Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. BC394722. William F. Fahey, Judge.
Horton & DeBolt, Laura L. Horton and Michelle E. Diaz for Plaintiff and Appellant.
Reiner & Hollomon and Michael P. Hollomon, Jr. for Defendants and Respondents.
CHANEY, J.
Plaintiff Michael Klein is a retired Los Angeles police officer. He appeals from the judgment entered after the trial court sustained defendants’ demurrer without leave to amend. Plaintiff’s lawsuit is based on his claims that defendant Erin Carrott, in the course and scope of her employment with defendant Longs Drug Stores California, Inc., made false statements to and improperly disclosed plaintiff’s medical records to the Los Angeles Police Department (LAPD) during official LAPD investigations. We agree with the trial court’s decision and affirm.
Background
In his complaint, plaintiff alleges the following facts: Before his retirement in 2002, plaintiff worked as a police officer for the LAPD. While working as a police officer, plaintiff suffered injuries, for which he continues to take prescription medications. For years, he has filled his prescriptions at a Longs Drug Store in Simi Valley (the drug store). The employees at the drug store knew plaintiff was a LAPD officer or a retired LAPD officer.
After retiring from the LAPD in 2002, plaintiff worked as a “movie cop” providing traffic and security detail for the film industry. To work as a movie cop, plaintiff needed, and had, a Motion Picture/Television Filming work permit (work permit). Although no longer an LAPD employee, plaintiff’s work permit is issued by the LAPD.
In July 2007, plaintiff went to the drug store to pick up a prescription. A female clerk told plaintiff his prescription was not ready, so he left the store.
Later that day, defendant Erin Carrott, a drug store employee, contacted the LAPD’s Internal Affairs division to lodge a knowingly false complaint about plaintiff. In her complaint and subsequent interview, Ms. Carrott claimed plaintiff had made derogatory and profane comments to the female clerk who had told him his prescription was not ready and possibly to others. Ms. Carrott admits she was not present at the time plaintiff allegedly made such comments and did not hear the allegedly offensive language. Plaintiff denies making any such statements. In addition, without plaintiff’s consent, Ms. Carrott provided plaintiff’s medical records and information to the LAPD.
As a result of Ms. Carrott’s knowingly false complaint about plaintiff, the LAPD conducted an investigation. In January 2008, the LAPD advised Ms. Carrott by letter that the LAPD had completed its investigation into her complaint about plaintiff. The letter indicated that the LAPD Internal Affairs Group had participated in the investigation and explained that Ms. Carrott’s “allegations of discourtesy and ethnic remarks were classified as Non-Disciplinary (No Department Employee). This means that your complaint did not involve a Department employee.” In June 2008, plaintiff’s work permit was revoked and, consequently, he can no longer work as a movie cop.
In a separately filed request for judicial notice, plaintiff has asked us to take judicial notice of the LAPD’s January 2008 letter, which plaintiff discovered after filing this appeal. Plaintiff asserts that, if permitted leave to amend, he would add facts about the January 2008 LAPD letter to his complaint. Defendants did not oppose the request for judicial notice. We grant plaintiff’s request and take judicial notice of the letter. (Evid. Code, §§ 452, subd. (c) and 459.)
Plaintiff sued Longs Drug Stores and Ms. Carrott, alleging various claims, all of which relate to Ms. Carrott’s complaint to the LAPD and her subsequent disclosure of plaintiff’s medical records and information to the LAPD. Plaintiff’s claims include invasion of privacy, violation of the California Confidentiality of Medical Information Act, negligent and intentional infliction of emotional distress, negligent and intentional interference with economic advantage and negligence. Plaintiff also asserted two claims for defamation, one of which was brought under Civil Code section 47.5 (section 47.5), which allows a peace officer to assert a defamation claim against someone who has knowingly filed a false complaint against the officer with his or her employing agency.
The trial court granted defendants’ demurrer to the complaint without leave to amend. The court held plaintiff’s claims were barred by the privilege of Civil Code section 47, subdivision b (section 47(b)) and followed case law holding section 47.5 unconstitutional.
Plaintiff appealed the judgment.
Discussion
1. Standard of Review
We review plaintiff’s complaint de novo to determine whether it alleges facts sufficient to state a cause of action under any legal theory. (Total Call International, Inc. v. Peerless Ins. Co. (2010) 181 Cal.App.4th 161, 166 (Total Call International).) Although we treat the demurrer as admitting all material facts properly pleaded, we do not assume the truth of contentions, deductions or conclusions of fact or law. (Ibid.)
