Opinion
D074976
07-23-2020
SHAHROKH MIRESKANDARI, Plaintiff and Appellant, v. LAURIE A. GILBERT et al., Defendants and Respondents.
James & Associates, Becky S. James, Lisa M. Burnett; Law Offices of Bernard R. Schwam and Bernard R. Schwam for Plaintiff and Appellant. Bird, Marella, Boxer, Wolpert, Nessim, Drooks, Linceberg & Rhow and Thomas V. Reichert for Defendants and Respondents.
ORDER MODIFYING OPINION AND DENYING REHEARING NO CHANGE IN JUDGMENT The opinion filed on July 23, 2020 is hereby modified as follows:
1. On page 13, at the beginning of footnote 9, add the following paragraph before the existing paragraph:
In a petition for rehearing, Defendants argue that, for purposes of determining whether they acted in good faith or whether the prospective litigation was sufficiently serious (Action Apartment, supra, 41 Cal.4th at p. 1251), we should be focusing on the December 2008 request by the SRA "to an Adjudication Panel . . . that there be an intervention in Plaintiff's legal practice" (SAC ¶ 21), not on the April 2011 initiation by the SDT of "proceedings against Plaintiff regarding the intervention of Plaintiff's legal practice and his license to practice law in the United Kingdom" (SAC ¶ 22). As they did in their merits briefing, Defendants
analogize the SRA's request to an Adjudication Panel and the SDT's proceedings against Plaintiff in the United Kingdom to various California State Bar investigation and disbarment proceedings against a California attorney. (Citing and quoting Lebbos v. State Bar of California (1985) 165 Cal.App.3d 656, 668.) However, given the present record, we do not have sufficient allegations or evidence to know the effect of what the SRA allegedly "request[ed]" or what the SDT allegedly "initiat[ed]"; nor do we know the legal effect of either of those events or, depending on what those entities did (or did not do), whether the California constitutional right to privacy applies to either (or both) of those events. Accordingly, on this record, we reject both the analogy and the legal authorities proffered by Defendants.
2. On page 18, after footnote 14, add the following paragraph of text:
In a petition for rehearing, Defendants object that this opinion "does not address important factual allegations about the reasonableness of [Plaintiff's] expectation of privacy under the circumstances." Defendants contend that "qualified persons could gain access to the information contained in the database" (see fn. 3, ante), that Plaintiff "does not quarrel with th[is] fact" (although Defendants do not provide a citation for their understanding of Plaintiff's quarrels), and that they qualified as such persons. In attempting to establish their qualification, Defendants rely on arguments that would require us to determine the legal authorization of—as well as the relationship among and between—three British entities (the LSE, the SRA, the SDT) and how each entity or group of entities affected Plaintiff's rights. Plaintiff's complaint and Defendants' appellate briefing do allow us to reach these issues. We accept as true Plaintiff's express allegation that Defendants "had no authority to access Plaintiff's private and confidential educational records" (see p. 4, ante); and, on this record, Defendants' machinations to convince us otherwise fail (see fn. 9, ante).
There is no change in judgment.
Defendants' petition for rehearing is denied.
McCONNELL, P. J. Copies to: All parties
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 37-2015-00029990-CU-FT-CTL) APPEAL from a judgment of the Superior Court of San Diego County, John S. Meyer, Judge. Reversed and remanded with directions. James & Associates, Becky S. James, Lisa M. Burnett; Law Offices of Bernard R. Schwam and Bernard R. Schwam for Plaintiff and Appellant. Bird, Marella, Boxer, Wolpert, Nessim, Drooks, Linceberg & Rhow and Thomas V. Reichert for Defendants and Respondents.
This is an appeal from a judgment of dismissal following the sustaining of a demurrer without leave to amend. Plaintiff Shahrokh Mireskandari (Plaintiff) sued defendants Laurie A. Gilbert, a paralegal, and her law firm employer, defendant Bird, Marella, Boxer, Wolpert, Nessim, Drooks & Lincenberg, PC (Bird, Marella), (together Defendants) based on professional services Defendants performed for their clients who took action against Plaintiff based in part on these services. In the operative second amended complaint (SAC), Plaintiff alleged two causes of action against Defendants—invasion of privacy and intentional infliction of emotional distress (IIED).
As we explain, the trial court erred in ruling that the litigation privilege (Civ. Code, § 47, subd. (b)) applied, barring both causes of action. As we further explain, Plaintiff has alleged sufficient facts to state a cause of action for invasion of privacy, Plaintiff has not alleged sufficient facts to state a cause of action for IIED, and the trial court did not abuse its discretion in denying leave to amend the IIED claim. Accordingly, we will reverse the judgment and remand with directions to enter an order overruling the demurrer as to the cause of action for invasion of privacy and sustaining the demurrer without leave to amend as to the cause of action for IIED.
