on February 9 for the testimony of Deputy Robert Oakleaf.
Karl Anderson testified on February 9. Griffin's testimony resumed on February 9. Cox
testified again on February 9. All of this testimony is in the reporter's transcript Cox
designated. The clerk's minutes are consistent with this and do not list any other person
as having testified.

                                              9
         B. Distinctions Between False Imprisonment and Malicious Prosecution

         There are important distinctions between the intentional torts of false

imprisonment and malicious prosecution. The elements of a cause of action for false

imprisonment are (1) an arrest without legal process, (2) imprisonment, and (3) damages.

(Ramsden v. Western Union (1977) 71 Cal.App.3d 873, 879.) "[T]he provocation,

motive and good faith of the defendant are irrelevant to pleading a cause of action for

false imprisonment." (Wilson v. Houston Funeral Home (1996) 42 Cal.App.4th 1124,

1135.)

         In contrast, malicious prosecution is procuring the prosecution of another under

lawful process, but from malicious motives and without probable cause. Unlike false

imprisonment, malice and lack of probable cause, plus a favorable termination of the

proceedings on the merits, are the gist of the action for malicious prosecution. (Singleton

v. Perry (1955) 45 Cal.2d 489, 494; Lane v. Bell (2018) 20 Cal.App.5th 61, 63-64

(Lane).)

         "False imprisonment and malicious prosecution are mutually inconsistent

torts . . . . In a malicious criminal prosecution, the detention was malicious but it was

accomplished properly, i.e., by means of a procedurally valid arrest. In contrast, if the

plaintiff is arrested pursuant to a procedurally improper warrant or warrantless arrest, the

remedy is a cause of action for false imprisonment." (Cummings v. Fire Ins. Exchange

(1988) 202 Cal.App.3d 1407, 1422.)




                                              10
       C. Section 47(b) Privilege

       Section 47(b) provides that a statement made "[i]n any (1) legislative proceeding,

(2) judicial proceeding, (3) in any other official proceeding authorized by law, or (4) in

the initiation or course of any other proceeding authorized by law and reviewable [by writ

of mandamus]" is privileged, with certain exceptions that are inapplicable here.

(Hagberg, supra, 32 Cal.4th at p. 360.) This privilege applies even if the statement was

false and made with malice. (Jacob B. v. County of Shasta (2007) 40 Cal.4th 948, 955-

956 [privilege applies even to civil actions based on perjury].) "[T]he only tort

claim . . . falling outside the privilege established by section 47(b) is malicious

prosecution." (Hagberg, supra, 32 Cal.4th at p. 361.)

       "[T]he absolute privilege established by section 47(b) serves the important public

policy of assuring free access to the courts and other official proceedings. It is intended

to '"assure utmost freedom of communication between citizens and public authorities

whose responsibility is to investigate and remedy wrongdoing.'" (Silberg [v. Anderson

(1990)] 50 Cal.3d [205,] 212, italics added.) . . . Hence, without respect to the good faith

or malice of the person who made the statement, or whether the statement ostensibly was

made in the interest of justice, 'courts have applied the privilege to eliminate the threat of

liability for communications made during all kinds of truth-seeking proceedings: judicial,

quasi-judicial, legislative and other official proceedings.'" (Hagberg, supra, 32 Cal.4th.

at pp. 360-361.)

       Particularly relevant here, "citizen reports of suspected criminal activity to law

enforcement personnel enjoy an absolute privilege of immunity from civil liability under

                                              11
section 47(b)." (Kesmodel v. Rand (2004) 119 Cal.App.4th 1128, 1135.) Such reports,

designed to instigate or prompt an investigation, can only be the basis for tort liability if

the plaintiff can establish the tort of malicious prosecution. (Hagberg, supra, 32 Cal.4th

at pp. 355, 370.)

       Implementing section 47(b), the California Supreme Court has held that this

privilege applies to false imprisonment and intentional infliction of emotional distress—

the only causes of action Cox pleaded and the only theories of liability upon which the

court instructed Cox's jury. (Hagberg, supra, 32 Cal.4th at p. 375 [rejecting the argument

that false imprisonment should be an exception to section 47(b) immunity].)

