Escamilla v. Iredale CA4/1

Filed 11/5/26 Escamilla v. Iredale CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA DANIEL ESCAMILLA, D086541 Plaintiff and Appellant, (Super. Ct. No. 37-2024- 00020879-CU-NP-CTL) v. ORDER MODIFYING EUGENE G. IREDALE et al., OPINION AND DENYING REHEARING Defendants and Respondents. NO CHANGE IN JUDGMENT THE COURT: It is ordered that the opinion filed on October 12, 2026 be modified as follows: Page 3, first full paragraph, the first sentence, starting with “Escamilla and another” is deleted and the following sentence is inserted in its place: Escamilla and an unlicensed bondsman, Ismael Soto, reported seeing Smith and Sanders in a park the day before the shooting. Page 5, first full paragraph, the first sentence starting “Escamilla then moved” is deleted and the following sentence is inserted in its place: Escamilla then moved to dismiss the remaining causes of action against him under Federal Rules of Civil Procedure, rules 12(b)(2) and 12(b)(6). Page 18, at the beginning of the first full paragraph, before the sentence beginning with “Escamilla provides no authority,” the following sentence is added: As an initial matter, we note that Civil Code § 47, subdivision (b)(5) took effect on Jan 1, 2021, after the state law claims in the FAC were dismissed. Page 18, footnote 4 is deleted and the following text is inserted in its place: Escamilla also asserts that the “shotgun tactics” rule permits a finding of a lack of probable cause where some claims are tenable but others are not. Here, there were only two causes of action asserted against Escamilla in the operative TAC, one for direct violation of section 1983 and one for conspiracy to violate section 1983. Both rely on similar factual allegations. Escamilla asserts that the state law claims (intentional infliction of emotions distress, defamation, and false light) in the original complaint and FAC were privileged under Civil Code section 47 but fails to acknowledge that the FAC explicitly stated that those  claims were based on dissemination of information to the general public, not the police. Page 21, at the end of the sentence ending with “but that is beside the point” on the second to last line, the following footnote, new footnote 5 is added: Although the “Wanted” poster stated only that Smith was armed and had a long criminal history of violent crimes, it suggested that Sanders and Smith were both felons and were traveling together, and thereby implicated Sander as well. Moreover, although Escamilla asserts that all allegations in the original complaint and FAC regarding public statements stem from the “Wanted” poster, there is nothing in the record to confirm the same. Rather, the state law claims were dismissed early in the litigation, such that there was limited to no discovery or fact finding aimed at those specific claims. The discovery focused instead on statements to law enforcement—including via the “Wanted” posters—forming the basis of the section 1983 claims. This modification does not change the judgment. Appellant’s petition for rehearing is denied. O’ROURKE, Acting P. J. Copies to: All parties 3 Filed 10/12/26 Escamilla v. Iredale CA4/1 (unmodified opinion) NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA DANIEL ESCAMILLA, D086541 Plaintiff and Appellant, (Super. Ct. No. 37-2024- v. 00020879-CU-NP-CTL) EUGENE G. IREDALE et al., Defendants and Respondents. APPEAL from a judgment of the Superior Court of San Diego County, Carolyn M. Caietti, Judge. Affirmed. Law Office of Seth M. Goldberg and Seth M. Goldberg for Plaintiff and Appellant. Rosing Pott & Strohbehn, Heather L. Rosing, David M. Majchrzak and Amara S. Barbará for Defendants and Respondents, Eugene Iredale and Julia Yoo. Law Offices of Donald A. Green and Donald A. Green for Defendant and Respondent, Donald Green. Eugene Iredale, Julia Yoo, and Donald Green (collectively, Respondents) represented the estate of Timothy Gene Smith (the Estate) in a wrongful death action arising out of an officer involved shooting that caused Smith’s death (the Civil Rights Litigation). The operative complaint asserted federal civil rights claims against appellant Daniel Escamilla, based on his role as a bail fugitive recovery agent in the pursuit of Smith. Escamilla prevailed on a motion for summary judgment, resulting in the dismissal of the claims against him, and then sued Respondents for malicious prosecution (the Malicious Prosecution Complaint). The trial court granted a special motion to strike the Malicious Prosecution Complaint in its entirety pursuant to Code of Civil Procedure section 425.16 (anti-SLAPP).1 Escamilla asserts that the trial court made several errors in concluding that he had not demonstrated a probability of success on his Malicious Prosecution Complaint, as required by the second step of the anti-SLAPP analysis. On our own de novo review, we likewise conclude that Escamilla has not established a probability of success, because he did not establish that Respondents lacked probable cause or acted out of malice in pursuing the claims against him. We therefore affirm the judgment. I. FACTUAL AND PROCEDURAL BACKGROUND A. The Shooting At approximately 2:45 p.m. on November 4, 2015, San Diego Police Department (SDPD) Sergeant Scott Holslag fatally shot Timothy Gene Smith. Smith had traveled to California from Missouri with Janie Sanders. Smith and Sanders were both fugitives, with warrants for their arrest in the state of Missouri. Natalie Ann Macey of Macey Bail Bonds, a Missouri company, hired Escamilla as a bail fugitive recovery agent to help apprehend Sanders in California. In that role, Escamilla distributed information to 1 Further unspecified statutory references are to the Code of Civil Procedure. 