2016-00200971-CU-OE

Paramvir Sahota vs. CDCR

Nature of Proceeding: Hearing on Demurrer to the 7th COA of the 2nd Amended Complaint

Filed By: Koenigsberg, Marc B.

Defendants California Department of Corrections and Rehabilitation, Eureka Daye, Steve Ritter and Jasdeep Bal’s Demurrer to the 7th cause of action for Defamation in the Second Amended Complaint is sustained without leave to amend for failure to state facts sufficient to constitute a cause of action, as follows:

This demurrer concerns the 7th cause of action only and does not effect the remaining causes of action.

Defendants’ Evidentiary Objections to the Declaration of Jill Telfer are sustained. The Court does not consider extrinsic evidence in ruling on a demurrer. A demurrer “tests the pleadings alone and not the evidence or other extrinsic matters.” (SKF Farms v.

Superior Court (1984) 153 Cal.App.3d 902, 905.) The only issue involved in a demurrer hearing is whether the complaint, as it stands, unconnected with extraneous matters, states a cause of action.” (McKenney v. Purepac Pharm. Co. (2008) 162 Cal.App.4th 72, 79.) Extrinsic evidence may not properly be considered on demurrer. (Ion Equipment Corp. v. Nelson (1980) 110 Cal. App. 3d 868, 881; Hibernia Savings & Loan Soc. v. Thornton (1897) 117 C. 481, 482.)

Plaintiff is the former Chief Medical Executive (“CME”) at Folsom State Prison. He contends he was wrongfully “demoted” to the position of Chief Physician and Surgeon

by CDCR in retaliation for engaging in certain alleged protected activities in which he allegedly reported and objected to health and safety violations regarding the medical and mental health treatment of inmates. He alleges that the individual defendants Drs. Daye, Ritter, and Bal, made false statements about his work at Folsom State Prison to each other and to the medical care receiver, Clark Kelso, who was appointed by the Northern District of California federal court to oversee the healthcare provided at each of California’s prisons. Dr. Daye was the Northern Regional Administrator Dr. Bal was the Regional Medical Director (id.), and Dr. Ritter was the Medical Deputy Director at the time of the alleged defamatory statements. (SAC, ¶62.)

Plaintiff alleges that the defamatory statements were made to cover up the individual defendant’s discrimination and retaliation. In support of his claims, Plaintiff identifies a memorandum that Drs. Bal and Daye sent to the “Receiver’s Office” in November 2014 stating that Plaintiff had engaged in serious wrongdoing by surreptitiously directing his physicians to change patients’ medical records and by compromising interview questions for a key position at the prison. Dr. Ritter is alleged to have stated that Plaintiff had leadership and communication problems with the nursing staff. (SAC ¶ 62 -65.) Although the FAC alleged that “these statements resulted in an Internal Affairs investigation of Plaintiff,” the SAC conspicuously omitted this allegation. Plaintiff alleges that the publications were republished by employees and were foreseeably republished in the community. (SAC ¶ 67-68) Plaintiff does not specifically identify who the “third persons” and members of “the community” are, except to allege that they may include other, presently “unknown” agents and employees of CDCR.

On August 31, 2018, the demurrer to the defamation cause of action was sustained on the same grounds that are again raised in this demurrer. Those grounds include the individual defendants’ immunity for the statements under Gov Code sections 820.2 (discretionary acts), Gov Code 821.6 (instituting or prosecuting any judicial or administrative proceeding) and Civil Code section 47(b). The Court held that because these immunities applied to the individual defendants, the CDCR was immune by virtue of Government Code section 815.2(b) which provides that a public entity is immune from liability where its employees are immune. See Blackburn v Los Angeles (1974) 42 Cal.App.3d 175, 177-178.

