Opinion
D056863
10-27-2011
ALFIE WEBB, Plaintiff and Appellant, v. MEL COLLINS, Defendant and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 37-2008-00081967 CU-FR-CTLL)
APPEAL from a judgment of the Superior Court of San Diego County, Jay M. Bloom, Judge. Affirmed.
I.
INTRODUCTION
Plaintiff Alfie Webb appeals from a judgment entered after the trial court sustained a demurrer in favor of defendant Mel Collins. Webb sued Collins, a high school principal, for defamation and conversion/embezzlement related to activities that occurred after Webb held an unsuccessful fundraiser for Collins's school at a Marriott Hotel. According to Webb, after a Marriott representative called Collins to discuss the fact that Webb owed money to the hotel for the event, Collins made negative and false statements about Webb to others, and also retained money that had been intended to go to a foundation of which Webb was in charge.
The trial court sustained Collins's demurrer to Webb's claims against Collins on the ground that Webb had failed to allege that he complied with the requirements of the Tort Claims Act (Gov. Code, § 900 et seq.) for claims made against a public employee acting in the scope of his or her employment. On appeal, Webb contends that the trial court erred in sustaining Collins's demurrer on this ground because the operative complaint alleges that Collins's conduct did not fall within the scope of his employment. Webb further contends that it was error for the court to have sustained the demurrer without granting him leave to amend.
We conclude that the trial court did not err in sustaining the demurrer, without leave to amend, on the ground that Webb failed to comply with the Tort Claims Act procedures. We therefore affirm the judgment of the trial court.
II.
FACTUAL AND PROCEDURAL BACKGROUND
Because this case is on appeal from the sustaining of a demurrer, we take the facts from the well-pleaded allegations of the operative complaint.
According to the operative complaint, Webb organized a fundraiser that took place in a Marriott Hotel in the Mission Valley area of San Diego in November 2006. Proceeds from the fundraiser were intended to go to the San Diego Unified School District (District), and specifically, to Lincoln High School's "Lincoln Foundation." However, the fundraiser was apparently not successful. The proceeds were insufficient to pay for the use of the Marriott facilities and to have funds left to donate to the District. Webb attempted to pay the debt to Marriott through a series of payments, but he never paid the full amount due.
Although the operative complaint alleges that the proceeds were to go to the "Lincoln Foundation," it appears that this may be an error and that the name of the foundation was the Lincoln High School Legacy Foundation.
In January 2007, the principal of Lincoln High School, Mel Collins, as well as District superintendent Carl Cohen and trustee Sheila Jackson, agreed to offer Webb a position as head of the Lincoln High School Legacy Foundation. Pursuant to the agreement among the parties, Webb would receive 15 percent of the funds that he raised for the Legacy Foundation as payment for his work. In February or March, a Marriott representative contacted Collins and disclosed to Collins the amount of outstanding debt that Webb had apparently personally incurred as a result of the November 2006 fundraiser.
Given the date of the offer to Webb to lead the Legacy Foundation and the date of the conversation between the Marriott representative and Collins, it appears that at the time Collins, Cohen and Jackson made the offer to Webb, they may not have been aware of the unpaid debt to the Marriott.
According to Webb, after this telephone call, Collins relayed information that he obtained from the Marriott representative to Jackson, Cohen, school staff members, and to a bank manager at National Bank of San Diego. Webb also alleges that Collins told these people that Webb "had been involved in criminal business practices, including but not limited to stealing and embezzlement."
In October 2007, Webb visited Lincoln High School and spoke with an individual who was a "Senior High Financial Administrator." This individual informed Webb that Collins "had received funds in the amount of $4,900 that was payable to Webb's private foundation." Webb waited for Collins to pass the money on to Webb, but Collins never did so. Webb alleges that if Collins had given him the $4,900, Webb would have been able to pay the outstanding debt to the Marriott. According to Webb, that money "does not rightfully belong to Lincoln High School." B. Procedural background
On April 15, 2008, Webb, acting in pro per, filed a petition against defendants "Marriott" and Collins. Webb did not name the District as a defendant.
After retaining counsel, on September 15, 2008, Webb filed a first amended complaint (FAC) in which he named two Marriott entities, as well as Collins, as defendants. Webb alleged two causes of actions against Collins: "defamation by slander" and "conversion/embezzlement." Webb did not name the District as a defendant in the FAC.
Collins demurred to Webb's FAC on the ground that Webb failed to comply with the Tort Claims Act (Gov. Code, § 900 et seq.) for claims brought against a public employee. The trial court sustained Collins's demurrer, and granted Webb leave to amend the FAC to allege facts demonstrating either that he did not have to comply with the Tort Claims Act, or that his failure to do so was excused.