I. FACTUAL AND PROCEDURAL BACKGROUND
This case is before us following a demurrer, and the parties have not yet introduced any evidence bearing on the issues presented. Although both sides requested and the trial court took judicial notice of a number of documents in the demurrer proceedings, no party has either requested that we take judicial notice of any matter on appeal or attempted to explain how or why the previously noticed matters were properly noticed or required to be noticed. (See Evid. Code, § 459, subd. (a); Cal. Rules of Court, rule 8.252(a)(1) ["To obtain judicial notice by a reviewing court under Evidence Code section 459, a party must serve and file a separate motion"].) Thus we are limited to and "must accept the facts pleaded as true and give the [second amended] complaint a reasonable interpretation." (Mathews v. Becerra (2019) 8 Cal.5th 756, 762 (Mathews).) Under this standard, when describing or referring to the "facts," we mean the facts as alleged in the SAC. In their appellate briefing, the parties have presented as facts statements not in the SAC or otherwise properly before the court and have relied on foreign law not properly before the court (see Evid. Code, §§ 310, subd. (b), 459); we have disregarded all such facts and foreign law (Delta Stewardship Council Cases (2020) 48 Cal.App.5th 1014, 1079 (Delta Stewardship Council); Cal. Rules of Court, rule 8.204(a)(1)(C).)
Plaintiff received an undergraduate degree from National University in California, graduated from the American University of Hawaii law school in 1997, and attended London Guildhall University Law School in London in 1998. He qualified as a solicitor in 2000, and by 2006 he was the managing partner of a London firm with mostly "black, minority, or ethnic origin" (BME) solicitors and staff.
In 2007, Plaintiff publicly disclosed to a member of Parliament problems BME solicitors experienced "at the hands of the Legal Society of England and Wales ('LSE') and the Solicitors Regulatory Authority ('SRA')" (together, LSE/SRA). As a result, an internal review was commenced relating to the allegedly discriminatory and racist practices of the LSE/SRA toward BME solicitors. In retaliation, the LSE/SRA began a campaign to discredit Plaintiff. As part of its effort to obtain Plaintiff's "confidential information," and as a pretext for intervening in Plaintiff's law practice, the LSE/SRA retained Bird, Marella. More specifically, "LSE/SRA instructed Bird[,] Marella to illegally access" a specific website "to obtain Plaintiff's educational records without notice to or knowledge of Plaintiff."
The LSE is the "governing body of legal professionals in the United Kingdom." (Landen, The Prospects of the Accountant-Lawyer Multidisciplinary Partnership in English-Speaking Countries (1999) 13 Emory Int'l L.Rev. 763, 799.) Among other responsibilities, the SRA is "the regulatory arm of the [LSE]" (Parks, Justice and Equality (Jan.-May 2012) NBA Nat. Bar Assn. Mag.) and is one of a number of regulatory authorities that license individual lawyers in the United Kingdom (Hadfield & Rhode, How to Regulate Legal Services to Promote Access, Innovation, and the Quality of Lawyering (2016) 67 Hastings L.J. 1191, 1210).
"The SRA has no legal existence separate from the LSE. Though the LSE and SRA are formally independent from the government, both are accountable to the statutorily-created Legal Services Board . . . , which is itself accountable to Parliament through the Lord Chancellor." (Mireskandari v. Mayne (9th Cir. 2015) 599 Fed. Appx. 677, 677-678 [affirmance of dismissal of Plaintiff's complaint against the LSE and the SRA on the basis that, because they "engage 'in a public activity on behalf of the foreign government,' " the claims against them are subject to dismissal under the Foreign Sovereign Immunities Act of 1976 (28 U.S.C. § 1602 et seq.)].)
Our references to the "LSE/SRA" are based on Plaintiff's submissions to the trial court and Plaintiff's briefing on appeal in which Plaintiff did not differentiate between the two entities.
On September 22, 2008, Bird, Marella's paralegal, Gilbert, "unlawfully and illegally created a user profile" on the website "to gain access to Plaintiff's confidential educational records." In order to create the user profile, Gilbert agreed to specified terms and conditions of the website, despite Bird, Marella's knowledge that, based on these terms and conditions, Bird, Marella did not have the requisite authority to access Plaintiff's private and confidential educational records. Using her newly created profile and stating that she had the requisite authority to do so (see fn. 3), Gilbert concealed the following actions from Plaintiff: Gilbert requested Plaintiff's "education records" from George Mason University and from George Washington University; Gilbert accessed Plaintiff's "education records" from George Mason University; and Gilbert communicated the information she received to the LSE/SRA.
The website only permitted access to an individual who "certified that (i) he/she is an employer, employment agency, background screening firm, or similar organization, or acting on behalf of such entity; (ii) the subject student has applied for or received products, services, or employment that depends on verification of the student's degree and/or enrollment from the requesting individual; and (iii) the requesting party will not release, transfer, distribute, share, or disclose the information to anyone other than the employer, employment agency, background screening firm or similar organization, whether for sale or free of charge, except to the student whose information was verified."
Within two weeks of Defendants requesting and accessing these educational records, LSE/SRA demanded from Plaintiff information regarding his "educational and work background."
Approximately two months later, on December 15, 2008, the LSE/SRA intervened in Plaintiff's law practice.
More than two years later, in early April 2011, the Solicitor's Disciplinary Tribunal (SDT) "initiated the proceedings against Plaintiff regarding the intervention of Plaintiff's legal practice and his license to practice law in the United Kingdom" (SDT proceedings). After approximately three weeks of testimony, the SDT adjourned the SDT proceedings until June 2012.
