Opinion
NOT TO BE PUBLISHED
APPEAL from judgments of the Superior Court of San Diego County, No. 37-2009-00054423- CU-CO-NC, Earl H. Maas III, Judge.
HUFFMAN, Acting P. J.
In this appeal by plaintiff and appellant Catherine M. Gamache (Plaintiff), we review judgments dismissing her causes of action that were alleged against two medical doctors consulted by a family member of Plaintiff about Plaintiff's medical condition, these defendants and respondents, Victor Souza and Sanjeev Sharma, M.D., (together Defendants, or the physicians). These claims of libel and for declaratory relief arose in the context of Plaintiff's elder abuse action against her daughter, defendant Diane Steuer (Steuer), and a fellow defendant, a licensed attorney Steuer retained, defendant Amy Rypins (Attorney Rypins). Plaintiff alleged these Defendant physicians each made libelous statements about her, by completing memoranda prepared by Steuer and Attorney Rypins, entitled "Declaration of Licensed Physician, " that are attached as exhibits to the complaint (the declarations). In each declaration, Defendants gave their opinions that Plaintiff "lacks the physical and mental ability to handle her personal and financial affairs at this time."
Plaintiff and Appellant Catherine Gamache passed away in October 2010, after the filing of her notice of appeal in March 2010. She is now represented by her Special Administrator, Lois Gabriel, and we continue to refer to her as Plaintiff.
Neither Steuer nor Attorney Rypins is involved in this appeal.
Defendant physicians each brought a challenge on the pleadings to the sole causes of action against them, and they each obtained dismissal of the complaint without any grant of leave to amend. On appeal, Plaintiff contends that the demurrer brought by Dr. Souza was erroneously sustained, and the judgment on the pleadings brought by Dr. Sharma was erroneously granted, because Plaintiff adequately stated her libel and declaratory relief causes of action, or she should have been granted leave to amend. (Code Civ. Proc., §§ 473, 1060; all further statutory references are to this code unless noted.)
Having reviewed the pleadings, including the declarations attached to the complaint as exhibits, we conclude Plaintiff cannot successfully bring libel or declaratory relief allegations on the operative facts and theories pled, which are based on professional opinions rendered by Defendants, based on examinations relating to matters within the scope of the professional expertise. Plaintiff has offered no meritorious proposed amendments to cure those defects. We affirm.
BACKGROUND
A. The Participants and Complaint
For purposes of analyzing the demurrer and motion rulings, we take the facts properly pleaded to assess whether they may state a cause of action as a matter of law. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) In the complaint, Plaintiff mainly alleges that defendant Steuer committed elder abuse of various physical and financial types, and in estate planning matters, assisted by defendant Rypins, a licensed attorney.
In the libel claim, Plaintiff alleges that these Defendants are licensed physicians, and Dr. Sharma visited Plaintiff at the request of defendant Steuer, while Dr. Souza did so under unspecified circumstances (explained later). Plaintiff alleges the two doctors, together with the other two defendants, acted in concert to create and disseminate the declarations, which falsely declared Plaintiff to be incompetent "at this time." Neither of these documents has any kind of caption or heading to indicate whether it was filed in any kind of official proceeding, or in relation to any particular issue.
According to the complaint, the declarations were published and they communicated that at that time, Plaintiff lacked the physical and mental ability to handle her own personal and financial affairs, but those statements are false and exposed Plaintiff to contempt and ridicule. She alleges both general and special damages were sustained, and punitive damages are warranted.
In the declaratory relief claim (two causes of action following the libel claim), Plaintiff seeks a judicial determination of the legal effect of the two declarations and her rights and duties under those documents. She alleges that Defendants prepared the declarations as a result of their "appropriate and correct" determinations of her incompetency, but Plaintiff disputes their validity and truth.
B. Demurrer and Motion; Rulings
Defendant Dr. Souza demurred to the complaint, contending Plaintiff failed to allege facts sufficient to state the causes of action for libel or declaratory relief, because he had acted with reasonable care, and had given an opinion, not based upon any false statements. Plaintiff filed opposition and Defendant replied. At oral argument, Plaintiff's attorney sought leave to amend, proposing to add allegations that Defendants had not examined Plaintiff for the purpose of determining whether she was competent, but for other health issues, including hospitalization after a fall and for routine health care.