2 SDPD, including a “Wanted” poster that said that Smith was “a convicted felon with a long criminal history of violent crimes” and that he was armed with an AK-47 and/or .38 revolver. Escamilla and another fugitive recovery agent, Ismael Soto, reported seeing Smith and Sanders in a park the day before the shooting. Soto contacted SDPD and told the dispatcher that they had information that Smith was carrying a .38 revolver and an AK-47. The next day, Soto called SDPD again and stated that he could “confirm an 800-meter radius of Smith and Sanders’ location” and that they were known to be armed and dangerous. SDPD Sergeant David Brecht relayed this information to several officers in the area that day. Later, another SDPD officer reported over police radio that he was pursuing Smith on foot and reiterated that Smith was possibly armed with a .38 revolver. Sergeant Holslag joined the chase and ultimately shot Smith three times in the chest, right torso, and left torso. Sergeant Holslag said that just before the shooting, Smith had climbed onto a ledge, about 10 feet off the ground. Smith put both hands in his pockets, and then his right hand started to come out of his pocket. Sergeant Holslag had heard on the radio traffic that Smith was believed to be armed with a .38 revolver—which Sergeant Holslag knew to be a relatively small handgun—and was “100% convinced in that moment” that Smith was reaching into his pockets for a weapon. In fact, Smith was unarmed at the time of the shooting. B. The Civil Rights Litigation In December 2016, the Estate filed its first complaint in the Civil Rights Litigation. The Estate was represented by Respondents. The complaint asserted causes of action against various actors, including the City of San Diego, Sergeant Holslag, Macey, and Escamilla. As relevant here, the Estate asserted various causes of action under title 42 United States Code 3 section 1983 (section 1983) and an additional cause of action for conspiracy to violate civil rights against Escamilla. Escamilla was never served with the complaint but learned of it when he received a call from a reporter. He sent a letter to Respondents, dated December 22, 2016, in which he asserted that the claims asserted against him were “wholly without merit” and demanded that they be dismissed immediately. Escamilla argued that his communications with SDPD were protected under Civil Code section 47, subdivision (b) and that the lawsuit violated the attorneys’ ethical obligations. In addition, he notified Respondents that he would file a motion under Federal Rules of Civil Procedure, rule 11 if they proceeded with the litigation. Respondents did not dismiss their action but did file a first amended complaint (the FAC), which narrowed the causes of action asserted against Escamilla. In the FAC, the Estate alleged: Sanders was on bail for minor, non-violent drug possession charges. Macey hired Escamilla and another bail recovery agent, Leland Chapman, to locate Sanders in California. Macey, Escamilla, and Chapman then “fabricated false information about past violent activity” attributable to both Sanders and Smith, “for the purpose of engaging [SDPD’s] assistance to apprehend persons who otherwise would have been ignored due to the minor nature of their alleged crimes.” Respondents included picture of the “Wanted” as an exhibit to the FAC. The Estate asserted numerous causes of action, primarily against Sergeant Holslag and the City of San Diego. Against Escamilla, Macey, Chapman, and their related business entities, the Estate asserted causes of action for conspiracy to violate civil rights under section 1983, intentional infliction of emotional distress, defamation, and false light. However, 4 Respondents voluntarily dismissed the cause of action for defamation after realizing it was time-barred. Escamilla then moved to dismiss the remaining causes of action against him under Federal Rules of Civil Procedure, rule 12(b)(2). Respondents opposed only the ninth cause of action, for conspiracy to commit civil rights violations. The district court denied the motion as to the conspiracy claim. The court found, “the facts alleged in the FAC and the reasonable inferences from those facts plausibly suggest that the actions occurred under color of state law forming the basis of Plaintiffs’ ninth cause of action.” Respondents filed a second amended complaint in March 2018, alleging only one cause of action against