Opinion
NOT TO BE PUBLISHED
San Francisco County Super. Ct. No. 420112
Sepulveda, J.
Appellant Corey Covington appeals a judgment following the grant of summary judgment in favor of respondents San Francisco Unified School District (SFUSD or District), Arlene Ackerman, John Rubio, and Janette Hernandez in his defamation action. Because we conclude that appellant has not demonstrated the existence of a triable issue of material fact as to any claim, we affirm the trial court’s judgment.
I.
Factual and Procedural Background
In late 2001, appellant applied for a sixth grade teaching position at San Francisco’s Everett Middle School (Everett) that was to begin in the middle of the school year, on January 22, 2002. He had an emergency credential, which meant that he could be hired for only a one-year contract at any given time. Appellant interviewed with respondent Hernandez, the principal of Everett, and informed her that he had previously worked at two other schools in the District, Edison and Luther Burbank Middle School (Burbank). According to Hernandez, appellant told her that he had left his previous positions because the positions had been eliminated.
There are references in the record to “Edison Charter School” and “Edison Elementary School.” For the sake of simplicity, we refer to the school as Edison.
As part of the job application process, Hernandez observed appellant teach a sample writing lesson to students on December 19, 2002, less than a week before Christmas. Hernandez felt that appellant’s performance was “okay,” but she was disappointed that his lesson plan was handwritten on a piece of binder paper and lacked specific information. She concluded that his competence as a teacher was “average.”
Hernandez recommended to the District that appellant be hired. She completed a form titled Site Request for Personnel Action (SRPA), which appellant signed on December 21, 2001. After Hernandez completed the SRPA, she checked appellant’s references. Hernandez testified at her deposition that it was her common practice to call references before she completed an SRPA. She did not do so here because “[i]t was right before the holidays and I wasn’t feeling good at the time,” and because “I guess I was feeling like [appellant] was going to be okay.”
Hernandez contacted Vincent Matthews, the principal at Edison where appellant worked during the 2000-2001 school year. Hernandez testified that because appellant had an emergency credential at the time he worked at Edison, he had to be rehired each year. Matthews told her that appellant had a “satisfactory performance in the classroom,” but that he did not rehire appellant for the position. Hernandez said she was concerned about Matthews’s “vague” response, because she had learned to “read between the lines” when a reference states that an applicant was satisfactory but was not rehired. Hernandez also was concerned that although appellant told her that his position was eliminated, this was inconsistent with Matthews’s report that appellant was not rehired.
Hernandez also contacted respondent Rubio, who was the principal and appellant’s supervisor at Burbank from September 1999 through January 2000. According to Hernandez, Rubio told her that appellant “wasn’t good at establishing relationships with students or teachers.” Rubio stated in his declaration in support of summary judgment: “I told [Hernandez] that based on my brief time working with [appellant], it was 50/50 whether I would hire him again, and that if he was hired he should be closely supervised because he seemed to be challenged in creating a warm, nurturing classroom environment. I also told her that I had received student complaints against Covington for negative verbal incidents and also for a possible negative physical-contact incident.” This is consistent with the excerpt from Rubio’s deposition testimony that appellant submitted in opposition to respondents’ summary judgment motion. Rubio’s statements to Hernandez were based on his experience hearing appellant raise his voice in the classroom on several occasions when appellant could be described as “ ‘screaming’ ” at his students, as well as observing appellant slam a book on a table. One of appellant’s students told Rubio that appellant had slammed the door on her finger when appellant was upset, which also was the basis for Rubio’s statements to Hernandez. There is nothing in the record to indicate that Rubio told Hernandez about any specific incidents when appellant raised his voice to students, slammed a book on a table, or closed a door on a student’s fingers. Rubio also told Hernandez that appellant was not rehired for the position at Burbank, which again was inconsistent with what Hernandez said appellant told her.
Rubio testified: “I told her that my opinion of him was that I was 50/50 on whether or not I would hire him as an applicant; and that I had some concerns in terms of how he interacted with students in that—in terms of how he interacted with students. And there was something else. Oh, and that if he was rehired, that he would . . . .” The next page of the deposition transcript does not appear in the record on appeal.
Based on the information Hernandez received from Matthews and Rubio, Hernandez rescinded her recommendation to hire appellant. She called Jolie Wineroth in the human resources department to tell her that she was rescinding her request.
Hernandez told appellant on the phone in mid-January that she was rescinding her recommendation to hire him based on his references. Appellant went to see Hernandez in person to ask for more specific information, which he did not receive. He also went to speak with Matthews and Rubio, who told him that nothing negative was said about his performance.
