2016-00200971-CU-OE

Paramvir Sahota vs. CDCR

Nature of Proceeding: Hearing on Demurrer to the 7th Cause of Action

Filed By: Koenigsberg, Marc B.

If oral argument is requested the parties must at the time oral argument is requested notify the clerk and opposing counsel of the specific issues that will be addressed at the hearing.

Defendants California Department of Corrections and Rehabilitation, Eureka Daye, Steve Ritter and Jasdeep Bal’s Demurrer to the 7th cause of action for Defamation in the First Amended Complaint is sustained with leave to amend for failure to state facts sufficient to constitute a cause of action, as follows:

Defendants’ Evidentiary Objections to the Declaration of Jill Telfer are sustained. The Court does not consider extrinsic evidence in ruling on a demurrer.

Plaintiff is the former Chief Medical Executive (“CME”) at Folsom State Prison. He contends he was wrongfully “demoted” to the position of Chief Physician and Surgeon by CDCR in retaliation for engaging in certain alleged protected activities. He alleges that the individual defendants Drs. Daye, Ritter, and Bal, made false statements about his work at Folsom State Prison to each other and to the medical care receiver, Clark Kelso, who was appointed by the Northern District of California federal court to oversee the healthcare provided at each of California’s prisons. Dr. Daye was the Northern Regional Administrator (FAC, ¶ 7), Dr. Bal was the Regional Medical Director (id.), and Dr. Ritter was the Medical Deputy Director at the time of the alleged defamatory statements. (FAC, ¶62.)

Plaintiff alleges that the defamatory statements were made to cover up the individual

defendant’s discrimination and retaliation. Plaintiff alleges that the actions were in retaliation for plaintiff’s having opposed discrimination against an older employee by defendant Daye. Defendants Bal and Daye are alleged to have falsely stated in a In support of his claims, Plaintiff identifies a memorandum that Drs. Bal and Daye sent to the “Receiver’s Office” in November 2014 stating that Plaintiff had engaged in serious wrongdoing by surreptitiously directing his physicians to change patients’ medical records and by compromising interview questions for a key position at the prison. Dr. Ritter is alleged to have stated that Plaintiff had leadership and communication problems with the nursing staff, which statement led to an Internal Affairs investigation of Plaintiff. (FAC ¶ 62-65.) Plaintiff alleges that the publications were republished by employees and were foreseeably republished in the community. (FAC ¶ 68) Plaintiff does not specifically identify who the “third persons” and members of “the community” are, except to allege that they may include other, presently “unknown” agents and employees of CDCR. (See FAC, ¶69.)

In their demurrer, defendants contend their statements are protected by governmental immunity under various provisions of the California Tort Claims Act, that Plaintiff has failed to plead the element of publication to a third person, and that each of the allegedly defamatory statements is both conditionally privileged and absolutely privileged under Civil Code section 47. The demurrer does not challenge any of the remaining causes of action arising out of alleged FEHA violations.

A demurrer tests the legal sufficiency of a pleading by raising questions of law regarding the pleading’s form or content. (Code Civ. Proc, § 589, subd. (a).) To withstand a general demurrer, a plaintiff must show that the complaint alleges facts sufficient to establish every element of each cause of action. (Rakestraw v. California Physicians’ Serv. (2000) 81 Cal.App.4th 39,43.) The court treats a demurrer as admitting all properly pleaded material facts, but does not assume the truth of contentions, deductions, or conclusions of fact or law. (Blank v.
Kirwan (1985) 39 Cal.3d 311, 318.) In ruling on a demurrer, the Court can also consider matters subject to judicial notice. (Code Civ. Proc, § 430.30, subd. (a).)

Defendants correctly contend that a public entity cannot be held liable for an injury unless provided by statute. This general rule is codified in Government Code, section 815, subdivision (a), which provides: ” Except as otherwise provided by statute: (a) A public entity is not liable for an injury, whether such injury arises out of an act or omission of the public entity or a public employee or any other person.”

