Vinson v. SF Community College Dist.

Filed 6/26/08 Vinson v. SF Community College Dist. CA1/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

Plaintiff Harold Vinson filed a complaint alleging that he had been harmed by an accusation made by defendant San Francisco Community College District (City College).[1] After the trial court sustained a demurrer premised, in part, on the vagueness of his complaint, Vinson clarified in an amended complaint that the false statement had been made during a proceeding in superior court. The trial court sustained a demurrer to the amended complaint without leave to amend on grounds, among others, that the claim was barred by the litigation privilege of Civil Code section 47, subdivision (b). After Vinson filed a pleading that the trial court construed as a motion for reconsideration and denied, Vinson appealed from the denial of the motion for reconsideration. Because we conclude that the motion for reconsideration is not an appealable order, we dismiss the appeal.

I. BACKGROUND

Vinson filed a pro se complaint against City College on October 23, 2006. Claiming a violation of various sections of the California Constitution, the complaint alleged, An accusation being made by the City College of San Francisco has infringed upon my ability to utilize the school. Such an accusation if proven untrue gives rise to damages. Such allegations, while not substantially proven by the defendant have led to a tremendous restriction upon my person to freely traverse this campus. This restriction is imbedded in the constant fear of recurring condemnation or harassment (unpleasantness). The complaint sought compensatory damages, punitive damages, and costs. The cover sheet characterized defendants allegations as a civil rights claim and purported to seek injunctive as well as monetary relief.

City College demurred to the complaint on the grounds that it was vague and unintelligibly pleaded, failed to allege compliance with the Tort Claims Act (Gov. Code, 810 et seq.), and was barred by Government Code section 818.8, which states that a public agency is not liable for injury due to a misrepresentation by an employee of the agency. City College separately moved to strike the demand for punitive damages.

Vinson filed an opposition to the demurrer. The opposition did not explain the circumstances of his claim, other than to confirm that the claim was based on the making of a false accusation by an employee of City College. Vinson attached to the opposition a proposed amended complaint. The amended complaint paraphrased the Declaration of Independence, cited several constitutional provisions, and alleged that [a]n accusation being made by the City College of San Francisco has infringed upon my ability to utilize the school. Accusation being made by one Mark Robinson an employee of the school on December 13, 2005 at approximately 10:45am in Superior Court.

The trial court struck defendants opposition as untimely filed, sustained the demurrer with 10 days leave to amend, and granted the motion to strike with leave to amend.

City College subsequently filed a demurrer to the amended complaint, adding to their prior grounds that the amended complaint was barred by the litigation privilege, Civil Code section 47, subdivision (b). City College also renewed its motion to strike and filed a request for judicial notice, attaching documents demonstrating that on the day specified by Vinson in the amended complaint, December 13, 2005, a hearing had been held in small claims court on a lawsuit filed by Vinson against, among others, Mark Robinson III and City College, resulting in a judgment entered in defendants favor. Vinsons opposition to the demurrer did not deny that the accusation occurred in superior court, nor did it further explain the basis for Vinsons lawsuit.

The trial court sustained the demurrer and granted the motion to strike without leave to amend on the basis of, among other grounds, Civil Code section 47, subdivision (b) and Government Code section 818.

Vinson thereafter filed a request to file a second amended complaint. The request continued to refer to the December 2005 misrepresentation, but it also indicated that Vinson was prepared to add an allegation regarding an untrue statement made by Robinson while on the grounds of the City College of San Francisco on January 17, 2004. It also stated that defendants Mark Robinson unduly contacts [sic] telephone call on or about 1/16/05 January 16, 2005 and letter on or about 12/15/04 December 15, 2004 and continued attempts to provoke an altercation including aggression, intimidation, deceit, indifference and harassment and referred to the failure of City College officials to respond to letters apparently written by Vinson.

City College filed a pleading characterizing the request as a motion for reconsideration and argued that it should be denied for failure to satisfy Code of Civil Procedure section 1008. The trial court agreed and denied the request.

II. DISCUSSION

Vinson, now represented by counsel, has filed an appeal from the courts [o]rder denying motion for reconsideration. City College contends that Vinsons appeal must be dismissed as taken from a nonappealable order and, in the alternative, that the trial court correctly sustained their demurrer and denied the motion for reconsideration.

The issue of appealability is governed by Morton v. Wagner (2007) 156 Cal.App.4th 963 (Morton), in which the defendant filed a motion for reconsideration after the plaintiff had been awarded an injunction. The trial court denied the motion for reconsideration and, in the same order, declared the defendant to be a vexatious litigant. (Id. at pp. 966967.) The defendant filed a notice of appeal that purport[ed] to appeal from the decision and order . . . denying reconsideration . . . and the decision granting issuance of a pre-filing order.  (Id. at p. 967.) In accepting the argument that the defendant could not maintain an appeal from either the order granting an injunction or the order denying his motion for reconsideration, the court ruled as follows:

Despite appellants statement to the contrary in the civil case information statement, he has not appealed the judgment granting the petition for an injunction. His notice of appeal identifies only the order denying the motion for reconsideration and designating him a vexatious litigant as the order from which the appeal is taken. While a notice of appeal must be liberally construed, it is the notice of appeal which defines the scope of the appeal by identifying the particular judgment or order being appealed. [Citations.] Care must be taken in drafting the notice of appeal to identify the order or judgment being appealed so as not to mislead or prejudice respondent. [Citation.] The notice here specifically and clearly excluded the judgment from the subject of the appeal. Even construing the notice of appeal liberally, we cannot construe it to include an appeal from the judgment because doing so would be prejudicial to respondent. [Citation.] Therefore, on appeal, we will address only the order denying the motion for reconsideration and deeming appellant a vexatious litigant. [] . . . [] There is a split of authority as to whether an order denying a motion for reconsideration is separately appealable. [Citation.] . . . [] . . . The majority of recent cases have concluded that orders denying motions for reconsideration are not appealable, even where based on new facts or law. [Citations.] These courts have concluded that orders denying reconsideration are not appealable because Section 904.1 of the Code of Civil Procedure does not authorize appeals from such orders, and to hold otherwise would permit, in effect, two appeals for every appealable decision and promote the manipulation of the time allowed for an appeal. [Citations.] Nothing in the circumstances of this case persuades us to disregard the reasoning of those cases. We conclude the trial courts order denying appellants motion for reconsideration is not an appealable order. [Citation.] (Morton, supra, 156 Cal.App.4th at pp. 967969, fn. omitted.)

