Judge: Robert P. Dahlquist, Case: 37-2022-00032621-CU-DF-NC, Date: 2023-11-17 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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SOUTH BUILDING TENTATIVE RULINGS - November 16, 2023

11/17/2023  01:30:00 PM  N-29 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Robert P Dahlquist

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Civil - Unlimited  Defamation Summary Judgment / Summary Adjudication (Civil) 37-2022-00032621-CU-DF-NC WELTON VS WENDY'S [IMAGED] CAUSAL DOCUMENT/DATE FILED: Motion for Summary Judgment and/or Adjudication, 08/25/2023

Defendant Wendy's Restaurant's motion for summary judgment or, in the alternative, summary adjudication of issues (ROA # 49) is denied.

Defendant's request for judicial notice dated August 25, 2023 (ROA # 52) is granted.

Defendant's evidentiary objections (ROA # 75) are objections to statements in plaintiff's response to defendant's separate statement, not objections to evidence. The statements of counsel, contained in briefs and other similar documents (including separate statements of facts) are not evidence. The court overrules the objections because they are not objections to evidence.

In any event, the ruling on the objections is not material to the outcome of this motion. The outcome of the motion would be the same regardless of the ruling on the evidentiary objections.

In this instance, the court will consider the late-filed opposition papers (ROA # 72 and 73). The parties should not expect that the court will consider late-filed papers in the future.

Plaintiff has asserted causes of action for 'giving false information to sheriff,' defamation and intentional infliction of emotional distress, based on allegations that defendant's employees gave false information to the sheriff (Complaint, ¶¶ 33-41) and wrongfully accused plaintiff of being a 'strong arm robber' (Id.at ¶ 46). Plaintiff further alleges that '[b]ased on the false information given by Wendy's employees to the Sheriff, and there after communicated to the District Attorney, Plaintiff was charged on case number CN430945 with robbery by means of force and fear of an unknown amount money from the person, possession and immediate presence of Wendy's, a violation of Penal Code PC 211.' Complaint, ¶ 29.

On November 15, 2023, the court granted defendant's motion for judgment on the pleadings as to the first cause of action for 'giving false information to sheriff.' As such, the remaining causes of action are defamation and intentional infliction of emotional distress.

The notice of motion (ROA # 49) indicates that defendant is moving for summary judgment or summary adjudication in the alternative. However, no separate issues are identified for summary adjudication in the notice of motion or the separate statement. As such, this motion appears to be a motion for summary judgment only, and will be treated as such. The basis for the motion is defendant's assertion that 'defendant's communications to the police were privileged' under Civil Code § 47(b). (ROA # 53, at page 2) Calendar No.: Event ID:  TENTATIVE RULINGS

3012214 CASE NUMBER: CASE TITLE:  WELTON VS WENDY'S [IMAGED]  37-2022-00032621-CU-DF-NC Civil Code § 47(b) grants an absolute immunity from liability for any publications or broadcasts made in (1) a legislative proceeding, (2) a judicial proceeding, (3) any other official proceeding authorized by law, or (4) the initiation or course of any other proceeding authorized by law. Civil Code § 47(b)(5) provides that communications between a person and a law enforcement agency is not afforded this immunity if the 'person makes a false report that another person has committed, or is in the act of committing, a criminal act or is engaged in activity requiring law enforcement intervention, knowing that the report is false, or with reckless disregard for the truth or falsity of the report.' The court believes that, in order for defendant to prevail on this motion, defendant must present admissible evidence establishing that the statements made by defendant's employees to the Sheriff's Department were true or that the employees did not act with the reckless disregard for the truth or falsity of the statements provided to the Sheriff's Department.

The evidence presented by defendant in support of this motion does not demonstrate that the statements made by defendant's employees to the Sheriff's Department were true or that the employees did not act with the reckless disregard for the truth or falsity of the statements.

As such, defendant has failed to carry its initial burden on this motion, and the burden never shifts to the plaintiff to present admissible evidence establishing a triable issue of material fact.

This is the tentative ruling for an appearance hearing (in person or remote) at 1:30 p.m. on Friday, November 17, 2023. If no party appears at the hearing, this tentative ruling will become the order of the court as of November 17, 2023. If the parties are satisfied with the court's tentative ruling or do not otherwise wish to argue the motion, they are encouraged to give notice to the court and each other of their intention not to appear, though this notice is not required.

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