(See Minute Order August 31, 2018, Judge Steven H. Rodda, Ret., Department 53)

Plaintiff’s Second Amended Complaint contains amendments that do not materially change the allegations. For example, he alleges in a conclusionary manner that defendants defamed him while engaging in “operational ministerial acts” without otherwise defining those ministerial acts. A demurrer tests the legal sufficiency of a pleading by raising questions of law regarding the pleading’s form or content. (Code Civ. Proc, § 589, subd. (a).) To withstand a general demurrer, a plaintiff must show that the complaint alleges facts sufficient to establish every element of each cause of action. (Rakestraw v. California Physicians’ Serv. (2000) 81 Cal.App.4th 39,43.) The court treats a demurrer as admitting all properly pleaded material facts, but does not assume the truth of contentions, deductions, or conclusions of fact or law. (emphasis added) (Blank v.Kirwan (1985) 39 Cal.3d 311, 318.) In ruling on a demurrer, the Court can also consider matters subject to judicial notice. (Code Civ. Proc, § 430.30, subd. (a).)

Defendants correctly contend that a public entity cannot be held liable for an injury unless provided by statute. This general rule is codified in Government Code, section 815, subdivision (a), which provides: ” Except 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.”

However, Gov Code section 815.2 which provides:

“(a) A public entity is liable for injury proximately caused by an act or omission of an employee of the public entity within the scope of his employment if the act or omission would, apart from this section, have given rise to a cause of action against that employee or his personal representative.

(b) Except as otherwise provided by statute, a public entity is not liable for an injury resulting from an act or omission of an employee of the public entity where the employee is immune from liability.”

Government Code section 815.2

Thus, the issue to be determined is whether the Complaint on its faces discloses an immunity or privilege that shields the individual defendants from liability

Government Code section 820.2

Section 820.2 provides: ” Except as otherwise provided by statute, a public employee is not liable for an injury resulting from his act or omission where the act or omission was the result of the exercise of the discretion vested in him, whether or not such discretion be abused.” In Caldwell v Montoya (1995) 10 Cal.4th 972, the Supreme Court, in reversing the Court of Appeal, held that on demurrer, the school board’s decision to not renew a school superintendent’s contract was a discretionary act and was protected by discretionary act immunity.

Decisions to impose discipline, decisions regarding what constitutes satisfactory performance, and decisions as to whether and how to conduct an investigation into an employee, are all acts calling for the exercise of discretion. (See, e.g., Lipman v. Brisbane Elementary School Dist. (1961) 55 Cal.2d 224, 233-234 [school trustees afforded immunity in order to freely investigate a superintendent’s fitness for continued employment].

This claim is therefore barred by Gov Code section 820.2. Moreover, the immunity of public employees for discretionary acts is imputed to their public entity employers through Government Code, section 815.2(b). The acts alleged are discretionary acts subject to immunity. Gov. Code, § 820.2 provides for immunity “where the act or omission was the result of the exercise of the discretion vested in him, whether or not such discretion be abused.” While, generally, the public entity must prove that the employee, in deciding to perform the act which led to plaintiff’s injury, consciously exercised discretion in the sense of assuming certain risks in order to gain other policy objectives, (see, Johnson v. State of California, (1968) 69 Cal. 2d 782, 794-795, fn. 8) and that leave to amend might properly be granted, (see, e.g. Lopez v. Southern Cal. Rapid Transit Dist., (1985) 40 Cal. 3d 780, 794), plaintiff has alleged that defendants defamed him while engaging in “operational ministerial acts”. A demurrer based on 820.2 will lie to a cause of action addressing specifically pleaded activity. An exception for expediency and judicial economy exists. (Kisbey v. State of California (1984) 36 Cal. 3d 415, 418; Caldwell v. Montoya, (1995) 10 Cal. 4th 972, 978, fn. 3. ) The Court held such immunity from suit extends to “‘basic’ governmental policy decisions entrusted to broad official judgment” and the immunity applies even when the act complained of was violative of FEHA, in the context of that ruling.

