Judge Daniel M. Crowley, Case Number: 22STCV10646, Date: 2023-10-11 Tentative Ruling

Defendant Anna Sahak’s demurrer to Plaintiff Robert Ware’s second amended complaint is sustained as to the 1st cause of action without leave to amend. Defendant is directed to submit a judgment to the Court.

Defendant Anna Sahak (“Sahak”) (“Defendant”), in her official capacity as a Los Angeles County employee, demurs to pro per Plaintiff Robert Ware’s (“Ware”) (“Plaintiff”) second amended complaint (“SAC”). (Notice of Demurrer, pgs. 1-2; C.C.P. §430.10.)

Defendant’s 7/6/23 request for judicial notice as to (1) the second amended complaint in LASC Case No. BC675757, Ware v. County of Los Angeles (D-RJN, Exh. A); (2) the Declaration of John Julian (“Julian”) in support of the motion for summary judgment filed on August 2, 2018, in LASC Case No. BC675757, Ware v. County of Los Angeles (D-RJN, Exh. B); and (3) the third amended complaint in LASC Case No. 21STCV04765, Ware v. County of Los Angeles, filed on February 8, 2021 (D-RJN, Exh. C) is granted.

Defendant’s 7/6/23 request for judicial notice of this Court’s tentative ruling on 5/17/2023 in the instant case is denied.

Before filing a demurrer, the moving party must meet and confer in person or by telephone with the party who filed the pleading to attempt to reach an agreement that would resolve the objections to the pleading and obviate the need for filing the demurrer and/or motion to strike. (C.C.P. §430.41.)

Defendant’s counsel declares she made a good faith effort to meet and confer with Plaintiff by sending Plaintiff an email on July 3, 2023, explaining to him the deficiencies in the SAC. (Decl. of Griggs ¶¶3-5, Exh. E.) Defendant’s counsel declares Plaintiff responded by email stating that he refused to meet and confer. (Decl. of Griggs ¶6, Exh. E.) Failure to sufficiently meet and confer is not grounds to overrule or sustain a demurrer. (C.C.P. §430.41(a)(4); Dumas v. Los Angeles County Board of Supervisors (2020) 45 Cal.App.5th 348, 355, citing text.) As such, the Court will consider Defendant’s demurrer.

Plaintiff alleges Defendant made a false statement that (1) Plaintiff used his personal computer and telephone to practice law while on the job; (2) Plaintiff gave a business card to a participant in a County welfare program; and (3) Plaintiff practiced law on a County office building roof after work while riding a bicycle. (SAC ¶3.) Plaintiff alleges Defendant’s false allegations led to a substantial internal affairs charge, which, to date, remains in Plaintiff’s personnel record that was used to conduct his background reviews. (SAC ¶4.)

On March 28, 2022, Plaintiff filed his initial complaint against Defendant. On August 15, 2022, Plaintiff filed his first amended complaint (“FAC”) against Defendant alleging a single cause of action for an intentional tort. On May 17, 2023, this Court ruled on Defendant’s demurrer to Plaintiff’s FAC, sustaining the demurrer with leave to amend. On June 12, 2023, Plaintiff filed the operative SAC, alleging a single cause of action for libel.

Defendant filed her demurrer on July 6, 2023. Plaintiff filed his opposition on October 9, 2023. Defendant filed her reply on October 2, 2023.

Defendant demurs on the basis that Plaintiffs’ 1st cause of action for libel fails to state facts sufficient to constitute a cause of action against Defendant and is uncertain due to ambiguity. (Demurrer, pg. 3; C.C.P. §§430.10(e), (f).)

“[A] demurrer tests the legal sufficiency of the allegations in a complaint.” (Lewis v. Safeway, Inc. (2015) 235 Cal.App.4th 385, 388.) A demurrer can be used only to challenge defects that appear on the face of the pleading under attack or from matters outside the pleading that are judicially noticeable. (See Donabedian v. Mercury Insurance Co. (2004) 116 Cal.App.4th 968, 994 [in ruling on a demurrer, a court may not consider declarations, matters not subject to judicial notice, or documents not accepted for the truth of their contents].) For purposes of ruling on a demurrer, all facts pleaded in a complaint are assumed to be true, but the reviewing court does not assume the truth of conclusions of law. (Aubry v. Tri-City Hospital District (1992) 2 Cal.4th 962, 967.)