Also, because the trial court sustained defendants’ demurrer without leave to amend, we determine whether plaintiff could amend the complaint to state a cause of action. (Total Call International, supra, at p. 166.) It is plaintiff’s burden to show what facts he could plead to cure existing defects in the complaint. (Ibid.) “‘To meet this burden, a plaintiff must submit a proposed amended complaint or, on appeal, enumerate the facts and demonstrate how those facts establish a cause of action.’” (Ibid.) If the defect can be cured, the trial court has abused its discretion and we will reverse the judgment of dismissal. (Singhania v. Uttarwar (2006) 136 Cal.App.4th 416, 425-426.)
The judgment will be affirmed if it is proper on any grounds raised in the demurrer even if the trial court did not rely on those grounds. (Pang v. Beverly Hospital, Inc. (2000) 79 Cal.App.4th 986, 989.)
2. The Privilege of Civil Code Section 47(b)
Plaintiff argues section 47(b) does not apply to the facts of this case. We disagree.
a. The privilege in general
“Section 47 establishes a privilege that bars liability in tort for the making of certain statements. Pursuant to section 47(b), the privilege bars a civil action for damages for communications made ‘[i]n any (1) legislative proceeding, (2) judicial proceeding, (3) in any other official proceeding authorized by law, or (4) in the initiation or course of any other proceeding authorized by law and reviewable pursuant to [statutes governing writs of mandate], ’ with certain statutory exceptions that do not apply to the present case. The privilege established by this subdivision often is referred to as an ‘absolute’ privilege, and it bars all tort causes of action except a claim for malicious prosecution. [Citations.]” (Hagberg v. California Federal Bank (2004) 32 Cal.4th 350, 360 (Hagberg).)
“[T]he absolute privilege established by section 47(b) serves the important public policy of assuring free access to the courts and other official proceedings. It is intended to “‘“assure utmost freedom of communication between citizens and public authorities whose responsibility is to investigate and remedy wrongdoing.”’” (Hagberg, supra, 32 Cal.4th at p. 360, italics omitted.) “[B]oth the effective administration of justice and the citizen’s right of access to the government for redress of grievances would be threatened by permitting tort liability for communications connected with judicial or other official proceedings. Hence, without respect to the good faith or malice of the person who made the statement, or whether the statement ostensibly was made in the interest of justice, ‘courts have applied the privilege to eliminate the threat of liability for communications made during all kinds of truth-seeking proceedings: judicial, quasi-judicial, legislative and other official proceedings.’” (Id. at pp. 360-361.)
“By the terms of the statute, statements that are made in quasi-judicial proceedings, or ‘any other official proceeding authorized by law’ (§ 47(b)), are privileged to the same extent as statements made in the course of a judicial proceeding. By analogy to cases extending the litigation privilege to statements made outside the courtroom, many cases have held that the official proceeding privilege applies to a communication intended to prompt an administrative agency charged with enforcing the law to investigate or remedy a wrongdoing.... ‘[T]he privilege protect[s] communications to or from governmental officials which may precede the initiation of formal proceedings.’” (Hagberg, supra, 32 Cal.4th at p. 362.) Courts agree that the section 47(b) privilege applies to complaints to governmental agencies requesting that the agency investigate or remedy a perceived wrongdoing. (Id. at p. 363.)
“Any doubt as to whether the privilege applies is resolved in favor of applying it.” (Adams v. Superior Court (1992) 2 Cal.App.4th 521, 529.)
b. Communicative conduct
Section 47(b) applies to communicative conduct only. As our Supreme Court has held, the privilege of section 47(b) “precludes recovery for tortiously inflicted injury resulting from publications or broadcasts made during the course of judicial and quasi-judicial proceedings, but does not bar recovery for injuries from tortious conduct regardless of the purpose for which such conduct is undertaken.” (Kimmel v. Goland (1990) 51 Cal.3d 202, 205.) Thus, for example, section 47(b) does not apply to the recording of confidential phone conversations in anticipation of litigation as that is tortious conduct. (Ibid.; see also LiMandri v. Judkins (1997) 52 Cal.App.4th 326, 345 [defendant’s tortious course of conduct was not communicative conduct]; Ribas v. Clark (1985) 38 Cal.3d 355, 365 [eavesdropping was not privileged]; Westlake Community Hosp. v. Superior Court (1976) 17 Cal.3d 465, 482 [suspending, revoking or refusing hospital privileges was not communicative conduct].)
