Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 04AS00339
CANTIL-SAKAUYE, J.
This case involves a complicated procedural history. Plaintiff, Bruce Hunt, is a Sacramento County Deputy Sheriff who was terminated from his employment in 2003, but reinstated in 2004 after successfully challenging his termination in proceedings before the Civil Service Commission. After his termination, but before his reinstatement, Hunt filed an action against Sacramento County (County) and several Sheriff’s Department employees contending their defamatory statements accusing him of theft, dishonesty, and unprofessional conduct resulted in his termination.
After his reinstatement, Hunt filed amended and supplemental complaints alleging both the original defamation and new defamatory statements by an additional defendant who, Hunt claimed, was continuing to make false statements about him to the media. Hunt appeals from three operative pleadings: the third amended complaint, the supplemental complaint, and the first amended complaint and the judgments therein.
On his third amended complaint (case No. C053886) plaintiff Hunt appeals the summary judgment granted defendants County and Darren Anderson. On his supplemental complaint (case No. C055248), Hunt appeals the demurrer without leave to amend sustained as to defendant Lind. Hunt further appeals the “demurrer to First Amended Complaint against Darren Anderson[,]” by which he apparently means the portion of the trial court’s order that sustained defendants’ demurrer without leave to amend to his first amended complaint (case No. C055248).
We conclude: as to the third amended complaint -- the trial court properly granted summary judgment for defendants; as to the supplemental complaint -- the trial court properly sustained the demurrer and as to the first amended complaint -- the trial court properly sustained the demurrer to the libel cause of action. However, on the supplemental complaint we find error in the trial court’s denial of leave to amend the slander, libel and invasion of privacy causes of action. Thus, we affirm in part and reverse in part.
FACTUAL AND PROCEDURAL BACKGROUND
In 2004, Hunt filed a complaint alleging he was defamed by other sheriff’s deputies during a rifle training course in 2002 and that such defamation caused his subsequent termination from employment as a deputy sheriff in 2003. Hunt named as defendants the County; Mark M. Iwasa and Darren Anderson as employees of the County; and Anderson individually. Hunt alleged two causes of action - one for libel against all three defendants, and one for slander against Anderson.
In June 2005, Hunt sought the trial court’s leave to file an amended complaint that inter alia added multiple new causes of action against the County and a new defendant, Lind, based on defamatory and other conduct occurring after the filing of his original complaint.
The trial court construed Hunt’s motion as a motion to file an amended complaint and a supplemental complaint and granted the motion as construed. It directed Hunt to file a first amended complaint deleting all causes of action arising after the January 2004 filing of the original complaint and to file a supplemental complaint containing such causes of action.
Hunt complied, filing in July 2005 an “Amended First Amended Complaint” against the County, Iwasa, and Anderson, in which he alleged eight causes of action (numbered first through eighth) and a “Supplemental Complaint” against the County, Iwasa, Anderson, and Lind, in which he alleged a further eight causes of action (numbered ninth through sixteenth).
For simplicity we will refer to this complaint as Hunt’s first amended complaint.
The First Amended Complaint and Causes of Action One through Eight
In the first cause of action of Hunt’s first amended complaint, Hunt alleged libel with malice arising out of statements made by Anderson and other sheriff’s deputies at the rifle instruction course held in April 2002. Hunt claimed the statements were intended as slander, harassment and hazing. Among these statements, Hunt specifically alleged Anderson and other deputies falsely said Hunt attempted to, and did, take ammunition for his personal use from the County’s shooting range during the rifle training course. Hunt alleged Deputy Sheriff Mark Manning, acting as an employee and agent of the County, republished the false words, stating Hunt was “unethical” and “unprofessional” in an Inter-Departmental Correspondence (IDC) to Sergeant James Giannelli. Manning’s IDC initiated the investigation that ultimately resulted in the termination of Hunt’s employment with the County’s Sheriff’s Department.
In his first cause of action for libel, Hunt further alleged, that Anderson made false reports to the instructor of the rifle training course, Detective Darren Griem. Hunt specifically alleged Anderson stated Hunt was “loaded down with ammo” that Hunt intended to take home for his own personal use and that Hunt was “‘playing around’ with live ammunition in the classroom.” Griem reported such statements in his IDC to Sergeant Robert Hasapis and an Internal Affairs Investigation commenced. Defendant Iwasa republished Anderson’s statements in his IDC to Chief Deputy Michael Smith, finding Hunt was “dishonest” and recommended Hunt’s termination from employment. Smith thereafter recommended Hunt’s termination “for theft and veracity.” Hunt was terminated from his employment as a deputy sheriff by the County on January 29, 2003. Hunt alleged Anderson and other deputies also made “other statements” that “were either false or were jokes and opinions intended as harassment or hazing[.]” Hunt alleged the false statements made by defendants were published with malice and oppression and were intended to, and did, cause Hunt to be terminated from his employment.