The California Tort Claims Act (“Act”) (Gov. Code §810 et seq.) governs actions against public entities and public employees. The timeliness of such actions is governed by the specific statute of limitations set forth in the Government Code, not the statute of limitations applicable to private defendants. (County of Los Angeles v. Superior Court (2005) 127 Cal.App.4th 1263, 1267-1268, citing Moore v. Twomey (2004) 120 Cal.App.4th 910, 913-914; Martell v. Antelope Valley Hospital Medical Center (1998) 67 Cal.App.4th 978, 981.)

Under the Act, no person may sue a public entity or public employee for “money or damages” unless a timely written claim has been presented to and denied by the public entity. (Gov. Code §945.4; Curtis T. v. County of Los Angeles (2004) 123 Cal.App.4th 1405, 1415.) A claim pertaining to a cause of action for personal injury must be filed within six months after the cause of action accrues. (Id. §911.2; Curtis T., 123 Cal.App.4th at pg. 1415.) With certain exceptions, an action against a public entity on a cause of action for which a claim must be presented must be commenced “not later than six months” after written notice rejecting the claim is delivered to the claimant personally or deposited in the mail. (Gov. Code §945.6, preempted on other grounds by Moore, 120 Cal.App.4th 910.) If the public entity deposits written notice of rejection in the mail, the six-month limitations period within which to file suit applies regardless of whether notice is actually received. (Dowell v. County of Contra Costa (1985) 173 Cal.App.3d 896, 901.) The claimant is charged with knowledge of the six-month period and is obligated to inquire as to the status of the claim if he or she has not received a written rejection notice within a reasonable time after the County’s time to act or reject the claim has passed. (Id.)

Plaintiff fails to allege he complied with the jurisdictional requirements of the Act and does not argue in his opposition that he followed such requirements, thereby conceding that no government claim was filed. (See Opposition, pg. 3.)

Accordingly, Defendant’s demurrer to Plaintiff’s 1st cause of action on the basis of failure to state a claim is sustained without leave to amend.

A defamation action must be brought within one year. (C.C.P. §340(c).) The limitations period begins to run when the defamatory statement is made. (Shively v. Bozanich (2003) 31 Cal.4th 1230, 1237.)

The discovery rule delays the limitations period “until the plaintiff knew (or with reasonable diligence should have known) of the factual basis for the claim.” (Id.) Under California law the “discovery rule” to extend the statute of limitations is limited. The rule does not apply when a Plaintiff knew or with a reasonable investigation would have known of the basis of the cause of action. (O’Connor v. Boeing North American, Inc. (9th Cir. 2002) 311 F.3d 1139, 1147, citing Angeles Chemical Co. v. Spencer & Jones (1996) 44 Cal.App.4th 112, 122.)

Plaintiff alleges Defendant’s acts caused damage to Plaintiff on January 18, 2017, when Defendant, acting as a confidential informant, published several untrue, defamatory statements to the County’s investigator, James Alonzo Coleman. (SAC ¶38.) Plaintiff alleges he was not aware and could not have been aware of Defendant’s defamatory statements until March 18, 2022, when he received a copy of the Defendant’s declaration as a discovery response. (SAC ¶49.)

Plaintiff filed a lawsuit against the County of Los Angeles in 2017 or 2018, LASC Case No. BC675757, Ware v. County of Los Angeles. (D-RJN, Exh. A.) In that case Plaintiff alleged false statements by Defendant in his Second Amended Complaint (“SAC”). (D-RJN, Exh. A.) Based on Plaintiff’s allegations in his SAC in LASC Case No. BC675757, Plaintiff knew prior to August 3, 2018, that Defendant had reported to the County that she overheard Plaintiff represent himself as an attorney. (See D-RJN, Exh. A at ¶25f.) Further, in LASC Case No. BC675757, Ware v. County of Los Angeles, the Declaration of Julian filed in support of the County of Los Angeles’ motion for summary judgment includes the declaration that Defendant made statements that should have put Plaintiff on notice in 2018. (D-RJN, Exh. B at ¶8.)