c. Application
As an initial matter, the LAPD investigations-whether conducted by the Internal Affairs Group or by the Personnel Group-qualify under section 47(b) as “any other official proceeding authorized by law.” This District has long held citizen complaints of, and LAPD investigations into, alleged officer misconduct to be absolutely privileged under section 47. (Imig v. Ferrar (1977) 70 Cal.App.3d 48, 54-55, 57; see also Shaddox v. Bertani (2003) 110 Cal.App.4th 1406, 1415-1417 (Shaddox).) Procedures for the discipline, suspension, or removal from office of an LAPD police officer are specified in the Los Angeles City Charter. (L.A. Charter, § 1070.) Similarly, procedures for the revocation, suspension or denial of a Motion Picture/Television Filming work permit are specified in the Los Angeles Municipal Code. (L.A. Mun. Code, §§ 22.02, 80.03.1.) Thus, Ms. Carrott’s initial complaint to the LAPD against plaintiff and the subsequent investigations by the LAPD Internal Affairs Group and the LAPD Personnel Group qualify as “other official proceeding[s] authorized by law” for purposes of section 47(b).
In addition, the complaint makes clear that Ms. Carrott initiated a complaint against plaintiff with the LAPD and then, during the course of an LAPD investigation (whether by the LAPD Personnel Group or by the LAPD Internal Affairs Group) released his medical information to the LAPD. The general rule is that “‘[a] communication to an official agency which is designed to prompt action is considered a part of an official proceeding for purposes of Civil Code section 47’” (Hagberg, supra, 32 Cal.4th at p. 370) and, clearly, subsequent communications to that agency during the course of an official investigation are part of the official proceeding for purposes of section 47.
i. Communicative conduct
Plaintiff argues the privilege of section 47(b) does not apply here because the act of providing plaintiff’s medical information and records to the LAPD is not communicative conduct for purposes of section 47(b). Despite plaintiff’s arguments to the contrary, however, we conclude defendants’ act of providing medical information or records to the LAPD is communicative conduct falling within the ambit of section 47(b). Plaintiff’s causes of action center on (i) Ms. Carrott’s allegations to the LAPD that plaintiff made inappropriate remarks at the drug store (indisputably communicative conduct for purposes of section 47(b)) and (ii) Ms. Carrott’s act of providing plaintiff’s medical information to the LAPD. As to the act of providing medical information to the LAPD, it is the release or publication of plaintiff’s medical information that forms the basis of the causes of action, not the act of physically retrieving and sending the information from the drug store files. Thus, although in order to release the information to the LAPD, Ms. Carrott physically had to locate and retrieve plaintiff’s medical records and physically had to provide them to the LAPD, the gravamen of the complaint is the communicating of that information to the LAPD. And, although, in his reply brief on appeal, plaintiff states the gravamen of his complaint is that defendants had no right “to even access and read” his medical information (except as necessary to fill his prescriptions), that assertion is not borne out by the allegations in his complaint.
Plaintiff relies on Susan S. v. Israels (1997) 55 Cal.App.4th 1290 for the proposition that defendants’ alleged conduct was not communicative and, therefore, not privileged under section 47(b). But, Susan S. is distinguishable. There, the court explained that, although one defendant had disseminated the plaintiff’s mental health records, the plaintiff’s cause of action for invasion of privacy rested on that defendant’s act of reading the plaintiff’s medical records, and not on the publication or broadcast of those records. (Id. at p. 1299.) As such, the court held the litigation privilege did not shield the defendants from liability for invasion of privacy. (Id. at p. 1301.) In contrast, here, the allegations are not that defendants read plaintiff’s medical files, but that defendants provided, or, in other words, published plaintiff’s records to the LAPD.
Other cases relied on by plaintiff are similarly distinguishable. (See Kimmel v. Goland, supra, 51 Cal.3d at p. 205 [recording of confidential phone conversations is not communicative and, therefore, not privileged]; LiMandri v. Judkins, supra, 52 Cal.App.4th at p. 345 [defendant’s tortious course of conduct was not communicative and, therefore, not privileged]; Ribas v. Clark, supra, 38 Cal.3d at p. 365 [eavesdropping is not communicative and, therefore, not privileged]; and Westlake Community Hosp. v. Superior Court, supra, 17 Cal.3d at p. 482 [suspending, revoking or refusing hospital privileges is not communicative and, therefore, not privileged].)
ii. Confidentiality of Medical Information Act
Plaintiff also argues section 47(b) does not shield defendants from liability under the California Confidentiality of Medical Information Act. (Civ. Code, § 56 et seq. (CMIA).) We are not persuaded.