The trial court sustained the demurrer without leave to amend. Although the court considered the additional facts argued by Plaintiff's counsel as potential amendments, the court found Plaintiff still could not state a cause of action for libel or declaratory relief. Judgment of dismissal was entered and Plaintiff appealed.
Subsequently, Defendant Dr. Sharma brought a motion for judgment on the pleadings, on the same grounds argued by Dr. Souza, and sought judicial notice of the order sustaining Dr. Souza's demurrers without leave to amend. Plaintiff opposed the motion, arguing some amendment was possible, possibly to state other types of causes of action, in the nature of negligence or misdiagnosis.
Defendant Dr. Sharma appears to rely on the ruling in favor of Dr. Souza as providing issue preclusion under the doctrine of collateral estoppel. However, the necessary element of a final judgment is not yet present in that respect. (Mycogen Corp. v. Monsanto Co. (2002) 28 Cal.4th 888, 896-897.)
In a January 29, 2010 minute order, the trial court granted Defendant Dr. Sharma's motion with respect to the sole causes of action for libel and declaratory relief, without leave to amend. Notice of the ruling granting the motion for judgment on the pleadings was given, and Plaintiff appealed. Although no separate judgment was prepared, we may properly construe the order as a judgment of dismissal.
DISCUSSION
Plaintiff argues the trial court erred in finding that her libel cause of action was fatally defective, and that no appropriate declaratory relief was requested. Plaintiff contends she can properly plead inconsistent causes of action, and sufficient factual allegations are set forth, not merely opinions.
In response, Defendants each contend their statements in the declarations were expressions of professional opinion that could not constitute libel, or were privileged, and further, that no basis for declaratory relief is apparent on the face of the pleadings. To address these issues, we set out our rules and parameters of review.
I
APPLICABLE STANDARDS
A. Review
Both as to dismissals after demurrers and judgments on the pleadings, the appellate court examines the legal sufficiency of the complaint. In such de novo pleadings analysis, we give the pleading a reasonable interpretation, reading it as a whole, its parts in their context, to determine whether sufficient facts are stated to constitute a cause of action or a right to the relief requested. (Blank v. Kirwan, supra, 39 Cal.3d 311, 318.)
"'We treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law.' [Citation.] The trial court exercises its discretion in declining to grant leave to amend. [Citation.] If it is reasonably possible the pleading can be cured by amendment, the trial court abuses its discretion by not granting leave to amend. [Citation.] The plaintiff has the burden of proving the possibility of cure by amendment. [Citation.]" (Grinzi v. San Diego Hospice Corp. (2004) 120 Cal.App.4th 72, 78-79 (Grinzi); Edwards v. Centex Real Estate Corp. (1997) 53 Cal.App.4th 15, 26-27; Sierra-Bay Fed. Land Bank Assn. v. Superior Court (1991) 227 Cal.App.3d 318, 327.) The burden is on the complaining party to establish such abuse of discretion. On appeal, the judgment of the trial court is presumed to be correct. (Denham v. Superior Court (1970) 2 Cal.3d 557, 564.)
"Generally, a party is not permitted 'to change [her] position and adopt a new and different theory on appeal' because doing so would be unfair both to the court and to the opposing litigant. [Citation.] However, the appeal of a judgment of dismissal after sustaining of a demurrer without leave to amend requires the consideration of whether the allegations state a cause of action under any legal theory. [Citation.] Under these circumstances, new theories may be advanced for the first time on appeal. [Citation.]" (Grinzi, supra, 120 Cal.App.4th 72, 84-85.) Here, Plaintiff has suggested several potential amendments to her libel allegations, including more pleaded facts about the factual context of the declarations. We next turn to the libel claim and the rules regarding admissions in the pleadings. In part III, post, we separately state the applicable criteria for evaluating requests for declaratory relief, in connection with our analysis of that cause of action.
