Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. BC387600, Maureen Duffy-Lewis, Judge.
Arent Fox LLP, Jonathon E. Cohn, and James R. Conolly for Plaintiff and Appellant.
Robert E. Kalunian, Acting County Counsel, and Syna N. Dennis, Principal Deputy County Counsel, for Defendants and Respondents.
SUZUKAWA, J.
Plaintiff, the owner and operator of a nursing home, brought the present action against the County of Los Angeles, the Los Angeles County Public Guardian’s Office (LAPGO), and one of its employees for allegedly wrongfully refusing to transfer a patient to the nursing home and for publishing defamatory statements about it. The trial court sustained the County’s demurrer to the operative complaint, concluding that plaintiff’s claims were barred by the California Tort Claims Act and were not adequately pled. Because we find that demurrers were erroneously sustained as to several causes of action, we reverse with directions.
FACTUAL AND PROCEDURAL BACKGROUND
Because this appeal is from a judgment of dismissal after the trial court sustained the County’s demurrer without leave to amend, we state the facts as alleged in plaintiff’s complaint. (See Herzberg v. County of Plumas (2005) 133 Cal.App.4th 1, 7, fn. 4.)
Plaintiff King Solomon Management, Inc. (doing business as Dreier’s Nursing Care Center) (plaintiff) operates a nursing home (the nursing home or Dreier’s) in Glendale, California. The nursing home cares for elderly patients with dementia, Alzheimer’s disease, and other mental and physical disorders. John Haedrich (Haedrich) is the nursing home’s administrator. Some of the nursing home’s patients are subject to public conservatorship through defendant LAPGO. Defendant William Ortega is a LAPGO employee.
In October 2007, Ortega, acting on behalf of LAPGO, visited the nursing home to oversee a patient’s transfer. When he left, Ortega produced false identification to gain access to the patient’s chart and improperly attempted to remove the patient’s original medical records. When the nursing home’s personnel told Ortega that his identification was improper and that it was against the law to remove the patient’s chart, Ortega became verbally combative. Ultimately, Ortega’s behavior became so aggressive that Haedrich had to physically block Ortega from pushing his way into areas of the nursing home where he was not permitted.
Following this incident, Haedrich filed a complaint concerning Ortega’s conduct with LAPGO. Ortega learned about the complaint from his supervisor on or about the day it was filed.
Shortly after this incident, the nursing home was informed that a physician, Dr. Grimes, had recommended the transfer of a patient (the patient) from the Los Angeles Metropolitan Hospital (the hospital) to the nursing home. The patient formerly had been under LAPGO’s conservatorship, but no longer was gravely disabled. Ortega improperly denied the transfer and failed to clear the denial with a supervisor. He then faxed the hospital a form stating that the request for transfer was denied because of “‘pending concerns re: treatment of [conservatees] by Dreier’s staff.’” This statement was untrue.
II. The Present Action
Plaintiff filed the present suit against Ortega and Sonae Domingo, another LAPGO employee, on March 19, 2008, alleging causes of action for intentional and negligent interference with prospective economic advantage, unfair competition, and defamation. On April 24, 2008, plaintiff filed a first amended complaint, adding LAPGO as a defendant and alleging an additional cause of action for negligence. Defendants demurred, and the trial court sustained the demurrer with leave to amend.
Plaintiff abandoned its claims against Domingo prior to trial.
Plaintiff filed the operative second amended complaint on August 20, 2008, alleging causes of action for intentional and negligent interference with prospective economic advantage, defamation, and negligence against LAPGO, Los Angeles County, and Ortega. It alleged that by improperly blocking plaintiff’s transfer to the nursing home, Ortega tortiously interfered with the economic advantage the nursing home would have garnered from having the patient in its care. Further, it alleged that the reason Ortega provided for denying the patient’s transfer to the nursing home was a deliberate misrepresentation, and that Ortega knew it to be so. That misrepresentation injured the nursing home’s reputation, which is integral to its continued economic viability. Finally, the complaint alleged that Ortega lacked the authority to deny the patient’s transfer and that LAPGO violated its own mandatory policy of investigating all transfer denials by failing to conduct such an investigation.