Escamilla, for conspiracy to violate civil rights under section 1983. Thereafter, Respondents obtained new evidence, including audio recordings of Escamilla and Soto’s communications with SDPD around the time of pursuit. Based on those recordings, Respondents sought permission to file a third amended complaint (the TAC), identifying Soto and Sergeant Brecht as additional defendants, and asserting a renewed cause of action against Escamilla (and others) for direct violation of civil rights under section 1983. The district court granted the request over Escamilla’s objection. The defendants, including Escamilla, then filed answers to the TAC, and it became the operative complaint. In addition to the allegations in the previous complaints, the Estate included additional factual allegations in the TAC regarding Escamilla and Soto’s communications with SDPD. Escamilla and Soto each communicated with SDPD on November 3, 2015, stating that they were on surveillance in the area of Fanuel Park in Pacific Beach and that they would likely call SDPD for backup. Later that day, they told SDPD that Sanders and Smith 5 were in a public restroom, causing SDPD to send officers, canines, and a police helicopter. Sanders and Smith were not captured that day. On November 4, 2015, Soto again communicated with SDPD dispatch several times, stating that they had narrowed Sanders and Smith’s location to an 8- block radius and reiterating that Smith was both dangerous and armed. The Estate alleged further that Sergeant Brecht handed out copies of the “Wanted” poster at an SDPD briefing on November 4, 2015 and told officers to look for a male and female who were wanted on felony warrants and armed with an AK-47 and a pistol. Sergeant Brecht also distributed the “Wanted” poster to his squad that would be in the area where Sanders and Smith were believed to be later that day. Finally, the Estate alleged that, after the shooting, Escamilla stated that he was the source of the information to SDPD that Smith was armed and dangerous and that he had verified that information. As to the section 1983 claims asserted against Escamilla, Macey, and now Soto, the Estate asserted that the bondsmen and recovery agents both conspired together and acted under color of state law by providing false information to SDPD with the intent of essentially directing SDPD to recover Sanders and Smith for their benefit.2 C. The Federal District Court’s Grant of Summary Judgment in Favor of Escamilla After further discovery, Escamilla filed a motion for summary judgment, which the federal district court granted, dispensing with the claims asserted against Escamilla. In its written order, the district court 2 “[T]o state a claim under section 1983, the plaintiff must allege that a person acting under color of state law deprived him or her of a federally guaranteed right.” (Julian v. Mission Community Hospital (2017) 11 Cal.App.5th 360, 395–396.) 6 explained that there is no rigid formula to determine whether a private citizen is acting under color of state law in a particular situation and that, instead, the court must sift through the specific facts and circumstances in each case. Turning to the record here, the court explained: “Viewing the facts in the light most favorable to [Respondents], Macey assisted in the creation of a ‘Wanted’ poster that stated that Smith was armed and dangerous. Escamilla used information provided by Macey and by the first ‘Wanted’ poster to create the second ‘Wanted’ poster, which he then provided to [Sergeant] Brecht. Escamilla also provided this information to Soto, who told the police dispatcher that Smith was armed, dangerous, and had a long history of violent crime. . . . Holslag heard on the police radio that Smith was possibly armed and dangerous and believed that Smith had a gun when he shot Smith.” The court concluded that: “Macey providing information to Escamilla, and Escamilla providing information to SDPD about Smith, even if false, did not constitute joint participation with SDPD in the use of lethal force. [Thus, the Estate has] failed to present evidence sufficient for a reasonable juror to conclude that Macey or Escamilla acted in concert with SDPD in the deprivation of Smith’s Fourth Amendment rights,” or “that either Macey or Escamilla was a state actor.” Turning to the conspiracy claim, the court explained that it was based on the same facts as the direct section 1983 cause of action. It stated: “The underlying constitutional violation in this case is the use of excessive force by Sergeant Holslag against Smith. Viewing the facts in the light most favorable to [the Estate], the bondsmen provided information to each other and to SDPD that Smith was armed with one or more guns and had a history of violent crime, in order to induce SDPD’s assistance in arresting Sanders. There is insufficient evidence of a causal connection between Macey and Escamilla’s actions and the assertedly unconstitutional 7  actions of Sergeant Holslag. [The Estate has] not come forward with evidence sufficient for a reasonable juror to conclude that Escamilla