The Court in Shively v. Bozanich held that when a formerly secret communication becomes public when published in a book then the cause of action has definitely accrued regardless of when Plaintiff becomes aware of book and read it. (Shively, 31 Cal.4th at pg. 1237.) Here, as in Shively, Plaintiff’s knowledge of Defendant reporting to the County that she overheard Plaintiff represent himself as an attorney, is sufficient to accrue the statute of limitations, regardless of whether Plaintiff read Defendant’s verified affidavit publishing the statements against Plaintiff.

Accordingly, Defendant’s demurrer to Plaintiff’s 1st cause of action on the basis of failure to state a claim is sustained without leave to amend.

Government Code §821.6 provides, “[a] public employee is not liable for injury caused by his instituting or prosecuting any judicial or administrative proceeding within the scope of his employment, even if he acts maliciously and without probable cause.” (Gov. Code §821.6.)

Plaintiff alleges Defendant is an employee of the County of Los Angeles. (See SAC ¶¶1-2.) Plaintiff’s claim is based on Defendant providing an affidavit to a County investigation. Plaintiff alleges his second investigation “for a violation of County’s outside employment policy based” on allegations from a supervisor and Defendant. (SAC ¶25.) Plaintiff’s allegation demonstrates that there was an investigation in which Defendant participated. Defendant’s immunity as a public employee extends to investigations as part of judicial and administrative proceedings. (Kemmerer v. County of Fresno (1988) 200 Cal.App.3d 1426, 1436-1437.) This is true even if there is a decision not to hold an administrative proceeding. (Richardson-Tunnell v. School Insurance Program for Employees (SIPE) (2007) 157 Cal.App.4th 1056, 1062, rehearing denied, review denied.) Defendant was acting within the scope of her employment. The absolute immunity provided under §821 applies to “conduct within the scope of employment.” (Id., at pg. 1063.) Public employees have a duty incident to their regular duties to participate in administrative investigations; acting within “the scope of employment” is work performed for the benefit of the employer and not for the employee’s own purposes. (Id.)

This immunity extends to any kind of civil or administrative proceedings and to investigations which accompany potential proceedings. (Id. at pg. 1062.) It also extends beyond immunity for peace officers, prosecutors, and high-ranking officials to other employees during various phases of judicial and administrative proceedings, including investigations. (Tur v. City of Los Angeles (1996) 51 CalApp.4th 897, 901.)

Accordingly, Defendant’s demurrer to Plaintiff’s 1st cause of action on the basis of absolute immunity is sustained without leave to amend.

Publications made in the “proper discharge of an official duty” or in an official proceeding authorized by law is privileged. (Civ. Code §47(b).) Courts have held that the threat of liability for communications made during truth-seeking proceedings, including quasi-judicial and other official proceedings is removed in the interest of justice, “without respect to the good faith or malice of the person who made the statement.” (Hagberg v. California Federal Bank (2004) 32 Cal.4th 350, 361.)

The privilege extends beyond the courtroom, or, in the case of civil service and grievances, beyond the hearing. (Id.) This privilege has been applied to an internal affairs investigation of a peace officer’s alleged misconduct. (Imig v. Ferrar (1977) 70 Cal.App.3d 48.) The official proceeding privilege under Civil Code §47(b) extends to communications intended to instigate an investigation about alleged wrongdoing. (Hagberg, 32 Cal.4th at pgs. 369-370.)

Defendant’s statements, including those Plaintiff alleged as libel, fall within the official proceeding privilege precluding Plaintiff from stating a cause of action in this case.

Accordingly, Defendant’s demurrer to Plaintiff’s 1st cause of action on the basis of official proceeding privilege is sustained without leave to amend.

Defendant’s demurrer to Plaintiff’s SAC is sustained without leave to amend. Defendant is directed to submit a judgment to the Court.

Hon. Daniel M. Crowley

Judge of the Superior Court