No New Theories for Reversal

Cox v. Griffin, No. D074893 (D4d1 Apr. 17, 2019)

Plaintiff won a jury verdict on claims of IIED and false imprisonment, based on defendant’s having made a knowingly false police report. Problem is, Civil Code § 47(b) creates an absolute privilege for making police reports. So the trial court granted a jnov for defendant. There is an exception to § 47(b) for malicious prosecution claims. But Plaintiff neither plead, nor tried, nor instructed the jury on, a malicious prosecution claim. 

And she can’t raise the issue for the first time on appeal. Generally, you can’t do that. There’s an exception for when the new theory is a pure issue of law based on undisputed evidence. (It’s also more likely to support an affirmance instead of a reversal.) But that’s not the case here. For instance, malicious prosecution requires a favorable termination as an element. IIED and false imprisonment do not. There was no evidence in the trial record whether criminal case filed against Plaintiff terminated in her favor. So she’s not entitled to a reversal of the jnov on that theory.

Affirmed.