During this break, Plaintiff travelled to California. He became seriously ill and requested that the SDT proceedings be further adjourned. Despite "compelling medical evidence from several California physicians of his illness, his inability to travel to England, and inability to participate in the SDT proceedings," the SDT rejected Plaintiff's request and in June 2012 conducted the continued SDT proceedings in Plaintiff's absence. As a result of the SDT proceedings, the SDT struck Plaintiff from the roll of solicitors, thereby preventing Plaintiff from practicing law in the United Kingdom. This caused in the permanent closing of the law firm of which he was a partner. Plaintiff suffered damages in excess of $500 million in damages.
In part, the SDT relied on an " 'opinion and report' " from a California doctor who, at the SDT's request, had reviewed " 'a comprehensive medical package . . . contain[ing] the medical records concerning [Plaintiff's] colorectal history.' " This doctor advised the SDT that Plaintiff was physically able to travel to England, to instruct his legal representatives, and to prepare for, attend, and participate in the continued SDT proceedings. Plaintiff named this California doctor as a defendant in this action (and in the SAC); but he is not a party to this appeal, and the allegations and four causes of action against him do not affect the allegations and two causes of action against Defendants that are at issue in this appeal.
In his opening brief on appeal, Plaintiff tells us that, "in June 2012, he lost his license to practice law in the U.K.," citing seven pages of the SAC. Those seven pages include the allegations that SDT's continued proceedings took place "in June 2013" and that, as a result of these continued proceedings, he thereafter lost his license to practice law in the United Kingdom. Based on the other allegations in the seven pages of the SAC cited by Plaintiff, the June 2013 date in the SAC appears to be an error. Accordingly, we proceed with the understanding that, consistent with Plaintiff's opening brief, in fact, the SDT continued the proceedings until June 2012; and as a result of these proceedings, the SDT struck Plaintiff from the roll of solicitors, thereby preventing Plaintiff from practicing law in the United Kingdom.
In September 2015, Plaintiff filed the underlying action against Defendants and one other (see fn. 4). The operative complaint is the SAC, and in the SAC Plaintiff alleges causes of action against Defendants for invasion of privacy and IIED.
Although Defendants obtained Plaintiff's education records and sent them to the LSE/SRA in 2008 and the SDT struck Plaintiff from the roll of solicitors in 2012, Plaintiff did not discover that Defendants "illegally gained access to his educational records" until December 2013.
In support of his invasion of privacy claim, Plaintiff alleges that, in 2008, on behalf of the LSE/SRA and without his knowledge, consent, or authorization, Defendants "invaded Plaintiff's right to privacy by unlawfully and illegally creating a user profile on the . . . website to gain access to Plaintiff's educational records." Further, "[t]he access and disclosure of Plaintiffs private and confidential educational records was offensive and objectionable to Plaintiff and would also be offensive and objectionable to a reasonable person of ordinary sensibilities[.]" Finally, "[a]s direct, legal and proximate result of Ms. Gilbert's unauthorized and illegal access and disclosure of Plaintiff's confidential and private educational records . . . , Plaintiff has been damaged[.]"
In support of his IIED claim, Plaintiff incorporates by reference the allegations in the claim for invasion of privacy and alleges that, "[a]s a direct, legal and proximate result of Ms. Gilbert's unauthorized and illegal access and disclosure of Plaintiff's confidential and private educational records . . . , and the outrageous conduct engaged in by Defendants which was knowing, intentional, and willful and done with a reckless disregard of the probability of causing Plaintiff severe emotional distress[,] . . . Plaintiff has been damaged[.]" Plaintiff's damages include "loss of reputation and standing in the community and caused him humiliation, embarrassment, extreme mental distress, and suffering."
In short, both of Plaintiff's claims are based on Defendants' access to and disclosure of certain of Plaintiff's confidential and private records of his education.
Plaintiff does not differentiate between "educational records" and "education records"; and neither shall we. Plaintiff does not allege what confidential or private information was contained in any of the records that Defendants accessed and disclosed.
Defendants demurred to Plaintiff's SAC. They contended that each of the causes of action: was barred by the litigation privilege (Civ. Code, § 47, subd. (b)); failed to allege facts sufficient to constitute a cause of action (Code Civ. Proc., § 430.10, subd. (e)); and was uncertain (Code Civ. Proc., § 430.10, subd. (f)). Following briefing, the court entertained oral argument, at the conclusion of which the court sustained the demurrer without leave to amend. In a written order, the court first granted Defendants' request for judicial notice and Plaintiff's two requests for judicial notice and then substantively ruled both that the litigation privilege is a bar to each of Plaintiff's claims and that each of Plaintiff's claims fails to allege facts sufficient to constitute a cause of action.
The court entered a judgment in favor of Defendants, and Plaintiff timely appealed.