Not happy with the responses to his inquiries, on January 24, 2002, appellant wrote to respondent Arlene Ackerman, who was then the superintendent of the District, requesting her help. Appellant also asked school board member Eric Mar, who was married to an acquaintance of appellant’s, for assistance. Apparently following up on this request, Mar contacted Ackerman, who requested that human resources employee Wineroth respond to the inquiry.
Wineroth prepared a memorandum dated February 28, 2002 for Ackerman that summarized her investigation (Wineroth memorandum). The memorandum states that appellant was employed as an emergency permit teacher at Burbank for one year and at Edison for one year, and that the schools did not rehire appellant. The memorandum also states: “There are no formal evaluations in [appellant’s] personnel file. Mr. Covington showed me two written classroom performance reports from Edison. The first one was less than satisfactory, the other one was satisfactory. I spoke with Dr. John Rubio, his supervising principal at Burbank, for most of the 99-00 school year, and Dr. Rubio said that he was not sure that he would rehire Corey. He informed me that if he were to be rehired he would need to be closely supervised and needed [sic] to create a warm, caring nurturing environment based on the numerous student accusations at Burbank for negative verbal and possible physical interactions with them. Dr. Rubio told me that he told this to Ms. Hernandez and to Mr. Covington.”
The Wineroth memorandum was distributed to school board members via a confidential memorandum from Ackerman on March 1, 2002. School board member Mar faxed the Wineroth memorandum to appellant on March 18, 2002. According to Wineroth, she was not aware that the memorandum was ever included in appellant’s personnel file. In August 2004, the District hired appellant as a community relations specialist/student advisor.
On September 17, 2002, appellant filed a claim with SFUSD, alleging that Rubio made false statements regarding his performance as a teacher, and that the District based its decision not to hire him on information not contained in his personnel file, in violation of Education Code section 44031. On November 11, 2002, a senior claims examiner wrote to appellant’s attorney stating: “Notice is hereby given that the claim you presented on behalf of Corey S. Covington to the San Francisco Unified School District was rejected by operation of law.” The letter warned that appellant had only six months to file a lawsuit, but did not otherwise address the timeliness of appellant’s claim.
This is presumably a reference to Government Code section 912.4, subdivisions (a) & (c), which provide that if a board fails or refuses to act on a claim within 45 days, the claim shall be deemed to have been rejected.
Appellant filed the instant action on May 5, 2003. The complaint stated it was alleging causes of action against respondents for “intentional tort,” “general damage,” and “civil rights.” It alleged that Rubio made false statements about appellant, and that SFUSD based its decision not to hire him on information not contained in his personnel file. The complaint sought punitive damages, and also requested declaratory and injunctive relief.
Respondents filed a motion for summary judgment on June 17, 2005. The trial court granted the motion on September 15, 2005. Appellant timely appealed from the subsequent judgment.
II. Discussion
A. Standard of Review
In reviewing the trial court’s decision granting summary judgment, we examine the evidence de novo and “liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party.” (Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1037.) “[W]e determine with respect to each cause of action whether the defendant seeking summary judgment has conclusively negated a necessary element of the plaintiff’s case, or has demonstrated that under no hypothesis is there a material issue of fact that requires the process of trial, such that the defendant is entitled to judgment as a matter of law.” (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 334.)
In assessing each cause of action, we apply the same three-part analysis required of the trial court. (Knight v. Hayward Unified School Dist. (2005) 132 Cal.App.4th 121, 128.) We first identify the issues framed by the pleadings, then determine whether the moving party has established facts negating the opponent’s claim and, if the moving party has carried its burden, we conclude the analysis by determining whether the opposition has demonstrated the existence of a triable issue of material fact. (Ibid.; Code Civ. Proc., § 437c, subd. (p)(2).)
“The appellant has the burden of showing error occurred. [Citations.] An appellant must support his argument in the briefs by appropriate references to the record, which includes providing exact page citation. [Citations.] ‘An appellate court is not required to search the record to determine whether or not [it] supports appellants’ claim of error. It is the duty of counsel to refer the reviewing court to the portions of the record which support appellants’ position.’ [Citation.]” (Byars v. SCME Mortgage Bankers, Inc. (2003) 109 Cal.App.4th 1134, 1140-1141.)
B. No Contract Cause of Action
We begin by noting that, as appellant acknowledges, he did not sue respondents for breach of contract. Many of appellant’s arguments nonetheless focus on whether the SRPA that he and Hernandez signed created a contract for employment that was subsequently breached. In fact, appellant devotes much of his reply brief to arguing about the supposed merits of a breach of contract claim. Appellant goes so far as to argue that “information has now been developed by virtue of this appeal” that the SRPA is an “unperformed written contract” that was “anticipatorily breached,” and that if this case is reversed he “might be able to amend his complaint to allege a breach of contract.”