Webb filed a second amended complaint (SAC) in which he alleged the same two causes of actions against Collins as he had alleged in the FAC. Webb attempted to cure the defects in the FAC by alleging that, as to both causes of action (i.e., defamation by slander and conversion/embezzlement), Collins's conduct fell outside the scope of his employment with the District. Webb alleged that he was therefore not required to comply with the Tort Claims Act. Webb also alleged that he had recently filed a claim in conformance with the Tort Claims Act, although he did not allege that his compliance was timely. Rather, Webb alleged that his failure to complete a claim form prior to that point in time was due to "excusable neglect."
Collins demurred to Webb's SAC, again asserting that Webb had failed to comply with the requirements of the Tort Claims Act by failing to file a timely claim. Collins requested that the court sustain the demurrer without granting Webb leave to amend the complaint again, since the time for filing a claim or to request leave to file an untimely claim had expired.
On June 11, 2009, the trial court issued a tentative ruling in favor of Collins on the demurrer. The court explained that Webb "has not and cannot plead that he complied with or was excused from complying with the claims presentation statutes for his claims against Collins, an employee of a public entity, the San Diego Unified School District." The trial court noted that the conduct at issue in Webb's SAC involved conduct that fell within the scope of Collins's employment as a public employee. The trial court affirmed this tentative ruling after holding a hearing on the matter.
For reasons that are not apparent from the record, Webb's counsel did not appear at the hearing.
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The trial court entered judgment in favor of Collins, and Collins served notice of entry of judgment on Webb.
Webb filed a timely notice of appeal.
III.
DISCUSSION
Webb fails to allege facts in his SAC that establish either that he did not have to comply with the requirements of the Tort Claims Act, or that he timely complied with the requirements. A. Standard of review after sustaining of demurrer
"In evaluating a trial court's order sustaining a demurrer, we review the complaint de novo to determine whether it contains sufficient facts to state a cause of action. [Citation.]" (Peterson v. Cellco Partnership (2008) 164 Cal.App.4th 1583, 1589.) This court also applies the following well-established law in reviewing a trial court's order sustaining a demurrer without leave to amend:
" '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.B. The allegations of the complaint demonstrate that Webb is suing Collins for conduct that was undertaken in the course of Collins's employment as a school principal; Webb was therefore required to comply with the claims procedures of the Tort Claims Act
[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." (Blank v. Kirwan (1985) 39 Cal.3d 311, 318 (Blank), italics added.)
Webb contends that because the SAC "clearly alleges that the conduct [challenged in the SAC] did not fall within the scope of [Collins's] employment," the trial court should have treated those allegations of fact as true for purposes of the demurrer, and that the court erred in not doing so. We disagree.
With certain exceptions (none of which is alleged to be relevant here), one who sues a public employee on the basis of acts or omissions in the scope of the employee's employment must file a claim against the public-entity employer under the claims filing procedures of the Tort Claims Act, as a precondition to bringing suit. (Briggs v. Lawrence (1991) 230 Cal.App.3d 605, 613; see also Gov. Code, §§ 950.2, 950.6, subd. (a).)
"As used in the Tort Claims Act, '[t]he phrase "scope of his employment" is intended to make applicable the general principles that the California courts use to determine whether the particular kind of conduct is to be considered within the scope of employment in cases involving actions by third persons against the employer for the torts of his employee.' [Citation.]" (Farmers Ins. Group v. County of Santa Clara (1995) 11 Cal.4th 992, 1003 (Farmers).)Although Webb did not sue the District, and thus the question for purposes of determining the propriety of the trial court's sustaining Collins's demurrer to the SAC is not whether the District may be liable for Collins's conduct pursuant to a respondeat superior theory, the meaning of "scope of employment" for purposes of the Tort Claims Act, including its provisions requiring compliance with the claims procedures for claims against a public employee being sued for conduct falling within the scope of his employment with a public entity, derives from this area of the law. We therefore look to the meaning of "scope of employment" in the respondeat superior context to give meaning to that phrase for purposes of determining whether Webb was required to comply with the claims procedures of the Tort Claims Act.
" ' "[W]here the question is one of vicarious liability, the inquiry [with respect to the question whether an employee was acting within the scope of his employment] should be whether the risk was one 'that may fairly be regarded as typical of or broadly incidental' to the enterprise undertaken by the employer." ' " (Farmers, supra, 11 Cal.4th at p. 1003, citations and italics omitted.) " 'One way to determine whether a risk is inherent in, or created by, an enterprise is to ask whether the actual occurrence was a generally foreseeable consequence of the activity.' . . . " (Id. at p. 1003-1004, citation and italics omitted.) " '[F]oreseeability' [in the context of determining scope of employment] merely means that in the context of the particular enterprise an employee's conduct is not so unusual or startling that it would seem unfair to include the loss resulting from it among other costs of the employer's business. [Citation.]' . . . [Citations.]" (Id. at p. 1004, italics omitted.)