II. DISCUSSION
On appeal, Plaintiff presents four arguments: (1) the litigation privilege does not apply to the claims at issue; (2) Plaintiff alleged facts sufficient to state a cause of action for invasion of privacy; (3) Plaintiff alleged facts sufficient to state a cause of action for IIED; and (4) in the event he did not sufficiently allege IIED, Plaintiff is entitled to amend the SAC. As we explain, governed by the applicable standards in reviewing the sufficiency of a complaint subject to demurrer, on the present record: (1) the litigation privilege is not a bar to Plaintiff's claims; (2) Plaintiff sufficiently alleged a cause of action for invasion of privacy; (3) Plaintiff did not sufficiently allege a cause of action for IIED; and (4) the trial court did not abuse its discretion in denying leave to amend the IIED claim. A. Standards of Review
After assuming the truth of the allegations in the SAC and the facts that can be inferred from those pleaded (Zelig v. County of Los Angeles (2002) 27 Cal.4th 1112, 1126 (Zelig)), "we examine the operative complaint de novo to determine whether it alleges facts sufficient to state a cause of action under any legal theory" (T.H. v. Novartis Pharmaceuticals Corp. (2017) 4 Cal.5th 145, 162). (Accord, Mathews, supra, 8 Cal.5th at p. 762.) We review for an abuse of discretion the trial court's decision to deny leave to amend the complaint. (Zelig, at p. 1126.)
The trial court's judgment is "presumed to be correct." (Jameson v. Desta (2018) 5 Cal.5th 594, 609.) Thus, the appellant has the burden of affirmatively establishing reversible error (ibid.), including whether the court abused its discretion in denying leave to amend following the sustaining of a demurrer (Campbell v. Regents of University of California (2005) 35 Cal.4th 311, 320 (Campbell); Zelig, supra, 27 Cal.4th at p. 1126). B. The Litigation Privilege
The litigation privilege provides that any "publication" or "broadcast" made in "any . . . judicial proceeding" is "privileged." (Civ. Code, § 47, subd. (b).) " 'The usual formulation is that the privilege applies to any communication (1) made in judicial or quasi-judicial proceedings; (2) by litigants or other participants authorized by law; (3) to achieve the objects of the litigation; and (4) that have some connection or logical relation to the action.' " (Jacob B. v. County of Shasta (2007) 40 Cal.4th 948, 955 (Jacob B.), quoting Silberg v. Anderson (1990) 50 Cal.3d 205, 212 (Silberg).) As potentially applicable here, the privilege also applies to statements made in preparation for litigation, so long as the litigation "is contemplated in good faith and under serious consideration." (Action Apartment Assn., Inc. v. City of Santa Monica (2007) 41 Cal.4th 1232, 1251 (Action Apartment).)
The privilege is a matter of substantive law, not a rule of evidence, and when applicable "provides absolute protection from tort liability for statements made during the course of litigation." (Wegner, et al., Cal. Practice Guide: Civil Trials & Evidence (The Rutter Group 2019) ¶ 8:1852.6, p. 8E-3); accord, Haning, et al., Cal. Practice Guide: Personal Injury (The Rutter Group 2019) ¶ 2:3202, p. 2(IV)-1 ["litigation privilege provides absolute immunity"].) The privilege is characterized as "absolute," because it applies regardless of the communicator's "motives, morals, ethics or intent." (Silberg, supra, 50 Cal.3d at p. 220; accord, Jacob B., supra, 40 Cal.4th at p. 955.)
The litigation privilege applies to all tort claims except malicious prosecution (Silberg, supra, 50 Cal.3d at pp. 215-216) and virtually all litigation-related communications, including those that are "perjurious or meant to be kept confidential" (Jacob B., supra, 40 Cal.4th at p. 959). If applicable, the litigation privilege is a bar to both of the specific claims Plaintiff asserts in this action—namely, invasion of privacy (Jacob B., at p. 960) and IIED (Silberg, at p. 215).
The litigation privilege is subject to specified statutory exceptions, but none potentially applies here. (Civ. Code, § 47, subd. (b)(1) [in papers filed in an action for marital dissolution or legal separation], (b)(2) [in communications in furtherance of an act of intentional destruction or alteration of physical evidence], (b)(3) [in communications concealing the existence of an insurance policy in a judicial proceeding], & (b)(4) [in recording a lis pendens unrelated to specified proceedings].)
The underlying purposes of applying the litigation privilege include: (1) affording litigants and witnesses the "utmost freedom of access" to courts without fear of "being harassed subsequently by derivative tort actions"; (2) promoting the effectiveness of judicial proceedings by encouraging "open channels of communication and the presentation of evidence"; (3) encouraging attorneys to "zealously protect" their clients' interests; and (4) enhancing the finality of judgments and avoiding "an unending roundelay of litigation." (Silberg, supra, 50 Cal.3d at pp. 213-214.) These purposes, and thus the privilege, also apply to communications made prior to, or in anticipation of, litigation—but only when the prospect of litigation advances from being "a mere possibility" to "a contemplated reality." (Edwards v. Centex Real Estate Corp. (1997) 53 Cal.App.4th 15, 34.)