However, Gov Code section 815.2 which provides:

“(a) A public entity is liable for injury proximately caused by an act or omission of an employee of the public entity within the scope of his employment if the act or omission would, apart from this section, have given rise to a cause of action against that employee or his personal representative.

(b) Except as otherwise provided by statute, a public entity is not liable for an injury resulting from an act or omission of an employee of the public entity where the employee is immune from liability.”

Government Code section 815.2

Thus, the issue to be determined is whether the Complaint on its faces discloses an immunity or privilege that shields the individual defendants from liability.

Defendants rely on the following sections granting immunity for defendants’ conduct:

Government Code section 820.2

Section 820.2 provides: ” Except as otherwise provided by statute, a public employee is not liable for an injury resulting from his act or omission where the act or omission was the result of the exercise of the discretion vested in him, whether or not such discretion be abused.” In Caldwell v Montoya (1995) 10 Cal.4th 972, the Supreme Court, in reversing the Court of Appeal, held that on demurrer, the school board’s decision to not renew a school superintendent’s contract was a discretionary act and was protected by discretionary act immunity.

Decisions to impose discipline, decisions regarding what constitutes satisfactory performance, and decisions as to whether and how to conduct an investigation into an employee, are all acts calling for the exercise of discretion. (See, e.g., Lipman v. Brisbane Elementary School Dist. (1961) 55 Cal.2d 224, 233-234 [school trustees afforded immunity in order to freely investigate a superintendent’s fitness for continued employment].

Defendants contend that on the face of the FAC, the individual defendants were each acting within the scope of their employment by discussing Plaintiff’s job performance with interested parties. As his superiors, the Individual Defendants’ decisions to investigate, write-up, “demote,” or otherwise discuss Plaintiff – who, in their view, may have failed to adequately supervise his nursing staff, compromised interviews for a key position, and directed physicians to improperly alter patients’ records – were all discretionary functions entitled to immunity.

In opposition, plaintiff contends that the acts of the individual defendants were not discretionary but merely operational. Plaintiff offers extrinsic evidence in support of the opposition, which is not relevant to the determination of whether a cause of action is stated. The Court has sustained the evidentiary objections. Plaintiff contends that in Johnson v. State of California (1968) 69 Gal.2d 782, 794 the court clarified the definition of discretionary act by explaining that “discretionary act immunity is limited to “areas of quasi-legislative policy-making.” Plaintiff contends that Ritter, Daye and Bal’s statements to the Receiver , to each other and to others within CDCR for the purpose of advising of alleged performance and character issues of the plaintiff are not “quasi-judicial policy making”. However, Caldwell v Montoya made clear that the immunity for discretionary acts is broader than quasi-judicial policy making, as in that case it was held applicable to the decision as to whether to retain an employee. Therefore the Court finds that on the face of the complaint the individual employees are immune under Gov Code section 820.2.

Government Code section 822.2

Under Government Code section 822.2, public employees are expressly immune from misrepresentation claims: “A public employee acting in the scope of his employment is not liable for an injury caused by his misrepresentation, whether or not such misrepresentation be negligent or intentional, unless he is guilty of actual fraud, corruption, or actual malice.” Defendants contend there are no factual allegations that any of the Individual Defendants were acting outside the scope of their employment when they made their allegedly defamatory statements and that there are no factual allegations in the FAC that would support a claim that any of the Individual Defendants were motivated by a malicious intent. Defendants contend Plaintiff fails to assert any

specific factual allegations showing that the Individual Defendants were motivated by corruption or actual malice. (See Curcini v. County of Alameda (2008) 164 Cal.App.4th 629, 649-650. However, the Court has reviewed the FAC and finds that the allegations that the statements were made in retaliation for plaintiff’s protected conduct under FEHA are sufficient at the pleadings state to allege malice.

Government Code section 821.6.

