Case Name: Berg, et al. v. Berg
Case No.: 1-13-CV-243348

Plaintiff/cross-defendant Ellena Elisabet Berg (“Plaintiff”) demurs to the cross-complaint (“Cross-Complaint”) filed by defendant/cross-complainant Clyde James Berg (“Defendant”) and moves to strike portions therein.

Defendant’s Cross-Complaint 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 May 9, 2014, Defendant filed the Cross-Complaint 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 May 27, 2014, Plaintiff filed the instant demurrer to the second, third, fourth and fifth 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)) and a motion to strike the sixth cause of action.

Plaintiff’s request for judicial notice is GRANTED IN PART. The request is GRANTED as to Exhibit 1 (see Evid. Code § 452, subd. (d)) and DENIED as to Exhibit 2.

Plaintiff’s motion to strike the sixth cause of action is DENIED. A pleading challenge to an entire cause of action is by demurrer rather than a motion to strike under Code of Civil Procedure sections 435 and 436. (See Quiroz v. Seventh Ave. Ctr. (2006) 140 Cal.App.4th 1256, 1281 [“where a whole cause of action is the proper subject of a pleading challenge, the court should sustain a demurrer to the cause of action rather than grant a motion to strike”].)

Plaintiff demurs to the second, third, fourth and fifth causes of action on the ground that they 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. “In order to partake of the absolute privilege a publication need not be pertinent, relevant or material in a technical sense to any issue in the action; it need only have some connection or relation to the proceedings.” (Portman v. George McDonald Law Corp. (1979) 99 Cal.App.3d 988, 991-992; see also Ascherman v. Natanson (1972) 23 Cal.App.3d 861, 864-865.)

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). Defendant does not dispute this fact and indeed, 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.4th 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”].)

However, Defendant contends that his claims are also predicated on non-communicative conduct to which the litigation privilege does not apply. The “threshold issue in determining” the applicability of Civil Code section 47, subdivision (b) is “whether the injury results form communicative acts or noncommunicative conduct.” (Mero v. Sadoff (1995) 31 Cal.App.4th 1466, 1480.) The privilege applies only to torts arising from communicative acts, i.e., statements or publications. (Id.)

Here, Defendant’s argument is persuasive, in part. 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. (See Cross-Complaint at ¶¶ 44, 46, 51, 53.) However, the fourth and fifth are based, at least on part, on noncommunicative conduct. In the fourth cause of action, Plaintiff is alleged to have violated Penal Code section 502, subdivision (c), by accessing Defendant’s computer without his permission for the purpose of composing and transmitting “phony” emails to herself in order to support her false allegations of physical and sexual abuse by him. (Id. at ¶ 57.) Penal Code section 502, subdivision (c) prohibits the unauthorized access and use of a computer or computer system. Thus, it is the access by Plaintiff and usage of Defendant’s computer, i.e., noncommunicative conduct, that is the basis of the fourth cause of action and not the content of the false emails that she composed.

The fifth cause of action for intentional infliction of emotional distress incorporates by reference all of the preceding allegations of the Cross-Complaint, which include not only the allegedly unauthorized access and usage of Defendant’s computer, but also Plaintiff’s purported conversion of Defendant’s personal property. (See Cross-Complaint at ¶¶ 34, 57.) This too is noncommunicative conduct. While this cause of action also necessarily includes the privileged communicative conduct underlying the third and fourth causes of action, a demurrer does not lie to only part of a cause of action. (See PH II, Inc. v. Superior Court (1995) 33 Cal.App.4th 1680, 1682.)

In accordance with the foregoing analysis, Plaintiff’s demurrer on the ground of failure to state facts sufficient to constitute a cause of action is SUSTAINED WITH 10 DAYS’ LEAVE TO AMEND as to the second (false imprisonment) and third (false imprisonment- elder abuse) causes of action and OVERRULED as to the fourth (Penal Code § 502(c)) and fifth (intentional infliction of emotional distress) causes of action.