Filed 12/10/18 Cabello v. Ricci CA1/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION TWO

Plaintiffs Manuel Cabello and Dana Cabello (when referred to collectively, appellants) appeal from a judgment of dismissal entered after the trial court sustained a demurrer to their second amended complaint without leave to amend. We affirm.

BACKGROUND

As indicated, appellants appeal after their third attempt to state a claim was rejected, and a demurrer to their second amended complaint (SAC) sustained without leave to amend. Neither appellants’ original complaint nor their First Amended Complaint (FAC) is in the record before us. And the SAC is before us only because it was attached to papers filed by defendants below. Thus, we piece together what happened below from the register of actions and various orders of the trial court incorporated into other papers.

In May 2013, Hamilton, Ricci and Associates prepared an appraisal for real property on Broadway Street, Oakland, prepared for “exclusive use” in a 2013 bankruptcy proceeding. Apparently that appraisal had a detrimental effect on appellants, giving rise to the lawsuit here.

In October 2017, representing themselves, appellants filed a complaint, which on November 21 was served on Hamilton, Ricci and Associates and on Walter Ricci (sometimes referred to collectively as defendants).

In December 2017, defendants filed a demurrer. Appellants filed opposition, and the demurrer came on for a hearing on January 25, 2018 before the Honorable Ronni MacLaren. Following argument, Judge MacLaren sustained the demurrer with leave to amend, in a comprehensive 14 paragraph order that addressed the six causes of action apparently alleged in appellants’ complaint.

Appellants filed the FAC, and again defendants demurred. Again Judge MacLaren sustained the demurrer with leave to amend, this time with a caution to appellants: “Plaintiffs are reminded that they are prohibited from basing any claims on information provided to the bankruptcy court, whether those claims are based on information Defendants directly provided to the bankruptcy court or on Defendants’ alleged role in ‘conspiring’ to prepare documents that would be submitted to the bankruptcy court. In either case, Defendants’ alleged actions would be protected by the absolute litigation privilege of Civil Code § 47(b). (See the Court’s January 26, 2018 Order on Defendants’ prior Demurrer.) [¶] Plaintiffs are advised that this is likely to be the final opportunity the court will provide to amend to allege a legally viable claim against Defendants.” Judge MacLaren’s order went on to address the six causes of action in the FAC.

On April 27, 2018, appellants filed the SAC. This had eight causes of action, with a cover sheet that provided as follows: “SECOND AMENDED COMPLAINT FOR COLLUSION AND CONSPIRACY TO: [¶] 1 Defraud Plaintiffs of their Property [¶] 2 Commit Bankruptcy Fraud [¶] 3 Commit Perjury [¶] 4 Falsify Evidence and to Commit Bribery [¶] 5 Accept Bribe and Abuse of Power [¶] 6 Present Fraudulent Documents [¶] 7 Commit Criminal Profiteering 8 Commit Financial Elder Abuse.”

Again defendants demurred, and Judge MacLaren again sustained the demurrer, this time without leave to amend, and again in a most comprehensive order, which, after its introductory paragraphs, held as follows:

“On April 12, 2018, the Court sustained Ricci’s Demurrer to Plaintiff’s First Amended Complaint, with leave to amend. The Court’s April 12, 2018 order required that Plaintiffs’ Second Amended Complaint clearly identify the ‘false and derogatory’ information on which their claims against Ricci are based, including what the information was, to whom it was provided, when it was provided, and how the act of providing that information resulted in Plaintiffs’ loss of property or any other damage. The Court’s April 12, 2018 order also expressly advised Plaintiffs that the Second Amended Complaint would likely be the final opportunity that the Court would provide to Plaintiffs to allege a legally viable claim against Ricci.

