Filed 9/27/19 Shaw v. Peninsula Point Property Owners Assoc. CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

PAUL SHAW,

Plaintiff and Appellant,

v.

PENINSULA POINT PROPERTY OWNERS ASSOCIATION et al.,

Defendants and Respondents.

H046345

(Monterey County

Super. Ct. No. 18CV000933)

I. INTRODUCTION

Plaintiff Paul Shaw filed a civil action against defendants Peninsula Point Property Owners Association (Association), Irene Allen, and Albert Huntington Pruit Tully, alleging that defendants improperly obtained civil harassment restraining orders against him. In the operative second amended complaint, plaintiff alleged causes of action for (1) “wrongful use of civil proceedings,” or malicious prosecution, and (2) libel. (Capitalization omitted.) All the defendants demurred to the pleading. Relevant here, the Association and Allen contended that (1) plaintiff could not bring a malicious prosecution claim based on their petitions for restraining orders against him, and (2) the defamation claim was barred by the litigation privilege in Civil Code section 47. The trial court sustained the demurrers without leave to amend.

On appeal, plaintiff contends that the trial court erred in sustaining the demurrers by the Association and Allen. For reasons that we will explain, we will affirm the judgment.

II. BACKGROUND

A. The Initial Complaint and Demurrer
B.
In March 2018, plaintiff filed a verified civil complaint against the Association, Allen, and Tully. The complaint included the following allegations.

Plaintiff previously sued the Association in 2014, regarding damage to his condominium due to water leakage from a common area roof. Allen and Tully, who allegedly were board members of the Association, thereafter obtained a temporary restraining order protecting themselves and the Association from plaintiff. After a hearing, a civil harassment restraining order was issued which allegedly prevented plaintiff from attending Association meetings in a room adjacent to his condominium. A “spinoff” restraining order was also entered against him apparently in a separate civil proceeding.

Plaintiff alleged that the restraining orders “resulted in” a criminal case against him for two counts of willful disobedience of a court order. According to plaintiff, he was arrested after he parked his vehicle in the common area and walked by the open door of the meeting room during an Association board meeting. Plaintiff’s convictions, however, were later “overturned” and the original restraining order was terminated in March 2017. The original restraining order was subsequently “reinstated” in April 2017, but that restraining order and the “spinoff” restraining order were ultimately terminated.

Plaintiff alleged that the restraining orders in the two civil cases erroneously stated that he lived at the condominium complex in Marina, but that he had actually moved to a residence in Seaside in June 2016. Plaintiff alleged that Allen and Tully were able to obtain the restraining orders by making false statements regarding plaintiff’s residence.

Attached to plaintiff’s complaint were minutes from a hearing in the criminal case and from one of the civil cases involving a restraining order. Also attached was one page of a restraining order in the other civil case.

In his verified complaint against the Association, Allen, and Tully, plaintiff alleged three causes of action entitled (1) “vicarious responsibility,” (2) defamation, and (3) intentional misrepresentation based on the alleged false statements. (Capitalization omitted.) Plaintiff further alleged that the Association was not a “natural person” and therefore should not have been granted a restraining order.

The Association and Allen demurred to the complaint, contending that plaintiff failed to state a cause of action and that the complaint was uncertain. Among other arguments, the Association and Allen contended that the allegedly false or defamatory statements that were made as part of a court proceeding were privileged under section 47. Plaintiff filed opposition to the demurrer.

After a hearing, the trial court sustained the demurrer to the complaint with leave to amend. By written order filed in May 2018, the court determined that the first cause of action for “vicarious responsibility” was not a cause of action, that plaintiff failed to allege an unprivileged false statement in the second cause of action for defamation, and that the third cause of action for intentional misrepresentation was not alleged with sufficient specificity. (Capitalization omitted.)

C. The First Amended Complaint and Demurrer
D.
In May 2018, plaintiff filed a verified first amended complaint against the Association, Allen, and Tully. The amended complaint contained allegations similar to the original complaint regarding false statements by defendants in connection with the restraining orders against plaintiff. Plaintiff further alleged that the statements were made with malice, as purportedly evidenced by other statements that Allen made to law enforcement in January 2015. The amended complaint alleged a single cause of action for defamation and included as an exhibit a Monterey Police Department report regarding a January 2015 incident.