and Macey conspired with SDPD to deprive Smith of his right to be free from excessive force.” The Estate appealed and the United States Court of Appeals for the Ninth Circuit affirmed the grant of summary judgment in a memorandum opinion. In the opinion dated March 14, 2024, the Ninth Circuit found that Escamilla did not engage in a “ ‘substantial degree of cooperative action’ in the challenged use of deadly force,” nor was there evidence of a preconceived plan or agreement, and thus, Escamilla could not be considered a state actor. Moreover, the Ninth Circuit court found that there was no evidence indicating that Escamilla exerted any degree of control over SDPD or Sergeant Holslag’s use of force. D. The Malicious Prosecution Complaint In May 2024, Escamilla filed the Malicious Prosecution Complaint against Respondents, asserting five separate causes of action, each for malicious prosecution, based on each of the various complaints and the appeal. With respect to the first cause of action, “Malicious Prosecution— Initiating Underlying Action,” Escamilla alleged that Respondents “lacked probable cause to assert the claims against [him]. [Escamilla] did not violate any of Mr. Smith’s constitutional rights nor cause his death. [Escamilla] merely provided true and accurate information to law enforcement to assist in the lawful apprehension of fugitives.” Escamilla also pointed to the December 22, 2016 letter, “warning of the frivolous nature of the federal lawsuit brought against him,” and alleged that Respondents refused to dismiss the claims against him, despite the letter. In addition, Escamilla alleged that Respondents acted with malice and brought claims for the 8 “improper purpose of harassing him and damaging his business and reputation, despite lacking probable cause for the claims.” Escamilla made similar allegations as to each additional step in the litigation. E. Respondents’ Anti-SLAPP Motion to Strike Respondents filed a motion to strike the complaint under section 425.16.3 They asserted that they had plausibly argued that the excessive use of force that led to Smith’s death was a foreseeable consequence of Escamilla’s actions and that there was no evidence that they acted with malice, particularly since there were no facts suggesting that they had any interactions with Escamilla or his business outside the context of the Civil Rights Complaint. Escamilla did not dispute that the Civil Rights Litigation constituted protected activity, and that all asserted claims in the Malicious Prosecution Complaint therefore met the first prong of the anti-SLAPP analysis. Escamilla asserted, however, that he had a probability of success on the merits under the second prong, and that Respondents had demonstrated malice by going forward despite his December 22, 2016 warning letter and through Iredale’s demonstrated hostility during his deposition. Escamilla filed a declaration in support of his opposition. He asserted that Macey contacted him in November 2015 regarding Sanders, and that Macey informed Escamilla that Sanders was traveling with Smith. Escamilla “carefully verified information [he] received from multiple reliable sources including Missouri bail agent Natalie Macey, Leland Chapman, and Greg Wood.” Escamilla stated, “The information I provided to the San Diego 3 Respondent Green joined in the motion to strike and also joins in Respondents arguments on appeal. 9 Police Department was not false or misleading. All information was true and accurate and consistent with what was conveyed to me by the bail agent and prior investigators. I did not embellish, exaggerate, or fabricate any information in my communications with law enforcement.” Escamilla asserted further that Macy also hired Soto, and that he was not associated with Soto in any way outside of the fact that they were both hired for this particular case. After hearing argument from the parties, the trial court granted the motion to strike Escamilla’s complaint in its entirety. The trial court determined that the complaint did rise from protected activity, and that Escamilla had not demonstrated that Respondents lacked probable cause or acted with malice. More specifically, the court found that Escamilla had not established that any privilege arising from his communication with law enforcement precluded the claims against him; that the Ninth Circuit precedent he pointed to did not render the claims legally untenable; and that the summary judgment ruling did not equate to a finding that Respondents lacked probable cause. Further, Escamilla could not establish malice through a lack of probable cause or based on Iredale’s deposition conduct. Thus, the trial court struck the Malicious Prosecution Complaint in its entirety and entered judgment in favor of Respondents. Escamilla filed a timely notice of appeal. II. DISCUSSION A. Relevant Legal Principles and Standard of Review Section 425.16, subdivision (b)(1) provides: “A cause of action against a person arising from any act of that person in furtherance of the person’s right of petition or free speech under the United