Here, all of Defendants' actions at issue were taken prior to any litigation. Both of the claims alleged in the SAC are based on Defendants' access to and disclosure of Plaintiff's confidential education record in September 2008; yet the SDT did not initiate the proceedings against Plaintiff until April 2011. We will assume, without deciding, that Defendants' access and disclosure of Plaintiff's private and confidential education records involved communications by a litigant or other participant authorized by law to achieve the objects of the anticipated litigation and have some connection or logical relation to the proposed action. (See Jacob B., supra, 40 Cal.4th at p. 955 [elements of litigation privilege].) Thus, we consider only whether, at the time of Defendants' 2008 communications, the SDT's 2011 litigation was "contemplated in good faith and under serious consideration." (Action Apartment, supra, 41 Cal.4th at p. 1251; accord, Strawn v. Morris, Polich & Purdy, LLP (2019) 30 Cal.App.5th 1087, 1095-1096 (Strawn).)
Because the litigation privilege does not attach prior to the filing of an actual lawsuit, for purposes of determining whether the privilege applies when the challenged communication occurs prior to the lawsuit, the issue is whether the litigation is " ' "no longer a mere possibility, but has instead ripened into a proposed proceeding that is actually contemplated in good faith and under serious consideration as a means of obtaining access to the courts for the purpose of resolving the dispute." ' " (Strawn, supra, 30 Cal.App.5th at pp. 1096, 1097.) In determining whether " ' "imminent litigation was seriously proposed and actually contemplated in good faith as a means of resolving the dispute between [the parties]," ' " courts consider three factors. (Id. at pp. 1095-1096, quoting Action Apartment, supra, 41 Cal.4th at p. 1251.) First, " 'it is necessary that there be proof of "some actual verbalization of the danger that a given controversy may turn into a lawsuit," ' " since " 'the "mere possibility or subjective anticipation" of litigation is insufficient.' " (Strawn, at pp. 1095-1096.) Second, even though " 'an actual 'threat' of litigation" ' " is not necessary, " 'there must be a "serious, good faith proposal." ' " (Id. at p. 1096.) Finally, " 'the contemplated litigation must be imminent.' " (Ibid.)
Where, as here, Defendants attempt " ' "to take advantage of the [litigation] privilege by applying it to their own communications, they must establish that at the time they made the subject communications, they themselves actually contemplated prospective litigation, seriously and in good faith." ' " (Strawn, supra, 30 Cal.App.5th at pp. 1097-1098.) " ' "This is a question of fact that must be determined before the privilege is applied." ' " (Id. at p. 1096.)
Accepting the facts of the SAC as true, as we must (Mathews, supra, 8 Cal.5th at p. 762; Zelig, supra, 27 Cal.4th at p. 1126), we conclude that the trial court erred. Defendants' communications occurred in September 2008, and the SDT did not initiate the litigation by which Plaintiff lost his ability to practice law in the United Kingdom until April 2011, more than two and a half years later. Thus, at the time of Defendants' communications, there is no factual basis on which to find either that Defendants acted in good faith or that the prospective litigation was sufficiently serious. Stated differently, based on the three factors set forth in Strawn, supra, 30 Cal.App.5th at pages 1095-1096, at the time of Defendants' communications, the record lacks evidence of: (1) actual verbalization that the controversy may turn into a lawsuit; and (2) a serious, good faith proposal to resolve the dispute; and (3) the contemplation of any imminent litigation.
For these reasons, we cannot conclude as a matter of law that, when Defendants accessed and disclosed Plaintiff's private and confidential education records, litigation was "contemplated in good faith and under serious consideration." (Action Apartment, supra, 41 Cal.4th at p. 1251.) Accordingly, the trial court erred in applying the litigation privilege to bar the claims against Defendants on the record before the court and the standards to be applied in ruling on Defendants' demurrer. C. The Right to Privacy
We express no view as to the potential application of the litigation privilege later in the proceedings on a more developed record.
The California Constitution provides a right to privacy: "All people are by nature free and independent and have inalienable rights. Among these are enjoying and defending life and liberty, acquiring, possessing, and protecting property, and pursuing and obtaining safety, happiness, and privacy." (Cal. Const., art. I, § 1, italics added.)
The elements of a cause of action for a violation of this constitutional right to privacy are: "(1) a legally protected privacy interest; (2) a reasonable expectation of privacy in the circumstances; and (3) conduct by defendant constituting a serious invasion of privacy." (Hill v. National Collegiate Athletic Assn. (1994) 7 Cal.4th 1, 39-40 (Hill).) The first element "is a question of law to be decided by the court." (Hill, supra, 7 Cal.4th at p. 40.) The second and third elements "are mixed questions of law and fact. If the undisputed material facts show no reasonable expectation of privacy or an insubstantial impact on privacy interests, the question of invasion may be adjudicated as a matter of law." (Ibid.)
A claim for invasion of privacy under article I, section 1, of the California Constitution "creates a cause of action broader than that allowed under tort principles." (Urbaniak v. Newton (1991) 226 Cal.App.3d 1128, 1138.)
As we explain, because the current record does not support any of the three elements, the trial court erred in applying the privilege as a matter of law.
1. Reasonable Expectation of Privacy; and Conduct Constituting a Serious Invasion of Privacy
The second and third elements of the cause of action, which involve mixed questions of law and fact, are whether the plaintiff has a reasonable expectation of privacy in the circumstances and whether the defendant's conduct constitutes a serious invasion of privacy. (Hill, supra, 7 Cal.4th at p. 40.) Defendants have not established that both of these elements fail as a matter of law.
