Case Number: BC513854    Hearing Date: August 08, 2014    Dept: 32

CASE NAME: Cheryl Taylor v. Southern California Regional Rail Authority
CASE NO.: BC513854
HEARING DATE: 08/08/14
DEPARTMENT: 32
CALENDAR NO.: 4
SUBJECT: Demurrer to First Amended Complaint
MOVING PARTY: Defendant Southern California Regional Rail Authority
RESP. PARTY: Plaintiff Cheryl Taylor

TENTATIVE RULING

Demurrer to First Amended Complaint (“FAC”)

First and Second Causes of Action (Wrongful Termination in Violation of Public Policy) SUSTAINED WITHOUT LEAVE TO AMEND.

Third through Seventeenth Causes of Action (Slander Per Se) SUSTAINED WITHOUT LEAVE TO AMEND.

Eighteenth Cause of Action (Libel Per Se) SUSTAINED WITHOUT LEAVE TO AMEND.

Introduction

This is an action alleging claims for wrongful termination, slander and libel According to the FAC, Plaintiff was employed by Defendant Southern California Regional Rail Authority as its Chief Financial Officer from August 2011 to May 2012, when she was involuntarily terminated for an allegedly impermissible purpose. Thereafter, the FAC alleges that Defendant made defamatory statements about Plaintiff’s professional abilities to a number of potential employers.

On January 29, 2014, the court (per Judge Mary H. Strobel) sustained with 20 days leave to amend Defendant’s demurrer to the first through eighteenth causes of action in the complaint for wrongful termination in violation of public policy, slander per se (multiple counts), and libel per se. The court sustained without leave to amend Defendant’s demurrer to the nineteenth, twentieth, and twenty-first causes of action for age discrimination, harassment, and failure to prevent harassment. The FAC was thereafter filed and this demurrer ensued.

As discussed below, the FAC does not cure the deficiencies noted in the ruling on the demurrer to the complaint. The issues raised by the demurrers include the failure to exhaust administrative remedies by not complying with the claims procedures in the Government Claims Act. In addition, Defendant argues that the wrongful termination claims cannot be asserted be asserted against a public agency defendant, that the slander claims do not have the factual specificity required of such claims against a public entity and that the libel claim is based on privileged statements. For the reasons set forth below, the court agrees with Defendant’s position on these points. There is no statement in the opposition as to how these matters could be remedied in another pleading. For that reason, the demurrers are sustained without leave to amend. However, at the hearing the court will consider a proffer from Plaintiff concerning the facts which she could allege to properly plead some or all of the claims in the FAC.

ANALYSIS

Defendant’s Request for Judicial Notice

Exhibits 1-4 – GRANTED.

Plaintiff’s Requests for Discretionary and Mandatory Judicial Notice

Exhibits A and B (2012 and 2013 California State Agencies, Departments, Boards, and Commissions Roster) – DENIED.

Gov. Code §§ 946.4 and 53051 – GRANTED.

Defendant’s Request for Judicial Notice in Reply

Exhibits 1-6 – GRANTED.

Exhibit 7 – GRANTED.

Exhibit 8 – DENIED.

Compliance with Government Claims Act – First through Eighteenth Causes of Action

There are procedural requirements that must be met to initiate an action against a governmental entity. Generally stated, these requirements mandate that there be an exhaustion of administrative remedies prior to a lawsuit. “No suit for money or damages may be brought against a public entity on a case of action for which a claim is required to be presented … until a written claim therefor has been presented to the public entity and has been acted upon by the board, or has been deemed to have been rejected by the board ….” (Gov. Code § 945.4.) “The filing of a claim is a condition precedent to the maintenance of any cause of action against the public entity and is therefore an element that a plaintiff is required to prove in order to prevail.” (Del Real v. City of Riverside (2002) 95 Cal.App.4th 761,767.)

A claim “relating to a cause of action for death or injury to person or personal property … shall be presented … not later than six months after the accrual of the cause of action.” (Gov. Code Sec. 911.2.) “All other claims shall be presented … not later than one year after the accrual of the cause of action.” (Ibid.) Pursuant to CCP Sec. 810.8, “Injury” means “death, injury to a person, damage to or loss of property, or any other injury that a person may suffer to his person, reputation, character, feelings or estate, of such nature that it would be actionable if inflicted by a private person.”

The Government Code provides that “[T]he failure to present a claim does not constitute a bar or defense to the maintenance of a suit against such public agency if, during the 70 days immediately following the accrual of the cause of action:(1) No statement pertaining to the public agency is on file, or is placed on file, in the Roster of Public Agencies in the office of the Secretary of State and of the county clerk of each county in which the public agency then maintains an office, as required by Section 53051.” (Gov. Code § 946.4(a).)