The second amended complaint also added Haedrich as a plaintiff and alleged additional causes of action for assault, battery, and trespass. Haedrich voluntarily dismissed those causes of action prior to the demurrer hearing. He is not a party to this appeal.
Defendants demurred to the second amended complaint. The trial court sustained the demurrer without leave to amend on October 6, 2008, stating as follows: “As to intentional interference with prospective [economic] advantage and negligent interference with prospective economic advantage, demurrer is sustained as to both claims as to all defendants. Plaintiff fails to allege the prospective economic relationships required with specific detail. Also, given the pleading, individuals exercising discretion afforded to them through the employer would confer immunity. Government Code section 820, et seq. No leave to amend. [¶] As to defamation, demurrer is sustained. Plaintiff fails to allege the specific statements. Without these allegations, these statements could be privileged or subject to immunity. No leave to amend. [¶] As to negligence, demurrer is sustained. As pled, the County is immune from negligence under Government Code sections 815 and 818.8. No leave to amend.” A judgment of dismissal was filed and served on October 23, 2008.
Plaintiff filed a timely notice of appeal on October 14, 2008.
STANDARD OF REVIEW
“In determining whether a plaintiff has properly stated a claim for relief, ‘our standard of review is clear: “‘We treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. [Citation.] We also consider matters which may be judicially noticed.’ [Citation.] Further, we give the complaint a reasonable interpretation, reading it as a whole and its parts in their context. [Citation.] When a demurrer is sustained, we determine whether the complaint states facts sufficient to constitute a cause of action. [Citation.] And when it is sustained without leave to amend, we decide whether there is a reasonable possibility that the defect can be cured by amendment: if it can be, the trial court has abused its discretion and we reverse; if not, there has been no abuse of discretion and we affirm. [Citations.] The burden of proving such reasonable possibility is squarely on the plaintiff.” [Citations.]’ (Zelig v. County of Los Angeles (2002) 27 Cal.4th 1112, 1126.)” (K.J. v. Arcadia Unified School Dist. (2009) 172 Cal.App.4th 1229, 1237.) Our review is de novo. (Ibid.)
DISCUSSION
I. Defamation
The second amended complaint alleges that Ortega faxed to the hospital a form stating that LAPGO had “‘pending concerns re: treatment of [conservatees] by Dreier’s staff.’” The complaint further alleges that this statement was made with malice and that it constitutes actionable defamation against Ortega and, through the doctrine of respondeat superior, against the County.
Because the present suit is against a public entity and its employee, we begin by considering whether the defendants are immune from suit as a matter of law pursuant to the California Tort Claims Act, Government Code section 810 et seq. (Tort Claims Act). We then consider whether plaintiff has adequately alleged the elements of defamation.
A. Statutory Immunities
Under the Tort Claims Act, “governmental tort liability must be based on statute; all common law or judicially declared forms of tort liability, except as may be required by state or federal Constitution, were abolished. ([Gov. Code,] § 815.)” (Michael J. v. Los Angeles County Dept. of Adoptions (1988) 201 Cal.App.3d 859, 866.) “The policy underlying the [Tort Claims] Act is that liability is the rule, immunity the exception. [Citation.] ‘Unless the Legislature has clearly provided for immunity, the important societal goal of compensating injured parties for damages caused by willful or negligent acts must prevail.’ [Citation.]” (Id. at p. 867.)
All undesignated statutory references are to the Government Code.
1. Immunities Applicable to Claim Against the County
Section 818.8 provides that “A public entity is not liable for an injury caused by misrepresentation by an employee of the public entity, whether or not such misrepresentation be negligent or intentional.” The immunity provided by this section “is absolute.” (Masters v. San Bernardino County Employees Retirement Assn. (1995) 32 Cal.App.4th 30, 43, italics added; see also Legis. Com. com., 32 West’s Ann. Gov. Code (1995 ed.) foll. § 818.8, p. 236 [“This section provides public entities with an absolute immunity from liability for negligent or intentional misrepresentation.”].)