We do not agree that any information has been “developed” through this appeal. We also disagree with appellant that the claims in his complaint “are all to be taken with the understanding that there has been a material breach of contract by defendants.” The allegations of appellant’s complaint focused on the allegedly false and defamatory statements made about appellant, and on the fact that the decision not to hire him was based on information not contained in his personnel file as supposedly mandated by the Education Code. Appellant did not argue in his opposition to respondents’ motion for summary judgment that he sought relief for a breach of contract cause of action, as he acknowledges on appeal. As this court previously has observed, “[o]bviously, appellant cannot challenge a judgment on the basis of a new cause of action it did not advance below.” (United States Golf Assn. v. Arroyo Software Corp. (1999) 69 Cal.App.4th 607, 623.) This is not a situation where we are being asked to consider a pure question of the application of law to undisputed facts. Here, the parties dispute the purpose and effect of the SRPA, as well as the significance of the fact that Hernandez rescinded her recommendation to hire appellant after she signed the SRPA. (Cf. Yeap v. Leake (1997) 60 Cal.App.4th 591, 599, fn. 6.) Because appellant never amended his complaint to allege a breach of contract cause of action, we do not discuss this claim further. (Government Employees Ins. Co. v. Superior Court (2000) 79 Cal.App.4th 95, 98-99, fn. 4.)
C. Timeliness of Appellant’s Claims
Because appellant sought money damages against a public entity and its employees, he was required under the California Tort Claims Act to present his claim to the public entity within six months after accrual of his cause of action. (Gov. Code, § 911.2.) The trial court found that appellant knew as of the week of January 14, 2002, that he was not hired for the teaching position at Everett because of poor references, and that the filing of appellant’s claims more than six months later (on September 17) was therefore untimely.
Appellant argues for the first time on appeal that respondents waived any defenses based on appellant’s failure to present a timely claim by failing to notify appellant of any timeliness defects when it wrote to appellant on November 11, 2002, rejecting his claim. (Gov. Code, § 911.3 [government entity waives defense as to time limit for presenting a claim unless it gives notice to claimant within 45 days that claim was untimely].) Appellant’s argument has merit. (Phillips v. Desert Hospital Dist. (1989) 49 Cal.3d 699, 705-706 [failure to provide notice of untimeliness pursuant to Government Code section 911.3 waives public entity’s timeliness defense]; County of Alameda v. Superior Court (1987) 195 Cal.App.3d 1283, 1287 [same].)
Respondent argues that plaintiff cannot raise Government Code section 911.3 for the first time on appeal. We need not decide whether appellant somehow waived the argument that respondents waived an untimeliness defense, as the trial court relied on other valid grounds in granting summary judgment.
Appellant argues at length in his reply brief that respondents intentionally misled the trial court by arguing that appellant’s claim was untimely without citing Government Code section 911.3, going so far as to call the omission a “fraud on the court.” While it is unfortunate that neither party raised this issue below, we decline to address appellant’s unsubstantiated accusations that respondents’ counsel intentionally violated the State Bar Rules of Professional Conduct, rule 5-200(B).
D. No Violation of Education Code
Education Code section 44031 (section 44031) provides that every school employee has the right to inspect personnel records pursuant to Labor Code section 1198.5. (§ 44031, subd. (a).) The statute also provides that “[i]nformation of a derogatory nature shall not be entered into an employee’s personnel records unless and until the employee is given notice and an opportunity to review and comment on that information. The employee shall have the right to enter, and have attached to any derogatory statement, his or her own comments.” (§ 44031, subd. (b)(1).)
In Miller v. Chico Unified School Dist. (1979) 24 Cal.3d 703, 707, 709, 711, 713 (Miller), an associate superintendent prepared about 20 confidential memoranda from his personal notes that were used in connection with the school board’s reassignment of a principal to a teaching position. The Supreme Court rejected the school board’s argument that section 44031 did not apply because the memoranda were never placed in the principal’s personnel file. (Miller at p. 712.) “A school district . . . may not avoid the requirements of the statute by maintaining a ‘personnel file’ for certain documents relating to an employee, segregating elsewhere under a different label materials which may serve as a basis for affecting the status of the employee’s employment. Nor . . . may the school district insulate itself by simply neglecting to file material which the statute contemplates will be brought to the employee’s notice.” (Id. at pp. 712-713.) The court also construed the statute to “prohibit a school board from basing any employment decision on its analysis of derogatory information unless the board has notified the employee of such derogatory information and has afforded him an opportunity to comment upon it.” (Id. at p. 707.)