States Constitution or the California Constitution in connection with a public issue shall be subject to a special motion to strike, unless the court determines that the plaintiff has 10 established that there is a probability that the plaintiff will prevail on the claim.” Courts analyze of a motion to strike pursuant to section 425.16 using a two-step process. “At the first step, the moving defendant bears the burden of identifying all allegations of protected activity, and the claims for relief supported by them.” (Baral v. Schnitt (2016) 1 Cal.5th 376, 396.) At the second step, “the burden shifts to the plaintiff to demonstrate that each challenged claim based on protected activity is legally sufficient and factually substantiated. The court, without resolving evidentiary conflicts, must determine whether the plaintiff’s showing, if accepted by the trier of fact, would be sufficient to sustain a favorable judgment.” (Ibid.) To prevail, the plaintiff must establish that the complaint alleges facts sufficient to state a legally cognizable claim, that is “supported by a sufficient prima facie showing of facts to sustain a favorable judgment if the evidence submitted by the plaintiff is credited.” (Navellier v. Sletten (2002) 29 Cal.4th 82, 89.) The court must strike any claims for which the plaintiff cannot meet this burden. (Baral, at p. 396.) “We review de novo the grant or denial of an anti-SLAPP motion. [Citation.] We exercise independent judgment in determining whether, based on our own review of the record, the challenged claims arise from protected activity.” (Park v. Board of Trustees of California State University (2017) 2 Cal.5th 1057, 1067.) “We do not, however, weigh the evidence, but accept plaintiff’s submissions as true and consider only whether any contrary evidence from the defendant establishes its entitlement to prevail as a matter of law.” (Ibid.) B. The Claims Arise From Protected Activity The right to petition for the redress of grievances protected by section 425.16 includes the right to file and prosecute a civil action. (§ 425.16, subd. 11 (b)(1); Rusheen v. Cohen (2006) 37 Cal.4th 1048, 1056.) Because claims for malicious prosecution arise from the filing of a lawsuit, they necessarily arise from activity protected by the statute. (See Jarrow Formulas, Inc. v. LaMarche (2003) 31 Cal.4th 728, 735.) Escamilla does not dispute that all the claims in his Malicious Prosecution Complaint arise from protected activity. Accordingly, we focus our analysis on whether Escamilla has met his burden of establishing a probability of success on the merits of his claims. (See id. at pp. 735, 741.) C. Escamilla Has Not Established a Probability of Success To prevail on his malicious prosecution claims, Escamilla must show that a prior action was: (1) commenced by or at the direction of the defendant; (2) initiated or maintained both without probable cause and with malice; and (3) pursued to a legal termination favorable to the plaintiff. (Escamilla v. Vannucci (2025) 17 Cal.5th 571, 577.) Here, there is no dispute that Respondents commenced legal action against Escamilla and that their claims against Escamilla were terminated in a manner favorable to him. Thus, to establish a probability of success, Escamilla must show that Respondents initiated and maintained their action without probable cause and with malice. We address each in turn. 1. Probable Cause “The question of probable cause is ‘whether as an objective matter, the prior action was legally tenable or not.’ ” (Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260, 292.) “ ‘A litigant will lack probable cause for his action either if he relies upon facts which he has no reasonable cause to believe to be true, or if he seeks recovery upon a legal theory which is untenable under the facts known to him.’ ” (Ibid.) “ ‘ “The test applied to determine whether a claim is tenable is ‘whether any reasonable attorney 12 would have thought the claim tenable.’ ” ’ ” (Golden State Seafood, Inc. v. Schloss (2020) 53 Cal.App.5th 21, 33.) Escamilla argues that the claims asserted against him in the Civil Rights Litigation were legally untenable for several reasons. We are not persuaded. First, he asserts that Respondents could not prove that any of Escamilla’s actions caused or contributed to the shooting because the evidence established that Sergeant Holslag was not present at the November 4, 2015 briefing where Sergeant Brecht handed out copies of the “Wanted” poster to SDPD officers. But that fact is inconsequential. As Escamilla concedes, Sergeant Holslag did hear radio communications indicating that Smith was armed with a .38 revolver, a weapon that he was familiar with, and that information, along with Smith’s behavior, caused Sergeant Holslag to be “100% convinced in that moment” that Smith was reaching into his pockets for that revolver. It makes no difference whether the information came from Sergeant Brecht or the radio communications relaying Soto’s statements to the dispatcher. Escamilla argues the information Sergeant Holslag heard came from Soto, not him, and