       Mulder, supra, 32 Cal.4th 384 is also illustrative. There, the defendant contacted

the police and reported that the plaintiff possessed a stolen flight recorder. (Id. at p. 386.)

After the police detained, handcuffed, and searched the plaintiff, the plaintiff sued for

false imprisonment and intentional infliction of emotional distress. (Ibid.) The plaintiff

in Mulder further alleged that the defendants "had been motivated by malice" when they

supplied the information that was the basis for his arrest. (Ibid.) The court held that

section 47(b) barred these claims. (Mulder, at p. 387.)

       D. Cox Is Precluded from Changing Theories on Appeal

       In her opening brief, Cox does not contend that the trial court erred in determining

that section 47(b) provided a complete defense to the only causes of action she alleged:

false imprisonment and intentional infliction of emotional distress. Instead, Cox argues

that the trial court erred because there was substantial evidence that Griffin committed a

different tort—malicious prosecution—which is not barred by section 47(b). Cox asserts,

                                              12
"[T]he privilege under [s]ection 47(b) did not render the jury's verdict contrary to law

because all of the elements of malicious prosecution were clearly present."

       Cox's argument is untenable. We cannot reverse the judgment on a theory of

malicious prosecution that Cox did not litigate in the trial court. "'As a general

rule . . . appealing parties must adhere to the theory (or theories) on which their cases

were tried.'" (P&D Consultants, Inc. v. City of Carlsbad (2010) 190 Cal.App.4th 1332,

1344.) ""'A party is not permitted to change [her] position and adopt a new and different

theory on appeal. To permit [her] to do so would not only be unfair to the trial court, but

manifestly unjust to the opposing litigant.'"" (Vasquez v. SOLO 1 Kustoms, Inc. (2018)

27 Cal.App.5th 84, 96 (Vasquez) [case tried on alleged violation of the Automotive

Repair Act; on appeal plaintiff cannot seek to uphold the judgment on unjust enrichment

or wrongful possession theories].) An appellant "cannot challenge a judgment on the

basis of a new cause of action [she] did not advance below." (United States Golf, supra,

69 Cal.App.4th at p. 623.)

       Despite this general rule, courts have discretion to consider a new theory on appeal

if it involves a legal question based on undisputed facts. (Vasquez, supra, 27 Cal.App.5th

at p. 96.) Invoking this exception, Cox asserts that "all of the facts essential to the issue

of whether the plaintiff can establish the elements of the tort of malicious prosecution are

undisputed." In a related argument made in her reply brief, Cox contends that in granting




                                              13
the JNOV motion, the trial court made "finding[s]" that "contain[] all of the elements of

malicious prosecution . . . ."10

         Cox's argument fails because facts essential to establishing malicious prosecution

were not in evidence at trial, nor were they the subject of any "findings" made by the trial

court. For example, "[f]avorable termination 'is an essential element of the tort of

malicious prosecution, and it is strictly enforced.'" (Lane, supra, 20 Cal.App.5th at p.

68.) The core concept is that the termination must reflect on the merits of the prior

action. (Warren v. Wasserman, Comden & Casselman (1990) 220 Cal.App.3d 1297,

1301.)

         Cox contends undisputed evidence establishes favorable termination of the

criminal charges filed against her. She asserts, "In July 2015, after nine hearings, the

criminal judge dismissed the criminal case against Cox." However, there was no

evidence at trial that the criminal charges against Cox were dismissed, much less

evidence that the dismissal reflected on Cox's innocence. Moreover, Cox cites nothing in

the order granting the JNOV where the court made any finding that there had been a

favorable termination.




