Hartnett v. Landicho
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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.
IN THE COURT OF APPEAL OF THE STATE OF
SECOND APPELLATE DISTRICT
DIVISION SIX
JOHN G. HARTNETT, Plaintiff and Appellant, v. OLIVIA LANDICHO et al., Defendants and Respondents. | 2d Civil No. B189292 (Super. ( |
The trial court sustained without leave to amend a demurrer to a complaint alleging intentional infliction of emotional distress and slander per se. The court concluded, among other matters, that the statement alleged in the complaint is privileged under Civil Code section 47, subdivision (b), statement made in an official proceeding.[1] We affirm.
FACTS
John Hartnett alleged as follows:
He is an attorney who has had a bipolar mental condition since 1970. On
Landicho conducted an exit interview at which Hartnett's right to leave the hospital would be determined. During the interview, Landicho stated, " Are you masturbating?" The question was made in the presence of two mental health personnel, but was in reality an assertion that Hartnett was masturbating in her presence. The " statement" was untrue. At the time Landicho made the " statement," Hartnett was not masturbating, and did not have his hands close to his hips.
DISCUSSION
I
The purpose of a demurrer is to test the legal sufficiency of a complaint. (See Balikov v. Southern California Gas Co. (2001) 94 Cal.App.4th 816, 819.) We review de novo the order sustaining a demurrer without leave to amend, treating the demurrer as " admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law." (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)
II
Hartnett contends his complaint is not barred by section 47.
Section 47, subdivision (b), provides that a publication or broadcast is privileged if it is made " in any . . . official proceeding authorized by law. . . ." The privilege is absolute and cannot be defeated by a showing of malice. (Williams v. Taylor (1982) 129 Cal.App.3d 745, 755-756.) The truth or falsity of the statement is beside the point.
Here Hartnett concedes he was in Hillmont under a 72-hour hold pursuant to Welfare and Institutions Code section 5150. He alleges that Landicho made the statement in question during an exit interview to determine whether he should be released. Thus the statement was made during an official proceeding.
Hartnett relies on Hackethal v. Weissbein (1979) 24 Cal.3d 55, for the proposition that the official proceeding privilege does not apply to the judicial committee of a private nongovernmental body, in that case, a private medical society. But Hartnett's reliance on Hackenthal is misplaced. Here the alleged statement was not made in a proceeding of a private society. Instead, the alleged statement was made in a proceeding to determine whether Hartnett should remain in custody under a state statute.
For the first time in his reply brief, Hartnett argues that Landicho's statement was not privileged because the statement served no rational role in furthering the purpose of the hearing. But matters raised for the first time in appellant's reply brief are deemed waived. (9 Witkin,
The judgment is affirmed. Costs on appeal are awarded to respondents.
NOT TO BE PUBLISHED.
GILBERT, P.J.
We concur:
YEGAN, J.
COFFEE, J.
Vincent O'Neill, Judge
______________________________
John G. Hartnett, in pro. per., for Plaintiff and Appellant.
Clinkenbeard, Ramsey & Spackman, Hugh S. Spackman and Cathy Anderson for Defendants and Respondents.
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[1] All statutory references are to the Civil Code unless otherwise stated.