B. Admissions in the Pleadings
On appeal, the parties dispute whether it is proper to read certain allegations found in the eighth cause of action, declaratory relief, together with the allegations of the sixth cause of action, which does not expressly incorporate the later allegations in the declaratory relief claim. Specifically, the declaratory relief request posits that when Defendants prepared the declarations, they believed their conclusions were the result of appropriate and correct medical determinations that Plaintiff was incompetent at that time. To the contrary, Plaintiff's earlier libel cause of action alleges that Defendants' declarations contained false and defamatory material, imputing to her "a loathesome condition of old age and incompetency."
It is well established that a plaintiff is allowed to plead alternative counts, "when the plaintiff is certain of his or her legal rights but is in doubt about some of the ultimate facts, which may perhaps be largely within the knowledge of the defendant. The facts are inconsistently alleged because the plaintiff does not know which of the alternatives is true or can be established by the evidence." (4 Witkin, Cal. Procedure (5th ed. 2008) Pleading, § 403, p. 543.) Defendants nevertheless argue that the current declaratory relief allegation, that they acted in the belief that they made appropriate and correct determinations, must serve as a judicial admission, which Plaintiff should not be allowed to contradict in her previous libel claim.
A judicial admission is properly defined as "a waiver of proof of a fact by conceding its truth, and it has the effect of removing the matter from the issues. Under the doctrine of 'conclusiveness of pleadings, ' a pleader is bound by well pleaded material allegations or by failure to deny well pleaded material allegations." (4 Witkin, Cal. Procedure, supra, Pleading, § 452, pp. 585-586, citing Brown v. Aguilar (1927) 202 Cal. 143, 149 ["While a pleader is not bound by allegations of evidence or conclusions of law, he is concluded by material averments of his pleading, and may not, as a rule, prove facts contrary thereto"].)
In our view, the declaratory relief allegation about the beliefs of Defendants (that they prepared their declarations as the result of their appropriate and correct professional determinations) is much more like a legal conclusion than a statement of fact. It is supported by allegations about the licensed status of Defendants as medical doctors, and that factor applies to all of the claims. Legal conclusions have no binding effect. In any case, Plaintiff was never in possession of any meaningful knowledge about Defendants' own beliefs, so the statement is made in the abstract and for argumentative purposes only.
In light of that factor and those rules, it is not dispositive that Plaintiff has pleaded alternative legal conclusions or ultimate facts. The better approach is for us next to examine each cause of action individually, to the extent each properly incorporates by reference any previous paragraphs into later claims.
II
LIBEL LAW
"A claim for defamation requires proof of a false and unprivileged publication that exposes the plaintiff 'to hatred, contempt, ridicule, or obloquy, or which causes him to be shunned or avoided, or which has a tendency to injure him in his occupation.' (Civ. Code, § 45.)" (McGarry v. University of San Diego (2007) 154 Cal.App.4th 97, 112 (McGarry).) " 'The sine qua non of recovery for defamation... is the existence of falsehood.' [Citation.]" (Ibid.)
The issue commonly arises whether a libel plaintiff has alleged defamatory facts, which are actionable, or instead, whether only nonactionable opinion forms the basis of the lawsuit. The courts utilize "a totality of the circumstances test of whether the statement in question communicates or implies a provably false statement of fact. [Citation.] Under the totality of the circumstances test, '[f]irst, the language of the statement is examined. For words to be defamatory, they must be understood in a defamatory sense.... [¶] Next, the context in which the statement was made must be considered.' " (McGarry, supra, 154 Cal.App.4th 97, 113, citing Baker v. Los Angeles Herald Examiner (1986) 42 Cal.3d 254, 260-261 (Baker).)
To evaluate Plaintiff's appellate arguments regarding the libel rulings, we first discuss the distinction between factual statements and opinions, in the pleaded context of when and why these statements were made. We then turn to the adequacy of the allegations of publication and damages, and the amendment issue.
