Judge: Alison Mackenzie, Case: 23STCV15718, Date: 2024-04-16 Tentative Ruling

Case Number: 23STCV15718    Hearing Date: April 16, 2024    Dept: 55

NATURE OF PROCEEDINGS: Demurrer of Defendant County of Los Angeles to Complaint.

BACKGROUND

YOLANDA CASSIDY (“Plaintiff”) filed a Complaint against Defendants COUNTY OF LOS ANGELES, JOSEPH WILLIAMS, SUSAN BURAKOWSKI, and ALEX VILLANUEVA (collectively, “Defendants”), alleging that Defendants used Plaintiff’s name to falsely communicate that Plaintiff treated a deceased police dog and participated in a cover-up of the dog’s death, which harmed her professional reputation and ability to earn income. The causes of action are: 1) False Light Invasion of Privacy; and 2) Misappropriation of Name Invasion of Privacy.

Defendants demur to both claims of the Complaint. Plaintiff opposes the demurrer.

LEGAL STANDARD

Demurrers are to be sustained where a pleading fails to plead adequately any essential element of the cause of action. Cantu v. Resolution Trust Corp. (1992) 4 Cal.App.4th 857, 879-880.

ANALYSIS

            First Cause of Action – False Light

Plaintiff’s false light claim alleges that, to deflect attention from LASD misconduct that resulted in the death of a police dog named Spike, Defendants created a memorandum that falsely stated Plaintiff was the veterinarian who saw and treated Spike. FAC, ¶¶ 6, 39, 41, 55, 66-73. Plaintiff alleges that she has been harmed by Defendants’ false portrayal of her as an incompetent veterinarian who participated in a criminal cover up regarding Spike’s death. Id., ¶¶ 13, 60, 74-75. “False light is a species of invasion of privacy, based on publicity that places a plaintiff before the public in a false light that would be highly offensive to a reasonable person, and where the defendant knew or acted in reckless disregard as to the falsity of the publicized matter and the false light in which the plaintiff would be placed.” Jackson v. Mayweather, 10 Cal. App. 5th 1240, 1264 (internal quotation omitted).

Defendants argue that Plaintiff’s claim is premised on the allegedly libelous (defamatory) LASD memorandum, and because the defamatory nature of the memorandum is purportedly not apparent on its face, Plaintiff must allege special damages with particularity. Fellows v. National Enquirer, Inc. (1986) 42 Cal.3d 234, 239 (holding that a false light claim based on defamatory language must plead special damages). Special damages are those the plaintiff alleged she has suffered “in respect to [her] property, business, trade, profession or occupation.” Cal. Civ. Code § 48a(d)(2). For purposes of demurrer, additional particularity is not required regarding such special damages. See Barnes-Hind, Inc. v. Sup. Ct. (1986) 181 Cal. App. 3d 377, 384 (special damages alleged as “decline of business, loss of goodwill, and injury to business reputation” can be sufficient to withstand a demurrer).

Here, the Court concludes that the FAC adequately alleges that Plaintiff lost substantial past and future income in the minimum amount of $5 million, goodwill, and reputation in the veterinarian industry. FAC, ¶¶ 64, 84, Prayer for Relief.

Hence, the demurrer to the First Cause of Action is not well-taken.

            Second Cause of Action – Invasion of Privacy/Misappropriation

Defendants contend that Plaintiff did not allege that Defendants appropriated her name in pursuit of commercial gain or business profit. Additionally, Defendants argues that the Court in Kirby v. Sega of America, Inc. (2006) 144 Cal. App. 4th 47 erred in opining that commercial gain need not be alleged. Demurrer, 10:9-14.  Also, Defendants assert that common law claims are inapposite as to Defendant County. Demurrer, 9:4.

The elements of a claim for misappropriation of identity - common law are:

1. Unauthorized use of the plaintiff's identity;
2. to defendant’s advantage;
3. by commercially or otherwise appropriating plaintiff's name, voice, likeness, et. cetera; and
4. resulting injury.

Kirby, supra, 144 Cal.App.4th at p. 55.

Plaintiff need not also allege statutory misappropriation, because common law suffices. “[T]he allegations in the body of the complaint, not the caption, constitute the cause of action against the defendant.” Davaloo v. State Farm Ins. Co. (2005) 135 Cal.App.4th 409, 418. Demurrers do not lie as to only parts of causes of action, where some valid claim is alleged. Poizner v. Fremont General Corp.  (2007) 148 Cal.App.4th 97, 119. Further, government entities can have statutory liability for common law claims. Government Code Section 815.2(a) “codifies the doctrine of respondeat superior as it applies to public entities,” and provides that they are liable for injuries proximately caused by acts or omissions of their employees within the scope of employment, if those would have given rise to a cause of action against the employees based upon law apart from the Section. Miklosy v. Regents of the Univ. of Cal. (2008) 44 Cal.4th 876, 900.

As for whether the Kirby Court erred in deciding there need not be a commercial element for a misappropriation claim, this trial Court is not authorized to decide that contention. “[A] trial court does not have the luxury of refusing to follow decisions it disagrees with.” Lewis v. Sup. Ct. (1994) 30 Cal.App.4th 1850, 1867.

Thus, the demurrer is overruled as to the Second Cause of Action.

CONCLUSION

The demurrer is overruled. The demurrer is overruled. Twenty days to answer.