Appellant claims that because the Wineroth memorandum was not placed in his personnel file, the memorandum “was in a secret file that [Miller] has declared illegal.” Appellant points to no evidence that the Wineroth memorandum is in a “secret file” maintained by the District. More importantly, there is no evidence that the memorandum “was used to affect the status of [Covington’s] employment,” as appellant claims. On the contrary, the memorandum was an after the fact summary of the decision not to hire appellant, prepared after appellant himself asked for an explanation as to why he was not hired. Miller, supra, 24 Cal.3d 703, is clearly distinguishable.
Appellant claims that allegations against him “suddenly” appeared in the Wineroth memorandum and that the District “allowed the baseless allegation[s] to grow in the Wineroth memo which only aggravated the volatile situation.” This unsubstantiated version of events fails to acknowledge that it was appellant’s letter to Ackerman that prompted the preparation of the Wineroth memorandum.
Moreover, as the trial court ruled, section 44031 “by its terms applies only to ‘employees,’ which is defined by the Labor Commissioner to mean persons currently employed, laid off with re-employment rights, or on leave of absence.” (3 Wilcox, Cal. Employment Law (2006) § 51.02[1], p. 51-6 [citing Div. Labor Stds. Enforcement interpretation of Lab. Code, § 1198.5, which is incorporated by reference in § 44031].) Appellant provided no competent evidence to the trial court that he was a District employee when he applied for the job at Everett. Instead, he simply stated that whether he was an employee was “[d]isputed” and claimed that if Hernandez had offered him the job and he thereafter earned his credential, he would have been offered a full-time contract with the District. While it may very well be true, as appellant claims, that SFUSD maintained a personnel file for appellant, there is nothing in section 44031 that required the District to place the Wineroth memorandum in that file, or to give appellant the opportunity to respond to the allegations in it.
Appellant argues for the first time in his reply brief that it is his “position” that “while one is moving from school to school that he is a sort of a quasi employee at all times.” There is no support for this assertion in the record, and there is no cited legal authority for the proposition that section 44031 protects “quasi employees,” whatever that term may mean.
E. Communication Between Rubio and Hernandez Was Privileged
Appellant alleges that Rubio’s oral comments to Hernandez when she called him as a reference were defamatory. Defamation is effected by either libel or slander, each of which is defined as a false and unprivileged communication. (Civ. Code, §§ 44, 45, 46.) Slander is defined as an oral communication that “[c]harges any person with crime, or with having been indicted, convicted, or punished for crime,” or that “[t]ends directly to injure him in respect to his office, profession, trade or business . . . by imputing to him general disqualification in those respects which the office or other occupation peculiarly requires . . . .” (Civ. Code, § 46.)
Civil Code section 47, subdivision (c) provides a conditional privilege against statements that are made without malice on subjects of mutual interest. “ ‘[I]f malice is shown, the privilege is not merely overcome; it never arises in the first instance.’ (Brown v. Kelly Broadcasting Co. (1989) 48 Cal.3d 711, fn. 7.) ‘It is the occasion giving rise to the publication that is conditionally privileged, i.e., under specified conditions the occasion gives rise to a privilege. If the privilege arises, it is a complete defense.’ (Ibid.)” (Noel v. River Hills Wilsons, Inc. (2003) 113 Cal.App.4th 1363, 1368-1369 (Noel).) The statute specifically provides that the common-interest privilege applies to communications “concerning the job performance or qualifications of an applicant for employment, based upon credible evidence, made without malice, by a current or former employer of the applicant to, and upon request of, one whom the employer reasonably believes is a prospective employer of the applicant. This subdivision authorizes a current or former employer, or the employer’s agent, to answer whether or not the employer would rehire a current or former employee.” (Civ. Code, § 47, subd. (c).) “It is well established that a former employer may properly respond to an inquiry from a potential employer concerning an individual’s fitness for employment, and if it is not done maliciously, such response is privileged.” (Neal v. Gatlin (1973) 35 Cal.App.3d 871, 877 [considering implied authority of members of retention, promotion, and tenure committee to answer questions about qualifications and past performance of a teacher].) We agree with the trial court that the communications between Hernandez and Rubio were covered by the common-interest privilege.