Because the immunity provided by section 818.8 is “absolute,” the County necessarily is immune from liability for Ortega’s alleged libelous statements. Further, there is no reasonable possibility that plaintiff could cure this defect with an amendment. Accordingly, the trial court properly sustained the demurrer without leave to amend as to the defamation claim against the County. (Taxpayers for Improving Public Safety v. Schwarzenegger (2009) 172 Cal.App.4th 749, 781 [no abuse of discretion in sustaining demurrer without leave to amend when there is no “‘reasonable possibility that the defect can be cured by amendment’”].)
Citing Tokeshi v. State of California (1990) 217 Cal.App.3d 999, 1004, plaintiffs suggest that the immunity provided by section 818.8 is “forfeited” by a public entity if its employee is guilty of fraud, corruption, or actual malice. To the contrary, consistent with the plain language of the statute, Tokeshi holds that while immunity for misrepresentations “may be forfeited by the public employee if he ‘is guilty of actual fraud, corruption or actual malice,’” it is “absolute for the public entity.” (Ibid., italics added.)
2. Immunities Applicable to Claim Against Ortega
Section 822.2 states that “A public employee acting in the scope of his employment is not liable for an injury caused by his misrepresentation, whether or not such misrepresentation be negligent or intentional, unless he is guilty of actual fraud, corruption or actual malice.” “‘“[T]he immunity afforded by Government Code section 822.2 applies unless, in addition to the essentials of common law deceit, a public employee is motivated by corruption or actual malice, i.e., a conscious intent to deceive, vex, annoy or harm the injured party” [citation] with respect to her financial dealings.’ [Citation.]” (Curcini v. County of Alameda (2008) 164 Cal.App.4th 629, 649.) Further, “conclusory allegations of corruption or malice [are not] sufficient to bring [an action] within the exception of Government Code section 822.2. In addition to facts establishing the ordinary elements [of the tort], the pleader also must allege facts showing that [the alleged tortious conduct] was motivated by corruption or actual malice.” (Ibid.)
The complaint avoids the bar of section 822.2 with regard to its defamation claim against Ortega. It alleges that Ortega acted “with malice,” and it further alleges facts supporting its claim of malice. Specifically, it asserts as follows: “Ortega had been involved in a heated exchange at Dreier’s which had [led] to a physical confrontation with Haedrich, its administrator. Ortega’s grudge against Dreier’s is evidenced by Ortega’s not only acting outside his authority by denying the transfer, but publishing false statements in order to justify the denial. By sending a statement he knew to be false, Ortega acted with actual malice and knowingly defamed Dreier’s to a hospital with which Dreier’s has a long-standing and economically significant relationship.” Accordingly, on the face of the complaint, the defamation claim against Ortega is not barred by the Tort Claims Act.
B. Adequacy of Pleading
Because the defamation claim against Ortega is not facially barred by the Tort Claims Act, we consider whether plaintiff has adequately pled the elements of defamation. “Defamation is ‘a false and unprivileged publication that exposes the plaintiff “to hatred, contempt, ridicule, or obloquy, or which causes him to be shunned or avoided, or which has a tendency to injure him in his occupation.” (Civ. Code, § 45.)’ (McGarry v. University of San Diego (2007) 154 Cal.App.4th 97, 112; see also Taus v. Loftus [(2007)] 40 Cal.4th 683, 720 [discussing elements of defamation].)” (Nygard, Inc. v. Uusi-Kerttula (2008) 159 Cal.App.4th 1027, 1047-1048.) The County urges that the nursing home failed to allege this element in that the statement on which the defamation claim depends—“‘pending concerns re: treatment of [conservatees] by Dreier’s staff’”—did not contain a false statement of fact. At the demurrer stage, however, the relevant question is whether the statement is alleged to be false, not whether it is false as a matter of fact. (E.g., Linear Technology Corp. v. Applied Materials, Inc. (2007) 152 Cal.App.4th 115, 122 [“To show entitlement to reversal the plaintiff must show that the complaint alleged facts sufficient to establish every element of each cause of action. Whether the plaintiff will be able to prove these allegations is not relevant.”].) The second amended complaint undeniably alleges that the quoted statement is false: “As the reason for denial of the transfer, Ortega wrote in ‘pending concerns re: treatment of [conservatees] by Dreier’s staff.’ The reason Ortega included on the transfer form for the transfer’s denial was not true.... Ortega made it up.” (Italics added.) Accordingly, it states a claim for defamation against Ortega.
