Judge: Edward B. Moreton, Jr, Case: 24SMCV04015, Date: 2024-12-06 Tentative Ruling

Case Number: 24SMCV04015    Hearing Date: December 6, 2024    Dept: 205

 

 

 

Superior Court of California

County of Los Angeles – West District

Beverly Hills Courthouse / Department 205

 

 

LARRY J. CALDWELL,

 

                        Plaintiff,

            v.

 

MATTHEW GREEN,

 

                        Defendant.

 

  Case No.:  24SMCV04015

 

  Hearing Date:  December 6, 2024

  order RE:

  Defendant’s demurrer to first

  amended complaint

 

 

BACKGROUND

This is a defamation case.  Plaintiff Larry Caldwell sues Defendant Matthew Green for allegedly making the defamatory statement to the Daily Journal that “Larry Caldwell was unlawfully practicing while suspended from Oct. 2019 to Aug. 2021; ordered by the Supreme Court due to a violation of Rule 9.22.”  (First Amended Complaint (“FAC”) ¶3.) 

Caldwell claims this is a false statement as his law license has never been suspended.  (Id. ¶4.)  Caldwell alleges on information and belief that Green made this defamatory per se statement in furtherance of his threat, “to destroy Larry Caldwell and his family” in retaliation for Mr. Caldwell’s representation of Matthew Green’s sister, Paula Green, in lawsuits between them.  (Id. ¶9.)  Caldwell claims Green has made similar threats to other attorneys representing his sister.  (Id. ¶8.) 

This hearing is on Green’s demurrer to the FAC.  Green argues that the allegedly defamatory statement is in fact true based on judicially noticeable facts, and in any event is privileged pursuant to the Fair and True Reporting Privilege under Civ. Code § 47(d).

MEET AND CONFER

Code Civ. Proc. § 430.41 requires that before the filing of a demurrer the moving party “shall meet and confer in person or by telephone” with the party who filed the pleading that is subject to demurrer for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer.  (Code Civ. Proc. § 430.41(a).)  The parties are to meet and confer at least five days before the date the responsive pleading is due. (Code Civ. Proc. § 430.41(a)(2).)  Thereafter, the moving party shall file and serve a declaration detailing their meet and confer efforts. (Code Civ. Proc. § 430.41(a)(3).)  Green submits his own declaration, which shows the parties met and conferred by telephone on September 30, 2024 which is more than five days from the date the demurrer was filed (on November 7, 2024).  This satisfies the meet and confer requirements of § 430.41.      

REQUEST FOR JUDICIAL NOTICE

Green requests judicial notice of (1) an October 30, 2019 Supreme Court of California Order, IN THE MATTER OF THE SUSPENSION OF LICENSEES OF THE STATE BAR PURSUANT TO RULE 9.22, CALIFORNIA RULES OF COURT, suspending LARRY JACK CALDWELL, #88867 from the practice of law; (2) an August 26, 2021 Supreme Court of California Order, IN THE MATTER OF THE SUSPENSION OF LICENSEES OF THE STATE BAR PURSUANT TO RULE 9.22, CALIFORNIA RULES OF COURT, terminating the October 30, 2019 suspension of LARRY JACK CALDWELL, #88867 from the practice of law; (3) the Amended Judgment from the Los Angeles Superior Court elder abuse case against Paula R. Green, LASC Case No. 16STPB01322; (4) the Statement of Decision from Los Angeles Superior Court elder abuse case against Paula Green, LASC Case No. l6STPB0l 322; (5) Minute Orders from the Los Angeles Superior Court elder abuse case against Paula Green, LASC Case No. l6STPB01322, showing Larry J. Caldwell appeared as an attorney, while allegedly suspended by order of the California Supreme Court, during the time period October 2019 to August 2021; and (6) the first page of file-stamped court documents from various actions in California courts, filed by Larry J. Caldwell practicing as an attorney, while allegedly suspended by order of the California Supreme Court, during the time period October 2019 to August 2021. 

