Case Number: BC528958    Hearing Date: August 05, 2014    Dept: 73

8/5/14 (continued from 7/30/14)

Dept. 73
Rafael Ongkeko, Judge presiding

MAREZ, et al. vs. RIORDAN, et al. (BC528958)

Counsel for individual defendants (seven): Morgan Halford (Carlson, etc.)
Counsel for defendant Valley Columbus Corp.: Michael Lawler (Murchison, etc.)
Counsel for defendant Knights of Columbus: Gary Simonian (LeClairRyan)
Counsel for plaintiffs/opposing parties: Jeffrey Lynn

Matter # 1: Demurrer of Riordan, Joanes, and John Williams (filed 7/8/14) to plaintiffs’ SAC;
Matter # 2: Demurrer of Stockert and Olivier (filed 7/8/14) to plaintiffs’ SAC;
Matter # 3: Demurrer of William Williams and Parra (filed 7/8/14) to plaintiffs’ SAC;
Matter # 4: Motion to strike by above individual defendants (filed 7/8/14);
Request for judicial notice (RJN) by above 7 individual defendants (filed 7/10/14).
Matter #5: Demurrer of Valley Columbus Corporation (VC) (filed 7/8/14);
Matter #6: Motion to strike by VC (filed 7/8/14);
Matter #7: Demurrer of Knights of Columbus (KC) (filed 7/8/14);
Matter #8: Motion to strike by KC (filed 7/98/14);
Matters #9 and #10: Joinders of KC to Matters 1 through 6 (filed 7/8/14).
RJN by KC (filed 7/8/14).
Individual defendants’ demurrers:
The individual defendants’ demurrers (matters 1, 2, and 3) each challenge the first cause of action (slander) on grounds that many of the allegedly defamatory statements are barred by the applicable statute of limitations. These demurrers also attack causes of action 1, 3, 4, 5, 8 and the entire SAC on the basis that they fail to state facts sufficient to constitute a cause of action. In addition, demurrer number 2 challenges the second cause of action for failing to state facts sufficient to constitute a cause of action.

Entity defendants’ demurrers:
The entity defendants’ demurrers (matters 5 and 7) each challenge causes of action 6 through 8 of the SAC on grounds that they fail to state facts sufficient to constitute a cause of action. KC’s demurrer (matter # 7) attacks causes of action 1 through 5 of the SAC on the same grounds, and on grounds of uncertainty.

Motions to Strike:
The defendants’ motions to strike (matters 4, 6, and 8) seek an order striking punitive damages from the prayer at paragraph 2 of page 18 on grounds that insufficient facts are alleged to support punitive damages under Civil Code §3294. In addition, matters (4) (individuals) and (8) (KC) move to strike paragraph 22(a) through (g) on grounds these alleged defamatory actions are barred by the statute of limitations provided in CCP §340(c). Further, matter (4) seeks an order striking ¶¶ 20 and 21 on grounds of statute of limitations; and the causes of action 3,4, and 5 (¶¶ 50-67) on grounds Plaintiffs did not obtain leave of court to add new claims. Motions (4) and (6) (VC) seek to strike ¶5 from the prayer because attorney’s fees are not recoverable on these facts.

Tentative Rulings
Request for judicial notice (RJN) by KC (filed 7/8/14) and 7 individual defendants (filed 7/10/14). Unopposed. Granted.
Matter # 1: Demurrer of Riordan, Joanes, and John Williams (filed 7/8/14) to plaintiffs’ SAC;
Matter # 2: Demurrer of Stockert and Olivier (filed 7/8/14) to plaintiffs’ SAC;
Matter # 3: Demurrer of William Williams and Parra (filed 7/8/14) to plaintiffs’ SAC:

Matters 1 through 3: The demurrers to the first through fifth causes of action are sustained with leave to amend.
The demurrers to cause of action 8 (preliminary injunction) are sustained without leave to amend.
Matter # 4: Motion to strike by above individual defendants (filed 7/8/14): Based on the above rulings (matters #1-3), the motion to strike various portions of the SAC is moot except as to the following: Grant motion to strike attorney’s fees.
Matter #5: Demurrer of Valley Columbus Corporation (VC) (filed 7/8/14): Defendant VC’s demurrer is sustained with leave to amend as to causes of action 6 and 7; sustained without leave as to cause of action 8.
Matter #6: Motion to strike by VC (filed 7/8/14): Based on the above ruling (Matter #5), the motion to strike various portions of the SAC is moot except as to the following: Grant motion to strike attorney’s fees.
Matter #7: Demurrer of Knights of Columbus (KC) (filed 7/8/14): KC’s demurrer is sustained with leave to amend as to causes of action 1-7 and without leave to amend as to cause of action 8.
Matter #8: Motion to strike by KC (filed 7/98/14): Based on the above ruling (matter #7), the motion to strike various portions of the SAC is moot except as to the following: Grant motion to strike attorney’s fees.
Matters #9 and #10: Joinders of KC to Matters 1 through 6 (filed 7/8/14). Unopposed. Joinder motions granted. See rulings re Matters 1 through 6.

Discussion:

Demurrers

First cause of action for defamation- slander
Defendants claim that statements outlined in subparagraphs (a) through (g) are barred by the applicable statute of limitations; that the statement contained in subparagraph (g) is made by an individual alleged tortfeasor not named as a defendant in this action; that statements alleged in subparagraphs (h) through (l) are not slanderous on their face; and that none of the statements are alleged to have been made by Defendants William Williams or Misael Pena Parra. Plaintiffs claim that the statements are not barred by the statute of limitations because all Defendants conspired to defame Plaintiffs which tolls the statute from running until the last overt act; and that the statements are all defamatory on their face. Each of these areas is addressed below.

Statute of Limitations and its Tolling by Allegations of Conspiracy

CCP §340(c) provides that an action for slander must be brought within one year. Here, the action was commenced on 11/27/13. The alleged defamatory statements in subparagraphs (a) through (g) were made between 12/11/11 and 7/07/12, well over a year before the filing of the original complaint. Thus, the statute of limitations arguably expired except as to items (h) through (l) (SAC 6:7-23).

Plaintiffs claim a tolling of the statute due to allegations of conspiracy and the “last overt act” doctrine. The doctrine provides that “the statute of limitations does not begin to run on any part of a plaintiff’s claims until the last overt act pursuant to the conspiracy has been completed.” Wyatt v. Union Mortgage Co. (1979) 24 Cal.3d 773, 786. Plaintiffs allege that all of the individual Defendants “conspired” (¶27), and “were aware that each of their co-defendants planned to slander Plaintiffs” (¶35). Plaintiffs argue that the last overt act occurred on 12/11/13, making the filing of the original complaint timely.

The court finds that there are insufficient facts to support the existence of a conspiracy. In order to state a claim of vicarious liability based on a conspiracy, Plaintiffs must allege three elements: (1) the formation and operation of the conspiracy; (2) wrongful conduct in furtherance of the conspiracy; and (3) damages arising from the wrongful conduct. Applied Equipment Corp. v. Litton Saudi Arabia Ltd. (1994) 7 Cal.4th 503, 510-511. Plaintiffs plead no facts to show the formation or the existence of a civil conspiracy; the purported reason why the individual Defendants were aware that their co-defendants were “planning” to slander Plaintiffs; and why Plaintiffs are “informed and believe” (¶27) that the other Defendants “agreed, cooperated, and conspired” (Id.) for the purposes of perpetrating this alleged slander. A pleading made on information and belief is insufficient if it merely asserts the facts so alleged without alleging such information that leads the plaintiff to believe that the allegations are true. Doe v. City of Los Angeles (2007) 42 Cal.4th 531, 551. Plaintiffs have not alleged the information which caused Plaintiffs to believe that the allegations of the SAC made on “information and belief” are true. Therefore, the demurrer based on statute of limitations is sustained.