10      The so-called "finding[s]" to which Cox refers are not findings. In granting the
JNOV motion, the court summarized evidence supporting the verdict, stating, "Cox's
theory of liability against Griffin, and the jury's verdict was based upon the evidence
presented that she was the victim of a false report by Griffn [sic] to the police and, as a
result, was arrested and incarcerated which incarceration subjected her to extreme
emotional distress. In contacting the police Griffin knowingly and intentionally accused
Cox falsely of forgery and embezzlement."
                                              14
       To support her assertion that there was a favorable termination of the criminal

charges, Cox cites pages 9 and 423 of the reporter's transcript and page 530 of the clerk's

transcript. However, page 9 is Cox's attorney's opening statement that "low [sic] and

behold the whole case got dismissed." Opening statement "is not evidence, and no jury

would accept it as facts proved." (People v. Arnold (1926) 199 Cal. 471, 486.) Page 423

is Cox's attorney's closing argument, where he stated that Cox was arrested "for

something [she] didn't do that was dismissed . . . ." However, "'[i]t is axiomatic that

argument is not evidence.'" (People v. Stanley (2006) 39 Cal.4th 913, 961, fn. 10.)

Moreover, Griffin's lawyer's objected during closing argument, stating that the dismissal

of criminal charges was "not presented to the jury." The court sustained that objection.

Page 530 of the clerk's transcript is within trial exhibit 9, a document written by Cox's

attorney stating the court dismissed the criminal charges for insufficient evidence.

However, that exhibit was not received in evidence.11

       Even assuming for the sake of argument that there was admissible evidence that

the criminal charges against Cox were dismissed, "[i]t is not enough, however, merely to

show that the proceeding was dismissed." (Jaffe v. Stone (1941) 18 Cal.2d 146, 150.) If

a dismissal "is of such a nature as to indicate the innocence of the accused, it is a

favorable termination sufficient to satisfy the requirement. If, however, the dismissal is




11    Although not cited by Cox, in closing argument Griffin's lawyer conceded the
criminal case had been dismissed. However, he also stated that the dismissal was "for
whatever reason" and not because the crime report was false.

                                              15
on technical grounds, for procedural reasons, or for any other reason not inconsistent with

[her] guilt, it does not constitute a favorable termination." (Ibid.) Thus, "[w]hen the

proceeding terminates other than on the merits, the court must examine the reasons for

termination to see if the disposition reflects the opinion of the court or the prosecuting

party that the action would not succeed." (Susag v. City of Lake Forest (2002) 94

Cal.App.4th 1401, 1411, italics added.) Cox cites no evidence indicating the reason(s)

for the dismissal, and thus she cannot establish favorable termination as a matter of law.

(Doe v. San Diego-Imperial Council (2017) 16 Cal.App.5th 301, 315.) Accordingly,

Cox's malicious prosecution theory, raised for the first time on appeal, is forfeited.12

       Disagreeing with this analysis, Cox cites Van Audenhove v. Perry (2017) 11

Cal.App.5th 915 (Van Audenhove) for the proposition that a "lawful warrant constitutes a

proceeding for purposes of the elements of malicious prosecution." Cox contends it was

undisputed that she was arrested "pursuant to a warrant" and, because the criminal

charges were ultimately dismissed, "the underlying arrest warrant was terminated in her

favor."



12      Implicitly acknowledging that there was no evidence at trial that her criminal
charges were dismissed, on appeal Cox requests that this court take judicial notice of
online docket entries in her criminal action stating the charges were "dismissed." Cox
concedes these documents were not presented to the trial court. The request for judicial
notice is denied. "Reviewing courts generally do not take judicial notice of evidence not
presented to the trial court." (Vons Companies, Inc. v. Seabest Foods, Inc. (1996) 14
Cal.4th 434, 444, fn. 3.) Moreover, as discussed in the text, absent evidence establishing
that the dismissal reflects on Cox's innocence (and there is none), evidence of the
dismissal is not relevant. (AL Holding Co. v. O'Brien & Hicks, Inc. (1999) 75
Cal.App.4th 1310, 1313, fn. 2 [no judicial notice of irrelevant matters].)

                                             16
       This argument fails because it is based on a misunderstanding of Van Audenhove,

supra, 11 Cal.App.5th 915. In Van Audenhove, there was no arrest warrant and no

criminal prosecution. Rather, after police arrested the plaintiff and jailed him overnight,

the district attorney declined to prosecute. (Id. at p. 917.) The issue on appeal was

whether the arrest alone satisfied the "prosecution" element of malicious prosecution.