A. Falsity of Statements; Underlying Factual Basis for Opinions
Whether a statement is one of fact or opinion is a question of law that is decided by the court. (Melaleuca, Inc. v. Clark (1998) 66 Cal.App.4th 1344, 1353-1354.) Frequently, determining whether a statement is one of fact or opinion is difficult. In deciding whether a statement is defamatory, in evaluating the language of the statement in context, the totality of the circumstances is taken into account. (Baker, supra, 42 Cal.3d 254, 260-261.) The meaning and effect of the statement is evaluated by measuring its " ' "natural and probable effect upon the mind of the average reader." ' " (Id. at p. 260.)
As a threshold matter, we observe that in the context of a family dispute among the generations, it is not unusual for medical opinion evidence to be obtained, such as in probate or other civil proceedings in which competency of a person is in dispute. (See 1 Witkin, Cal. Evidence (4th ed. 2000) Opinion Evidence, § 56, p. 596 [same, regarding medical opinion on capacity to enter into a contract].) This can be a legitimate inquiry, not necessarily amounting to accusations of "a loathesome condition of old age and incompetency, " as Plaintiff characterizes the declarations. However, taking into account the entire known context of how these statements came to be made, Plaintiff is contending the opinions on issues of incompetency are based upon provably false facts, or that the limited purposes for which the examinations were made allegedly would not support those conclusions.
The key question in this context is whether a challenged statement contains any provable falsehood. Even a statement of an opinion may be actionable " 'if it implies the allegation of undisclosed defamatory facts as the basis for the opinion.' " (Okun v. Superior Court (1981) 29 Cal.3d 442, 451-452.) In Milkovich v. Lorain Journal Co. (1990) 497 U.S. 1, the U.S. Supreme Court discussed the distinction between nonactionable statements of opinion and actionable assertions of false facts. If expressions of opinion clearly imply assertions of objective facts, but those assertions of fact are false, the subject opinions can be actionable as defamatory. (Id. at pp. 18-19; McGarry, supra, 154 Cal.App.4th 97, 112-113.)
As a matter of law, we cannot find those expressly identified statements of opinion somehow contain or are based on any provably false assertions of fact. (Franklin v. Dynamic Details, Inc. (2004) 116 Cal.App.4th 375, 385.) The physicians state that they each examined Plaintiff, and formed professional opinions. A licensed physician is entitled to draw diagnostic conclusions, or opinions, from an examination of a person. When we evaluate the language of the declarations in context, including the totality of the circumstances, we conclude Plaintiff cannot show those identified opinions qualify under the statutory definitions of libelous terms. (Baker, supra, 42 Cal.3d 254, 260-261; Civ. Code, § 45.) We turn next to the pleading's description of facts relating to the additional statutory term, "unprivileged publications." (Ibid.)
B. Pleading of Publication; Privilege Issues
In the factual context described by the complaint, Steuer retained co-defendant, Attorney Rypins, presumably for pursuing some kind of official procedure regarding Plaintiff's competency, so the subject declarations must further be examined for the criteria of whether they were published to communicate a defamatory message. Plaintiff alleged only that these Defendants, together with the other two defendants, acted in concert to create and disseminate the declarations, which were understood by those who read them as stating Plaintiff was incompetent to handle her own personal and financial affairs. However, since the declarations have no captions or headings to indicate whether they were filed in an official proceeding, or in relation to any particular issue, it is difficult to evaluate the alleged extent of the publication. (See Civ. Code, § 47, subd. (b) [affording privilege to publications made in judicial proceedings or certain other official proceedings].)
In any event, an actionable publication requires communication of the statement to a third party who understands both the defamatory meaning of the statement and its application to the person about whom the statement is made. (Ringler Associates Inc. v. Maryland Casualty Co. (2000) 80 Cal.App.4th 1165, 1179.) In general, "it is not the literal truth or falsity of each word or detail used in a statement which determines whether or not it is defamatory; rather, the determinative question is whether the 'gist or sting' of the statement is true or false, benign or defamatory, in substance." (Id. at pp. 1181-1182.) These declarations state the opinions "that at this time [plaintiff] lacks the physical and mental ability to handle her personal and financial affairs at this time." Such a professional opinion of mental inability has many potential ramifications, some of them negative but some of them more neutral or transitory. Because this examination was conducted at the request of one of her family members, Plaintiff contends there is no physician-patient relationship to protect, for privilege purposes.