In the FAC, Plaintiff alleges that Defendant was not listed on the California Secretary of State’s Roster of Public Agencies in years 2012 and 2013. (FAC ¶ 7.) Therefore, an initial question in the Government Claim Act analysis is whether Defendant complied with Gov. Code § 53051.

Defendant’s Compliance with Gov. Code § 53051

The court has granted Defendant’s request for judicial notice with the moving papers of Statement of Facts Roster of Public Agencies Filings filed by Defendant with the California Secretary of State on February 1, 2012, July 25, 2012, January 17, 2013, and August 29, 2013. Defendant’s counsel has authenticated these public records. The fact that these documents were filed with the California Secretary of State cannot be reasonably disputed. In reply, Defendant has also properly requested judicial notice of certificates of filing issued by the California Secretary of State for Statement of Facts Roster of Public Agencies Filings for Defendant for 2012, 2013, and 2014. These judicially noticeable facts establish that Defendant complied with Gov. Code § 53051 by filing the required statement of facts with the California Secretary of State.

The court has denied Plaintiff’s request for judicial notice of two unauthenticated documents, apparently titled the “2013 California State Agencies, Departments, Boards, and Commissions Roster” and the “2012 California State Agencies, Departments, Boards, and Commissions Roster.” Plaintiff has made no showing that these documents accurately reflect Defendant’s compliance with Gov. Code § 53051 or that these documents reflect the “Roster of Public Agencies” maintained by the Secretary of State pursuant to Gov. Code § 53051(c). Moreover, this statute requires the Secretary of State to designate the roster specifically as the “Roster of Public Agencies.” The two documents submitted by Plaintiff, although apparently using a similar name, do not appear to be designated as the “Roster of Public Agencies” referred to in § 53051(c) and as such are not relevant.

Based on the foregoing, Plaintiff has not sufficiently alleged that Defendant did not comply with Gov. Code § 53051 so that the Government Claims Act would not apply to Plaintiff.

Compliance with Government Claims Act

In sustaining the demurrer to the original complaint, the court stated the following: “Plaintiff’s first and second causes of action for wrongful termination, and her third through eighteenth causes of action are all claims subject to the Government Code claims filing requirements. In the Complaint, Plaintiff has not pled compliance with the claims filing requirement. In opposition to the demurrer, Plaintiff contends that her attorney sent a “letter of understanding” to General Counsel for Defendant in June 2012, and that she filed her lawsuit within one year of the accrual of the causes of action. Plaintiff’s arguments are insufficient to defeat demurrer. Plaintiff has not pled in the Complaint any of the factual assertions contained in the opposition to the demurrer. Further, even if the Court were to consider facts beyond the pleading, these facts do not support a finding that Plaintiff ever filed a claim in compliance with the Government Tort Claims Act requirements. The import of the “letter of understanding” is unclear from the facts argued in the opposition. Further, the filing of the Complaint itself is not a substitute for filing a claim with the governmental agency, which must precede the filing of a lawsuit.” (Court Ruling, 1/29/14.)

In the FAC, Plaintiff alleges that she was involuntarily terminated on May 11, 2012. (FAC ¶ 29.) Plaintiff’s third through eighteenth causes of action for slander per se and libel per se allege that Defendant made false statements about Plaintiff over a period of time, the last date allegedly being December 12, 2012. Therefore, as Plaintiff acknowledges in opposition, it appears from the face of the FAC that the wrongful termination claims accrued on May 11, 2012 and the slander and libel claims accrued at the latest by December 12, 2012. (Oppo. 10.) Plaintiff filed her complaint on July 1, 2013, more than six months after the accrual of each of these causes of action.

In the FAC, Plaintiff has still not pled compliance with the claims filing requirement. Plaintiff appears to allege that her communications between her attorney and Defendant amount to submission of a claim in compliance with the Government Claims Act. (FAC ¶¶ 39-52.) Plaintiff alleges that her attorney, Krista Haynes, sent a letter to Defendant’s Human Resources department on June 14, 2012, requesting her employment file “to determine [Plaintiff’s] rights against your company.” (FAC ¶¶ 39-40.) Defendant’s General Counsel, Don Del Rio, wrote in his letter forwarding the employment file, that he provided the file “with the aim of avoiding needless litigation….” (FAC ¶ 43.) Plaintiff alleges that she made a Public Records Act request for documents in October 2012. (FAC ¶¶ 48-51.) Finally, Ms. Haynes responded to the July 17, 2012 letter on November 2, 2012, “[Plaintiff] was denied equal pay at [Defendant] and was terminated as a result of retaliation for performing her duties as CFO.” Ms. Haynes also urged settlement of “this matter.” (FAC ¶¶ 45-47.)