This is an appeal following the sustaining of a demurrer, and the material facts before us are those in the SAC. These facts include, at paragraphs 76, 84, and 85, respectively: In 2008, without his knowledge, consent, or authorization, Defendants "invaded Plaintiff's right to privacy by unlawfully and illegally creating a user profile on the . . . website to gain access to Plaintiff's educational records"; "The access and disclosure of Plaintiffs private and confidential educational records was offensive and objectionable to Plaintiff and would also be offensive and objectionable to a reasonable person of ordinary sensibilities"; and Plaintiff has been damaged "[a]s a direct, legal and proximate result of Ms. Gilbert's unauthorized and illegal access and disclosure of Plaintiff's confidential and private educational records." Thus, Plaintiff has alleged, at a minimum, the reasonableness of his expectation of privacy in this factual context and the seriousness of Defendants' alleged invasion of this privacy. In short, each of these two elements of the cause of action presents a question of fact that cannot be resolved adversely to Plaintiff on demurrer.
As we explained at footnote 1, ante, the "facts" contained in the myriad matters of which the trial court took judicial notice—i.e., two documents from Defendants, 19 documents from Plaintiff, and one document from the court sua sponte—are not before us.
Defendants attempt to convince us otherwise, by arguing that Plaintiff had no reasonable expectation of privacy and Defendants' alleged invasion of privacy was not serious, because: "As [Plaintiff] himself alleges, Ms. Gilbert accessed the . . . website and did nothing more than verify his dates of attendance at two different American colleges." (Italics added.) We are not persuaded; Defendants' statement limiting the information Gilbert accessed to "dates of attendance" is not supported by the record. Defendants cite to paragraph 17 of the SAC, in which Plaintiff alleges three separate times that Defendants "requested education records" from the two universities (italics added); and Plaintiff does not mention "attendance" or "dates of attendance" in any of the SAC's 89 numbered paragraphs.
The trial court sua sponte took judicial notice of, and expressly relied on, a declaration that Plaintiff attached to his original and first amended complaints in which the witness testified that, on specified dates in September 2008, "Gilbert used her user profile to request verification of dates of attendance" for Plaintiff at George Mason University and from George Washington University. Even if we took judicial notice of the declaration—which we do not (see fn. 1, ante)—our notice would be limited to "the[] existence and contents" of the declaration. (Yvanova v. New Century Mortgage Corp. (2016) 62 Cal.4th 919, 924, fn. 1.) We would not notice "disputed or disputable facts stated" in the declaration (ibid., italics added); nor would we take judicial notice of "the truth of the matter asserted in [the declaration]" (Guarantee Forklift, Inc. v. Capacity of Texas Inc. (2017) 11 Cal.App.5th 1066, 1075). Finally, even if we accepted as a "fact" that Defendants requested verification of Plaintiff's dates of attendance at the two universities, there is no evidence that those dates of attendance are the only information Defendants requested or accessed. The allegation in the SAC is broader; without a limitation as to dates of attendance, Plaintiff alleges that Gilbert unlawfully and illegally accessed "Plaintiff's private and confidential educational records."
At oral argument, Defendants' counsel acknowledged that, in the SAC, Plaintiff alleges that Defendants accessed educational records, not dates of attendance as presented in Defendants' brief on appeal. According to counsel, "it's much more clear" in the original and first amended complaints that Plaintiff's claim right to privacy claim is based on Defendants having accessed only dates of attendance.
Defendants' counsel also relied on attachments to both earlier complaints that indicate Gilbert requested verification of Plaintiff's dates of attendance at George Mason University and George Washington University. Counsel then suggested that the prior allegations and attachments are "admissions" by Plaintiff that the allegedly violative acts are limited to accessing his dates of attendance. (See, e.g., Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604 [allegations in prior pleadings]; Moran v. Prime Healthcare Management (2016) 3 Cal.App.5th 1131, 1145-1146 [attachment to complaint].) Similarly, counsel asserted that, where a complaint includes a general allegation (e.g., of an ultimate fact) and specific allegations (e.g., that add details or explanatory facts), then the specific allegation will control over an inconsistent general allegation. (See, e.g., Medical Marijuana, Inc. v. ProjectCBD.com (2016) 6 Cal.App.5th 602, 619.) None of these arguments applies to the pleadings in this case.
Plaintiff attached a declaration from another case (Genovese Declaration) to the two prior complaints in this action. Attached to Genovese Declaration are exhibits, which appear to indicate that Gilbert and another person inquired about Plaintiff's dates of attendance at the two universities.
Only where the earlier allegation, the prior attachment, or the general allegation is inconsistent with the amended allegation do we consider it an admission that requires us to disregard the amended allegation. (Del E. Webb Corp. v. Structural Materials Co., supra, 123 Cal.App.3d at p. 604 [the amended allegation must be "inconsistent with attached documents, or allegations contrary to facts which are judicially noticed" (italics added)]; Moran v. Prime Healthcare Management, supra, 3 Cal.App.5th at p. 1145 [plaintiff's allegations concerning what he expected to pay "are contradicted by the agreements he signed" and attached to the amended complaint (italics added)]; Medical Marijuana, Inc. v. ProjectCBD.com, supra, 6 Cal.App.5th at p. 619 ["specific allegations in a complaint control over an inconsistent general allegation" (italics added)].) Here, by alleging that Defendants accessed both Plaintiff's dates of attendance and Plaintiff's educational records, Plaintiff has not pleaded any inconsistency or contradiction.