This case is similar, though not identical, to Shaddox, supra, 110 Cal.App.4th 1406. There, a dentist reported to the San Francisco Police Department his suspicions that one of their officers (who was a patient of the dentist) either was, or was at risk of becoming, dependent upon prescription drugs. The dentist became suspicious because the officer requested a prescription for painkillers although an examination showed no source of any pain and because the officer gave the dentist an “‘icy glare’” after the dentist refused to write the requested prescription. (Id. at p. 1409.) Although the dentist did not physically provide the officer’s medical files to the police department, the dentist revealed information contained in the officer’s medical files to the police department, including the dentist’s medical findings as to the officer’s condition, the fact that the officer had made numerous requests for drugs in the past, and the fact that another dentist had made a notation in the officer’s medical file directing that the officer not receive any more pain medication. (Id. at p. 1410.) After the police department conducted an internal investigation, the officer was disciplined for improper conduct. (Id. at p. 1410.) The officer unsuccessfully sued the dentist for revealing his private medical information.
The court of appeal affirmed the judgment in favor of the dentist on two separate and independent grounds. (Shaddox, supra, 110 Cal.App.4th at pp. 1408-1409, 1418.) First, the court concluded that the dentist’s disclosures to the police department fell within one of the enumerated exceptions to CMIA, namely section 56.10, subdivision (c)(14), which allows release of medical information “when the disclosure is otherwise specifically authorized by law.” (Shaddox, at p. 1408.) The court held the disclosures were authorized by law because Penal Code section 832.5, subdivision (a)(1), directs each department or agency in California that employs peace officers to “establish a procedure to investigate complaints by members of the public against the personnel of these departments or agencies” and because the Charter of the City and County of San Francisco encouraged citizens to report suspected misconduct by law enforcement officers and established a procedure for acting on such complaints. (Id. at pp. 1412-1414.) Second, the court held the dentist’s report to the police department was absolutely privileged under the official proceeding privilege of section 47(b). (Id. at pp. 1415-1417.)
Similarly, here, the defendants disclosed plaintiff’s medical files to the LAPD in the course of an official investigation involving plaintiff. As noted above, the Los Angeles City Charter establishes procedures for the discipline, suspension, or removal from office of an LAPD police officer (L.A. Charter, § 1070) and the Los Angeles Municipal Code establishes procedures for the revocation, suspension or denial of a Motion Picture/Television Filming work permit (L.A. Mun. Code, §§ 22.02, 80.03.1). Thus, under the reasoning of Shaddox, defendants’ act of disclosing plaintiff’s medical information to the LAPD not only falls within Civil Code section 56.10, subdivision (c)(14), but also is absolutely privileged under section 47(b).
We are not persuaded by plaintiff’s reliance on Wise v. Thrifty Payless, Inc. (2000) 83 Cal.App.4th 1296 (Wise) or Pettus v. Cole (1996) 49 Cal.App.4th 402 (Pettus). In Wise, the plaintiff and her then-husband had been in the midst of an acrimonious separation, when the defendant pharmacy released plaintiff’s prescription medication records to the husband without her authorization and in violation of her express directions to the pharmacy. (Wise, at pp. 1299-1300.) The husband later used those records against plaintiff in litigation and in a DMV proceeding. (Id. at pp. 1300-1301.) The court affirmed the judgment entered after a jury found the pharmacy liable for damages resulting from its disclosure of the plaintiff’s medical records. (Id., at p. 1299.) Wise is not helpful, however, because, when the pharmacy there released the plaintiff’s records, the pharmacy was not initiating or involved in any official judicial or quasi-judicial proceeding. In contrast, here, defendants initiated and were involved in the LAPD’s official investigation into plaintiff.