Appellant argues that summary judgment was inappropriate because there is a triable issue of fact whether Hernandez and Rubio acted with malice. When considering the common-interest privilege, malice is not inferred from the communication. (Civ. Code, § 48.) “ ‘ “The malice necessary to defeat a qualified privilege is ‘actual malice’ which is established by a showing that the publication was motivated by hatred or ill will towards the plaintiff or by a showing that the defendant lacked reasonable grounds for belief in the truth of the publication and therefore acted in reckless disregard of the plaintiff’s rights (citations).” [Citations.]’ [Citations.]” (Noel, supra, 113 Cal.App.4th at p. 1370.) “However, ‘[l]ack of reasonable or probable cause . . . is not . . . a simple negligence concept. . . . [M]alice focuses upon the defendant’s state of mind, not his [or her] conduct. Mere negligence in inquiry cannot constitute lack of reasonable or probable cause.’ [Citations.] ‘ . . . It is only when the negligence amounts to a reckless or wanton disregard for the truth, so as to reasonably imply a willful disregard for or avoidance of accuracy, that malice is shown.’ [Citations.]” (Id. at pp. 1370-1371.)
Appellant argues that respondents lacked reasonable grounds to believe that the statements they made were true. He argues that Noel, supra, 113 Cal.App.4th 1363 is distinguishable because in that case, a former employer had accidentally given information about the wrong former employee when asked for a reference about plaintiff employee. (Id. at p. 1367.) Because there was no “simple mistake” here, and Rubio acted with “a wanton disregard for the truth,” appellant argues, there is a question of fact over whether malice can be proven. Appellant fails, however, to point to any competent evidence that establishes a triable issue of fact as to whether he could prove malice, as set forth below.
1. Hernandez waits to check appellant’s references.
Hernandez testified that it was her “mistake” to wait until after she completed the SRPA to check appellant’s references, but that “[i]t was right before the holidays and I wasn’t feeling good at the time.” She also testified that she did not see any of appellant’s performance evaluations while considering him for the opening at Everett. We disagree with appellant that this testimony means that Hernandez “cannot claim that her decision to rescind the employment was reasonably based on accurate information, and appears to validate malice.” The cited testimony shows, at most, that the rushed manner in which appellant’s application was handled around the Christmas holiday and about a month before the school’s second semester was to begin was a “mistake,” not that Hernandez based on her decision to rescind her recommendation to hire appellant on any untruthful information.
Likewise, there is nothing in the record to suggest that Hernandez’s supposed failure to review appellant’s performance evaluations meant that she lacked reasonable grounds for believing the truth of any of her communications. (Noel, supra, 113 Cal.App.4th at p. 1370.) Appellant does not point to any evaluations that would have shown the falsity of anything Rubio told Hernandez, and, indeed, the only evaluations in the record show that there were areas where appellant needed improvement in his job performance as a teacher.
2. Rubio’s statements to Hernandez.
Appellant argues that there is a question of fact regarding whether the events that were the basis for Rubio’s opinion about his performance ever happened. Rubio stated that he based his opinion that he was “50/50” whether he would rehire appellant on the fact that he heard appellant screaming at students, observed appellant slam a book on a table, and received a complaint that appellant slammed a door on a student’s finger. Appellant denies he ever slammed a book on a table or closed a door on a student’s finger.
We begin by noting that appellant repeatedly mischaracterizes the statements at issue by suggesting that Rubio told Hernandez about the disputed events when Hernandez first called him for a reference. For example, appellant states, without citation to the record, that he “found out that Dr. Rubio told Janette [Hernandez] that plaintiff/appellant, sometimes raised his voice at students, on one occasion slammed a book on a table, and on another occasion, Rubio was told by a student, that [appellant] somehow caught her finger in a door and it hurt.” (Italics added.) In fact, according to Rubio and Hernandez, Rubio shared general concerns about appellant’s ability to establish a positive classroom environment, and Rubio also stated he had received student complaints against appellant for “negative verbal incidents and also for a possible negative physical-contact incident.” The Wineroth memorandum states that Rubio told Hernandez that if appellant were to be rehired “he would need to be closely supervised and needed [sic] to create a warm, caring nurturing environment based on the numerous student accusations at Burbank for negative verbal and possible physical interactions with them.” Rubio later testified during the course of litigation about the specific events that formed the basis of his opinion.