Plaintiff seeks to rely on Felton v. Schaeffer (1991) 229 Cal.App.3d 229, 234-235 (Felton), for the purpose of supporting her libel arguments. In that case, this court discussed the relationship between a job applicant's potential causes of action, such as medical malpractice, negligence, or libel, against an examining physician who was hired by an employer to provide an opinion on the employee's physical condition. In the absence of a physician/patient relationship, the plaintiff-applicant could not sue the examining doctor for a misdiagnosis, for either negligence or medical malpractice, because in a pre-employment physical, the physician owes a duty of due care in evaluating the applicant's medical condition not to the applicant, but to the employer. (Ibid.)
In Felton, this court also discouraged any efforts toward allowing an alternative negligence claim to be made under these or similar circumstances, because it "would substantially undermine, if not effectively eliminate, the area currently occupied by libel law." (Felton, supra, 229 Cal.App.3d at p. 238.) We explained that since the plaintiff-applicant was alleging only economic harm from the communication of the misdiagnosis to the employer, it would not be appropriate to undermine the applicability of potential privilege defenses, such as Civil Code section 47, subdivision (c) (privileged communications among legitimately interested persons). (Felton, supra, 229 Cal.App.3d 229, 238-239.)
The concepts in Felton, supra, 229 Cal.App.3d 229, were extended in Rand v. Miller (1991) 185 W.Va. 705, 408 S.E.2d 655, in which the holding was that a prospective employee could not sue an employer-hired physician, who evaluated medical records for the employer, for medical malpractice, due to the lack of a professional relationship between the doctor and the prospective employee-plaintiff. The court opined that if such a physician did report false information (i.e., identifying a personality disorder, but without sufficient grounds to make such a diagnosis), then a defamation action might be available, unless there were qualified privileges that would protect the medical information involved. (Id. at p. 659.)
Under Civil Code section 45, actionable defamatory statements are both false and "unprivileged." On appeal, Plaintiff additionally argues Defendant Dr. Souza should not be heard to claim litigation privilege, since he did not argue such matters to the trial court. (Civ. Code, § 47.) There is no need to reach any specific litigation privilege issue, as the other libel authorities are dispositive.
In light of the totality of the circumstances pled by Plaintiff, involving these family matters and health issues of an elderly person, the authority of Felton, supra, 229 Cal.App.3d 229 and Rand, supra, 408 S.E.2d 655, is distinguishable on its facts and not particularly persuasive. These Defendants' declarations of opinions must be viewed in the actual context in which they were made, as based upon professional examinations. Plaintiff has not alleged facts allowing her to proceed with allegations that these Defendants knowingly reported false information, nor that they acted unprofessionally or without due care in forming or communicating their medical opinions. The express language of the declarations does not lend itself to an interpretation in a defamatory sense, nor is publication sufficiently alleged. (Civ. Code, § 45.)
C. Amendment
Plaintiff next argues that even if she adequately pled the necessary facts, she has suggestions on appeal for adding to her claims. For example, she now suggests changing the nature of her causes of action, to invasion of privacy or intentional infliction of emotional distress. However, the underlying factual circumstances and the gravamen of the claims remain the same, and are subject to the same fatal problems identified above, in distinguishing between permissible professional opinions or provably false underlying or supporting facts.
To the extent Plaintiff now seeks to amend to plead more facts about her alleged special damages, to support a libel per quod theory, nothing meaningful is suggested. There is an historic distinction between statements that are libelous per se (not requiring additional explanatory matter), as opposed to libel claims based on other types of statements that require special pleading (libel per quod). (McGarry, supra, 154 Cal.App.4th 97, 112-113 [discussing Civ. Code, § 45a].) There is no indication in the record that any such special damages would be appropriate, nor that the proposed amendments are necessary or proper, and we need not speculate about any further amendments that might be proposed.
Under the applicable legal standards, it was not an abuse of discretion for the trial court to end the process of amendment, in light of all the circumstances and the manner in which Plaintiff has thoroughly presented her numerous arguments and theories. (See Schifando v. City of Los Angeles (2003)31 Cal.4th 1074, 1081.) We find no abuse of discretion in the conclusions drawn by the trial court in ruling upon the demurrer and the motion.