In fact, even in the original and first amended complaints, in the same paragraphs (e.g., Nos. 17 & 18), Plaintiff alleges both that Defendants accessed his "educational records" and that Defendants "requested verification of dates of attendance."
Thus, on the present record, Plaintiff is not limited to the allegation that Defendants accessed only Plaintiff's dates of attendance.
2. Legally Recognized Privacy Interest
Once again, the first element of the cause of action for invasion of privacy under the California Constitution is whether Plaintiff has alleged a legally recognized privacy interest. (Hill, supra, 7 Cal.4th at pp. 39-40.) Because the determination of this element is a question of law (id. at p. 40), we are able to reach the merits of the parties' arguments. As we explain, in ruling that the SAC "fails to identify [a] legally protected privacy interest," the trial court erred.
We begin with the recognition that decisions of both the United States Supreme Court and the California Supreme Court "firmly establish the constitutionally enshrined status of freedom of speech and freedom of association in our nation's universities and colleges." (White v. Davis (1975) 13 Cal.3d 757, 760-761.) In White, the court noted that article I, section 1, of the California Constitution is aimed at curbing "the improper use of information properly obtained for a specific purpose, for example, the use of it for another purpose or the disclosure of it to some third party." (Id. at p. 775.)
More to the point, in reliance on White, the court in Porten v. University of San Francisco (1976) 64 Cal.App.3d 825 (Porten) ruled that, by disclosing a student's confidential records, the defendant university could be held liable for a violation of the state constitutional right of privacy. (Id. at p. 832, cited approvingly in Hill, supra, 7 Cal.4th at p. 18.) In Porten, the plaintiff college student sought damages from the defendant university, alleging that, without his permission or any good reason, the university had disclosed his academic transcript from another school to a state government agency. (Porten, at p. 827.) Reversing the trial court's judgment following demurrer, the Court of Appeal held that the student had stated a cause of action against the university for violation of his state constitutional right to privacy by alleging the unauthorized and improper use of personal and confidential academic information for a purpose inconsistent with its creation or retention. (Id. at p. 832.)
Likewise, the allegations of the SAC, which for present purposes are deemed true (Mathews, supra, 8 Cal.5th at p. 762; Zelig, supra, 27 Cal.4th at p. 1126), also set forth a legally recognized privacy interest in Plaintiff's "education records." In later proceedings, Defendants will be free to contest any of the allegations of the SAC (which they have not yet answered), including whether the specific education records that Defendants actually accessed and disclosed are, indeed, sufficiently confidential and private to establish a legally recognized privacy interest for Plaintiff. (See Porten, supra, 64 Cal.App.3d at p. 832.)
3. Conclusion
In the cause of action for invasion of the constitutional right to privacy, Plaintiff alleged a legally recognized privacy interest, a reasonable expectation of privacy in the circumstances, and a serious invasion of this privacy interest. For this reason, the trial court erred in ruling that, in the SAC, Plaintiff did not allege facts sufficient to state a cause of action for invasion of privacy. D. IIED
To recover on a cause of action for IIED, the plaintiff must show " ' " ' "(1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress; (2) the plaintiff's suffering severe or extreme emotional distress; and (3) actual and proximate causation of the emotional distress by the defendant's outrageous conduct." ' " ' " (Hughes v. Pair (2009) 46 Cal.4th 1035, 1050 (Hughes).)
For purposes of an establishing an IIED claim, "[a] defendant's conduct is 'outrageous' when it is so ' " 'extreme as to exceed all bounds of that usually tolerated in a civilized community.' " ' " (Hughes, supra, 46 Cal.4th at pp. 1050-1051.) In addition, as outcome-determinative in this case, an IIED plaintiff also must establish "severe emotional distress." (Id. at p. 1051, italics added.) To meet this standard, our Supreme Court "has set a high bar": " 'Severe emotional distress means " 'emotional distress of such substantial quality or enduring quality that no reasonable [person] in civilized society should be expected to endure it.' " ' " (Id. at p. 1051; accord, CACI No. 1604 [" 'Severe emotional distress' is not mild or brief; it must be so substantial or long lasting that no reasonable person in a civilized society should be expected to bear it."].)
Plaintiff alleges that Defendants' outrageous conduct—namely, accessing and disclosing his confidential and private education records—caused him the following "severe emotional distress": "loss of reputation and standing in the community[,] . . . humiliation, embarrassment, extreme mental distress, and suffering." In the remainder of the paragraph in which he alleges the severity of the emotional distress, Plaintiff describes the following injuries from the emotional distress: being stricken from the rolls of solicitors in the United Kingdom; losing his ability to practice law; losing the law firm of which he was the managing partner; losing "millions of dollars of income" he would have received from his law practice; and losing additional "millions of dollars" in real estate investments he was unable to afford to keep. None of these alleged injuries support, or arguably result from, the generic allegations of loss of reputation, humiliation, embarrassment, mental distress, or suffering.
