Judge Gail Killefer, Case Number: 21STCV27294, Date: 2023-10-30 Tentative Ruling

This action arises out of alleged sexual advances made by Kario Harris (“Plaintiff”) to Paul Luntumbuez (“Defendant”), and Defendant’s communications of the alleged hostile work environment beginning in 2016. The Complaint alleges that Plaintiff is a retired U.S. Army Forces Major, and Defendant is a U.S. Army Reservist SFC and Human Resources Specialist in the Human Resources Department of the Department of Veterans Affairs. Plaintiff alleges that beginning in 2016 and “continuing,” Defendant made false statements and gave knowingly false testimony regarding these alleged sexual advances to third parties. Plaintiff further contends Defendant’s statements have been published on several websites and that these statements will be published again in the future.

Plaintiff’s Complaint alleges four causes of action: (1) defamation, (2) intentional infliction of emotional distress, (3) intentional interference with prospective economic advantage, and (4) declaratory relief.

On January 4, 2023, the court sustained Defendant’s demurrer to the complaint and granted leave to amend. On February 3, 2023, Plaintiff filed the First Amended Complaint (“FAC”) alleging identical causes of action.

On May 31, 2023, the court sustained Defendant’s demurrer to FAC with leave to amend. On June 26, 2023, Plaintiff filed the operative Second Amended Complaint (“SAC”) alleging identical causes of action as the original Complaint. Plaintiff opposes.

A demurrer is an objection to a pleading, the grounds for which are apparent from either the face of the complaint or a matter of which the court may take judicial notice. (CCP, § 430.30(a); see also Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) The purpose of a demurrer is to challenge the sufficiency of a pleading “by raising questions of law.” (Postley v. Harvey (1984) 153 Cal.App.3d 280, 286.) The court “treat[s] the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. . . .” (Berkley v. Dowds (2007) 152 Cal.App.4th 518, 525.) “In the construction of a pleading, for the purpose of determining its effect, its allegations must be liberally construed, with a view to substantial justice between the parties.” (CCP, § 452; see also Stevens v. Sup. Ct. (1999) 75 Cal.App.4th 594, 601.) “When a court evaluates a complaint, the plaintiff is entitled to reasonable inferences from the facts pled.” (Duval v. Board of Trustees (2001) 93 Cal.App.4th 902, 906.)

The general rule is that the plaintiff need only allege ultimate facts, not evidentiary facts. (Doe v. City of Los Angeles (2007) 42 Cal.4th 531, 550.) All that is required of a plaintiff, as a matter of pleading, even as against a special demurrer, is that his complaint set forth the essential facts of the case with reasonable precision and with sufficient particularity to acquaint the defendant with the nature, source and extent of his cause of action.” (Rannard v. Lockheed Aircraft Corp. (1945) 26 Cal.2d 149, 156-157.) “[D]emurrers for uncertainty are disfavored and are granted only if the pleading is so incomprehensible that a defendant cannot reasonably respond.” (Mahan v. Charles W. Chan Ins. Agency, Inc. (2017) 14 Cal.App.5th 841, 848, fn. 3, citing Lickiss v. Fin. Indus. Regulatory Auth. (2012) 208 Cal.App.4th 1125, 1135.) In addition, even where a complaint is in some respects uncertain, courts strictly construe a demurrer for uncertainty “because ambiguities can be clarified under modern discovery procedures.” (Khoury v. Maly’s of California, Inc. (1993) 14 Cal.App.4th 612, 616.)

Demurrers do not lie as to only parts of causes of action where some valid claim is alleged but “must dispose of an entire cause of action to be sustained.” (Poizner v. Fremont General Corp. (2007) 148 Cal.App.4th 97, 119.) “Generally it is an abuse of discretion to sustain a demurrer without leave to amend if there is any reasonable possibility that the defect can be cured by amendment.” (Goodman v. Kennedy (1976) 18 Cal.3d 335, 349.)

Defamation has two forms—libel and slander. (Civ. Code, § 44.) “Libel is a false and unprivileged publication by writing, printing … which [in relevant part] exposes any person to hatred, contempt, ridicule, or obloquy, … or which has a tendency to injure him in his occupation.” (Civ. Code, § 45.) “Slander is a false and unprivileged publication, orally uttered, and also communications by radio or any mechanical or other means which [in relevant part]: … 3. Tends directly to injure him in respect to his office, profession, trade or business, either by imputing to him general disqualification in those respects which the office or other occupation peculiarly requires, or by imputing something with reference to his office, profession, trade, or business that has a natural tendency to lessen its profits….” (Civ. Code, § 46 subd. (3).) “To prevail on a claim for defamation, plaintiff must show four elements: that defendants published the statements; that the statements were about plaintiff; that they were false; and that defendants failed to use reasonable care to determine the truth or falsity.” (Hecimovich v. Encinal School Parent Teacher Org. (2012) 203 Cal.App.4th 450, 470.)