“Plaintiffs’ Second Amended Complaint fails to comply with the Court’s April 12, 2018 order. Plaintiffs again allege that Ricci provided ‘false and derogatory information’ to lenders, as well as ‘guidance and information detrimental to the operation of Plaintiffs’ business,’ but Plaintiffs do not adequately identify what this ‘false and derogatory information’ was, to whom it was provided, when it was provided, and how it damaged Plaintiffs’ interests. (See Second Amended Complaint, pages 3:10-15 and 4:19-20.) Instead, Plaintiffs allege that they ‘are ready to provide this information and proof at trial.’ (Id. at page 3:15.) As previously directed by the Court, the time to ‘provide this information’ was in the Second Amended Complaint. Nor do Plaintiffs allege who Ricci is, what relationship (if any) Ricci had with Plaintiffs, or any other facts giving rise to a duty by Ricci to either disclose or refrain from disclosing any information concerning Plaintiffs or their property. Therefore, to the extent that Plaintiffs’ claims are based on information that Ricci provided to lenders and brokers about ‘a reduced size of the building and false information indicating less than half the actual income and total property leased’ (see Second Amended Complaint, page 4:25-27), Plaintiffs do not allege how providing that information breached any legally cognizable duty Ricci owed to Plaintiffs.”

Judge MacLaren’s order went on to describe “additional reasons” why the causes of action in the SAC “fail[ed].”

Judgment was entered dismissing the SAC, from which appellants filed an appeal.

DISCUSSION

Introduction

Representing themselves, appellants have filed a 4879-word, 27-page opening brief that is hard to describe. After a three page “Introduction,” appellants have a statement of appealability that states as follows:

“Judge Ronni MacClaren’s Judgment on Case No. RG17878137, filed on June 27, 2018 is appealable because it was issued after an order sustaining a Demurrer.

“Appellants also believe the Judgment is appealable because during the case, there was Fraud Upon the Court by an Officer of the Court, Christopher Connolly, attorney for the Respondents.

“Appellants claim that Judge MacLaren also committed Fraud Upon the Court by showing a pattern of bias against the Appellants (then Plaintiffs) because one of the Appellants, Manuel Cabello, is Hispanic.

“Appellants claim that Judge MacLaren also committed Fraud Upon the Court by showing a pattern of bias against the Appellants (then Plaintiffs) because the Appellants were/are poor and therefore were/are acting pro se. The Judge prejudicially showed a pattern of more respect for the Defendants (now Respondents) than for Plaintiffs (now Appellants).”

The next page is the “Statement of the Case,” where appellants begin as follows:

“Appellants presented our case to Judge Ronni MacLaren as clearly and well documented as possible. Judge MacLaren, from day one, showed us that she was biased against because we now poor [sic]. The following is a brief description that best illustrates the court bias against Plaintiffs.” Appellants go on to cite five items of claimed bias, including these:

“1 During the first hearing, Judge MacLaren showed her bias against Plaintiffs when Dana Cabello asked to read a prepared statement. MacLaren asked, ‘Did you write it?’ This showed us that she did not think that we were able to write a simple introductory statement.

“2 Judge MacLaren refused to accept the fact that Defendants were presenting the court with false and altered documents and she accepted their unsubstantiated claims by Christopher Connolly, attorney for the Defendants over Plaintiffs documents showing what Walter L. Ricci provided the Bankruptcy Court and signed under penalty of perjury. These documents contradicted claims by Connolly and were accepted by MacLaren as true.

“. . .

“5 Furthermore, Plaintiffs provided MacLaren’s Court with evidence that Hamilton, Ricci & Associates, Inc. is a sham organization but she dismissed our evidence simply because she did not believe us while instead accepting false and altered documents from Connolly, attorney for Defendants.”

The opening brief goes on to refer to the “seven causes of action,” when, as noted, appellants attempted to allege eight. And from there the brief goes on to describe, usually in one short paragraph, what each claim is supposed to be. The “Argument” follows, which makes almost no attempt to demonstrate that any of the purported causes of action states a claim.