It further bears observing that an act or omission is considered discretionary (and

subject to immunity) where it “involve[s] planning and policymaking.” (Doe 1 v. City of Murrieta (2002) 102 Cal.App.4th 899, 912. Few policy decisions are more basic than the determination of fitness for employment or retention, utilizing established criteria. As noted above, the FAC alleged that these statements resulted in an Internal Affairs investigation of Plaintiff. It is, of course, well established that a plaintiff may not amend his complaint to omit harmful allegations, without explanation, from previous complaints to avoid attacks raised in demurrers or motions for summary judgment. “Allegations in the original pleading that rendered it vulnerable to demurrer or other attack cannot simply be omitted without explanation in the amended pleading. The policy against sham pleadings requires the pleader to explain satisfactorily any such omission.” (Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (TRG 2005) ¶ 6.708, p. 6-142.1.) Deveny v. Entropin, Inc. (2006) 139 Cal. App. 4th 408, 425 -426.

In opposition, the Declaration of Jill Telfer offers no coherent rational explanation as to why the allegation that “the statements resulted in an Internal Affairs investigation of Plaintiff” were removed. Therefore the amendment is deemed a sham amendment and the Court reads the SAC as including this allegation.

Government Code section 821.6

Under Government Code section 821.6, a public employee is “not liable for injury caused by his instituting or prosecuting any judicial or administrative proceeding within the scope of employment, even if he acts maliciously and without probable

cause.” (Emphasis added.) Investigations, whether for prosecuting a crime or determining whether to impose disciplinary action against a public employee, are considered part of a judicial proceeding: Section 821.6 is not limited to the act of filing a criminal complaint. Instead, it also extends to actions taken in preparation for formal proceedings. Because investigation is “an essential step” toward the institution of formal proceedings, it “is also cloaked with immunity.” (See, e.g. Baughman v. State of California, (1995) 38 Cal. App. 4th 182, 192 [“Under Government Code section 821.6, the officers’ actions during the investigation were cloaked with immunity, even if they had acted negligently, maliciously or without probable cause in carrying out their duties.”]

Plaintiff specifically alleges that the defendants’ statement were published “to first cause, and then justify, Plaintiffs discipline and wrongful and illegal demotion.” (SAC at

¶ 68) Plaintiff also alleges that Dr. Ritter’s statements are allegedly what caused him not to be considered for promotions. (SAC 65) While the FAC had specifically alleged that Ritter statements led to the Internal Affairs investigation into Plaintiffs relationship with the nursing department, that allegation has been removed from the SAC ¶ 65). However, as noted above, the court has found that the removal of this allegation is a sham amendment and therefore the Court reads the SAC as including this allegation.

The leading case on the application of Government Code section 821.6 to personnel decisions is Kemmerer v. County of Fresno (1988) 200 Cal.App.3d 1426. In Kemmerer

, an employee of the Fresno County Department of Social Services sued his employer, along with the department’s director and assistant director, for statements they made in a letter of reprimand that was placed in Kemmerer’s file. The court in Kemmerer analyzed Government Code sections
820.2 and 821.6 and found that both provisions immunized the director and assistant director from any liability. In analyzing section 821.6 specifically, the court held that

their investigation of Kemmerer’s alleged wrongful acts, as well as their publication of the disciplinary action being taken against him, were “cloaked with immunity.” (Id. at pp. 1436-1437.)

Under section 821.6, the immunity extends to any acts or omissions relating to the institution of disciplinary proceedings, or any preparation for such disciplinary hearings, against a civil service employee, because disciplinary proceedings against civil service employees are considered administrative proceedings. (See Kemmerer v. Fresno, 200 Cal.App.3d at pp. 1436-1437 [“The investigation by [defendant public employee] was an essential step to the institution of the disciplinary process and is also cloaked with immunity.”]. Under Gov Code 821.6, it is irrelevant whether the individual defendants acted “maliciously” in making these statements.

The Court finds on the face of the Complaint that the acts and statements made by plaintiff’s superiors, the Northern Regional Administrator (Dr. Daye), the Regional Medical Director (Dr. Bal) , and the Medical Deputy Director (Dr. Ritter) are cloaked with immunity pursuant to Gov Code section 821.6.

