Filed 9/19/19 Davis v. Sacramento River Cats Baseball Club, LLC CA3

NOT TO BE PUBLISHED

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Sacramento)

—-

LAMBERT DAVIS,

Plaintiff and Appellant,

v.

SACRAMENTO RIVER CATS BASEBALL CLUB, LLC et al.,

Defendants and Respondents.

C086840

(Super. Ct. No. 34201700210406CUDFGDS)

Plaintiff Lambert Davis sued defendants Sacramento River Cats Baseball Club, LLC (the River Cats), its president Jeffrey Savage, its ticket operations manager John Krivacic, and its public relations and baseball operations manager Daniel Emmons (collectively defendants) alleging multiple causes of action arising out of defendants’ posting of a sign in the visitor clubhouse showing plaintiff’s driver’s license along with a warning that he was a ticket scalper who scammed people. After the trial court partially sustained defendants’ demurrer without leave to amend but also overruled it in large part, plaintiff filed a first amended complaint. Defendants then filed a motion to strike under the anti-SLAPP statute. Believing it was required to hear the motion pursuant to the law at the time, the trial court heard and then granted defendants’ motion, thus striking plaintiff’s complaint.

On appeal, plaintiff contends the court erred by finding defendants’ anti-SLAPP motion timely. He also contends the trial court erred on the merits by granting the motion and by previously sustaining defendants’ demurrer without leave to amend as to plaintiff’s invasion of privacy cause of action under Civil Code section 1798.53. He further raises challenges to the trial court’s attorney fee and costs award and urges us to impose sanctions on defendants for bringing a frivolous anti-SLAPP motion.

We conclude remand is appropriate for the trial court to determine in the first instance whether defendants timely filed their anti-SLAPP motion. Our Supreme Court has recently settled the issue of whether a party may file an anti-SLAPP motion following the filing of a first amended complaint alleging the same claims and facts as the initially filed complaint. They may not. (Newport Harbor, supra, 4 Cal.5th at p. 641.) But because the anti-SLAPP statute and our Supreme Court left room for the trial court to exercise its discretion to allow a late-filed motion and the trial court’s order was not clear as to whether it would have exercised its discretion in such a way, we will remand the case for that limited purpose. (Ibid.; § 425.16, subd. (f).) Given this conclusion, we need not address plaintiff’s contentions regarding the merits of the anti-SLAPP motion, the attorney fee and costs award, or the request for sanctions. We also conclude the court did not err by sustaining defendants’ demurrer as to the invasion of privacy cause of action under Civil Code section 1798.53.

FACTUAL AND PROCEDURAL BACKGROUND

Plaintiff filed his complaint on March 27, 2017, alleging five causes of action against defendants arising out of the same set of operative facts. As relevant here, plaintiff operates a cheesecake business and trades his cheesecake to the River Cats’s visiting players in exchange for tickets to baseball games. Plaintiff picks up the tickets at the ticket office after showing his driver’s license. On one occasion, in June 2015, when plaintiff picked up tickets left for him by a visiting player, Krivacic made a copy of his driver’s license and sent it to Emmons. Krivacic told both Emmons and Savage that plaintiff was a ticket scalper, and further instructed Emmons to post a sign in the visitor clubhouse warning of plaintiff. Emmons posted the sign, which included an image of plaintiff’s unredacted driver’s license and a handwritten note saying, “ ‘THIS PERSON GOES BY “WAYNE DAVIS” AND IS A TICKET SCALPER. PLEASE DO NOT REQUEST TICKETS FOR HIM. HE SCAMS PEOPLE. THANKS!’ ” Plaintiff disputes the truth of the handwritten note and does not go by the name Wayne Davis. Plaintiff did not learn about the sign until he was contacted as part of the investigation into another legal matter.

Plaintiff’s complaint alleged causes of action for defamation, invasion of privacy on both a common law theory and under Civil Code section 1798.53 in that defendants disclosed personal information obtained from records maintained by a state agency, negligent interference with a present and prospective business interest, and violation of the Unruh Civil Rights Act. Defendants filed a demurrer on June 20, 2017.