The Supreme Court stated that “Government Code section 915, subdivision (a) ( section 915(a)), establishes the manner of delivery of a claim against the government. It requires that a claim be presented to a local public entity by ‘[d]elivering it to the clerk, secretary or auditor,’ or by mailing it to one of these officials ‘or to the governing body.’ Section 915, subdivision (e)( section 915(e)), further provides that a misdirected claim “shall be deemed to have been presented in compliance” with section 915 if ‘[i]t is actually received by the clerk, secretary, auditor or board of the local public entity.’” (DiCampli-Mintz v. County of Santa Clara (2012) 55 Cal.4th 983, 986.)

In this regard, the Supreme Court has held that a claimant must strictly comply with the notice requirements. In DiCampli-Mintz, a medical malpractice case, the plaintiff sent a letter in compliance with § 364 of its intent to sue a health care provider. The letter, addressed to the “Risk Management Department” of the county-owned hospital, was hand-delivered to someone in the hospital’s administration building. The letter did not request it be forwarded to any of the statutorily designated recipients set forth in § 915. (Id. at 987.) The trial court granted the county’s motion for summary judgment based on the plaintiff’s failure to comply with the Government Claims Act. The court of appeal reversed. In reversing the court of appeal, the California Supreme Court held that the Government Claims Act was not satisfied by substantial compliance even if the public entity has actual knowledge of facts that might support the claim. “Compliance with section 915(e)(1) requires actual receipt of the misdirected claim by one of the designated recipients. If an appropriate public employee or board never receives the claim, an undelivered or misdirected claim fails to comply with the statute.” (Id. at 992.)

In the FAC, Plaintiff does not allege that there was actual receipt by one of the designated recipients. Thus, Plaintiff makes no allegation suggesting that her letters were delivered to a “clerk, secretary or auditor” as required by § 915. In opposition, Plaintiff argues that General Counsel Del Rio is an “appropriate public employee” pursuant to § 915(e). However, Plaintiff does not allege that Del Rio is a member of the “governing body” of Defendant. The court judicially notices the Roster of Public Agencies Filing, submitted by Defendant in reply, which lists the members of Defendant’s Board of Directors as of November 20, 2013. (Reply RJN Exh. 7.) Del Rio is not listed as a member of the Board of Directors but rather as “executive staff.” In any event, it was incumbent on Plaintiff to allege affirmatively in the FAC compliance with the Government Claims Act. She has not alleged any facts establishing that Del Rio is a statutorily designated recipient of government claims, as required by § 915.

Defendant contends that Plaintiff’s communications with Del Rio, even if directed at a statutorily designated person, did not contain the requisite information to constitute a claim. (Mot. 6.) It appears from paragraph 46 of the FAC that Plaintiff may have included a factual description of the basis for her wrongful termination claims. However, Plaintiff has not alleged any facts suggesting that she informed Del Rio that she had claims for slander or libel. (See FAC ¶¶ 40-49.) For this additional reason, Plaintiff failed to allege compliance with the Government Claims Act with respect to the third through eighteenth causes of action.

Plaintiff contends that, under California law, defamation is a cause of action relating to a proprietary interest, not a personal injury. (Howland v. Balma (1983) 143 Cal.App.3d 899, 904.) However, Howland, cited by Plaintiff, is not on point because that court determined that defamation is a proprietary interest, rather than a personal injury, for purposes of the Workers’ Compensation Act. Because it did not discuss the definition of “injury” under the California Government Code, it is not applicable here. Other cases have indicated that the six-month limitations period of Sec. 911.2 applies to claims for defamation. (See Shively v. Bozanich (2003) 31 Cal.4th 1230, 1246, fn. 9.)

Based on the foregoing, Plaintiff has not alleged that she complied with the Government Claims Act within six months of accrual of her claims. Plaintiff has not asserted any other legal or equitable theory to plead around this statutory bar to her claims. Plaintiff has been given an opportunity to amend her complaint to address this issue, and she has not shown in opposition, that she could cure this defect by further amendment. As stated at the outset, at the hearing Plaintiff may make a proffer of the facts that could be alleged in a second amended complaint that would sufficiently allege some or all of the claims.

The demurrer is SUSTAINED WITHOUT LEAVE TO AMEND as to all causes of action.

First and Second Causes of Action – Wrongful Termination in Violation of Public Policy

Defendant contends, citing Gov. Code § 815, that a government and/or public entity has no common law liability. Government Code section 815, limits common law liability for public entities and states that “[e]xcept 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.” (Gov. Code ¶ 815(a); Miklosy v. Regents of the University of California (2008) 44 Cal.4th 876, 899.) In Miklosy, the court held that Gov. Code section 815 bars Tameny actions against public entities. (Miklosy, supra, 44 Cal.4th 876 at 900.) The above is a reflection of the sovereign immunity doctrine.