(Id. at p. 919.) The court held that an arrest without formal charges is not a prosecution

for purposes of a civil action for malicious prosecution, at least when the arrest is not

pursuant to a warrant. (Id. at p. 917.) Van Audenhove does not address the distinct issue

here, whether the dismissal of charges against Cox after her arrest satisfies the "favorable

termination" element. An opinion is not authority for propositions it does not consider.

(Vasquez, supra, 27 Cal.App.5th at p. 95.)

       Furthermore, Cox's new malicious prosecution theory also fails because "in most

cases, a person who merely alerts law enforcement to a possible crime . . . is not liable

if[] law enforcement, on its own, after an independent investigation, decides to

prosecute." (Williams v. Hartford Ins. Co. (1983) 147 Cal.App.3d 893, 898.) Griffin

testified that she intended the sheriff's department to investigate what she believed to be a

crime. The sheriff's department conducted its own investigation. After a preliminary

hearing, Cox was held to answer two charges. On this record, there is at least a triable

issue of whether the independent investigation defense—which was never presented to

the jury—would have defeated a malicious prosecution claim. Accordingly, Cox cannot

establish malicious prosecution as a matter of law on undisputed facts, and thus we

cannot consider her new theory for the first time on appeal. (Tanguilig v. Neiman

                                             17
Marcus Group, Inc. (2018) 22 Cal.App.5th 313, 330 ["an appellant may not raise a new

theory on appeal when the theory rests on facts that were either controverted or not fully

developed in the trial court"].)

       Additionally, where, "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.) To the extent

this issue was developed at trial, the evidence was conflicting. Cox testified that Griffin

told her to issue the $35,200 check to herself because Griffin had no further interest in the

business and wanted Cox to pay remaining business debts. In contrast, Griffin testified

that she signed the blank check in July 2012 because Cox told her she intended to use it

to pay a vendor $20. Thus, on this element as well, the evidence was not undisputed and,

therefore, we cannot consider Cox's change in theory for the first time on appeal. "As the

[California] Supreme Court has observed, the rule against changing the theory on which a

case was tried 'is to be stringently applied when the new theory depends on controverted

factual questions whose relevance thereto was not made to appear at trial.'" (Schellinger

Brothers v. Cotter (2016) 2 Cal.App.5th 984, 996.)

       E. No New Arguments in Reply Brief

       For the first time in her reply brief, Cox asserts that Griffin waived the litigation

privilege defense by not raising it until the JNOV motion. However, Cox has forfeited

this issue by failing to raise it in her opening brief. "'"Obvious considerations of fairness

in argument demand that the appellant present all of [her] points in the opening brief. To

                                              18
withhold a point until the closing brief would deprive the respondent of [her] opportunity

to answer it or require the effort and delay of an additional brief by permission. Hence

the rule is that points raised in the reply brief for the first time will not be considered,

unless good reason is shown for failure to present them before."'" (Doe v. California

Dept. of Justice (2009) 173 Cal.App.4th 1095, 1115 (Doe).) Cox does not explain why

she could not have raised the issue in her opening brief, and thus we deem it abandoned.

         Additionally, Cox's waiver argument is contained in the section of her reply brief

entitled "Introduction." This violates rule 8.204(a)(1)(B), which requires a brief to state

each point "under a separate heading or subheading." Her point is forfeited for this

additional reason as well. (Opdyk v. California Horse Racing Bd. (1995) 34 Cal.App.4th

1826, 1830, fn. 4.)

         Also for the first time in the reply, Cox asserts that a JNOV was improper because

if Griffin had moved for a directed verdict on the same grounds, that motion would have

been denied. Again, however, Cox does not explain why she failed to raise this in her

opening brief. Accordingly, the point is forfeited. (Doe, supra, 173 Cal.App.4th at p.

1115.)




                                               19
                                 DISPOSITION

     The judgment is affirmed.




                                               NARES, J.

WE CONCUR:



HUFFMAN, Acting P. J.



O'ROURKE, J.




                                     20
