GREENE JR, HERBERT VS FOUNTAINE, GINA (EMBRY)

Case Number: 14K08407    Hearing Date: October 21, 2014    Dept: 77

Defendants Gina Embry and Oscar Cobian’s Demurrer to Plaintiff’s Complaint is SUSTAINED WITHOUT LEAVE TO AMEND. CCP § 430.10(e). Defendants Gina Embry and Oscar Cobian’s Motion to Strike Portions of the Plaintiff’s Complaint is MOOT in light of the Court’s ruling on the demurrer. CCP § 128.

Plaintiff’s request for judicial notice is granted. The Court may take judicial notice of official acts of a state or federal agency. Evidence Code 452(c). However, judicial notice of Exhibit A does not establish that defendants are entitled to a ruling sustaining this demurrer. Per Cruz v. County of Los Angeles (1985) 173, Cal.App.3d 1131, “[t]he taking of judicial notice of the official acts of a governmental entity does not in and of itself require acceptance of the truth of factual matters which might be deduced therefrom, since in many instances what is being noticed, and thereby established, is no more than the existence of such acts and not, without supporting evidence, what might factually be associated with or flow therefrom. Such being the case, and because a demurrer is simply not the appropriate procedure for determining the truth of disputed facts, judicial notice of matters upon demurrer will be dispositive only in those instances where there is not or cannot be a factual dispute concerning that which is sought to be judicially noticed.” In this case, there is a factual dispute regarding whether plaintiff filed a timely government claim. Accordingly, whether a government claim was timely filed is question of fact not law that is not properly addressed at this time.

Defamation is an invasion of the interest in reputation. It may be libel or slander. The tort involves (a) a publication that is (b) false, (c) defamatory, and (d) unprivileged, and that (e) has a natural tendency to injure or that causes special damage. (Civil Code §§ 45, 46; Rest.2d, Torts §§ 558, 559; see Smith v. Maldonado (1999) 72 Cal.App.4th 637, 645.) Some kinds of disparagement, such as the charge of a serious crime, would be damaging in the minds of everyone. But other types of disparagement may be defamatory if they have a tendency to injure the reputation among members of some substantial group of persons. (Rest.2d, Torts, Comment e.) One who publishes or “takes a responsible part” in the publication is liable for the defamation. The publication must be intended, but malice or actual ill will is not an element of defamation. Where a complaint for defamation discloses a privileged occasion but fails to allege malice, a general demurrer lies. (See Locke v. Mitchell (1936) 7 C.2d 599, 602; Tschirky v. Superior Court (1981) 124 C.A.3d 534, 538.)

Cal. Civ. Code § 47 establishes a privilege that bars liability in tort for the making of certain statements. Pursuant to Cal. Civ. Code § 47(b), the privilege bars a civil action for damages for communications made in 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, with certain statutory exceptions that do not apply to the present case. The privilege established by this subdivision often is referred to as an absolute privilege, and it bars all tort causes of action except a claim for malicious prosecution. The overwhelming majority of cases conclude that when a citizen contacts law enforcement personnel to report suspected criminal activity and to instigate law enforcement personnel to respond, the communication also enjoys an unqualified privilege under Cal. Civ. Code § 47(b). These cases explain that a statement urging law enforcement personnel to investigate another person’s suspected violation of criminal law, to apprehend a suspected lawbreaker, or to report a crime to prosecutorial authorities is shielded from tort liability to the same extent as a similar statement to administrative enforcement agencies. Reasoning that such communications are at least preparatory to any other official proceeding authorized by law, the majority of decisions in the Courts of Appeal have held such statements to be shielded by an absolute privilege. See Hagberg v. California Federal Bank (2004) 32 Cal. 4th 350.

This demurrer is sustained without leave to amend. In this case, plaintiff has not alleged sufficient facts against either defendant to support a cause of action for defamation. CCP § 430.10(e). First, the statements as alleged do not rise to the level of defamation; there is no allegation that the statements that plaintiff was aggressive and threatening would injure plaintiff’s reputation among members of some substantial group of persons. Further, from the allegations of the complaint it appears that defendants’ statements were privileged per CC § 47 as they were made to law enforcement. Based on the foregoing, this demurrer is sustained without leave to amend.

Leave to amend is denied. Leave to amend must be allowed where there is a reasonable possibility of successful amendment. Goodman v. Kennedy (1976) 18 Cal.3d 335, 348. The burden is on the complainant to show the Court that a pleading can be amended successfully. Here, Plaintiff has not opposed this demurrer. As such, the court has no reason to conclude that plaintiff can successfully amend.

Moving party to give notice.

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