Morton is controlling here. Like the notice of appeal in Morton, Vinsons notice of appeal specifically designated the order denying his motion for reconsideration as the order from which it was taken. Rather than checking the box on the form notice of appeal for Judgment of dismissal after an order sustaining a demurrer, Vinson checked the box for Other and typed in, Order denying motion for reconsideration. Accordingly, like the appellant in Morton, he specifically and clearly excluded the judgment from the subject of the appeal (Morton, supra, 156 Cal.App.4th at p. 967) and cannot maintain an appeal from the order sustaining a demurrer to his amended complaint. Further, because the order from which the appeal was taken, the order denying reconsideration, is a non-appealable order, Vinsons appeal must be dismissed in its entirety.

Even if we construed Vinsons appeal as having been taken from the judgment, however, we would find no basis for reversal.

On appeal, the trial courts decision to sustain the demurrer without leave to amend and subsequent judgment are subject to review for abuse of discretion. As a general rule, if there is a reasonable possibility the defect in the complaint could be cured by amendment, it is an abuse of discretion to sustain a demurrer without leave to amend. Nevertheless, where the nature of the plaintiffs claim is clear, and under substantive law no liability exists, a court should deny leave to amend because no amendment could change the result. The burden is on the plaintiff to demonstrate the manner in which the complaint might be amended, and the appellate court must affirm the judgment if it is correct on any theory. [Citations.] (City of Atascadero v. Merrill Lynch, Pierce, Fenner & Smith, Inc. (1998) 68 Cal.App.4th 445, 459.)

City College lists several reasons for affirming the grant of demurrer to Vinsons amended complaint, but we find it necessary to consider only one of them. Vinsons allegations in his amended complaint, combined with the judicial records submitted by City College, make clear that his lawsuit is premised on a false statement made by Mark Robinson during a small claims court hearing on December 13, 2005. Such a claim is barred by the litigation privilege. As the Supreme Court recently explained, The litigation privilege of Civil Code section 47, subdivision (b) . . . , generally protects from tort liability any publication made in connection with a judicial proceeding. (Jacob B. v. County of Shasta (2007) 40 Cal.4th 948, 952.)  The usual formulation is that the privilege applies to any communication (1) made in judicial or quasi-judicial proceedings; (2) by litigants or other participants authorized by law; (3) to achieve the objects of the litigation; and (4) that have some connection or logical relation to the action. [Citations.] [] The purposes of section 47, subdivision (b), are to afford litigants and witnesses free access to the courts without fear of being harassed subsequently by derivative tort actions, to encourage open channels of communication and zealous advocacy, to promote complete and truthful testimony, to give finality to judgments, and to avoid unending litigation. [Citation.] . . . To further these purposes, the privilege has been broadly applied. It is absolute and applies regardless of malice. (Id. at pp. 955956.)

Civil Code section 47, subdivision (b) provides an absolute privilege whose only exception is a claim for malicious prosecution. (Hagberg v. California Federal Bank (2004) 32 Cal.4th 350, 360.) Because Vinsons claim is premised on a statement made during a judicial hearing, the trial court did not abuse its discretion in concluding that under the substantive law City College is not liable to Vinson and that no further amendment could change that result.

Vinson contends that it was an abuse of discretion for the trial court to deny leave to amend after sustaining the demurrer to the amended complaint because the court had granted leave to amend only one prior time. After the trial court provided Vinson an opportunity to amend to clarify his initial pleading, however, Vinsons amended complaint made clear that his claim was premised on a statement made in court. Once it became clear Vinson was attempting to plead a claim that was legally barred, the trial court did not abuse its discretion in refusing further leave to amend.

Vinson contends that he could have amended his complaint to state claims for a violation of civil rights under 42 United States Code section 1983, misrepresentation, invasion of privacy, or for nonmonetary relief. While such claims might have avoided City Colleges argument that Vinson failed to plead compliance with the Tort Claims Act, none of them would have avoided Civil Code section 47, which provides an absolute privilege. (Hagberg v. California Federal Bank, supra, 32 Cal.4th at p. 360.) Regardless of the legal characterization of Vinsons claim, the claim would be barred because it was based on a statement made in the course of a judicial proceeding.

Vinson also argues that in his motion for reconsideration he pleaded new facts that would have provided the basis for a claim that was not barred. As noted above, however, a trial courts ruling on a motion for reconsideration is not appealable. For that reason, we do not reach the trial courts exercise of discretion in denying Vinsons motion for reconsideration.

III. DISPOSITION

The appeal is dismissed.

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Margulies, J.

We concur:

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Marchiano, P.J.

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Swager, J.

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[1] Vinsons lawsuit lists two defendants, City College of San Francisco and Community College Board of San Francisco. These two defendants responded to the complaint as a single entity, San Francisco Community College District, and Vinson acknowledges in his reply brief that this entity is the proper defendant.