Very simply, these generic allegations do not meet the "high bar" established by our Supreme Court for the element of severe emotional distress in an IIED claim. (Hughes, supra, 46 Cal.4th at p. 1051.) In Wong v. Jing (2010) 189 Cal.App.4th 1354 (Wong), for example, the plaintiff alleged that the defendant's conduct "caused her to suffer 'severe emotional damage.' " (Id. at p. 1377.) Even with the additional consideration of the plaintiff's testimony that the defendant's conduct " 'was very emotionally upsetting to me, and has caused me to lose sleep, have stomach upset and generalized anxiety,' " the court concluded that such a "minimal showing . . . does not constitute the sort of severe emotional distress of such lasting and enduring quality that no reasonable person should be expected to endure." (Ibid.)
The issue arose in the context of an anti-SLAPP motion. (Wong, supra, 189 Cal.App.4th at p. 1359.) For purposes of the prong two analysis—i.e., whether the plaintiff can make a prima facie showing of probable success on the merits (id. at p. 1368)—the plaintiff submitted a declaration with her testimony as to the extent of her "severe emotional damage" (id. at p. 1377).
Likewise, here, too, Plaintiff's allegation that Defendants' conduct caused Plaintiff "severe emotional distress"—as evidenced by the generic allegations of loss of reputation, humiliation, embarrassment, mental distress, or suffering—does not suggest " ' " 'emotional distress of such substantial quality or enduring quality that no reasonable [person] in civilized society should be expected to endure it.' " ' " (Hughes, supra, 46 Cal.4th at p. 1051; accord, Wong, supra, 189 Cal.App.4th, at p. 1377.) Accordingly, the trial court did not err in ruling that the SAC lacks sufficient facts to state a cause of action for IIED.
Notably, on appeal, Plaintiff does not argue otherwise. In his opening brief, he did not discuss the severity requirement, despite having identified it as a required element of a cause of action for IIED. In their brief, Defendants presented a separately identified argument supported by legal authorities entitled, "Plaintiff has failed to allege 'severe' emotional distress." Nonetheless, in his reply brief, Plaintiff did not respond to Defendants' argument or discuss the severity requirement, despite again acknowledging it as a required element of the cause of action.
In both his opening and reply briefs, however, Plaintiff suggests that, if the trial court correctly concluded that he failed to allege facts sufficient to state a cause of action for IIED, then the court erred in denying him leave to amend. We disagree.
"If we see a reasonable possibility that the plaintiff could cure the defect by amendment, then we conclude that the trial court abused its discretion in denying leave to amend. If we determine otherwise, then we conclude it did not." (Campbell, supra, 35 Cal.4th at p. 320; accord, Zelig, supra, 27 Cal.4th at p. 1126.) " ' "The burden of proving such reasonable possibility is squarely on the plaintiff." ' " (Graham v. Bank of America, N.A. (2014) 226 Cal.App.4th 594, 618 (Graham).) "To satisfy this burden, ' "a plaintiff 'must show in what manner he can amend his complaint and how that amendment will change the legal effect of his pleading' " ' by clearly stating not only the legal basis for the amendment, but also the factual allegations to sufficiently state a cause of action." (Ibid.; accord, Goodman v. Kennedy (1976) 18 Cal.3d 335, 349.) By not explaining how he can amend his SAC to allege the requisite severity to state a claim for IIED, Plaintiff has not met his burden on appeal. (Goodman, at p. 346; Graham, at p. 618.)
In requesting leave to amend in the trial court, Plaintiff also failed to suggest how he could amend the SAC to allege the requisite severity to state a claim for IIED.
Plaintiff points out that, even though he has had the opportunity to amend his complaint on two prior occasions, he only first alleged a cause of action for IIED in his SAC; thus, his argument continues, he should be allowed to amend this claim at least this once. Again, we disagree. The determination whether to grant leave to amend is not based on the number of prior amendments to the claim, but rather on the sufficiency of the showing how the pleading can be amended to overcome the existing deficiency. (Goodman, supra, 18 Cal.3d at p. 346; Graham, supra, 226 Cal.App.4th at p. 618.)
In making this argument, Plaintiff draws attention to the fact that he did not first allege that he had suffered emotional distress as a result of Defendants' conduct until almost five years from the date of his discovery of the conduct that caused his injuries; and, even then, he did not allege a severe injury.
For these reasons, the trial court did not abuse its discretion in denying Plaintiff leave to amend to allege a claim for IIED.
III. DISPOSITION
The judgment is reversed. Upon issuance of the remittitur, the superior court is directed to vacate its order sustaining without leave to amend Defendants' demurrer to the SAC and to enter a new order overruling Defendants' demurrer to the fifth cause of action for invasion of privacy and sustaining without leave to amend Defendants' demurrer to the sixth cause of action for intentional infliction of emotional distress. The parties shall bear their respective costs on appeal. (Cal. Rules of Court, rule 8.278(a)(3), (a)(5).)
IRION, J. WE CONCUR: McCONNELL, P. J. HALLER, J.