The Court grants the request as to (1)-(2) and (5)-(6) pursuant to Evid. Code § 452 subds. (c) and (d) as court records and official acts of a judicial department of this state.  The Court also grants the request pursuant to § 452 subd. (h) as “[f]acts and propositions that are not reasonably subject to dispute and are capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy”.  Further, the Court grants the request pursuant to § 453 which requires the court to take judicial notice of any matter specified in § 452 if a party requests it, and “(a) Gives each adverse party sufficient notice of the request, through the pleadings or otherwise, to enable such adverse party to prepare to meet the request; and (b) Furnishes the court with sufficient information to enable it to take judicial notice of the matter.”

As to (3)-(4), the decisions in Green’s case against his sister are not relevant to this demurrer.  Courts may take judicial notice of facts established by records from other state or federal court proceedings “if those proceedings have a direct relation to matters at issue.”  (Trigueros v. Adams (9th Cir. 2011) 658 F.3d 983, 987.)  Courts, therefore, should decline to take judicial notice of irrelevant facts. (See, e.g., Turnacliff v. Westly (9th Cir. 2008) 546 F.3d 1113, 1120 n.4.)  Accordingly, the Court denies the request as to (3)-(4) as seeking judicial notice of irrelevant facts. 

Caldwell requests judicial notice of the (1) State Bar of California Certificate of Standing for Larry Jack Caldwell; (2) The State Bar of California Attorney Profile for Larry Jack Caldwell; (3) The State Bar of California Attorney Profile for Matthew Elliott Green (aka Matthew Green); and (4) that the Daily Journal published an article that Caldwell co-authored.

The Court grants the request as to (1)-(2) pursuant to Cal. Evid. Code 452(c) as official acts of an executive, judicial or legislative department of this state.  The Court also grants the request pursuant to § 452 subd. (h) as “[f]acts and propositions that are not reasonably subject to dispute and are capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy”.  Further, the Court grants the request pursuant to § 453 which requires the court to take judicial notice of any matter specified in Section 452 if a party requests it, and “(a) Gives each adverse party sufficient notice of the request, through the pleadings or otherwise, to enable such adverse party to prepare to meet the request; and (b) Furnishes the court with sufficient information to enable it to take judicial notice of the matter.”  The Court denies the request as to (3)-(4) as these items are not relevant to the instant motion. 

LEGAL STANDARD

“[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 Ins. 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 Hosp. Dist. (1992) 2 Cal.4th 962, 967.)        

Leave to amend must be allowed where there is a reasonable possibility of successful amendment. (See Goodman v. Kennedy (1976) 18 Cal.3d 335, 349 (court shall not “sustain a demurrer without leave to amend if there is any reasonable possibility that the defect can be cured by amendment”); Kong v. City of Hawaiian Gardens Redevelopment Agency (2002) 108 Cal.App.4th 1028, 1037 (“A demurrer should not be sustained without leave to amend if the complaint, liberally construed, can state a cause of action under any theory or if there is a reasonable possibility the defect can be cured by amendment.”).)  The burden is on the complainant to show the Court that a pleading can be amended successfully. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)  

DISCUSSION

According to the Complaint, the allegedly defamatory statement was that “Larry Caldwell was unlawfully practicing while suspended from Oct. 2019 to Aug. 2021; ordered by the Supreme Court due to a violation of Rule 9.22.”  Green argues that this statement is true based on the judicially noticeable facts, and truth is a complete defense against civil liability for defamation.  The Court agrees. 

The Supreme Court of California Order No. 242988, dated August 26 2021, “IN THE MATTER OF THE SUSPENSIONS OF LICENSEES OF TH STATE BAR PURSUANT TO RULE 9.22 CALIFORNIA RULES OF COURT” and signed by the Chief Justice of the California Supreme Court states: "Having been provided with proof of compliance pursuant to Family Code 17520, the suspension of LARRY JACK CALDWELL #88867 pursuant to our order filed on October 30, 2019 is hereby terminated. The Order is final forthwith.” (Defendant's Request for Judicial Notice, Ex. R (emphasis added).).  There can be no denying that the Supreme Court of California had suspended Caldwell in 2019.

Furthermore, the Supreme Court of California Order No. 242988, dated October 30, 2019, “IN THE MATTER OF THE SUSPENSIONS OF LICENSEES OF THE STAT BAR PURSUANT TO RULE 9.22 CALIFORNIA RULES OF COURT” and signed by the Chief Justice of the California Supreme Court, states: “that upon receipt by the State Bar of California of a release issued by the appropriate local support agency pursuant to Family Code 17520, the State Bar shall certify the fact of the receipt of such release to the Clerk of the Supreme Court and the suspension shall be terminated by order of this Court and the individual shall be reinstated from suspension, and to all rights and privileges, duties and responsibilities incident thereto.” (Defendant’s Request for Judicial Notice, Ex. Q (emphasis added).)