Plaintiff specifically alleges that the defendants’ statements were published “to first cause, and then justify, Plaintiffs discipline and wrongful and illegal demotion.” (FAC at

¶ 68, 10:22-23) Plaintiff alleges that the November 2014 memorandum is what led to Plaintiff’s removal as the CME at Folsom State Prison (FAC, ¶¶ 8-9, 64), and that Dr. Ritter’s statements are allegedly what led to the Internal Affairs investigation into Plaintiffs relationship with the nursing department (FAC, ¶ 65). Under Gov Code 821.6, it is irrelevant whether the individual defendants acted “maliciously” in making these statements. The Individual Defendants are thus immune from suit under section 821.6.

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

cause.” (Emphasis added.) Investigations, whether for prosecuting a crime or determining whether to impose disciplinary action against a public employee, are considered part of a judicial proceeding: Section 821.6 is not limited to the act of filing a criminal complaint. Instead, it also extends to actions taken in preparation for formal proceedings. Because investigation is “an essential step” toward the institution of formal proceedings, it “is also cloaked with immunity.”

The leading case on the application of Government Code section 821.6 to personnel decisions is Kemmerer v. County of Fresno (1988) 200 Cal.App.3d 1426. In Kemmerer

, an employee of the Fresno County Department of Social Services sued his employer, along with the department’s director and assistant director, for statements they made in a letter of reprimand that was placed in Kemmerer’s file. The court in Kemmerer analyzed Government Code sections

820.2 and 821.6 and found that both provisions immunized the director and assistant director from any liability. In analyzing section 821.6 specifically, the court held that their investigation of Kemmerer’s alleged wrongful acts, as well as their publication of the disciplinary action being taken against him, were “cloaked with immunity.” (Id. at pp. 1436-1437.)

Under section 821.6, the immunity extends to any acts or omissions relating to the institution of disciplinary proceedings, or any preparation for such disciplinary hearings, against a civil service employee, because disciplinary proceedings against civil service employees are considered administrative proceedings. (See Kemmerer v. Fresno, 200 Cal.App.3d at pp. 1436-1437 [“The investigation by [defendant public employee] was an essential step to the institution of the disciplinary process and is also cloaked with immunity.”].

Plaintiff’s opposition does not address the immunity provided under Gov Code 821.6. The Court finds that the allegations of the FAC give rise to the individual defendants immunity under both Government Code sections 821.6 and 820.2. Therefore since the individual defendants are immune under the above statutes, CDCR is immune under Government Code section 815.2, subdivision (b), which provides that a public

entity is immune from liability where its employees are immune. (See Blackburn v. Los Angeles (1974) 42 Cal. App.3d 175,177-178.)

The Court notes that even though the evidentiary objections to the Telfer declaration have been sustaiend, to the extent those facts are offered in support of amending the pleading to cure the defect, it would appear that these facts further support the application of the privilege under section 821.6. If, as plaintiff contends, the alleged statements were made in direct response to the CDCR personnel analyst’s requested approvals or objections from CDCR employees concerning the permanent appointment of plaintiff, the communications fall within 821.6.

Absolute Privilege

Civil Code §47(b) renders privileged any publications of a statement made in a judicial proceeding or “in the initiation of course of any other proceeding authorized by law.” 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. (Makaeff v. Trump University, LLC (2013) 715 F.3d 254)

Civil Code section 47, subdivision (b) provides an absolute privilege to communications “‘to or from governmental officials which may precede the initiation of formal proceedings.’ ” (Hagberg v. Cal. Fed’l Bank FSB (2004) 32 Cal.4th 350, 362, quoting Slaughter v. Friedman (1982) 32 Cal.3d 149,156.) The courts have applied this section to a “communication concerning possible wrongdoing, made to an official governmental agency . . . which communication is designed to prompt action by that entity ….” (Passman v. Torkan (1995) 34 Cal.App.4th 607, 617; see also Brody v.
Montalbano (1978) 87 Cal.App.3d 725, 731- 735 [applying privilege to report sent by parents to school principal intended to prompt an investigation into a teacher’s conduct].) The absolute privilege applies to every part of the proceeding, including the initial investigation of the merits of an issue prior to starting a proceeding: “We have noted the application of the privilege to communications ‘ “with some relation to a proceeding that is . . . under serious consideration,’ to ‘potential court actions’ and to ‘preliminary conversations and interviews related to contemplated action’ and . . . to communications made, prior to the filing of a complaint, by a person ‘meeting and discussing’ with potential parties the ‘merits of the proposed . . lawsuit.” (Hagberg, 32 Cal.4th at p. 361, citations omitted.)