We reject appellant’s argument that Rubio lacked reasonable grounds for believing the truth of his statements to Hernandez, and that there is therefore a triable issue as to whether Rubio acted with malice. (Noel, supra, 113 Cal.App.4th at p. 1370.) Appellant acknowledges that there was nothing improper about Rubio’s statement that he was “50/50” as to whether he would rehire appellant. He also admits that he sometimes raised his voice at students. He testified at his deposition that Rubio counseled him about raising his voice to students, and that about a quarter of his students complained about him raising his voice. In short, there was a reasonable basis for Rubio’s statement to Hernandez that there were student complaints about “negative verbal incidents,” as well as Rubio’s statements that appellant “wasn’t good at establishing relationships with students or teachers,” and that appellant “should be closely supervised because he seemed to be challenged in creating a warm, nurturing classroom environment.” (Manguso v. Oceanside Unified School Dist. (1984) 153 Cal.App.3d 574, 583-584 [common-interest privilege applied where superintendent communicated impressions of teacher’s performance based on routine communications to him from principal].)
Although there may be a question of fact as to whether appellant actually slammed a book on a desk or closed a door on a student’s finger, there is no triable issue as to whether there was a basis for Rubio’s statement to Hernandez that he had received complaints against appellant about “a possible negative physical-contact incident.” (Italics added.) Appellant testified that he did not know “one way or the other” whether Rubio received complaints about possible physical interactions with students. He therefore cannot point to any “false information” that he claims was told to Hernandez (or later, to Wineroth). There also is nothing in the record to support appellant’s claim that Rubio said anything that would suggest appellant had engaged in “criminal” conduct. We conclude that no reasonable jury could find that malice was a motivating cause of Rubio’s statements. (Noel, supra, 113 Cal.App.4th at p. 1371.)
Appellant apparently acknowledges that Rubio told Hernandez (and later Wineroth) that there were complaints against appellant, but did not provide specific information about any alleged negative verbal or physical interactions when he spoke with Hernandez. He claims, without citation to the record, that “[h]ad anyone stopped to actually ask Rubio what the alleged negative verbal and physical interactions were, it would have been plainly clear that the allegations are unfounded.” (Italics added.) Rubio stated in his declaration in support of summary judgment that he received a tearful complaint from an honest student that appellant had slammed a door on her finger. Appellant denied to him that the incident happened. Rubio testified that because it was unclear whether appellant’s actions were intentional, he did not place any complaint about appellant in writing. It is hardly “clear” that any allegations against appellant were “unfounded.”
3. Hernandez’s and Rubio’s motives.
Without any citation to the record, appellant challenges Hernandez’s motives, claiming that she hired another teacher because she liked her better “for whatever reason,” and that she decided she would “blame Rubio, and say it was his fault.” Appellant says he “feel[s]” this was “improper and was reneging on her word, because he was qualified.” Also without citation to the record, appellant claims that “Mr. Rubio wished to ding the plaintiff and keep him from the job which Janette [Hernandez] hired him for.”
The record on appeal does not support appellant’s version of events. To the extent that appellant argues that Hernandez and Rubio were “ ‘ “motivated by hatred or ill will towards [appellant]” ’ ” (Noel, supra, 113 Cal.App.4th at p. 1370), we reject this argument without further comment.
4. No violation of Education Code.
Citing Khawar v. Globe Internat., Inc. (1998) 19 Cal.4th 254, 275, appellant argues that respondents’ alleged violation of section 44031 demonstrated actual malice. The cited passage of Khawar noted that to prove actual malice at trial, a plaintiff “may rely on circumstantial evidence, including evidence of motive and failure to adhere to professional standards.” (Ibid. [newspaper failed to take basic steps to verify the accuracy of a claim that a photojournalist, and not Sirhan Sirhan, murdered Senator Robert F. Kennedy].) As we explained above (ante, § II.D), the record does not reveal any violation of the statute, so this does not support a showing of malice.
In short, we agree with the trial court that the communication between Hernandez and Rubio was privileged because it was made between parties on subjects of mutual interest, and no reasonable jury could conclude that malice was a motivating factor. (Civ. Code, § 47, subd. (c); Noel, supra, 113 Cal.App.4th at p. 1371.)
F. Communication To Wineroth Was Privileged
We also agree with the trial court’s conclusion that the communications between Hernandez and Wineroth, and between Rubio and Wineroth, were covered by the common-interest privilege. (Civ. Code, § 47, subd. (c); Manguso v. Oceanside Unified School Dist., supra, 153 Cal.App.3d at p. 580 [statements by educator regarding teacher’s qualifications directed to prospective employers covered by common-interest privilege].) Appellant does not specifically address Wineroth’s communications with Hernandez and Rubio in connection with the preparation of her memorandum. To the extent that appellant relies on his previous arguments that Hernandez and Rubio were somehow motivated by malice against appellant, we reject these arguments.