Standard of Review

“In reviewing the sufficiency of a complaint against a general demurrer, we are guided by long-settled rules. ‘We treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. [Citation.] We also consider matters which may be judicially noticed.’ [Citation.] Further, we give the complaint a reasonable interpretation, reading it as a whole and its parts in their context. [Citation.] When a demurrer is sustained, we determine whether the complaint states facts sufficient to constitute a cause of action. [Citation.] And when it is sustained without leave to amend, we decide whether there is a reasonable possibility that the defect can be cured by amendment: if it can be, the trial court has abused its discretion and we reverse; if not, there has been no abuse of discretion and we affirm. [Citations.] The burden of proving such reasonable possibility is squarely on the plaintiff. [Citation.]” (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)

Our standard of review is de novo: “Treating as true all material facts properly pleaded, we determine de novo whether the factual allegations of the complaint are adequate to state a cause of action under any legal theory, regardless of the title under which the factual basis for relief is stated. [Citation.]” (Burns v. Neiman Marcus Group, Inc. (2009) 173 Cal.App.4th 479, 486.)

“[T]he cardinal rule of appellate review [is] that a judgment or order of the trial court is presumed correct and prejudicial error must be affirmatively shown. (Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) ‘In the absence of a contrary showing in the record, all presumptions in favor of the trial court’s action will be made by the appellate court. “[I]f any matters could have been presented to the court below which would have authorized the order complained of, it will be presumed that such matters were presented.” ’ (Bennett v. McCall (1993) 19 Cal.App.4th 122, 127.) This general principle of appellate practice is an aspect of the constitutional doctrine of reversible error. (State Farm Fire & Casualty Co. v. Pietak (2001) 90 Cal.App.4th 600, 610.)” (Foust v. San Jose Construction Co., Inc. (2011) 198 Cal.App.4th 181, 187.) In order to prevail on an appeal from an order sustaining a demurrer, appellants must affirmatively demonstrate error, that is, they must show that the facts pleaded are sufficient to “establish every element of a cause of action and overcome all legal grounds on which the trial court sustained the demurrer.” (Intengan v. BAC Home Loans Servicing LP (2013) 214 Cal.App.4th 1047, 1052.)

Appellants Have Not Demonstrated Error: The Litigation Privilege

Defeats Appellants

Appellants refer more than once to Judge MacLaren’s ruling based on Civil Code section 47. This is how they put it in their “Argument”:

“Appellants allege that Judge MacLaren made a ruling based on Respondents’ claim that the publication prepared by Walter Ricci of Hamilton, Ricci & Associates is protected under California Civil Code 47(b)2.

“The text of the civil code - CIV

“Division 1. Persons [38-86]

“Part 2. Personal Rights [43-57.7]

“47 A privileged publication or broadcast is one made:

“(c) In the proper discharge of an official duty.

“(d) (2) judicial proceeding,”

“This simple statute sets the basic requirements for such ‘A privileged publication or broadcast.’ It is clear that the publication requires the inclusion of ‘Civil Code 47(a) In the proper discharge of an official duty.’ ”

Appellants are incorrect.

Civil Code section 47 lists the publications that are absolutely privileged, in subsections (a) through (d), four separate subdivisions. The first two subdivisions are publications made (a) “[i]n the proper discharge of an official duty,” and (b) “[i]n any . . . (2) judicial proceeding.” In short, subsections (a) and (b) are separate. And each provides for an absolute privilege that is different from the other.