Individual Alleged Tortfeasor Not Named as Defendant

Plaintiffs allege that “Tom Guichard of Valley Columbus” defamed Plaintiff Candido Marez (¶22g). However, the individual “Tom Guichard” is not a named defendant in this action. Moreover, the first cause of action does not name Valley Columbus as a defendant as required in CRC Rule 2.110. The demurrer is sustained.

Not Slanderous on its Face

The statements claimed do not fall within the provisions of Civil Code §46. Here, Plaintiffs allege that Defendants published to third parties that Candido Marez was, or would no longer be, a member, and was a “troublemaker” (¶22h); that he was “mentally ill” and “going to lose it” (¶22i); that he was a “liar,” was “going crazy,” and was “not to be believed” (¶22j); that he was “having family problems” and “mentally losing it” (¶22k); and that Deidre Marez was “hospitalized for mental illness” and had “mentally lost it” (¶22l). With the arguable exception of the too-generalized “criminals” statement (¶22f), none of the alleged statements fits into any of the four categories of specific charges enumerated in Civil Code §46. The special damages required for slander falling outside CC 46 requires plaintiffs to show that the publisher of the words intended they should be understood as imputing wrongdoing or wrong conduct to plaintiff, and that they were understood by those who heard or read them. Martin v. Sutter (1922) 60 Cal.App. 212. Here, Plaintiffs have not pled these facts, and have not pled special damages. Plaintiffs’ opposition argues that “[t]hese statements were made to persons interacting and doing business with Knights of Columbus, and related to the office held by Plaintiff Candido Marez and his work within and for the organization” (Opposition 4:7-10), however, the allegation that these statements “related to the office held by Plaintiff Candido Marez and his work” is not alleged in the SAC. There is no connection drawn between the alleged statements in the SAC at ¶¶ 22h through 22j, or the alleged statement about Plaintiff Deirdre Marez at ¶22l, and Plaintiff Candido Marez’s work.

Second cause of action for Invasion of Privacy – False Light:
Neither Defendant William Williams nor Defendant Parra is alleged to have made any statements in ¶¶ 22a through 22l. Plaintiffs do not address this argument in their opposition.

False Light and the Conspiracy Allegations

Plaintiffs allege that the individual Defendants conspired to “place Plaintiff in a false and unfavorable light by making the Statements” (¶46); that they “permitted, consented, aided, authorized and/or ratified the independent tortious conduct of their co-defendants in order to place Plaintiffs in a false and unfavorable light by making the Statements” (¶47); that they “intended that each of their co-Defendants place Plaintiffs in a false or unfavorable light by making the statements” (¶48). However, as with the slander allegations, Plaintiffs have not alleged facts to support conspiracy. Further, having knowledge that another person may, at some point in the future, engage in conduct that could place another in a false light, is not sufficient to state a cause of action. The fact than an individual “agrees” with the conduct of another individual that places a third person in a false light, is not sufficient to state this claim.

Third cause of action for Invasion of Privacy – Intrusion upon Seclusion:
The plaintiff may not amend the complaint to add a new cause of action without having obtained permission to do so, unless the new cause of action is within the scope of the order granting leave to amend. Harris v. Wachovia Mortgage (2010) 185 Cal.App.4th 1018, 1023. When a demurrer is sustained, the scope of permissible amendment is limited to the cause(s) of action to which the demurrer has been sustained. Id. Here, plaintiffs’ FAC was so deficient that essentially wholesale amendments were required to clarify what causes of action were being claimed under the ultimate facts then alleged. While Plaintiffs were not granted leave to amend to add additional causes of action, the causes of action in the SAC are not so distant from the operative acts of the FAC that they should be stricken as defendants contend.