that the factual allegations in the TAC improperly conflated words or actions between him and Soto. Escamilla fails to acknowledge that Soto testified that any information about Smith that he conveyed to SDPD came from Escamilla. In addition, in a recorded discussion that occurred just after the shooting, Escamilla confirmed that fact, stating that he was the source of the information about Smith. Accordingly, there was a legally tenable, factually plausible theory by which Escamilla relayed false information to SDPD, either directly or through Soto, with the intent to induce action on behalf of SDPD in apprehending Sanders 13 and Smith; and that information directly influenced Sergeant Holslag’s mindset and conduct at the time of the shooting. Escamilla points to the federal district court’s finding that “Macey providing information to Escamilla, and Escamilla providing information to SDPD about Smith, even if false, did not constitute joint participation with SDPD in the use of lethal force.” But the district court was not discussing the causal link between the information and the shooting at this juncture. Rather, the district court made this statement in the context of discussing whether Escamilla could be considered a state actor as required by section 1983. This leads us to Escamilla’s second argument, that controlling Ninth Circuit authority precluded a legally tenable argument that Escamilla was acting under color of state law. “In order to state a claim under 42 U.S.C. § 1983, a plaintiff must allege that (1) the defendants were acting under color of state law and (2) that their conduct subjected him or caused him to be subjected to a deprivation of some right, privilege or immunity secured by the Constitution of the United States.” (Ouzts v. Maryland Nat. Ins. Co. (9th Cir. 1974) 505 F.2d 547, 550 (Ouzts).) Important here, “there is no rigid formula for measuring state action for purposes of section 1983 liability. Rather, it is a process of ‘sifting facts and weighing circumstances’ which must lead us to a correct determination.” (Ibid.) At the same time, it is well established that private conduct “is not within the protective orbit of section 1983.” (Ibid.) Ouzts, on which Escamilla relies, involved a section 1983 claim brought against a bail bondsman and several of its agents, after Ouzts was taken into custody by two private fugitive recovery agents in California while fleeing bail posted in Nevada. (Ouzts, supra, 505 F.2d at p. 550.) Ouzts alleged that the recovery agents were “special police officers of Los Angeles County and 14 displayed badges of authority,” but defendants denied that allegation, and the court found that neither agent was “clothed with authority by any official governmental entity.” (Ibid.) Based on that finding, and because the defendants were acting “upon the authority of their private contract of bail,” and not any state law, the court found that they were not acting under color of state law for the purposes of section 1983. (Id. at pp. 553–555.) Notably, there was no contention in Ouzts, as in the present case, that the bail bondsmen engaged the police (or any other government entity) to assist in their pursuit of Ouzts. (See Ouzts, supra, 505 F.2d 547; Bailey v. Kenney (D.Kan. 1992) 791 F.Supp. 1511, 1522 (Bailey) [noting “the bondsman in Ouzts [did not] apprehend his fugitive with the assistance of police officers”].) Thus, Ouzts is readily distinguishable from the factual scenario presented by the allegations at issue here. Despite the holding in Ouzts, there is authority suggesting that a private actor can act under color of state law in some circumstances. In Lugar v. Edmonson Oil Co. Inc. (1982) 457 U.S. 922, our high court explained that a person may “fairly be said to be a state actor . . . because he is a state official, because he has acted together with or has obtained significant aid from state officials, or because his conduct is otherwise chargeable to the State. Without a limit such as this, private parties could face constitutional litigation whenever they seek to rely on some state rule governing their interactions with the community surrounding them.” (Id. at p. 937.) Since, other courts have found that a bail bondsman acted under color of state law by enlisting the aid of police officers. (See Bailey, supra, 791 F.Supp. at p. 1522–1523 [discussing cases and finding sufficient factual support for a section 1983 claims where bail bondsman relied on police officers show of authority and use of force to apprehend fugitive]; Jackson v. Pantazes (4th 15 Cir. 1987) 810 F.2d 426, 429 [applying Lugar to conclude a bondsman acted under color of state law by obtaining significant aid from a police officer and thus acting jointly with a public official].) Likewise, here, the Estate alleged that Escamilla and the other bondsmen intentionally made false statements to SDPD with the intent to utilize SDPD’s authority to recover Sanders and Smith for their own benefit. This was, at a minimum, a legally tenable claim. Escamilla also relies on Arnold v. International Business Machines