As applicable here, the Civil Code section 47, subdivision (b) litigation privilege applies to witnesses in a proceeding, which is what Ricci was here. (See, e.g., Obos v. Scripps Psychological Associates, Inc. (1997) 59 Cal.App.4th 103, 108 [statements in custody battle by court-appointed psychologist about mother’s boyfriend absolutely privileged, even though boyfriend was not a party, and even if testimony is allegedly perjured and malicious]; Mission Oaks Ranch, Ltd. v. County of Santa Barbara (1998) 65 Cal.App.4th 713, 726 [consultant’s Environmental Impact Report submitted to county considering development project]; Laborde v. Aronson (2001) 92 Cal.App.4th 459, 463 [psychiatrist who was retained to make custody evaluation and whose report was received into evidence in dissolution proceeding]; see generally Moore v. Conliffe (1994) 7 Cal.4th 634, 643.)[1]

Particularly apt here is Carden v. Getzoff (1987) 190 Cal.App.3d 907, which held the absolute privilege applied to bar a complaint by an ex-husband against the expert witness hired by his former spouse to evaluate the value of his anesthesiology practice, which the expert opined had no value for good will. The complaint alleged the expert engaged in perjury both in preparation of the documentary evidence and in his testimony at the dissolution proceeding.[2]

Appellants Have Not Demonstrated Error: None of the Causes of Action

States a Claim

Appellants’ “Argument” makes little effort to demonstrate that any of their eight causes of action states a claim. Our de novo review leads to the conclusion that none does. Specifically:

The first cause of action is entitled “Defrauded Plaintiffs of their Property.” It is apparently based on Penal Code “Chapter 8, § 182,(a).” Plaintiffs do not allege that defendants violated this section, but that “[t]hree or more of the Does” did. Moreover, appellants present no authority that section 182 provides for a civil cause of action.

The second cause of action is entitled “Commit Bankruptcy Fraud.” It is apparently based on United States Code, title 18, section 157. Appellants do not allege that defendants committed bankruptcy fraud, but that “[o]ne or more of the Does” did so. They present no legal authority that an alleged violation of United States Code, title 18, section 157 gives rise to a civil action. And any claim based on documents or statements presented in bankruptcy court would be barred by the litigation privilege.

The third cause of action is entitled “Commit Perjury.” Appellants represent that it is based on Penal Code “Chapter 5, § 118.” This recital of a Penal Code section does not support any recognized civil cause of action in California; and again, appellants provide no legal authority that an alleged violation of Penal Code section 118 gives rise to a civil action for monetary damages. And any civil claim based on statements made in court would be barred by the litigation privilege.

The fourth cause of action is entitled “Falsify Evidence and Commit Bribery.” It is based on Penal Code section 132. Appellants do not allege that defendants violated Penal Code section 132, but that “a large number of City of Oakland high ranking officials” did. Appellants present no legal authority that an alleged violation of Penal Code section 132 gives rise to a civil action. And any claim based on information offered into evidence at trial would be barred by the litigation privilege.

The fifth cause of action is entitled “Accept Bribe and Abuse of Power.” It is apparently based on a provision of the United States criminal code. Appellants do not allege that defendants either gave or accepted bribes, but that “two or more Does” bribed City of Oakland officials. And they present no legal authority that an alleged violation of the cited section of the United States criminal code gives rise to a civil action.

The sixth cause of action is entitled “Present Fraudulent Documents.” It is based on Penal Code section 67.5. Appellants do not allege that defendants offered to pay any bribes, but that a “Doe” did. And they present no legal authority that an alleged violation of Penal Code section 67.5 gives rise to a civil action for damages.

The seventh cause of action is entitled “Commit Criminal Profiteering.” It is apparently based on Penal Code section 186.2. Appellants do not allege that defendants committed any act prohibited by Penal Code section 186.2. Nor do they present any legal authority that an alleged violation of Penal Code section 186.2 gives rise to a civil action for damages.

The eighth cause of action is entitled “Commit Financial Elder Abuse.” Appellants do not allege that defendants committed any act of elder abuse, but that “one of the Does” did. Moreover, the cause of action is apparently based on information submitted to the bankruptcy court, and is therefore barred by the litigation privilege.

DISPOSITION

The judgment is affirmed. Defendants shall recover their costs on appeal.

_________________________

Richman, J.

We concur:

_________________________

Kline, P.J.

_________________________

Miller, J.

Cabello et al. v. Ricci et al. (A154775)