The October 30, 2019 Order further stated, “that until reinstated as above provided, the individual shall be precluded from practicing law as an attorney of law, or an attorney or agent of another in and before all the courts, commissions and tribunals of this state, and from holding himself or herself out to the public as an attorney or counsel at law.” (Defendant’s Request for Judicial Notice, Ex. Q).  As a matter of law, therefore, Caldwell was suspended from practicing law by the California Supreme Court in 2019, and the suspension was terminated by the California Supreme Court’s order in 202l.

In his Opposition, CALDWELL argues that he was never suspended by the California State Bar.  Caldwell has presented a certificate of standing from the State Bar of California which states: “This is to certify that according to the records of the State Bar, LARRY JACK CALDWELL, #88867 was admitted to the practice of law in this state by the Supreme Court of California on November 29, 1979 and has been since that date, and is at date hereof, an ACTIVE licensee of the State Bar of California; and that no recommendation for discipline for professional or other misconduct has ever been made by the Board of Trustees or a Disciplinary Board to the Supreme Court of the State of California.”  (Ex. 1 to Caldwell Decl.)  This evidence is beside the point because the alleged defamatory publication stated nothing about Caldwell being suspended by the California State Bar and only consisted of a transmittal of two California Supreme Court orders that suspended Caldwell in 2019 and eventually reinstated him in 2021. 

Alternatively, Green argues that his statements are protected by the fair and true reporting privilege.  Under Civ. Code, § 47, subd. (d), the fair and true reporting privilege protects a fair and true report in, or a communication to, a public journal, of a judicial proceeding, or anything said in the course thereof.  It is an absolute privilege—that is, it applies regardless of the defendants’ motive for making the reports.  (Argentieri v. Zuckerberg (2017) 8 Cal.App.5th 768, 787-788.)  To be fair and true, the report must capture the substance, the gist or sting, of the subject proceedings as measured by considering the natural and probable effect of the report on the mind of the average reader.  (Id.)  The defendant is entitled to a certain degree of flexibility/literary license in this regard, such that the privilege will apply even if there is a slight inaccuracy in details—one that does not lead the reader to be affected differently by the report than he or she would be by the actual truth.  (Id.)  Here, as with Green’s truth defense, the judicially noticeable facts show that Green’s reporting to the Daily Journal is true and fair, and therefore, privileged. 

The Opposition argues that defendant’s affirmative defenses of truth and the true and fair reporting privilege raise questions for the jury and are not subject to a demurrer.  In fact, Caldwell’s suspension is pursuant to a final order of the California Supreme Court, which is subject to judicial notice, and the Court can sustain a demurrer based on judicially noticeable facts, even if it contradicts allegations in the complaint.  (Fontenot v. Wells Fargo Bank, N.A. (2011) 198 Cal.App.4th 256, 264–265 (in sustaining  demurrer, court properly took judicial notice of recorded documents that clarified and to some extent contradicted plaintiff's allegations).)  Further, case law indicates that the defense of truth is a question of law when, as here, there is no dispute as to what occurred in the judicial proceeding reported upon or as to what was contained in it.  (McClatchy Newspapers v. Superior Court (1987) 189 Cal.App.3d 961, 976 (citing Kilgore v. Younger (1982) 30 Cal.3d 770, 777; Jennings v. Telegram-Tribune Co.,164 Cal.App.3d 119, 127; Grillo v. Smith, 144 Cal.App.3d 868, 873-874.)

Finally, Caldwell argues that Green cannot claim the fair and true report privilege because  the Daily Journal is not a “public journal”.  Caldwell does not provide any factual support for its position.  The Los Angeles Daily Journal is a newspaper of general circulation in California, and therefore, it is a public journal covered by the true and fair reporting privilege.

CONCLUSION

            For the foregoing reasons, the Court SUSTAINS the demurrer to the defamation claim. 

 

DATED:  December 6, 2024                                ___________________________

Edward B. Moreton, Jr.

Judge of the Superior Court