Cope v. Cal. State Univ. Northridge

Filed 10/18/06 Cope v. Cal. State Univ. Northridge CA2/7

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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 CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

APPEAL from a judgment of the Superior Court of Los Angeles County. L. Jeffrey Wiatt, Judge. Affirmed.

Dennis Palmieri for Plaintiff and Appellant.

Anderson, McPharlin & Connors, Michael S. Robinson and Vanessa H. Widener for Defendant and Respondent Matadors Community Credit Union.

Bill Lockyer, Attorney General, Andrea Lynn Hoch, Chief Assistant Attorney General, James M. Sciavenza, Senior Assistant Attorney General, Marsha S. Miller and David Adida, Deputy Attorneys General, for Defendant and Respondent Board of Trustees of the California State University.

____________________

Plaintiff Joliebeth Cope (Cope) appeals from a judgment of dismissal following the trial court’s sustaining of defendants’ California State University Northridge (CSUN) and Matadors Community Credit Union (Matadors) demurrers to her complaint for negligence, defamation, and intentional infliction of emotional distress. She contends the trial court erred in concluding her claims were barred by governmental immunity and the litigation privilege of Civil Code section 47, subdivision (b). We affirm.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

Plaintiff’s complaint alleged that she was employed by CSUN as a Dispatch Supervisor in CSUN’s Public Safety Department. On July 8, 2003, she was dismissed from her position based upon alleged dishonesty, unprofessional conduct, and/or illegal conduct. Plaintiff alleged that CSUN and Matadors filed a police report with the Los Angeles Police Department (LAPD) concerning such conduct that defendants knew or should have known contained false and misleading information, and the LAPD declined to file criminal charges against plaintiff. Plaintiff alleged that defendants had a duty to properly hire, train and supervise their employees and such duty was breached by the negligent filing of the police report. Plaintiff further alleged the police report was filed for the purposes of disparaging her character and reputation and causing her emotional distress. Plaintiff alleged the conduct of the agents and employees of defendant CSUN was ratified and authorized by CSUN, and that it remained liable pursuant to Government Code section 815.2, subdivision (a).

CSUN demurred to the complaint, asserting that it was immune from liability under Government Code section 821.6[1] and that any statements made to the LAPD were privileged by Civil Code section 47, subdivision (b)(3).[2] Matadors demurred to the complaint on the grounds that its communications with the LAPD were privileged by Civil Code section 47, subdivision (b). Matadors also argued it owed no duty to plaintiff, and that plaintiff had insufficiently alleged defamation or outrageous conduct.

In its memorandum, Matadors referred to facts outside the complaint relating to the circumstances of plaintiff’s termination.[3] Matadors contended that plaintiff was a police dispatcher and all calls she made were recorded. On June 30, 2003, plaintiff’s mortgage check to Countrywide Home Loans drawn on the Matadors credit union was returned for insufficient funds. Using her police department telephone, plaintiff called WesCorp, the entity Matadors used to clear its checks, and falsely identified herself, claiming she was a Matadors credit union employee and that it should pay the check. This call was recorded both by CSUN’s police department and WesCorp. When the discrepancy in its accounts was discovered, WesCorp provided the recording to Matadors, which was able to identify the voice on the phone as plaintiff.

Plaintiff opposed the demurrers, arguing with respect to Matadors’ demurrer that the information provided to the LAPD was false, misleading and inaccurate because it did not contain all of the facts. She further argued that the communication was not privileged because of defendants’ negligence in making the false report, and that the making of such a false report constituted extreme and outrageous conduct.

Plaintiff’s opposition to CSUN’s demurrer argued that CSUN was not immune because it was liable for the conduct of its employees. Furthermore, the privilege was qualified and was lost because CSUN’s employees knew the statements were false and inaccurate when made. Plaintiff contended that the LAPD declined to file charges because there was insufficient evidence, and that the tapes she received of the conversations had been edited.

At the hearing on the demurrers, additional background information beyond the scope of the demurrers was introduced. Plaintiff contended the recordings made of the conversations disclosed no wrongdoing on her part. She further asserted she was forced to attend a meeting with CSUN administrators who advised her she would be arrested if she did not attend, and on that basis argued she could amend to state a claim for false imprisonment.