Civil Code section 47(b)

Civil Code §47(b) renders privileged any publications of a statement made in a judicial proceeding or “in the initiation of course of any other proceeding authorized by law.” 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 have some connection or logical relation to the action. (Makaeff v. Trump University, LLC (2013) 715 F.3d 254)

Civil Code section 47, subdivision (b) provides an absolute privilege to communications “‘to or from governmental officials which may precede the initiation of formal proceedings.’ ” (Hagberg v. Cal. Fed’l Bank FSB (2004) 32 Cal.4th 350, 362, quoting Slaughter v. Friedman (1982) 32 Cal.3d 149,156.) The courts have applied this section to a “communication concerning possible wrongdoing, made to an official governmental agency . . . which communication is designed to prompt action by that entity ….” (Passman v. Torkan (1995) 34 Cal.App.4th 607, 617; see also Brody v.
Montalbano (1978) 87 Cal.App.3d 725, 731- 735 [applying privilege to report sent by parents to school principal intended to prompt an investigation into a teacher’s conduct].) The absolute privilege applies to every part of the proceeding, including the initial investigation of the merits of an issue prior to starting a proceeding: “We have noted the application of the privilege to communications ‘ “with some relation to a proceeding that is . . . under serious consideration,’ to ‘potential court actions’ and to ‘preliminary conversations and interviews related to contemplated action’ and . . . to communications made, prior to the filing of a complaint, by a person ‘meeting and discussing’ with potential parties the ‘merits of the proposed . . lawsuit.” (Hagberg, 32 Cal.4th at p. 361, citations omitted.)

The absolute privilege is to be interpreted broadly. “[A]ny doubt as to whether the necessary connection between the publication and the [official] action exists is to be resolved in favor of a finding of privilege.” (Brody v. Montalbano, 87 Cal.App.3d at p. 733.) Finally, the privilege cannot be defeated by a showing of malice, and applies even if a report is made in bad faith. (Hagberg, 32 Cal.4th at p. 365-366.)

The case of Long v. Pinto (1981) 126 Cal.App.3d 946 is instructive. In that case, a

surgeon (Dr. Pinto) was appointed by a hospital committee to review the professional qualifications of the plaintiff (Dr. Long). After reviewing Dr. Long’s

files, Dr. Pinto sent a letter to the Board of Medical Quality Assurance “call[ing] attention to what he felt was a large number of unnecessary operations performed on elderly rest home patients.” (Id. at p. 948.) Dr. Pinto also sent it to the board of directors at the hospital, even though the board did not officially request the letter, and no investigation was underway. (Id. at p. 949.) The court held that despite these facts, the letter was still absolutely privileged: “A communication

designed to prompt action is as much a part of the ‘official proceeding’ as a communication made after the proceedings have commenced.” (Id.) The court analyzed that “[t]he importance of unabashed input into investigations outweighs the occasional harm which may befall a defamed individual.” (Id. at pp. 949-950, citation omitted.) The court also noted the importance of open discussion when it comes to a physician’s professional qualifications: ”To allow Long to proceed with this cause of action would substantially defeat the purpose of the privilege and create an unnecessary chilling effect upon physicians and others who are desirous of upholding professional qualifications and protecting the public.”
(Id. at p. 951 [emphasis added].) The facts alleged in this case are strikingly similar to those alleged in Long v Pinto.

The facts alleged in this case fall within the policy behind Civil Code section 47 and the cases interpreting it. The initiation of the Internal Affairs investigation into Plaintiffs supervision of and relationship with the nursing staff is clearly an “official proceeding,” and Dr. Ritter’s comments to Dr. Daye are therefore absolutely privileged. The same applies to Dr. Bal’s and Dr. Daye’s memorandum to the Receiver. Even though a “formal” investigation into their findings had not yet commenced, their memorandum was clearly meant to “prompt action” by the
Receiver and others who may have received the memorandum. Plaintiff alleges that he was removed from his position of Chief Medical Executive and restored
to his former position of Chief Physician and Surgeon as a result of the report. Each of the elements for the absolute privilege (a communication, concerning potential wrongdoing, made to an official agency, designed to prompt action) are met, and any allegations that such communications were made with “malice” are irrelevant.

The prevailing party shall prepare a formal order dismissing only the 7th cause of action for the Court’s signature pursuant to C.R.C. 3.1312.