Pettus is similarly unhelpful. There, without the plaintiff’s authorization, two psychiatrists released plaintiff’s medical information to his employer, E.I. du Pont de Nemours & Company. The psychiatrists did so in connection with the plaintiff’s request for disability leave and the employer’s short-term disability leave policy, which required employees requesting disability leave to submit to a medical exam. The court reversed judgment in favor of the psychiatrists, concluding their reports to the employer were not privileged under section 47(b) because the “process through which [the plaintiff] sought to secure disability leave was not a judicial proceeding. Rather, it was established, implemented and overseen solely by Du Pont management.” (Pettus, supra, 49 Cal.App.4th at p. 437.) The court refused to characterize the proceedings as quasi-judicial, stating the “context in which respondent doctors disclosed medical information to Du Pont was not a ‘quasi-judicial proceeding, ’ within the meaning that term has acquired in litigation under section 47(b)(2).” (Ibid.) In contrast, as already established above, the circumstances here are entirely different and the LAPD’s official investigations are considered quasi-judicial proceedings for purposes of section 47(b).
Plaintiff argues the trial court erred in dismissing his ninth cause of action for defamation under section 47.5. At our request, the parties submitted supplemental letter briefs discussing the application of section 47.5 to the facts of this case. We conclude the section does not apply here.
Section 47.5 provides: “Notwithstanding Section 47, a peace officer may bring an action for defamation against an individual who has filed a complaint with that officer’s employing agency alleging misconduct, criminal conduct, or incompetence, if that complaint is false, the complaint was made with knowledge that it was false and that it was made with spite, hatred, or ill will. Knowledge that the complaint was false may be proved by a showing that the complainant had no reasonable grounds to believe the statement was true and that the complainant exhibited a reckless disregard for ascertaining the truth.” (§ 47.5.) Thus, this section “exempts a limited class of complainants-those individuals who, with spite, hatred or ill will, make knowingly false complaints against peace officers with the officer’s employing agency-from the protections of the absolute litigation privilege.” (Loshonkohl v. Kinder (2003) 109 Cal.App.4th 510, 518 (Loshonkohl).)
Although the trial court and the parties recognize that the courts of appeal are divided as to whether section 47.5 is constitutional (compare Loshonkohl, supra, 109 Cal.App.4th at p. 518 [section 47.5 is constitutional] with Walker v. Kiousis (2001) 93 Cal.App.4th 1432, 1437 [section 47.5 is unconstitutional]), we need not reach that issue because, by its plain language, section 47.5 does not apply to the facts of this case. First, plaintiff has been retired from the LAPD since 2002 and was no longer a peace officer at the time of the alleged misconduct or when he filed his complaint. Penal Code section 830 states that “no person other than those designated in this chapter [Chapter 4.5] is a peace officer.” We have found no provision in Chapter 4.5 conferring peace officer status on a retired city police officer, and the parties have pointed us to no such provision. In contrast, however, Penal Code section 830.1 confers peace officer status on “any police officer, employed in that capacity.” (Pen. Code, § 830.1, subd. (a), italics added.) Second, it cannot reasonably be disputed that, when Ms. Carrott initiated her complaint with the LAPD in 2007, the LAPD was not plaintiff’s “employing agency.” In fact, the LAPD’s January 2008 letter (of which we have taken judicial notice) confirms this by stating Ms. Carrott’s complaint “did not involve a Department employee.” Thus, assuming without deciding section 47.5 is constitutional, we conclude plaintiff has no claim under that section as it simply does not apply to the facts of this case.
4. Leave to Amend
Plaintiff argues the trial court erred in denying leave to amend the complaint. On appeal, plaintiff claims he would allege the following facts if given the chance to amend his complaint: (a) Ms. Carrott has emotional problems, causing her to lie to the police about plaintiff out of spite, hatred and ill will, (b) Ms. Carrott is the daughter of a police officer and is a part of the LAPD’s scheme to make an example of plaintiff in its effort “to get rid of” retired LAPD officers working as movie cops, (c) the drug store willfully and knowingly destroyed all video surveillance from the date of the alleged incident at the drug store, and (d) the LAPD notified Ms. Carrot by letter dated January 30, 2008 that her complaint to the Internal Affairs Group had been dismissed and that, at all times, the LAPD Personnel Group (and not the Internal Affairs Group) was investigating plaintiff in a work permit investigation.
These additional facts do not change our analysis or conclusion. Thus, leave to amend the complaint is not warranted. (Singhania v. Uttarwar, supra, 136 Cal.App.4th at pp. 425-426.)
Disposition
The judgment is affirmed.
We concur: ROTHSCHILD, Acting P. J. JOHNSON, J.