The trial court sustained the demurrers without leave to amend. The trial court found that plaintiff’s claims against CSUN were barred by Government Code section 821.6 and its statements to the LAPD were protected by the absolute privilege of Civil Code section 47, subdivision (b)(3). The trial court rejected plaintiff’s qualified privilege argument on the grounds that the complaint failed to state facts supporting malice. The trial court found plaintiff’s claims against Matadors were barred by the privilege of Civil Code section 47, subdivision (b)(3), and further that plaintiff had failed to state a claim because plaintiff could not allege any duty, negligent hiring, or outrageous conduct.[4]

In June 2005, plaintiff filed a separate action for wrongful termination in violation of public policy against CSUN.

DISCUSSION

Plaintiff contends that (1) her claim against CSUN is not barred by governmental immunity, (2) she should be permitted to amend her complaint to allege additional claims against CSUN and Matadors, including a claim for abuse of process, negligent hiring, negligent retention and negligent supervision, and (3) she should be given leave to amend to allege facts establishing that CSUN knew or should have known of her supervisors’ unlawful propensities in support of her claim for intentional infliction of emotional distress.[5] We conclude her claims are barred by the litigation privilege of Civil Code section 47, subdivision (b), and because the privilege is dispositive of the case, we do not address the issue of CSUN’s immunity.

I. STANDARD OF REVIEW.

In reviewing the sufficiency of a complaint against a general demurrer, we assume the truth of all facts properly pleaded and review the complaint de novo to determine whether it states facts sufficient to state a cause of action. (Breneric Associates v. City of Del Mar (1998) 69 Cal.App.4th 166, 180.) The properly pleaded material factual allegations, together with facts that may be properly judicially noticed, are accepted as true. Reversible error exists if facts were alleged showing entitlement to relief under any possible legal theory. (Platt v. Coldwell Banker Residential Real Estate Services (1990) 217 Cal.App.3d 1439, 1444.) The court may consider, as grounds for demurrer, any matter that may be judicially noticed. (Code of Civ. Proc., § 430.30, subd. (a).) The court may take judicial notice of the records in the pending action, or any other action pending in the same court. (Evid. Code, § 452, subd. (d).)

When a demurrer is sustained without leave to amend, we must also decide whether there is a reasonable possibility that the defect can be cured by amendment. (Blank v. Kirwan, supra, 39 Cal.3d at p. 318.) If the complaint can be cured, the trial court has abused its discretion in sustaining without leave to amend. (Ibid.) “To meet the plaintiff’s burden of showing abuse of discretion, the plaintiff must show how the complaint can be amended to state a cause of action. [Citation.]” (Careau & Co. v. Security Pacific Business Credit, Inc. (1990) 222 Cal.App.3d 1371, 1386.) “The burden of showing that a reasonable possibility exists that amendment can cure the defects remains with the plaintiff; neither the trial court nor this court will rewrite a complaint. [Citation.] Where the appellant offers no allegations to support the possibility of amendment and no legal authority showing the viability of new causes of action, there is no basis for finding the trial court abused its discretion when it sustained the demurrer without leave to amend. [Citations.]’” (Rakestraw v. California Physicians’ Service (2000) 81 Cal.App.4th 39, 44.)

Here, plaintiff has requested we take judicial notice of her First Amended Complaint in her wrongful termination action. While we grant her request and take judicial notice of the complaint and its exhibits, we cannot and do not take judicial notice of the facts contained in the exhibits. (Evid. Code, § 452, subd. (d); Sosinsky v. Grant (1992) 6 Cal.App.4th 1548, 1564-1565.)

II. THE PRIVILEGE OF CIVIL CODE SECTION 47 BARS PLAINTIFF’S ACTION.

Privilege is an affirmative defense to defamation. (Beroiz v. Wahl (2000) 84 Cal.App.4th 485, 492.) Here, the statements made to the police were absolutely privileged. (Hagberg v. California Federal Bank (2004) 32 Cal.4th 350, 360 (Hagberg).) In Hagberg, the Supreme Court resolved a conflict among the courts of appeal as to whether section 47, subdivision (b) created an absolute or qualified privilege for filing false police reports and held that the privilege was absolute. Therefore, knowingly filing a false police report could only create tort liability if a plaintiff could otherwise establish the elements of malicious prosecution. (Ibid.) Hagberg cited with approval Williams v. Taylor (1982) 129 Cal.App.3d 745, where the court had held that “[A] communication concerning possible wrongdoing, made to an official governmental agency such as a local police department, and which communication is designed to prompt action by that entity, is as much a part of an ‘official proceeding’ as a communication made after an official investigation has commenced. . . . ‘[T]he policy underlying the privilege is to assure utmost freedom of communication between citizens and public authorities whose responsibility it is to investigate and remedy wrongdoing. . . . A qualified privilege is inadequate under the circumstances.” (Williams v. Taylor, supra, 129 Cal.App.3d at pp. 753-754.) Here, the statements defendants made to the police concerning plaintiff’s communication with WesCorp. were absolutely privileged.