Intrusion upon Seclusion

The tort of intrusion upon seclusion consists of the following elements: (1) a prying or intrusion; (2) that is offensive or objectionable to a reasonable person; (3) into a place or into affairs that are private and entitled to be private. See Shulman v. Group W. Prods., Inc. (1998) 18 Cal.4th 200, 231. In this case, Plaintiff have failed to meet any of the three elements required for this tort. There is no factual basis to establish that Defendants intruded into Plaintiffs physical or sensory privacy or obtained unwanted access to Plaintiffs’ data; or that the intrusion was offensive; or that Defendants intruded into private affairs.

Fourth cause of action for IIED:

Given the failure of the conspiracy allegations, there are no additional facts to support extreme or outrageous behavior by each defendant that was done for the purposes of causing Plaintiffs to suffer from extreme emotional distress.

Fifth cause of action for Negligence:
Here, the facts alleged do not establish a duty of care, nor that any particular defendant breached this duty, nor caused plaintiffs’ damages.

Sixth C/A for Negligent Hiring, Retention, and Supervision:
“[A]n employer can be liable to a third person for negligently hiring, supervising, or retaining an unfit employee.” Doe v. Capital Cities (1996) 50 Cal.App.4th 1038, 1054; see Delfino v. Agilent Technologies, Inc. (2006) 145 Cal.App.4th 790, 815 (“[l]iability for negligent supervision and/or retention of an employee is one of direct liability for negligence, not vicarious liability”). “[T]here can be no liability for negligent supervision in the absence of knowledge by the principal that the agent or servant was a person who could not be trusted to act properly without being supervised.” Juarez v. Boy Scouts of America, Inc.(2000) 81 Cal.App.4th 337, 395. Here, Plaintiffs have alleged the individual Defendants are officers and directors of the Valley Columbus Corporation, and also allege they are employees of Valley Columbus, creating a contradiction. In addition, there are no allegations of fact showing Valley Columbus knew or had reason to know that the individual Defendants were “incompetent” or “unfit,” and could not be trusted to act properly without supervision. There are no facts showing that Valley Columbus’ lack of supervision or training caused Plaintiffs’ alleged injuries. Finally, this claim is based on the defective allegations against the individual Defendants.

Seventh C/A for Vicarious Liability:
Under the doctrine of respondeat superior, “an employer is vicariously liable for the torts of its employees committed within the scope of the employment.” Lisa M. v. Henry Mayo Newhall Mem. Hosp. (1995) 12 Cal.4th 291, 296. While an employee’s willful, malicious, and even criminal torts may fall within the scope of employment, “an employer is not strictly liable for all actions of its employees during working hours.” Farmers Ins. Grp. v. County of Santa Clara (1995) 11 Cal.4th 992, 1004. For the employer to be liable for an intentional tort, the employee’s act must have a “causal nexus to the employee’s work,” i.e., “inherent in the working environment” or “typical” to the employers business. Lisa M., supra at 298-299. Courts have distilled this “causal nexus” to a two-prong test. The employee’s conduct falls within the scope of his employment if the conduct either: (1) is required by or incidental to the employee’s duties; or (2) it is reasonably foreseeable in light of the employer’s business. Bailey v. Filco, Inc. (1996) 48 Cal.App.4th 1552, 1559; see CACI No. 3720. In this case, there are no facts showing these statements were incidental to Defendants’ employment. Further, the SAC alleges the individual defendants committed the torts of defamation, invasion of privacy (false light), invasion of privacy (intrusion upon seclusion), IIED, and negligence as part of their efforts to discredit and intimidate Plaintiff Candido. Valley Columbus contends that this motivation negates liability on their part under the doctrine of respondeat superior. Liability appears to be limited to the individuals’ allegedly defamatory statements, which are based on defective allegations, as discussed above. Also, Plaintiffs have presented no authority for the proposition that a director or an officer of a corporate entity can be classified as an employee of the same entity. Finally, there are insufficient facts alleged to show that Valley Columbus could have reasonably foreseen that the individual defendants would defame Plaintiffs.