The Association and Allen demurred to the first amended complaint, contending that plaintiff failed to state a cause of action and that the amended complaint was uncertain. Among other arguments, defendants contended that the alleged statements that were made as part of a court proceeding or to law enforcement were privileged under section 47. Plaintiff filed opposition to the demurrer.

After a hearing, by written order filed in August 2018, the trial court sustained the demurrer on the ground that plaintiff failed to state a cause of action and the cause of action was uncertain. The court granted plaintiff leave to amend.

E. The Second Amended Complaint and Demurrer
F.
In August 2018, plaintiff filed a verified second amended complaint against the Association, Allen, and Tully. The second amended complaint contained allegations similar to those in the prior pleadings regarding the individual defendants making false statements concerning plaintiff’s address in order to obtain restraining orders against him.

Plaintiff alleged two causes of action in the second amended complaint. In the first cause of action for “wrongful use of civil proceedings” against all defendants, plaintiff alleged that Allen and Tully maliciously brought unsuccessful civil actions against him without probable cause. (Capitalization omitted.) In the second cause of action for libel, plaintiff alleged that Allen and Tully, in connection with a civil court proceeding, maliciously made false statements about where plaintiff resided. Plaintiff alleged that malice was evident in defendants’ statements to law enforcement regarding a January 2015 incident. Plaintiff further alleged that he was unable to obtain employment because of the two restraining orders, his reputation was harmed, he was arrested after parking in the common area and walking by a room during an Association board meeting, and he suffered emotional distress.

The Association and Allen demurred to the second amended complaint on the grounds that plaintiff failed to state a cause of action and that each cause of action was uncertain. Regarding the first cause of action for “wrongful use of civil proceedings,” the Association and Allen contended that plaintiff could not bring a malicious prosecution claim based on their petitions for restraining orders against him. (Capitalization omitted.) Regarding the second cause of action for defamation, the Association and Allen contended that their statements fell within the absolute litigation privilege of section 47. They further argued that the two causes of action were uncertain and ambiguous because the causes of action did not contain or identify any specific libelous statements of fact. The Association and Allen requested that the demurrer be sustained without leave to amend.

Defendant Tully also demurred to the second amended complaint on the ground that plaintiff failed to state a cause of action.

In opposition to the demurrers, plaintiff contended that he could properly maintain a malicious prosecution or abuse of process claim with respect to the prior restraining orders, and that section 47 did not bar his defamation claim.

In reply, the Association and Allen contended, among other arguments, that plaintiff did not plead a cause of action for abuse of process. They further contended that, even if he had, the cause of action would be barred by the litigation privilege because it was purportedly based on their statements in connection with their application for a civil harassment restraining order.

After a hearing on October 5, 2018, the trial court sustained all the defendants’ demurrers to the second amended complaint without leave to amend.

III. DISCUSSION

A. Appealability
B.
On October 30, 2018, plaintiff filed a notice of appeal regarding the trial court’s October 5, 2018 order sustaining the demurrers to the second amended complaint without leave to amend. An order sustaining a demurrer without leave to amend is not an appealable order. (Gu v. BMW of North America, LLC (2005) 132 Cal.App.4th 195, 202 (Gu).) On our own motion, we augment the record on appeal to include the judgment of dismissal, which was entered two days later on November 1, 2018, in favor of the Association and Allen. (Cal. Rules of Court, rule 8.155(a)(1)(A).) “Because a judgment of dismissal has actually been entered, we will liberally construe the appeal to have been taken from the judgment of dismissal. [Citations.]” (Los Altos Golf & Country Club v. County of Santa Clara (2008) 165 Cal.App.4th 198, 202-203.) We observe that defendants have argued the merits of the appeal, and they would not be misled or prejudiced by our interpretation of the notice of appeal as applying to the judgment of dismissal. (See Gu, supra, at pp. 202-203.)