The trial court sustained the demurrer in part. It sustained the demurrer with leave to amend on all causes of action against Savage, except invasion of privacy under Civil Code section 1798.53, because plaintiff had not alleged sufficient facts to show Savage took part in the posting of the sign. As to the defamation cause of action, the court sustained the demurrer with leave to amend finding plaintiff did not allege facts sufficient to avail himself of the discovery rule exception to the statute of limitations. As to the invasion of privacy cause of action under Civil Code section 1798.53, the court sustained the demurrer without leave to amend against all defendants because defendants were not employees of a state agency. It overruled the demurrer to all other causes of action as it pertained to all defendants besides Savage.

On August 7, 2017, plaintiff filed his first amended complaint. The first amended complaint alleged the same set of operative facts, except to include that Savage “agreed,” “ratif[ied],” and “instructed” Krivacic and Emmons to post the sign in the visitor clubhouse. It also alleged the date plaintiff learned of the sign’s posting. The first amended complaint alleged the same causes of action as the originally filed complaint, but omitted the invasion of privacy cause of action under Civil Code section 1798.53.

On October 11, 2017, defendants filed and served their anti-SLAPP motion. In his opposition, plaintiff argued the filing of the motion was untimely relying on Newport Harbor which, at that time, was pending review in our Supreme Court.

The trial court found defendants’ motion timely, stating in whole: “In opposition, plaintiff first contends that the motion is procedurally defective because it is based on the allegations of the [first amended complaint] that were similar to the allegations of the original complaint. Pursuant to Newport Harbor Ventures, LLC v. Morris Cerullo World Evangelism, (2006) 6 Cal.App.5th 1207, 1211-1212 . . . , filing an amended complaint does not extend the time for filing an anti-SLAPP motion for the same claims made in an earlier complaint. An opinion is no longer considered published if the Supreme Court grants review (Cal. Rules of Court, rule 8.1105(e)(1)) and may not be relied on or cited (Cal. Rules of Court, rule 8.1115(a)).[ ] Nonetheless, in Reply, defendant points out that the only binding authority on this subject holds that this motion is timely. In Yu v. Signet Bank/Virginia (2002) 103 Cal.App.4th 298, 314, the court held that anti-SLAPP motions can be filed against amended complaints, even as to previously asserted causes of action. Therefore, this motion in not untimely.” The trial court also found the posted sign was protected speech in that it was a communication between interested parties on an issue of public interest and that plaintiff failed to present evidence that he could prevail on the merits. Accordingly, the trial court granted defendants’ motion to strike plaintiff’s first amended complaint.

Plaintiff appeals.

DISCUSSION

I

The Case Must Be Remanded For The Limited Purpose Of

Determining Whether The Anti-SLAPP Motion Was Timely Filed

Plaintiff contends the trial court erred by permitting defendants to file an anti-SLAPP motion when his first amended complaint raised the same causes of action based on the same facts as his initially filed complaint. Defendants contend their case is distinguishable and, in the alternative, that the rule announced in Newport Harbor should not retroactively apply to them. We conclude the rule announced in Newport Harbor applies to defendants’ motion and remand is required for the trial court to exercise its informed discretion in the first instance.

Under section 425.16, subdivision (f), an anti-SLAPP motion “may be filed within 60 days of service of the complaint [or cross-complaint] or, in the court’s discretion, at any later time upon terms it deems proper.” At the time defendants filed their motion, cases determined the 60-day time period began to re-run upon the service of an amended complaint or cross-complaint. (Yu v. Signet Bank/Virginia, supra, 103 Cal.App.4th at p. 315; see Lam v. Ngo (2001) 91 Cal.App.4th 832, 835.) But as plaintiff pointed out in his opposition, Newport Harbor was pending review in our Supreme Court to determine whether Division Three of the Fourth Appellate District was correct in holding that the “amended complaint reopens the time to file an anti-SLAPP motion without court permission only if the amended complaint pleads new causes of action that could not have been the target of a prior anti-SLAPP motion, or adds new allegations that make previously pleaded causes of action subject to an anti-SLAPP motion.” (Newport Harbor Ventures, LLC v. Morris Cerullo World Evangelism, supra, 6 Cal.App.5th at pp. 1218-1219, review granted Mar. 22, 2017, S239777.) Division Three of the Fourth Appellate District “disagree[d] with Yu to the extent it holds that a defendant has an absolute right to file an anti-SLAPP motion to an amended complaint, even when the motion could have been brought [in] an earlier complaint.” (Id. at p. 1218.)