Because the statements were privileged, they cannot, without more, constitute outrageous conduct sufficient to support a claim of intentional infliction of emotional distress. The elements of a cause of action for intentional infliction of emotional distress are: (1) extreme or outrageous conduct engaged in with the intent of causing, or reckless disregard of the probability of causing, emotional distress; (2) severe emotional distress; and (3) causation. (Christensen v. Superior Court (1991) 54 Cal.3d 868, 903.) “‘Conduct to be outrageous must be so extreme as to exceed all bounds of that usually tolerated in a civilized community.’ [Citation.] Generally, conduct will be found to be actionable where the ‘recitation of the facts to an average member of the community would arouse his resentment against the actor, and lead him to exclaim, “Outrageous!”’ [Citation.]” (KOVR-TV, Inc. v. Superior Court (1995) 31 Cal.App.4th 1023, 1028.) On the other hand, “the tort does not extend to ‘mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities.’” (Cochran v. Cochran (1998) 65 Cal.App.4th 488, 496.) Here, plaintiff cannot establish that the statements made to the police were extreme and outrageous, because defendants had the freedom to communicate a claim of wrongful conduct to the police. For the same reasons, plaintiff’s request for leave to amend to allege claims of negligence and related claims of negligent hiring, retention, and supervision insofar as those claims depend on the reports to the police does not provide a basis for reversal, because such claims would be based upon the same privileged conduct.[6]

As Hagberg noted, Plaintiff’s only avenue of redress for defendants’ statements is a malicious prosecution action, and plaintiff has not at any time, either at the trial court or in this Court, sought leave to amend to state such a claim, instead seeking only to state a claim for abuse of process, a related tort. “The common law tort of abuse of process arises when one uses the court’s process for a purpose other than that for which the process was designed.” (Rusheen v. Cohen (2006) 37 Cal.4th 1048, 1056.) “To succeed in an action for abuse of process, a litigant must establish that the defendant (1) contemplated an ulterior motive in using the process, and (2) committed a willful act in the use of the process not proper in the regular conduct of the proceedings.” (Id. at p. 1057) Here, plaintiff contends that defendants’ statements to the police must have been false because the police declined to file a report. These allegations do not establish the requisites for a claim of abuse of process, because plaintiff has failed to allege facts demonstrating that CSUN and Matadors acted improperly in making the police report; speculation does not suffice.

DISPOSITION

The judgment of the superior court is affirmed. Respondents to recover their costs on appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

ZELON, J.

We concur:

PERLUSS, P. J.

JOHNSON, J.

Publication Courtesy of California free legal resources.

Analysis and review provided by Spring Valley Property line Lawyers.

[1] Government Code section 821.6 provides that “[a] public employee is not liable for injury caused by his instituting or prosecuting any judicial or administrative proceeding within the scope of his employment, even if he acts maliciously and without probable cause.”

[2] Civil Code section 47 provides that “[a] privileged publication or broadcast is one made. . . . [ ] (b) In any . . . (3) . . . other official proceeding authorized by law. . . .”

[3] These facts were not properly before the trial court on demurrer. A demurrer can only be used to challenge defects that appear on the face of the complaint and can refer only to matters outside the pleading that are judicially noticeable. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318, Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) No other extrinsic evidence can be considered; “speaking” demurrers are not permitted. (Ion Equip. Corp. v. Nelson (1980) 110 Cal.App.3d 868, 881.) However, plaintiff did not dispute the facts, nor did she contend their use was error.

[4] The dismissal, as to Matadors, was ordered on January 26, 2005. The dismissal as to CSUN was ordered on October 3, 2006, subsequent to the notice of appeal, but prior to its determination. We treat the appeal as timely filed.

[5] Plaintiff also states that if she is allowed to proceed in this action, she will move to consolidate her wrongful termination action with this action.

[6] The validity of plaintiff’s claims in her separate action for wrongful termination against CSUN is not before this court, and we make no findings as to that case.