The absolute privilege is to be interpreted broadly. “[A]ny doubt as to whether the necessary connection between the publication and the [official] action exists is to be resolved in favor of a finding of privilege.” (Brody v. Montalbano, 87 Cal.App.3d at p. 733.) Finally, the privilege cannot be defeated by a showing of malice, and applies even if a report is made in bad faith. (Hagberg, 32 Cal.4th at p. 365-366.)

The case of Long v. Pinto (1981) 126 Cal.App.3d 946 is instructive. In that case, a surgeon (Dr. Pinto) was appointed by a hospital committee to review the professional qualifications of the plaintiff (Dr. Long). After reviewing Dr. Long’s

files, Dr. Pinto sent a letter to the Board of Medical Quality Assurance “call[ing] attention to what he felt was a large number of unnecessary operations performed on elderly rest home patients.” (Id. at p. 948.) Dr. Pinto also sent it to the board of directors at the hospital, even though the board did not officially request the letter, and

no investigation was underway. (Id. at p. 949.) The court held that despite these facts, the letter was still absolutely privileged: “A communication

designed to prompt action is as much a part of the ‘official proceeding’ as a communication made after the proceedings have commenced.” (Id.) The court analyzed that “[t]he importance of unabashed input into investigations outweighs the occasional harm which may befall a defamed individual.” (Id. at pp. 949-950, citation omitted.) The court also noted the importance of open discussion when it comes to a physician’s professional qualifications: ”To allow Long to proceed with this cause of action would substantially defeat the purpose of the privilege and create an unnecessary chilling effect upon physicians and others who are desirous of upholding professional qualifications and protecting the public.”
(Id. at p. 951 [emphasis added].)

The facts alleged in this case fall within the policy behind Civil Code section 47 and the cases interpreting it. The initiation of the Internal Affairs investigation into Plaintiffs supervision of and relationship with the nursing staff is clearly an “official proceeding,” and Dr. Ritter’s comments to Dr. Daye are therefore absolutely privileged. The same applies to Dr. Bal’s and Dr. Daye’s memorandum to the Receiver. Even though a “formal” investigation into their findings had not yet commenced, their memorandum was clearly meant to “prompt action” by the
Receiver and others who may have received the memorandum. Plaintiff alleges that he was removed from his position of Chief Medical Executive and restored
to his former position of Chief Physician and Surgeon as a result of the report. Each of the elements for the absolute privilege (a communication, concerning potential wrongdoing, made to an official agency, designed to prompt action) are met, and any allegations that such communications were made with “malice” are irrelevant.

Conditional Privilege

Civil Code section 47, subdivision (c) extends a conditional privilege over statements made without malice on subjects of mutual interest. (Lundquist v. Reusser (1994) 7 Cal.4th 1193,1205.) However, as the court has found that plaintiff has adequately alleged malice, this ground is not a basis of the ruling on the demurrer.

As the court has sustained the demurrer on the basis of immunities and privilege, the Court need not reach the issue as to whether the statements were published to “a third person.”

The Court is granting leave to amend since this is the first challenge to the pleadings.

Plaintiff may file a Second Amended Complaint on or before September 10, 2018. Response to be filed and served within 30 days of service of the SAC, 35 days if served by mail.

The minute order is effective immediately. No formal order pursuant to CRC Rule 3.1312 or further notice is required.