In opposition, Plaintiff does not dispute the applicability of § 815 or Miklosy. (Oppo. 13-14.) Plaintiff argues that because Defendant has failed to comply with Gov. Code § 53051, Defendant is not a listed public entity that could be protected by statutory immunities. As discussed above, Plaintiff has not alleged sufficient facts to support her theory that Defendant has failed to comply with Gov. Code § 53051. That assertion is also contradicted by judicially noticeable documents.

Even assuming, however, that Defendant had failed to comply with § 53051, Plaintiff cites no authorities suggesting that this would cause Defendant to lose statutory immunity pursuant to Gov. Code § 815. Gov. Code § 946.4 creates a specific exemption from the Government Claims Act for public agencies that do not comply with § 53051. This specific statutory exemption is irrelevant to the scope of the immunity provided in Gov. Code § 815.

It appears from the opposition papers that Plaintiff would be unable to cure this defect by amendment. Accordingly, for this additional reason, the demurrer is SUSTAINED WITHOUT LEAVE TO AMEND as to the first and second causes of action.

Third through Seventeenth Causes of Action – Slander Per Se

The elements of slander are: (1) False and unprivileged publication; (2) orally uttered to third persons; and (3) naturally tending directly to injure a person, in respect to office, profession, trade or business (slander per se), or special damages. (Mann v. Quality Old Time Service, Inc. (2004) 120 Cal. App. 4th 90, 106.)

To state a cause of action against a government entity, “every fact essential to the existence of statutory liability must be pleaded with particularity.” (Searcy v. Hemet Unified School Dist. (1986) 177 Cal. App. 3d 792, 802.) “The general rule is that the words constituting an alleged libel must be specifically identified, if not pleaded verbatim, in the complaint.” (Kahn v. Bower (1991) 232 Cal.App.3d 1599, 1612, fn. 5; see also Lipman v. Brisbane Elementary School District (1961) 55 Cal.2d 224, 235.)

In the slander causes of action, Plaintiff alleges that she applied for and was denied various employment positions. She alleges that Defendant “made defamatory oral statements about her professional abilities” to the prospective employers. (See, e.g. FAC ¶ 69.) Plaintiff has not alleged any facts regarding the content of these alleged defamatory statements, even in general terms. Since a cause of action against a public entity must be pleaded with particularity, Plaintiff has not alleged sufficient facts to support her slander causes of action.

In opposition, Plaintiff contends that she should be permitted to explore the nature of the slander causes of action in discovery. (Oppo. 14.) Plaintiff cites no authorities suggesting that she should be permitted to avoid a pleading requirement for these causes of action, which must be made at the outset of a case to state a claim, by conducing discovery. In addition, Plaintiff has not argued that she could cure the defects in these causes of action by amendment. However, as noted above, at the hearing Plaintiff may make a proffer of facts that would be included in a second amended complaint.

For this additional reason, the demurrer is SUSTAINED WITHOUT LEAVE TO AMEND as to the third through seventeenth causes of action.

Eighteenth Cause of Action – Libel Per Se

Plaintiff alleges that Defendants made defamatory written statements to Plaintiff’s counsel in a letter dated July 19, 2012. Plaintiff apparently refers to Del Rio’s letter, in which he set forth some of the reasons Defendant terminated Plaintiff’s employment. (FAC ¶¶ 222, 44.)

The litigation privilege of § 47(b) applies to statements made “[i]n any (1) legislative proceeding, (2) judicial proceeding, (3) in any other official proceeding authorized by law, or (4) in the initiation or course of any other proceeding authorized by law and reviewable pursuant to [statutes governing writs of mandate].” (Hagberg v. California Federal Bank FSB (2004) 32 Cal.4th 350, 360.) The litigation privilege is “absolute” and “cannot be defeated by a showing of malice.” (Id. at 365.) The litigation privilege bars all tort claims except malicious prosecution. (Id. at 360.) The litigation privilege extends to pre-litigation statements, including statements made in response to demand letters. (Rubin v. Green (1993) 4 Cal.4th 1187, 1194-1195.)

Based on these authorities, Defendant’s communications in the July 19, 2012 letter would be protected by the litigation privilege as they apparently were made in anticipation of potential litigation. Plaintiff has not persuasively responded to this argument in opposition or shown that this defect could be cured by amendment, although she may make a proffer at the hearing on what would be alleged. (Oppo. 15.)

For this additional reason, the demurrer to the eighteenth cause of action is SUSTAINED WITHOUT LEAVE TO AMEND.