G. Wineroth Memorandum Covered By Official Proceeding Privilege
The trial court ruled that the Wineroth memorandum was privileged pursuant to Civil Code section 47, subdivision (b), which provides an absolute privilege for publications made in any legislative proceeding, judicial proceeding, or “ ‘in any other official proceeding authorized by law.’ ” (See also Garamendi v. Golden Eagle Ins. Co. (2005) 128 Cal.App.4th 452, 478.) The privilege is absolute and is unaffected by the presence of malice. (Lebbos v. State Bar (1985) 165 Cal.App.3d 656, 668-669.)
“The statutory phrase ‘in any other official proceeding authorized by law’ has been broadly interpreted to include those proceedings which resemble judicial and legislative proceedings, such as transactions of administrative boards and proceedings which are quasi-judicial or quasi-legislative in nature. [Citation.]” (Brody v. Montalbano (1978) 87 Cal.App.3d 725, 732 [parents’ complaints about vice principal to board of education subject to official proceedings privilege].) “The term ‘official proceeding’ extends to investigatory activities by public agencies.” (Garamendi v. Golden Eagle Ins. Co., supra, 128 Cal.App.4th at p. 478.) “The privilege is not restricted to statements made once a proceeding has been commenced, but may apply to statements made in advance. ‘ “The ‘official proceeding’ privilege has been interpreted broadly to protect communication to or from governmental officials which may precede the initiation of formal proceedings.” ’ ” (Ibid.) “Underlying the absolute privilege is a recognition of the importance of providing utmost freedom of communication between citizens and public authorities whose responsibility is to investigate wrongdoing. [Citation.] Accordingly, any doubt as to whether the necessary connection between the publication and the action exists is to be resolved in favor of a finding of privilege.” (Brody v. Montalbano, supra, at p. 733.)
We agree with the trial court that the Wineroth memorandum, as well as respondent Ackerman’s confidential distribution of the memorandum to school board members, was subject to the official proceedings privilege. (Civ. Code, § 47, subd. (b).) Appellant wrote to Ackerman requesting that she “assit [sic] [him] in [his] quest” to learn why he had not been hired for the job at Everett. As such, his letter was designed to prompt action by the District. We disagree with appellant’s characterization of his letter as a “request for information,” as opposed to a request for an “ ‘official proceeding.’ ” He stated that he “had problems in the past with the personnel office,” and he could not “help but wonder if [his] past actions [were] being held against [him] now.” He also stated: “I was advised by a friend in the district you might be sympathetic to my cause. I don’t know if my past actions have come back to haunt me or because of who I am, is a problem for them [sic]. I’m hoping you might look into the matter. I know your’e [sic] a busy person, but I would appreciate it, if you could find some time to meet with me and assit [sic] me in my quest.” This language was more in the nature of a request for investigation, as opposed to a request for information. (King v. Borges (1972) 28 Cal.App.3d 27, 32, 34 [letter that was not technically a formal complaint or accusation was construed as a communication designed to prompt action by agency].)
Wineroth investigated appellant’s claim and prepared a memorandum for Ackerman, which was then forwarded to board members. The memorandum represented an investigation by a public agency. (Garamendi v. Golden Eagle Ins. Co., supra, 128 Cal.App.4th at p. 478.) The Wineroth memorandum had a logical connection to appellant’s complaint about his inability to secure a job at Everett. (Royer v. Steinberg (1979) 90 Cal.App.3d 490, 503 [publication must have “some connection or logical relation to the proceeding” to be privileged].) The absolute privilege of Civil Code section 47, subdivision (b) applies.
Citing McMann v. Wadler (1961) 189 Cal.App.2d 124, appellant argues that the privilege is inapplicable. McMann held that the term “official proceeding” did not cover meetings of a board of directors of a nonprofit corporation. (Id. at p. 129.) Here, there is no dispute that SFUSD was a public school board, and McMann is therefore clearly distinguishable.
Appellant also argues that Hernandez’s phone call to Rubio was not a “proceeding.” It is clear that the trial court’s summary judgment order found that the privilege applied to the Wineroth memorandum, and not to Hernandez’s conversation with Rubio.
Having concluded that the communications at issue were privileged, we need not consider appellant’s alternative argument that respondents were not protected by the doctrine of discretionary immunity (Gov. Code, § 820.2) or by Government Code section 818.8. We likewise need not consider whether the communications at issue were privileged pursuant to Civil Code section 47, subdivision (a). Because the communications were privileged, it is also unnecessary to decide whether the statements at issue were expressions of opinion and therefore not defamatory. Having concluded that appellant could not recover on any causes of action that would entitle him to compensatory damages, it follows that he was not entitled to recover punitive damages, as he claims. (Sole Energy Co. v. Petrominerals Corp. (2005) 128 Cal.App.4th 212, 238 [award of actual damages required to recover punitive damages].)