The County also suggests that plaintiff’s defamation claim fails because it is not fairly susceptible of a defamatory meaning. We do not agree. A statement is defamatory if it, among other things, “[t]ends directly to injure [the plaintiff] 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).) Such defamatory statements generally “reflect on the integrity and competence of the plaintiff, the clearest being allegations of unethical activity or incompetence. (See 5 Within, [Summary of Cal. Law (10th ed. 2005)] Torts, § 553, pp. 808-809.)” (The Nethercutt Collection v. Regalia (2009) 172 Cal.App.4th 361, 369.) Whether a statement is defamatory “can be reached on a demurrer as a matter of law,” but if “the language is capable of two meanings, one harmless and one defamatory, it is the province of the trier of fact to determine in which sense the language was used and understood.” (Polygram Records, Inc. v. Superior Court (1985) 170 Cal.App.3d 543, 551.)
The statement at issue here—that the patient’s transfer to the nursing home was denied due to “‘pending concerns re: treatment of [conservatees] by Dreier’s staff’”—is readily susceptible to a defamatory meaning. A trier of fact reasonably could conclude that LAPGO, a public agency charged with overseeing the care of incompetent persons, had declined to place a patient in the nursing home because it believed she would not be properly cared for. Such a statement plainly imputes to the nursing home a “general disqualification” to care for sick and elderly patients, and thus the defamation claim against Ortega survives demurrer.
II. Negligence
The second amended complaint alleges that the County is liable for negligence because LAPGO violated its duty to investigate the denial of the doctor’s request to transfer the patient to the nursing home. It states: “LAPGO has a stated policy of reviewing all transfer denials.... It is a mandatory ministerial duty and [a] LAPGO policy. The LAPGO did not review this denial of transfer beforehand.” “By failing to adhere to its own stated policy of reviewing and investigating every denied transfer, the LAPGO was negligent in carrying out its non-discretionary duties, and [the nursing home] was harmed as a result. Had the LAPGO conducted even a cursory investigation of the circumstances around the denial of Patient’s transfer, it would have discovered that Ortega was an employee without the authority to make transfer decisions and he was publishing inaccurate, defamatory statements in the process.” For the following reasons, we conclude that this claim is barred by the Tort Claims Act.
A. Statutory Immunities
A public entity may be liable for an injury directly as a result of its own conduct or omission, rather than through the doctrine of respondeat superior, “but only ‘as... provided by statute.’” (Zelig v. County of Los Angeles, supra, 27 Cal.4th at p. 1131, italics omitted.) Such direct statutory liability is provided by section 815.6, which states that a public entity may be directly liable for failure to discharge a mandatory duty. It states: “Where a public entity is under a mandatory duty imposed by an enactment that is designed to protect against the risk of a particular kind of injury, the public entity is liable for an injury of that kind proximately caused by its failure to discharge the duty unless the public entity establishes that it exercised reasonable diligence to discharge the duty.”
“‘“Government Code [section] 815.6 contains a three-pronged test for determining whether liability may be imposed on a public entity: (1) an enactment must impose a mandatory, not discretionary, duty...; (2) the enactment must intend to protect against the kind of risk of injury suffered by the party asserting section 815.6 as a basis for liability...; and (3) breach of the mandatory duty must be a proximate cause of the injury suffered.” [Citation.] Whether an enactment is intended to impose a mandatory duty is a question of law for the court.’ (Becerra v. County of Santa Cruz [(1998)] 68 Cal.App.4th [1450,] 1458.)” (County of Los Angeles v. Superior Court (2002) 102 Cal.App.4th 627, 638-639.)