C. Standard of Review
D.
On appeal from a judgment of dismissal after a demurrer is sustained without leave to amend, the standard of review is de novo. (Committee for Green Foothills v. Santa Clara County Bd. of Supervisors (2010) 48 Cal.4th 32, 42.) In performing our independent review, we determine whether the complaint states a cause of action. (People ex rel. Lungren v. Superior Court (1996) 14 Cal.4th 294, 300 (Lungren).) We assume the truth of all facts properly pleaded by the plaintiff (ibid.), and we consider facts appearing in exhibits attached to the complaint (Dodd v. Citizens Bank of Costa Mesa (1990) 222 Cal.App.3d 1624, 1627). “We also accept as true all facts that may be implied or inferred from those expressly alleged. [Citations.]” (Curcini v. County of Alameda (2008) 164 Cal.App.4th 629, 633, fn. 3.) We “ ‘give the complaint a reasonable interpretation by reading it as a whole and all its parts in their context. [Citations.] We do not, however, assume the truth of contentions, deductions, or conclusions of fact or law.’ [Citation.]” (Lungren, supra, at pp. 300-301.)

E. First Cause of Action for Wrongful Use of Civil Proceedings
F.
In the second amended complaint, plaintiff alleged that the restraining orders were obtained through perjured statements by Allen and Tully, who gave false sworn statements that plaintiff resided in the Marina condominium complex. Plaintiff alleged that he had actually moved to Seaside. In the first cause of action entitled “wrongful use of civil proceedings,” plaintiff alleged that each of the defendants bought the civil actions against him without probable cause, and that the actions were terminated in his favor. (Capitalization omitted.) According to plaintiff, defendants’ goal was to deny him his right to attend Association meetings, and “[t]his malicious goal was at first obtained through the false statement made by Defendants Allen and Tully through funds obtain [sic] from [the Association] . . . .” (Capitalization omitted.)

On appeal, in the argument section of his opening brief, we understand plaintiff to contend that the renewed restraining orders “contained false and perjurious information” from defendants; that malice has been shown based on defendants’ false statements; that only a “natural person,” not the Association, may properly seek, or be protected by, a restraining order; that attendance at Association meetings is a constitutionally protected activity that may not form the basis for a civil harassment restraining order under Code of Civil Procedure section 527.6; and that the restraining orders against him were ultimately “overturned” by the appellate division of the superior court. In view of these contentions, we understand plaintiff to contend that the trial court erred in sustaining the demurrer to his first cause of action, in which he purports to state a claim for malicious prosecution.

Defendants, relying primarily on Siam v. Kizilbash (2005) 130 Cal.App.4th 1563 (Siam), contend that plaintiff’s malicious prosecution claim fails because such a claim may not be based on defendants’ unsuccessful petition for a civil harassment restraining order.

In Siam, the plaintiff became involved with the defendant’s former wife while the former spouses were involved in a child custody dispute. (Siam, supra, 130 Cal.App.4th at p. 1567.) The defendant filed a petition against the plaintiff seeking an injunction prohibiting harassment under Code of Civil Procedure section 527.6. (Id. at p. 1568.) The defendant was initially granted a temporary restraining order by falsely representing that a child abuse investigation against the plaintiff was still open. (Ibid.) The temporary restraining order prevented the plaintiff from coming near the defendant’s children. The trial court eventually denied the defendant’s request for a permanent injunction, and the temporary restraining order was dissolved. (Ibid.) The plaintiff subsequently sued the defendant for, among other claims, malicious prosecution. (Ibid.)

This court held that “a cause of action for malicious prosecution may not be based upon an unsuccessful civil harassment petition” under Code of Civil Procedure section 527.6. (Siam, supra, 130 Cal.App.4th at p. 1567; see id. at p. 1574; accord, Kenne v. Stennis (2014) 230 Cal.App.4th 953, 970 (Kenne) [“civil harassment petitions under [Code of Civil Procedure] section 527.6 . . . cannot form the basis of a malicious prosecution action”].) This court observed that “[t]here are many cases that exemplify the bitter and even irrational disputes that arise under [Code of Civil Procedure] section 527.6. [Citations.] In such highly charged circumstances a successful defendant may be inclined to counter with a civil action against the unsuccessful plaintiff. Yet, as in family law disputes, the background of bitterness would make it difficult to distinguish between a malicious petition and one that is not malicious.” (Siam, supra, at pp. 1572-1573.)

This court further observed that malicious prosecution suits are “disfavored.” (Siam, supra, 130 Cal.App.4th at p. 1574; see also id. at p. 1571.) In the context of civil harassment restraining orders in particular, this court expressed “concern[] with the sensitive and emotionally charged nature of a [Code of Civil Procedure] section 527.6 petition and the ‘unending roundelay of litigation’ [citation] that is likely to ensue if a successful defendant is able to counter with a malicious prosecution suit.” (Id. at p. 1574.) This court reasoned that, “in enacting [Code of Civil Procedure] section 527.6 the Legislature has provided for speedy resolution of the initial suit and has authorized the imposition of sanctions for frivolous or delaying conduct within the first action. . . . [T]his is the preferable means for discouraging frivolous lawsuits. [Citation.]” (Ibid.)