Webb's claim that the conduct at issue was not within the scope of Collins's public employment is based solely on Webb's bare assertions in the SAC that Collins was not acting within the scope of his public employment when he performed the actions at issue. Specifically, with respect to the defamation claim, Webb alleges that "[d]efaming an[] individual is neither the duty nor responsibility of a public high school Principal," and "[t]he statements made are [in] no way related to the maintenance and operation of Lincoln High School." Webb further alleges that Collins's "actions . . . fall outside of Collins' employment as a School Principal." With respect to the
conversion/embezzlement claim, Webb alleges that "ordering the withholding of money that does not rightfully belong to Lincoln High School is not within the scope of employment for any high school principal," and "[b]ecause these actions are outside the scope of Collins' employment, Webb is not precluded from filing a claim against Collins individually under or pursuant to the California Tort Claims Act."
Webb contends that these are factual issues, and that a court must accept all allegations of fact in the SAC as true for the purposes of a demurrer, or that, at a minimum, the question of Collins's scope of employment should not be decided as a matter of law on a demurrer.
Even if we presume that the question whether a public employee was acting within the scope of his or her public employment is a question of fact (as opposed to a question of law or a mixed question of fact and law), we need not assume the truth of conclusions of either fact or law in a complaint (Blank, supra, 39 Cal.3d at p. 318 [treating a demurrer as admitting all material facts properly pleaded, but not treating as admitted conclusions of fact or law]); thus, we need not assume the truth of Webb's conclusory allegations that Collins's conduct was outside the scope of his employment as a principal. Rather, we look to the well-pleaded factual allegations of the SAC to determine whether under any of the facts alleged it could possibly be the case that Collins's alleged tortious conduct did not fall within the scope of his public employment.
Applying this standard, we conclude that Webb's SAC alleges solely conduct that was clearly within the scope of Collins's employment. The SAC specifically alleges that Collins was the principal of Lincoln High School, and all of the alleged tortious actions revolved around fundraising for that high school. The claimed tortious conduct was certainly typical of or broadly incidental to the enterprise taken by the District—i.e., the maintenance and operation of the high school—since it all related to Collins's efforts to protect the school's interests, and would not have occurred but for Collins's role as the school's principal. Even the defamatory statements that Collins is alleged to have made about Webb involved statements—to the District superintendent, a school board trustee, other school staff, and a bank manager—that called into question Webb's suitability to serve as a fundraiser for the high school's Legacy Foundation.
The factual allegations of the complaint thus demonstrate that all of the tortious actions that Webb alleges were within the scope of Collins's employment as a public school principal. Webb was therefore required to comply with the requirements of the Tort Claims Act for claims against a public employee.
Webb does not allege in the SAC that he complied with the requirements of the Tort Claims Act, nor does he allege facts that would support a claim that his untimely compliance should be excused. "[A] plaintiff must allege facts demonstrating or excusing compliance with the claim presentation requirement. Otherwise, his complaint is subject to a general demurrer for failure to state facts sufficient to constitute a cause of action." (State of California v. Superior Court (2004) 32 Cal.4th 1234, 1243.) Because Webb failed to allege compliance with the claim procedure in an action against a public employee for conduct falling within the scope of that employee's public employment, his SAC is subject to general demurrer. The trial court thus properly sustained Collins's demurrer to the SAC. C. Webb has not demonstrated how he can amend his SAC to cure its defects
Webb contends that the trial court erred in sustaining Collins's demurrer to the SAC without granting Webb leave to amend. In making this argument, Webb also asserts that Collins's demurrer "did not even address whether the conduct was within the scope of employment." He contends that this "is a factual issue that was not in dispute and not proper grounds for sustaining the demurrer in this action."
On this point, Webb is simply wrong. Collins's demurrer specifically cited the requirements of the Tort Claims Act. On the very first page of Collins's points and authorities, Collins states, "Webb's complaint states that Collins is, and was at all times relevant to the instant action, an employee of [the] District." The memorandum goes on to argue that the claims procedures applicable to actions against a public employee are the same as actions against a public entity, and ultimately asserts the following:
"Webb alleges Collins is a District employee. Webb's complaint does not allege that Webb filed an administrative claim pursuant to [California Government Code, section] 900 et seq. based upon
Collins's alleged conduct regarding the claims of defamation or conversion and embezzlement."
Clearly, Collins's entire demurrer was based on the contention that Webb was alleging claims covered by the Tort Claims Act because the claims pertained solely to conduct within the scope of Collins's employment as a school principal.
Further, in order for this court to determine that the trial court erred in sustaining the demurrer without leave to amend, Webb would have to demonstrate how he could amend the complaint to cure the defects. Again, "[t]he burden of proving such reasonable possibility [that a defect can be cured by amendment] is squarely on the plaintiff." (Blank, supra, 39 Cal.3d at p. 318.) Webb has not attempted to make any showing that he can cure the defect in his SAC by amendment. We therefore reject Webb's contention that the judgment must be reversed because the trial court should have granted him leave to amend.
IV.
DISPOSITION
The judgment is affirmed. Collins shall recover costs on appeal.
AARON, J. WE CONCUR:
McINTYRE, Acting P. J.
O'ROURKE, J.