To state a claim under section 815.6, “‘[o]ne of the essential elements that must be pled is the existence of a specific statutory duty. [Citation.] “Duty cannot be alleged simply by stating ‘defendant had a duty under the law’; that is a conclusion of law, not an allegation of fact. The facts showing the existence of the claimed duty must be alleged. [Citation.] Since the duty of a governmental agency can only be created by statute or ‘enactment,’ the statute or ‘enactment’ claimed to establish the duty must at the very least be identified.” [Citation.] Therefore, a “‘... litigant seeking to plead the breach of a mandatory duty must specifically allege the applicable statute or regulation.’” [Citation.] “Unless the applicable enactment is alleged in specific terms, a court cannot determine whether the enactment relied upon was intended to impose an obligatory duty to take official action to prevent foreseeable injuries or whether it was merely advisory in character.”’ (Becerra v. County of Santa Cruz, supra, 68 Cal.App.4th at p. 1458.)” (County of Los Angeles v. Superior Court, supra, 102 Cal.App.4th at p. 638.)
The second amended complaint does not satisfy these pleading standards. While it alleges that LAPGO has a “stated policy of reviewing all transfer denials,” it does not identify the particular statutory duty alleged to have been violated. Accordingly, it fails to state a claim for violation of a mandatory duty pursuant to section 815.6.
Citing Muskopf v. Corning Hospital Dist. (1961) 55 Cal.2d 211, 220, and Payne v. Baehr (1908) 153 Cal. 441, 444, plaintiff suggests that “under well-established California law, the County can be held liable for failing to follow its own policies.” We do not agree. Both of the cited cases precede the 1963 enactment of the Tort Claims Act and, thus, they are not authoritative to the extent that they are inconsistent with the provisions of the statute. (See Adams v. City of Fremont (1998) 68 Cal.App.4th 243, 264 [“Until 1961, when the Supreme Court decided Muskopf v. Corning Hospital Dist.[, supra,] 55 Cal.2d 211, 213, absent a waiver of sovereign immunity, the state and its political subdivisions had no tort liability to private persons. In response to the Muskopf decision, two years later the Legislature enacted a comprehensive statutory scheme known as the California Tort Claims Act, which reinstated the general rule of nonliability while defining the circumstances under which public entities and their employees may be sued for damages arising from tort injuries or death. Since 1963, where recovery is sought against public entities or their employees for injuries or death resulting from alleged negligent conduct, the right to recover is now defined by statute.”].)
B. Leave to Amend
“When a demurrer is sustained without leave to amend, ‘we decide whether there is a reasonable possibility that the defect can be cured by amendment: if it can be, the trial court has abused its discretion and we reverse; if not, there has been no abuse of discretion and we affirm. [Citations.] The burden of proving such reasonable possibility is squarely on the plaintiff.’ [Citation.] To meet this burden, the plaintiff must demonstrate how the complaint can be amended to state a cause of action. Such showing may be made to the trial court or, if no request is made for leave to amend, at the appellate level. [Citations.] In either case, the general rule is for liberal construction of the complaint with a view to substantive justice between the parties. [Citation.]” (Taxpayers for Improving Public Safety v. Schwarzenegger, supra, 172 Cal.App.4th at p. 781.)
In its appellate brief, plaintiff suggests three statutory or other duties that it claims were violated by LAPGO. Presumably, if given the opportunity to do so, plaintiff could amend its complaint to allege violations of these duties. We thus consider whether these allegations would avoid the statutory bar of section 815.6.
(1) Plaintiff suggests that defendants violated the statutory duty to provide proper care for conservatees set out in Welfare and Institutions Code section 5350 et seq. Specifically, plaintiff asserts that pursuant to section 5358 of the Welfare and Institutions Code, a conservator is required to place a conservatee in the care facility most appropriate to the conservatee’s needs. (Welf. & Inst. Code, § 5358.) While we agree that section 5358 contains such a requirement, we believe that the duty imposed by the statute is intended to protect against risk to the conservatee, not risk to a nursing home or other care facility. Accordingly, plaintiff has not established that, if given the opportunity to do so, they could plead a violation of statute “‘“intend[ed] to protect against the kind of risk of injury suffered by the [plaintiff].”’” (County of Los Angeles v. Superior Court, supra, 102 Cal.App.4th at p. 639, italics added.)