Following resolution of plaintiff’s case in the trial court, our Supreme Court affirmed Division Three of the Fourth Appellate District, noting that “ ‘[a]n anti-SLAPP motion is not a vehicle for a defendant to obtain a dismissal of claims in the middle of litigation; it is a procedural device to prevent costly, unmeritorious litigation at the initiation of the lawsuit.’ ” (Newport Harbor, supra, 4 Cal.5th at p. 645.) The court concluded “section 425.16, subdivision (f), should be interpreted to permit an anti-SLAPP motion against an amended complaint if it could not have been brought earlier, but to prohibit belated motions that could have been brought earlier (subject to the trial court’s discretion to permit a late motion). This interpretation maximizes the possibility the anti-SLAPP statute will fulfill its purpose while reducing the potential for abuse.” (Ibid.)

It is apparent from the trial court’s order that it believed it was bound by Yu and had no discretion to decide whether to hear the anti-SLAPP motion. Nothing in the court’s comments shed light on what it would have done had it known of our Supreme Court’s holding in Newport Harbor requiring an exercise of discretion when anti-SLAPP motions are filed under the circumstances of defendants’ case. We will not presume the trial court would choose to exercise that discretion if given the chance. Thus, while this case may be different than Newport Harbor, as defendants argue, we will leave it to the trial court to decide in the first instance whether those differences justify hearing the motion despite application of that case.

Defendants argue Newport Harbor should not be retroactively applied to their case because it overturned a well-established rule. Again, we will leave this determination to the trial court, which may take the equities of defendants’ particular case into account when deciding whether their motion is timely. Retroactivity is the general rule, subject to narrow exceptions. (Newman v. Emerson Radio Corp. (1989) 48 Cal.3d 973, 983 [our Supreme Court has “long recognized the potential for allowing narrow exceptions to the general rule of retroactivity when considerations of fairness and public policy are so compelling in a particular case that, on balance, they outweigh the considerations that underlie the basic rule”]; see McManigal v. City of Seal Beach (1985) 166 Cal.App.3d 975, 982 [prior “misconstruction of a statute by the courts does not prevent the retroactive application of our Supreme Court’s authoritative interpretation”].)

We therefore conclude the judgment must be reversed and the matter remanded to allow the trial court to consider whether to exercise its discretion to hear defendants’ anti-SLAPP motion on the merits.

II

The Court Did Not Err By Sustaining Defendants’ Demurrer Without Leave To

Amend As To Plaintiff’s Cause Of Action Under Civil Code Section 1798.53

Plaintiff contends the trial court erred by sustaining defendants’ demurrer without leave to amend as to his invasion of privacy cause of action under Civil Code section 1798.53 because the statute applies to individuals regardless of whether they work for a state agency. Defendants do not argue the trial court’s stated reasons for sustaining the demurrer — that defendants were not a state agency thus were not liable under Civil Code section 1798.53 — were correct. Instead defendants argue plaintiff’s driver’s license is not the type of record protected by the statute because it is not maintained by a government agency. Plaintiff does not address this argument in his reply brief. We agree with defendants.

A demurrer tests the legal sufficiency of factual allegations in a complaint. (Title Ins. Co. v. Comerica Bank — California (1994) 27 Cal.App.4th 800, 807.) We review de novo the dismissal of a civil action after a demurrer is sustained without leave to amend. (Cantu v. Resolution Trust Corp. (1992) 4 Cal.App.4th 857, 879.) In doing so, “we determine whether the complaint states facts sufficient to constitute a cause of action.” (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) “ ‘We treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law.’ ” (Ibid.) “Further, we give the complaint a reasonable interpretation, reading it as a whole and its parts in their context.” (Ibid.) We will affirm if any proper ground for sustaining the demurrer exists. (Cantu, at p. 880, fn. 10.)