III
DECLARATORY RELIEF CRITERIA; APPLICATION
Plaintiff additionally contends that the existence of the two declarations gives rise to a present controversy about her past mental health and competency. (§ 1060.) For declaratory relief to be available, the factual allegations of the complaint must reveal that an actual and present controversy exists between the parties. (Alameda County Land Use Assn. v. City of Hayward (1995) 38 Cal.App.4th 1716, 1721-1722.) "Sustaining a demurrer when the complaint reveals such a controversy constitutes error. [Citations.] [¶] Before a controversy is ripe for adjudication it ' "must be definite and concrete, touching the legal relations of parties having adverse legal interests. [Citation.] It must be a real and substantial controversy admitting of specific relief through a decree of a conclusive character, as distinguished from an opinion advising what the law would be upon a hypothetical state of facts." ' [Citations.]" (Id. at p. 1722; see also City of Cotati v. Cashman (2002) 29 Cal.4th 69, 79 [" 'The fundamental basis of declaratory relief is the existence of an actual, present controversy over a proper subject.' "].)
Section 1060 provides: "Any person interested under a written instrument... or under a contract, or who desires a declaration of his or her rights or duties with respect to another, or in respect to, in, over or upon property... may, in cases of actual controversy relating to the legal rights and duties of the respective parties, bring an original action... for a declaration of his or her rights and duties in the premises, including a determination of any question of construction or validity arising under the instrument or contract. He or she may ask for a declaration of rights or duties, either alone or with other relief; and the court may make a binding declaration of these rights or duties, whether or not further relief is or could be claimed at the time...."
Plaintiff is contending, among other things, that her case is ripe for decision. As set out in 3 Witkin, California Procedure, supra, Actions, section 21, pages 84 through 86, "[t]he terms 'justiciable controversy' and 'justiciability' have more than one meaning: 'The concept of justiciability involves the intertwined criteria of ripeness and standing.... ' [¶]... [¶] The principle is difficult to state and its application is somewhat uncertain. Although the typical adjectives (moot, abstract, academic, collusive) are often used interchangeably, the objectionable proceedings appear to fall into two classes: [¶] (a) Those in which parties seek a judicial declaration on a question of law, though no actual dispute or controversy ever existed between them requiring the declaration for its determination. [Citation.] [¶] (b) Those in which an actual controversy did exist but, by passage of time or a change in circumstances, ceased to exist. [Citation.]"
Under section 1061, "The court may refuse to exercise the power granted by this chapter in any case where its declaration or determination is not necessary or proper at the time under all the circumstances." This is a discretionary determination, subject to reversal only if that discretion is abused. (Zetterberg v. State Dept. of Public Health (1974) 43 Cal.App.3d 657, 662-665.)
Applying these standards, we cannot conclude that the mere existence of the two declarations giving Defendants' opinions about Plaintiff's then-condition creates some kind of actual, present controversy over a proper subject. Under the plain language of section 1060, Plaintiff has not met her burden of demonstrating an abuse of discretion with regard to the court's determination that these declarations are not the kind of "written instrument, " "contract, " or documentation of property entitlements, which would give rise to such current rights or duties, or justify any "binding declaration of these rights or duties." (§ 1060.) Rather, this case is not the proper forum for evaluating or reversing any such competency opinions, which were confined to a past state of affairs. (County of San Diego v. State of California (2008) 164 Cal.App.4th 580, 607-608 [proper function of declaratory relief is to declare future rights, not to redress past wrongs].)
Moreover, Plaintiff's suggested amendment, to the effect that Defendants' declarations may be used in the future in a manner contrary to her interests, adds nothing to the existing pleading, which already makes allegations of such harmful concerted activity by all Defendants, albeit not in a way that raises cognizable libel claims. The trial court acted within its discretion and in accordance with applicable law in sustaining the demurrer and granting the motion, without leave to amend.
DISPOSITION
Affirmed. Each party to bear its own costs on appeal.
WE CONCUR: HALLER, J., IRION, J.