Case Name: Berg, et al. v. Berg

Case No.: 1-13-CV-243348

Plaintiff/cross-defendant Ellena Elisabet Berg (“Plaintiff”) demurs to the first amended cross-complaint (“FACC”) filed by defendant/cross-complainant Clyde James Berg (“Defendant”).

Defendant’s FACC alleges the initiation and implementation of various schemes by Plaintiff to counteract a 2002 prenuptial agreement between the parties, defraud him of millions of dollars, and physically and emotionally injure him.  On July 7, 2014, Defendant filed the FACC asserting the following causes of action: (1) malicious prosecution; (2) false imprisonment; (3) false imprisonment- elder abuse; (4) computer crime (Penal Code § 502(c)); (5) intentional infliction of emotional distress; and (6) conversion.

On July 29, 2014, Plaintiff filed the instant demurrer to the second and third causes of action on the ground of failure to state facts sufficient to constitute a cause of action.  (Code Civ. Proc., § 430.10, subd. (e).)

Plaintiff’s demurrer to the second and third causes of action is based on her contention that these claims are barred by the litigation privilege, i.e., Civil Code section 47, subdivision (b).  This code provision provides that a publication or broadcast is privileged if made in any judicial or official proceeding.

Plaintiff argues that her communications with law enforcement on the evening of September 6, 2012 that she was held against her will by Defendant and physically and sexually assaulted by him fall within the ambit of Civil Code section 47, subdivision (b), and therefore his second and third causes of action cannot be maintained.  This assertion is well-taken.

The “threshold issue in determining” the applicability of Civil Code section 47, subdivision (b) is “whether the injury results from communicative acts or noncommunicative conduct.”  (Mero v. Sadoff (1995) 31 Cal.App.4^th 1466, 1480.)  The privilege applies only to torts arising from communicative acts, i.e., statements or publications.  (Id.)  As currently pleaded, the second and third causes of action for false imprisonment and elder abuse are clearly predicated on Plaintiff’s “false allegations” and “false accusations” to members of the Santa Clara County Sheriff’s Department; this is without question communicative conduct.  Courts have unequivocally held that an individual’s communications to police concerning suspected criminal activity are absolutely privileged.  (See Hagberg v. California Federal Bank (2004) 32 Cal.4^th 350, 364-365, 375 [“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 … The importance of providing citizens free and open access to governmental agencies for the reporting of suspected illegal activity outweighs the occasional harm that might befall a defamed individual.  Thus the absolute privilege is essential”].)  Accordingly, the application of the privilege does not depend on whether the statements at issue were made in good faith or with malice, as Defendant alleges they were here.  (See Kesmodel v. Rand (2004) 119 Cal.App.4^th 1128, 1136.)

Defendant’s contention that Plaintiff’s conduct falls outside of the litigation privilege is unavailing, as the authorities he relies upon are clearly distinguishable.  For example, the litigation privilege was found not to protect the defendant’s false statements to police of child abuse in Begier v. Strom (1996) 46 Cal.App.4^th 877, 881 because to do so would have rendered the Legislature’s express intention to withhold immunity from those who knowingly make false reports of child abuse in Penal Code section 11172 meaningless.  The instant action does not involve the foregoing statute and Defendant has otherwise not identified any other statute which expresses a legislative intention to override the litigation privilege in circumstances such as those involved here.  Defendant’s reliance on Civil Code section 47, subdivision (b)(2) as exempting Plaintiff’s conduct is unpersuasive; the thrust of the second and third causes of action is that Defendant was falsely imprisoned based on Plaintiff’s false statements to police that she was harmed by him.  The false imprisonment causes of action are not predicated on statements made for the purpose of intentionally destroying or altering physical evidence for the purpose of depriving a party to litigation of the use of the evidence.

Consequently, as the litigation privilege bars Defendant’s second and third causes of action, Plaintiff’s demurrer to those claims on the ground of failure to state facts sufficient to constitute a cause of action is SUSTAINED WITHOUT LEAVE TO AMEND.