Corp. (9th Cir. 1981) 637 F.2d 1350 (Arnold) as “contradicted controlling authority,” but it does not support his position either. There, Arnold sued International Business Machines (IBM) and several of its employees for alleged violations of his civil rights, arising out of criminal action taken against him for the theft of IBM documents and trade secrets. (Arnold, supra, 637 F.2d at p. 1352.) “Arnold allege[d] that [the defendants] failed to disclose to the law enforcement officials evidence that would have been exculpatory to him in the criminal investigation, and that they caused the preparation of the arrest and search warrants, knowing that the affidavits in support of those warrants contained misstatements of facts and failed to disclose the true facts.” (Id. at p. 1354.) Arnold alleged further that he was detained for six hours in part because of IBM’s actions, and that there was a conspiracy between defendants and state officials, such that “defendants’ activities were undertaken under color of state law.” (Ibid.) The court explained that the issue was whether there was any evidence that the private defendants directed or caused the law enforcement actions at issue. (Arnold, supra, 637 F.2d at p. 1356.) The court ultimately found that there was some evidence that IBM had some involvement with the relevant law enforcement task force, but not to indicate that defendants exerted any control over the decisionmaking of the task force. (Id. at p. 1357.) In 16 addition, the court found that there were no facts showing that IBM in fact influenced the decisions of the task force. (Ibid.) Thus, it concluded Arnold could not maintain a cause of action under section 1983. (Id. at p. 1358.) In reaching that conclusion, the court distinguished Arnold’s claims from those at issue in Smith v. Brookshire Bros., Inc. (5th Cir. 1975) 519 F.2d 93, in which the court determined that store managers could be liable under section 1983 for making false statements to the police leading to an arrest, because there was evidence that the arrest was part of a preconceived plan or custom between the store and police. (Id. at p. 94, Arnold, supra, 637 F.2d at p. 1358.) Here, the crux of the Estate’s claims was that Escamilla made false claims to SDPD with the intent of having SDPD apprehend Sanders and Smith for his benefit. Given Escamilla’s occupation, it is reasonable to infer that Escamilla either had utilized SDPD in a similar manner in other fugitive cases, or that he believed his statements would in fact induce SDPD to act. This was more akin to the allegations in Smith than in Arnold. Finally, Escamilla claims that his communications with SDPD were privileged under Civil Code section 47, subdivision (b). Civil Code section 47, provides, in relevant part: “A privileged publication or broadcast is one made: “(a) In the proper discharge of an official duty. “(b) In 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 pursuant to Chapter 2 (commencing with Section 1084) of Title 1 of Part 3 of the Code of Civil Procedure, except as follows: [¶. . .¶] (5) This subdivision does not make privileged any communication between a person and a law 17  enforcement agency in which the person makes a false report that another person has committed, or is in the act of committing, a criminal act or is engaged in an activity requiring law enforcement intervention, knowing that the report is false, or with reckless disregard for the truth or falsity of the report.” Escamilla provides no authority, nor are we aware of any, establishing that Civil Code section 47 precludes a claim under section 1983 based on communications with law enforcement. To the contrary, the Ninth Circuit has held that “ ‘[c]onduct by persons acting under color of state law which is wrongful under 42 U.S.C. § 1983 or § 1985(3) cannot be immunized by state law. A construction of the federal statute which permitted a state immunity defense to have controlling effect would transmute a basic guarantee into an illusory promise; and the supremacy clause of the Constitution insures that the proper construction may be enforced.’ ” (Kimes v. Stone (9th Cir. 1996) 84 F.3d 1121, 1127.) Accordingly, Escamilla has not established that Respondents lacked probable cause due to the privilege set forth in Civil Code section 47.4 Based on the foregoing, we conclude that Escamilla has not established that Respondents lacked probable cause to bring or maintain the claims asserted against Escamilla pursuant to section 1983. 2. Malice We turn next to Escamilla’s assertion that Respondents acted with malice. “The malice element of the malicious prosecution tort goes to the 4 Escamilla also asserts that the “shotgun tactics” rule permits a finding of a lack of probable cause where some claims are tenable but others are not. Here, there were only two causes of action asserted against Escamilla, one for direct violation of section 1983 and one for conspiracy to violate section 1983. Both rely on similar factual allegations. 18 defendant’s subjective intent in initiating the prior action.” (Sierra Club Founda