First, Defendant contends that the October 2017 and September 2018 statements are barred by the one-year statute of limitations under Code of Civil Procedure section 340(c). (Demurrer at p. 6.) Pursuant to Code of Civil Procedure section 340, subdivision (c), the statute of limitations is one year for “[a]n action for libel, slander, false imprisonment...” (CCP, § 340(c).)

In sustaining the demurrers to the original Complaint and the FAC, the court found that the pleading lacked sufficient factual allegations to show that the alleged slander or defamatory statements continued since 2016. The SAC asserts he did not learn of the September 2018 and December 2021 defamatory statements “were unbeknownst to Plaintiff, Kario Harris, until 13 February 2023.” (SAC ¶ 5 at p. 4:5-16.) “The delayed discovery rule permits the statute of limitations to be rest to 13 February 2023. Proof of the behaviors exhibited by Offending Defendant, Paul Luntumbuez, was only revealed to Plaintiff, Kario Harris, on 13 February 2023. (SAC ¶ 3 at p. 17:20-24.)

The FAC was filed on February 3, 2023, wherein Plaintiff alleged knowledge of the December 2021 statement in which Defendant allegedly communicated to third parties that Plaintiff was stalking and sexually harassing Defendant. (SAC ¶ 7 at p. 5:12-17.) In fact, the SAC states that Plaintiff was aware from “2016 and continuing” that Defendant had made maliciously false statements about Plaintiff. (SAC ¶ 8 at p. 6:8.) Because the allegations in the FAC belies the assertion in the SAC that Plaintiff first discovered the December 2021 defamatory statement on February 13, 2023. Under the sham pleading doctrine, the court may disregard this factual allegation. (See Larson v. UHS of Rancho Springs, Inc. (2014) 230 Cal.App.4th 336, 343.) Therefore, it remains unclear when Plaintiff first learned about the December 2021 defamatory statement.

As to the October 2017 defamatory statement, the SAC alleges that in October 2018, the Defendant revised the October 2017 defamatory statement to a Fort Irwin Criminal Investigator. Plaintiff does not state when he learned about the October 2017 and October 2018 statements or allege any facts to show that the applicable one-year statute of limitations does not bar these claims. (SAC ¶ 4 at p. 4:1-5.) As to the September 2018 defamatory statement, the SAC alleges that Plaintiff did not learn that the statement had been made “until 27 October 2019 when Plaintiff, Kario Harris, received via US postal mailing” the withheld statement. (SAC ¶ 4 at p. 4:5-7.) Therefore, under the one-year statute of limitations, Plaintiff had until October 27, 2020, to bring a claim but the action was not filed the Complaint until July 26, 2021, after the claim lapsed.

The SAC alleges that the statute of limitations is delayed for one year under Code of Civil Procedure section 351 because “Offending Defendant, Paul Luntumbuez departed California to relocate to Texas on or about September 2021[.]” (SAC ¶ 5 at p. 6:2-3.) However, the statute of limitations for the September 2018 defamatory statement had already lapsed by September 2021.

Second, Defendants argue that the October 2017, December 2021, and October 2022 statements are privileged. The SAC alleges that the October 2017 and December 2021 defamatory statements “were made under oath during the course of an official investigation[.].” (SAC ¶ 5 at p. 5:15.)

“In December 2021 and again in October 2022 Offending Defendant, Paul Luntumbuez, communicated of third parties by making knowingly false and malicious statements in sworn testimony and emails[.]” (SAC ¶ 12 at p. 14:8-10.) “In October 2018 Offending Defendant, Paul Luntumbuez, revised his October 2017 knowingly false statement and malicious statement and provided to third party, Fort Irwin Criminal Investigator (name withheld).” (SAC ¶ 4 at p. 4:1-3.)

“Statements made in official proceedings are protected by the litigation privilege [citation], as are ‘communications made to instigate an official investigation and in connection with the investigation once commenced’ [citation].” (Bonni v. St. Joseph Health System (2022) 83 Cal.App.5th 288, 302.) “The litigation privilege gives all persons the right to report crimes to the police or an appropriate regulatory agency, even if the report is made in bad faith.” (Hansen v. California Dept. of Corrections and Rehabilitation (2008) 171 Cal.App.4th 1537, 1546.) “Such a communication, which is designed to prompt action by that government entity, is as much a part of an “official proceeding” as a communication made after an official investigation has commenced.” (Ibid.) Here, Plaintiff fails to show that the litigation privilege does not apply to Defendant’s statements, even if the statements are false and made with malice.