On appeal, plaintiff fails to persuasively articulate why Siam does not bar his malicious prosecution claim, which was based on the Association and Allen’s petitions for restraining orders that were ultimately “overturned” by the appellate division of the superior court. As plaintiff cannot state a cause of action for malicious prosecution based on the Association and Allen’s petitions for civil harassment restraining orders, the trial court properly sustained the demurrer to the first cause of action.

G. Second Cause of Action for Libel
H.
In the second cause of action for libel, plaintiff alleged that defendant Allen “submitted” false written statements “in a civil court proceeding” and “made false statements to the court as to where Plaintiff resided when the Defendants obtained Restraining Orders after the Plaintiff had in fact moved from the complex and to a different city.” Plaintiff alleged that the statements were made with malice. According to plaintiff, malice could be inferred from pleadings and oral testimony that defendants knew were false, and from defendants’ statements to law enforcement regarding an incident in January 2015.

On appeal, we understand plaintiff to contend that the privilege in section 47 does not apply because he established malice and perjury, among other crimes, by defendants in seeking the restraining orders.

The Association and Allen contend that plaintiff’s libel claim was based on statements that they made in connection with their petitions for the restraining orders. The Association and Allen contend that those statements are absolutely privileged under section 47, subdivision (b), and therefore plaintiff cannot maintain his claim for libel.

Section 47, subdivision (b) sets forth the litigation privilege, which covers a “publication or broadcast” in any “judicial proceeding.” (Ibid.) “ ‘The usual formulation is that the privilege applies to any communication (1) made in judicial or quasi-judicial proceedings; (2) by litigants or other participants authorized by law; (3) to achieve the objects of the litigation; and (4) that [has] some connection or logical relation to the action.’ [Citation.] The privilege ‘is not limited to statements made during a trial or other proceedings, but may extend to steps taken prior thereto, or afterwards.’ [Citation.]” (Action Apartment Assn., Inc. v. City of Santa Monica (2007) 41 Cal.4th 1232, 1241 (Action Apartment).)

The litigation privilege “is absolute in nature, applying ‘to all publications, irrespective of their maliciousness.’ [Citation.]” (Action Apartment, supra, 41 Cal.4th at p. 1241.) Further, “[t]he litigation privilege has been applied in ‘numerous cases’ involving ‘fraudulent communication or perjured testimony.’ [Citations.]” (Flatley v. Mauro (2006) 39 Cal.4th 299, 322 (Flatley); accord, Kenne, supra, 230 Cal.App.4th at p. 965.)

The litigation privilege is a defense to a defamation claim. (Action Apartment, supra, 41 Cal.4th at p. 1241.) For example, in Harris v. King (1998) 60 Cal.App.4th 1185 (Harris), the appellate court concluded that the litigation privilege barred the plaintiff’s claim for libel based on the defendant’s written report, “even if” the report was “prepared and communicated maliciously and with knowledge of its falsity.” (Id. at p. 1188; see also id. at p. 1187.)

In this case, plaintiff’s libel claim is based on allegedly false statements made by defendants in connection with their obtaining restraining orders in court proceedings. Regardless of whether the statements were made with malice, or whether the statements constituted perjury, plaintiff’s claim for libel is barred by the litigation privilege. (See § 47, subd. (b); Action Apartment, supra, 41 Cal.4th at p. 1241; Flatley, supra, 39 Cal.4th at p. 322; Kenne, supra, 230 Cal.App.4th at p. 965; Harris, supra, 60 Cal.App.4th at pp. 1187, 1188). The trial court therefore properly sustained the demurrer to the second cause of action for libel.

In sum, we conclude that the trial court properly sustained the demurrer to each cause of action in plaintiff’s second amended complaint.

IV. DISPOSITION

The judgment of dismissal is affirmed.

___________________________________________

BAMATTRE-MANOUKIAN, J.

WE CONCUR:

__________________________

ELIA, ACTING P.J.

__________________________

MIHARA, J.

Shaw v. Peninsula Point Property Owners Association et al.

H046345