Eighth C/A for Injunction:
“An injunction is a remedy, not a cause of action.” Marlin v. Aimco Venezia LLC (2007) 154 Cal.App.4th 154, 162; Shamsian v. Atlantic Richfield Co. (2003) 107 Cal. App. 4th 967, 984-85 (“Correctly, the respondents state that a request for injunctive relief is not a cause of action…. Therefore, we cannot let this ‘cause of action’ stand. However,…on remand the trial court shall permit the appellants to amend their…cause of action to include their request for injunctive relief.”).

Injunction and First Amendment Rights of Free Speech

A preliminary injunction is a provisional remedy granted by a court prior to a final adjudication of the action on the merits. See Huntingdon Life Sciences, Inc. v. Stop Huntingdon Animal Cruelty USA, Inc. (2005) 129 Cal.App.4th 1228, 1248. To show entitlement to a preliminary injunction, a plaintiff must prove a likelihood of prevailing on the merits, and that the harm to the plaintiff from not granting the injunction outweighs the harm to the defendant if the injunction is issued pending trial. Butt v. State of California (1992) 4 Cal.4th 668, 677-678. In cases where a preliminary injunction is sought in order to enjoin speech arising as the result of an action for defamation, the plaintiff raises constitutional issues of free speech and First Amendment rights. In this case, Plaintiffs allege that they “have demanded that Defendants desist from engaging in any of the conduct described in paragraphs 1 through 65. Defendants have refused and still refuse to refrain from their wrongful conduct.” (SAC, ¶¶ 93-94). However, Plaintiffs make no allegations that any of the Defendants have made any allegedly defamatory statements against either Plaintiff since in or about November 2013 (¶22l). Thus, it is unclear why Plaintiffs would be entitled to an injunction against Defendants’ speech, given the significant impact such remedy would have upon Defendants’ constitutional rights.

Motion to Strike

Punitive Damages: Moot.

Attorney’s Fees:
A prevailing party is entitled to recover attorney’s fees only when authorized by statute, contract, or by law. CCP §1033.5(a)(10). Here Plaintiffs seek to recover their attorney’s fees from all named Defendants. However, Plaintiffs have not alleged any basis upon which Plaintiffs are entitled to such an award. It is true that attorney’s fees is more a matter of proof than pleading at the conclusion of a case, but, here, the court declines to allow this allegation to remain given the recent surfacing of several causes of action.

Paragraphs 20 and 21:
Plaintiffs allege at ¶20 a sexual assault of Plaintiff Candido Marez by Defendant John Riordan, and at ¶21 a battery of Candido by Defendant Misael Pena Parra. The Individual Defendants seek to strike these as irrelevant, and claim these allegations are part of another lawsuit but Plaintiffs claim that they are relevant to the conspiracy claim, without explaining how. Nevertheless, these paragraphs tend to show an alleged malice of Defendant John Riordan toward Plaintiff Candido Marez, and are relevant to the conspiracy allegations. The paragraphs should not be stricken.

Paragraphs 22a through 22g:
Defendants claim that the allegedly defamatory statements outlined in subparagraphs (a) through (g) are barred by the applicable statute of limitations, as discussed above, and should be stricken. However, Plaintiffs have alleged (imperfectly) that there was a conspiracy amongst the individual Defendants, and that this tolls the statute, as discussed above. Since the court sustains the demurrer with leave to amend, the motion to strike these same paragraphs is now moot.

Paragraphs 50 through 67:
Denied. See above discussion.

Leave to Amend
The burden is on the complainant to show the court that a pleading can be amended successfully, in order to obtain an order allowing leave to amend. Goodman v. Kennedy (1976) 18 Cal.3d 335, 349).

Plaintiffs are granted leave either to file and serve a writing by [10 days] indicating no intent to amend the complaint or to file and serve a third amended complaint by that date. If plaintiffs elect the latter, a red-line copy of the amended complaint showing the changes from the previous complaint is to be concurrently provided to defendants. If defendants intend to file a demurrer to the second amended complaint, defendants must lodge directly in Dept. 73 the red-line copy of the amended complaint with its demurrer.

Unless waived, notice of ruling by plaintiffs.