(2) Plaintiff asserts that defendants violated the statutory duties set out in Probate Code section 1800 et seq. to “[p]rotect the rights of persons who are placed under conservatorship,” “[p]rovide that an assessment of the needs of the person is performed in order to determine the appropriateness and extent of a conservatorship,” and “[p]rovide that the periodic review of the conservatorship by the court investigator shall consider the best interests of the conservatee.” Once again, we believe that the duty imposed by the statute is intended to protect against risk to the conservatee, not to a care facility. Thus, plaintiffs have not established that, if given the opportunity to do so, they could plead a violation of statute “intend[ed] to protect against the kind of risk of injury suffered by the [plaintiff].” (County of Los Angeles v. Superior Court, supra, 102 Cal.App.4th at p. 639.)
(3) Plaintiff claims that LAPGO violated its own “written, mandatory policy of investigating every denied transfer” that has “become part of the LAPGO’s operating procedure.” This is insufficient. As we have said, section 815.6 provides that a public entity may be directly liable for failure to discharge a mandatory duty “imposed by an enactment.” Section 810.6 defines “enactment” as “a constitutional provision, statute, charter provision, ordinance or regulation.” Because there is no allegation that LAPGO’s policies or procedures rise to the level of an ordinance or regulation, they do not come within section 815.6.
We conclude there is no reasonable possibility plaintiff can amend its pleading to state a claim under section 815.6.
III. Intentional and Negligent Interference With Prospective Economic Advantage
The second amended complaint alleges that Ortega tortiously interfered with the nursing home’s prospective economic advantage by (1) denying patient’s transfer to the nursing home, and (2) publishing a damaging statement about the nursing home. The complaint also alleges that the County (1) is vicariously liable for Ortega’s alleged tortious conduct, and (2) is directly liable for tortious interference because it failed to review Ortega’s denial of the patient’s transfer.
Once again we must determine whether any statutory immunities apply to plaintiff’s remaining claim. We also consider whether plaintiff has adequately pled the elements of intentional and negligent interference with prospective economic advantage.
A. Statutory Immunities
1. Immunities Applicable to Tortious Interference Claims Against Ortega
Government Code section 820.2 provides that “Except as otherwise provided by statute, a public employee is not liable for an injury resulting from his act or omission where the act or omission was the result of the exercise of the discretion vested in him, whether or not such discretion be abused.”
The County urges that this section bars plaintiff’s claims against Ortega for wrongfully denying patient’s transfer to the nursing home because the denial was made in the exercise of Ortega’s discretion. We do not agree. The second amended complaint specifically alleges that Ortega lacked the discretion to deny the patient’s transfer because he was not her case manager: “[A] LAPGO case manager with the authority to approve or deny transfer is required to execute the form stating the transfer request is approved.... Ortega did not have the decision-making authority or discretion to deny Patient’s transfer to Dreier’s or act on the transfer request at all, but he did so anyway.” Accordingly, as to the claim against Ortega for wrongful denial of transfer to the nursing home, the second amended complaint avoids the bar of section 820.2.
2. Immunities Applicable to Tortious Interference Claims Against the County
Section 815.2, subdivision (b) states that “Except as otherwise provided by statute, a public entity is not liable for an injury resulting from an act or omission of an employee of the public entity where the employee is immune from liability.”
The County urges that this section bars plaintiff’s claims against the County because “if the employee is immune from liability, so also is the public entity.” Since we have concluded that, on the face of the complaint, plaintiff’s claims against Ortega are not barred by section 820.2, the claims against the County similarly are not barred by section 815.2.