H. No Equitable Relief
Appellant’s complaint sought an order for “removal of false and derogatory information from any and all employment records.” The trial court found that appellant’s request for an injunction failed as a matter of law because appellant’s privacy and statutory rights had not been violated. On appeal, appellant claims he will have no adequate remedy at law if he wins his defamation claim, but does not have the Wineroth memorandum destroyed.
“ ‘A permanent injunction is an equitable remedy for certain torts or wrongful acts of a defendant where a damage remedy is inadequate. A permanent injunction is a determination on the merits that a plaintiff has prevailed on a cause of action for tort or other wrongful act against a defendant and that equitable relief is appropriate.’ ” (Syngenta Crop Protection, Inc. v. Helliker (2006) 138 Cal.App.4th 1135, 1166-1167.) Having determined that appellant could not prevail on his complaint in part because there was no violation of the Education Code, we reject appellant’s argument that equitable relief is appropriate here.
We note that appellant does not include any citation to the record when he claims that he is entitled to equitable relief because “[i]f [the Wineroth memorandum] remains in the school board files, or their [sic] secret files, which existence is denied, then for the rest of Mr. Covington’s career he must have to live down the allegations in the memo, and be denying or defending himself every time he goes for a job.” There is no evidence in the record that the confidential Wineroth memorandum was ever shown, or ever will be shown, to anyone in the position to make hiring decisions about appellant. In fact, the District hired appellant as a community relations specialist/student advisor in August 2004, evidence that appellant was not harmed by the existence of the Wineroth memorandum.
I. Summary Judgment Disposed of Appellant’s Writ Petition
On September 4, 2003, after he had filed his complaint in this action, appellant filed a separate action seeking a petition for a writ of mandate against respondents SFUSD and Ackerman (writ petition). Appellant requested an order enjoining SFUSD and Ackerman from improperly using derogatory information against him in employment decisions, and from improperly placing derogatory written information in his personnel file. He also sought back pay and attorney fees and costs. On July 6, 2004, the trial court granted the unopposed motion of respondents SFUSD, Ackerman, and Rubio to consolidate this action with the writ petition. (Code Civ. Proc., § 1048, subd. (a) [court may order actions consolidated where there is a common question of law or fact].) The order stated that the separate case numbers for the two actions were consolidated under the case number for this action “for all purposes.”
Respondent Hernandez had not been served with appellant’s complaint at the time of the consolidation motion.
As appellant notes, documents filed in a case following consolidation must include the caption and case number of the lead case and any consolidated cases. (Cal. Rules of Court, rule 3.350(d).) It is unclear why this was not done in connection with the parties’ summary judgment briefs.
Appellant argues for the first time in his reply brief that because appellant’s writ petition was not addressed in the trial court, this appeal may (or should) be dismissed because there is no final judgment on all of appellant’s claims. This argument rests on appellant’s assumption that the requested relief should be treated as “additional causes of action.” As appellant apparently recognizes, however, both his complaint and his writ petition sought equitable relief, and the Wineroth memorandum was the “trigger” for both actions. Having concluded that appellant was not entitled to equitable relief, his writ petition likewise fails as a matter of law. The failure of the trial court to state reasons for granting summary judgment on the writ petition claims (Code Civ. Proc., § 437c, subd. (g)) was harmless “ ‘since “ ‘[i]t is the validity of the ruling which is reviewable and not the reasons therefore.’ ” ’ ” (Byars v. SCME Mortgage Bankers, Inc., supra, 109 Cal.App.4th at p. 1146 [trial court’s failure to address cause of action on summary judgment was harmless error where appellant failed to present evidence to raise a triable issue of fact].)
“Points raised in the reply brief for the first time will not be considered, unless good reason is shown for failure to present them before.” (Campos v. Anderson (1997) 57 Cal.App.4th 784, 794, fn. 3.) The explanation appellant’s attorney provides for not raising the consolidation issue sooner is that the effect of the consolidation “unfortunately, didn’t register with the undersigned until I was involved in doing this Appellant’s Reply Brief.” While we do not consider this “good reason” for the failure to previously raise the issue, we address it in order to prevent any ambiguity that may otherwise result.
III. Disposition
The judgment is affirmed. Respondents shall recover their costs on appeal.
We concur: Ruvolo, P. J., Rivera, J.