On appeal, a plaintiff bears the burden of demonstrating that the trial court erroneously sustained the demurrer as a matter of law. (Rakestraw v. California Physicians’ Service (2000) 81 Cal.App.4th 39, 43.) To establish that a cause of action has been adequately pled, a plaintiff must demonstrate he or she has alleged “facts sufficient to establish every element of that cause of action.” (Cantu v. Resolution Trust Corp., supra, 4 Cal.App.4th at p. 879.) If the complaint fails to plead, or if the defendant negates, any essential element of a particular cause of action, this court should affirm the sustaining of a demurrer. (Id. at p. 880.)

Civil Code section 1798.53 provides, in relevant part: “Any person, other than an employee of the state or of a local government agency acting solely in his or her official capacity, who intentionally discloses information, not otherwise public, which they know or should reasonably know was obtained from personal information maintained by a state agency . . . , shall be subject to a civil action, for invasion of privacy, by the individual to whom the information pertains.” This section is part of the Information Practices Act (the Act), and is intended to protect one’s right to privacy from indiscriminate collection and dissemination of information maintained by governmental agencies. (Civil Code, §§ 1798.1, 1798.3; Anti-Defamation League of B’nai B’rith v. Superior Court (1998) 67 Cal.App.4th 1072, 1078-1079.) “The statute was designed by the Legislature to prevent misuse of the increasing amount of information about citizens which government agencies amass in the course of their multifarious activities, the disclosure of which could be embarrassing or otherwise prejudicial to individuals or organizations.” (Anti-Defamation League of B’nai B’rith, at p. 1079.)

“The [Act’s] scope, while broad, does not encompass all documents or information handled or maintained by government agencies. Rather, by its terms, the [Act] governs the maintenance and disclosure of agency-maintained ‘records’ containing ‘personal information.’ ‘Records’ are defined as ‘any file or grouping of information about an individual that is maintained by an agency by reference to an identifying particular such as the individual’s name, photograph, finger or voice print, or a number or symbol assigned to the individual.’ (§ 1798.3, subd. (g).)” (Moghadam v. Regents of University of California (2008) 169 Cal.App.4th 466, 477-478, fn. omitted.) “ ‘[P]ersonal information’ ” is defined as “ ‘any information that is maintained by an agency that identifies or describes an individual, including, but not limited to, his or her name, social security number, physical description, home address, home telephone number, education, financial matters, and medical or employment history. It includes statements made by, or attributed to, the individual.’ ” (Hurley v. Department of Parks & Recreation (2018) 20 Cal.App.5th 634, 641, quoting Civil Code, § 1798.3, subd. (a).)

While plaintiff’s driver’s license may have contained personal information, the problem he encounters is that his driver’s license, although created by a state agency, was not maintained by that agency. “ ‘The ordinary meaning of the word “maintain” is “to keep in existence or continuance; preserve; retain.” ’ ” (Moghadam v. Regents of University of California, supra, 169 Cal.App.4th at p. 479, citing Owasso Independent School Dist. No. 1-011 v. Falvo (2002) 534 U.S. 426, 432-433 [151 L.Ed.2d 896, 904].) The Act “applies only to institutional records that are preserved in the ordinary course of business by a single, central custodian.” (Moghadam, at p. 480; Hurley v. Department of Parks & Recreation, supra, 20 Cal.App.5th at p. 645 [records need not be maintained at a central location].) Plaintiff’s driver’s license was preserved and retained by him, not a state agency. Thus, while he did not expect defendants to copy his driver’s license and then post it in the visitor clubhouse, defendants did not violate Civil Code section 1798.53 in doing so. The demurrer was properly sustained without leave to amend as to this cause of action.

DISPOSITION

The judgment is reversed and the matter is remanded to the trial court to decide whether to exercise its discretion under section 425.16, subdivision (f) to allow a late filing of defendants’ anti-SLAPP motion. The order sustaining defendants’ demurrer without leave to amend as to the invasion of privacy cause of action pursuant to Civil Code section 1798.53 is affirmed. In the interests of justice, the parties shall bear their own costs on appeal. (Cal. Rules of Courts, rule 8.278(a)(5).)

/s/

Robie, J.

We concur:

/s/

Hull, Acting P. J.

/s/

Butz, J.