B. Adequacy of Pleading
To prove a claim for intentional or negligent interference with prospective economic advantage, a plaintiff has the burden of proving, among other things, an economic relationship between plaintiff and a third party, with the probability of future economic benefit to the plaintiff. (Korea Supply Co. v. Lockheed Martin Corp. (2003) 29 Cal.4th 1134, 1153-1154.) The County urges that plaintiff failed to adequately allege this element. Specifically, the County contends that “[s]ince the process of referring somebody or something to somebody else always involves a contingency (the patient or in this case the conservator must accept or approve[] the recommendation), referrals are not a[n] economic relationship containing the probability of future economic benefit to the recipient of the referral.”
We do not agree. The operative complaint alleges that the nursing home “has a long-established relationship with Los Angeles Metropolitan Hospital (the ‘Hospital’), and the Hospital has referred patients to [the nursing home’s] care numerous times.” Furthermore, “the Hospital was one of [the nursing home’s] significant sources of patient referrals” and “Dr. Grimes is [the nursing home’s] Medical Director, and refers many patients to its care.” In the present case, “Dr. Grimes, the physician requesting the transfer, had specifically selected [the nursing home] as the care facility to which to transfer Patient. Were it not for Ortega’s actions,... [the nursing home] would have received Patient into its care. Furthermore, the Hospital to which Ortega defamed [the nursing home’s] reputation is a large source of referrals of patients for [the nursing home]....”
These allegations sufficiently plead an economic relationship between plaintiff and a third party, with the probability of future economic benefit to the plaintiff. “The tort does not require interference with a relationship which has ripened into a contract, but merely requires one which has such a potential; it is a question of fact whether the business relationship between the plaintiff and third party is sufficient to support the tort. (Buckaloo v. Johnson (1975) 14 Cal.3d 815, 822, 830, fn. 7.)” (Tri-Growth Centre City, Ltd. v. Silldorf, Burdman, Duignan & Eisenberg (1989) 216 Cal.App.3d 1139, 1153.)
In Savage v. Pacific Gas & Electric Co. (1993) 21 Cal.App.4th 434, the court considered whether the appellant, a “free-lance stringer, paid on an article-by-article basis,” had a sufficient relationship with a newspaper to support a cause of action for interference with prospective economic advantage. (Id. at p. 444.) The court concluded that the appellant did: “Appellant did not have a contractual relationship with the Journal of Commerce, and it was not obliged to compensate her or to accept her articles. The newspaper merely placed her on a list of reporters privileged to submit articles that would be reviewed for publication. Nevertheless, she did enjoy ‘an economic relationship’ with the newspaper offering ‘the probability of future economic benefit’ because she could expect to be paid for those articles accepted for publication.” (Id. at p. 449.) Thus, the court held that the trial court erred in dismissing plaintiff’s cause of action for intentional interference with prospective economic advantage. (Id. at p. 456.)
The nursing home’s relationship with the hospital in the present case is at least as definite as the appellant’s relationship with the newspaper in Savage. Like the newspaper in Savage, the hospital had no future obligation to refer patients to the nursing home. Nevertheless, there was an existing relationship between the parties that made such referrals likely, and there was the probability of future economic benefit because the nursing home would receive revenue as a result of any patient placed in its care. Moreover, in the present case the hospital had actually made a referral to the nursing home. Accordingly, we conclude that the nursing home adequately pled an economic relationship between itself and a third party, with the probability of future economic benefit. The trial court thus erred in sustaining demurrers to the causes of action for intentional and negligent interference with prospective economic advantage.
DISPOSITION
The judgment of dismissal is reversed. The order sustaining the demurrers without leave to amend is vacated and the cause is remanded with directions to enter a new and different order (1) overruling the demurrers by the County and Ortega to the first and second causes of action for intentional and negligent interference with prospective economic advantage, (2) sustaining without leave to amend the County’s demurrer to the third cause of action for defamation, and overruling Ortega’s demurrer to the same cause of action, and (3) sustaining without leave to amend the County’s demurrer to the fourth cause of action for negligence. The parties shall bear their own costs on appeal.
We concur: EPSTEIN, P.J., WILLHITE, J.