Lastly, Defendant argues that Defendant’s statements are protected by the Federal Tort Claims Act and the Westfall Act because the statements were made while Defendant was acting within the scope of his employment. ((Demurrer at p. 7.) The SAC fails to allege facts to show that Defendant was not acting within the scope of his employment when the defamatory statements were made, and the Federal Tort Claims Act and Westfall Act do not bar Plaintiff’s claims.

For the reasons set forth above, the demurrer to the first cause of action is sustained without leave to amend.

“To state a cause of action for intentional infliction of emotional distress a plaintiff must show: (1) outrageous conduct by the defendant; (2) the defendant's intention of causing or reckless disregard of the probability of causing emotional distress; (3) the plaintiff's suffering severe or extreme emotional distress; and (4) actual and proximate causation of the emotional distress by the defendant's outrageous conduct.” (Yau v. Santa Margarita Ford, Inc. (2014) 229 Cal.App.4th 144.) To satisfy the “outrageous conduct” element, the plaintiff must allege conduct “so extreme as to exceed all bounds of that usually tolerated in a civilized community . . . “(Cochran v. Cochran (1998) 65 Cal.App.4th 488, 494.)

The demurrer to the second cause of action is also sustained because Plaintiff fails to show that the litigation privilege does not apply to Defendant’s alleged defamatory claims. “[T]he [Litigation] privilege is ‘an absolute privilege, and it bars all tort causes of action except a claim of malicious prosecution.’ [Citation.] (Kenne v. Stennis (2014) 230 Cal.App.4th 953, 965 [internal quotations omitted].) The SAC fails to show that Defendant was not acting within the scope of his employment when the defamatory statements were made, and the Federal Tort Claims Act and Westfall Act do not bar Plaintiff’s claims.

Thus, the demurrer to the second cause of action is sustained without leave to amend.

B. Third Cause of Action: Intentional Interference with Prospective Economic Advantage

A cause of action for intentional interference with economic relationship (“IIER”) requires proof of (a) a valid and existing contract, (b) knowledge of the contract and intent to induce breach, (c) breach of contract, (d) breach caused by defendant’s unjustified or wrongful conduct, and (e) damages. (Dryden v. Tri-Valley Growers (1977) 65 Cal.App.3d 990, 995.) “While a plaintiff may satisfy the intent requirement for [IIER] by pleading specific intent, i.e., that the defendant desired to interfere with the plaintiff’s prospective economic advantage, a plaintiff may alternately plead that the defendant knew that the interference was certain or substantially certain to occur as a result of its action.” (Korea Supply Co. v. Lockheed Martin Corp. (2003) 29 Cal.4th 1134, 1154, 1157 (Korea Supply).) “While intentionally interfering with an existing contract is ‘a wrong in and of itself’ [citation], intentionally interfering with a plaintiff’s prospective economic advantage is not. To establish a claim for interference with prospective economic advantage, therefore, a plaintiff must plead that the defendant engaged in an independently wrongful act. [Citation.]” (Id., at p. 1158.)

The court sustains the demurrer to the third cause of action on the same basis as the second cause of action, meaning that Plaintiff has failed to show that the litigation privilege does not apply, and that Plaintiff’s claims are not barred by the Federal Tort Claims Act and Westfall Act.

“A complaint for declaratory relief is legally sufficient if it sets forth facts showing the existence of an actual controversy relating to the legal rights and duties of the parties under a written instrument or with respect to property and requests that the rights and duties of the parties be adjudged by the court.... If these requirements are met and no basis for declining declaratory relief appears, the court should declare the rights of the parties whether or not the facts alleged establish that the plaintiff is entitled to favorable declaration.” (Wellenkamp v. Bank of America (1978) 21 Cal.3d 943, 947 [citations omitted].)

As this court has sustained the demurrer to the first three causes of action and there is no present controversy, the court also sustains the demurrer to the claim for declaratory relief without leave to amend.

[1] Defendant again submits the declaration of his counsel, Negin Yamini (“Yamini”), to demonstrate compliance with statutory meet and confer requirements. Yamini sent a meet and confer letter to Plaintiff and Plaintiff submitted a responsive letter on July 19, 2023. Yamini states that on February 23, 2023, counsel sent a meet and confer letter to Plaintiff regarding the arguments raised in the instant demurrer. (Yamini Decl. ¶¶ 3, 4.) The parties were unable to reach a resolution. The court finds this is sufficient to satisfy the meet and confer requirement.