The second cause of action in Hunt’s first amended complaint was for slander per se with malice against the County and Anderson. It was based on the same statements and words previously alleged, claiming Anderson intended to fabricate an incident whereby Hunt would be disciplined. Also based on the same facts, Hunt alleged a third cause of action against Iwasa and Anderson for a “conspiracy to defame.”
Hunt’s fourth cause of action against Iwasa and Anderson alleged “tortious inducement to discharge.” In addition to the defamatory statements, Hunt alleged in this cause of action that Iwasa and Anderson manipulated an internal affairs investigation and induced Hunt’s civil service discharge. Hunt’s fifth cause of action alleged a “conspiracy to induce discharge” based on similar claims.
Hunt alleged a sixth cause of action against the County and Iwasa for what he labeled an “unreasonably intrusive and biased investigation.”
Hunt alleged a seventh cause of action against the County, Iwasa, and Anderson for intentional infliction of emotion distress.
Hunt’s eighth and final cause of action in his first amended complaint sought permanent injunctive relief.
The Supplemental Complaint and Causes of Action Nine Through Fifteen
Hunt’s supplemental complaint, filed at the same time as his first amended complaint, also alleged causes of action for slander (ninth cause of action), libel (tenth cause of action), “conspiracy to defame” (twelfth cause of action), “tortious inducement to discharge” (thirteenth cause of action), “conspiracy to induce discharge” (fourteenth cause of action), and intentional infliction of emotional distress (sixteenth cause of action). In addition to incorporating by reference all the allegations of his first amended complaint, the factual basis for these six causes of action were alleged, beginning in the slander cause of action, as a series of false statements issued by attorney and Assistant Sheriff Lind to the media beginning on December 8, 2004, that referred to Hunt directly, indirectly and by innuendo.
Specifically, the supplemental complaint alleged Lind, during an interview conducted by a local television station on December 8, 2004, “made statements intended as slander, harassment and hazing regarding [Hunt]. Among these were false statements that [Hunt] was fired from the Sacramento County Sheriff’s Department because he was dishonest and a thief, and further that [Hunt] was assigned to duties within the county jail system because his honesty would be questioned were he to be assigned to patrol or any other position and were he called to testify in a criminal trial.” Hunt alleged Lind made the statements based on a personal dislike of Hunt and out of his frustration at unsuccessfully prosecuting the County’s allegations before the administrative hearing officer in the civil service commission hearings, which completely exonerated Hunt from all charges relating to honesty, theft, truth and veracity. Hunt alleged that on December 14, 2004, Lind falsely accused him of being in violation of a regulation requiring him to be clean-shaven by stating Hunt attended the sheriff department’s Christmas party wearing a goatee and that the correctional center was allowing him to appear at work in violation of the order. Hunt claimed he did not attend the Christmas party and has not worn a goatee since he was reinstated to work. Hunt alleged Lind intended to destroy Hunt’s career by making the false statements that Hunt is dishonest, a thief, and insubordinate and that Lind continues to make such false statements.
In addition to these six causes of action, the supplemental complaint included a cause of action alleging a violation by the County and Lind of Penal Code section 832.7 (section 832.7), which provides for the confidentiality of peace officer personnel records (eleventh cause of action). The supplemental complaint included a cause of action alleging invasion of privacy by the defendants’ disclosure of Hunt’s confidential peace officer personnel records (fifteenth cause of action).
The Demurrers to the First Amended Complaint and to the Supplemental Complaint
Defendants collectively filed demurrers to Hunt’s first amended complaint and supplemental complaint. Hunt stipulated with defendants to the dismissal of his fourth, fifth, thirteenth, and fourteenth causes of action that alleged tortious inducement to discharge and conspiracy to induce discharge.
On the first amended complaint, the trial court sustained defendants’ demurrer with leave to amend on the slander cause of action and without leave to amend on the remaining other five causes of action (libel, conspiracy to defame, unreasonable, intrusive and biased investigation, intentional infliction of emotional distress, and injunctive relief). On the supplemental complaint, however, the trial court sustained the defendants’ demurrer without leave to amend on all of the causes of action alleged therein.
The trial court subsequently signed a formal order sustaining the demurrer to the supplemental complaint, but crossed out the language giving actual judgment in favor of the defendants on the supplemental complaint.
The Third Amended Complaint
In response to the court’s sustaining the defendants’ demurrer with leave to amend on the slander cause of action of the first amended complaint, Hunt filed a second amended complaint against the County, Iwasa, and Anderson. Ultimately, Hunt filed a third amended complaint against the County and Anderson.
In the third amended complaint, the allegations of Anderson’s claimed defamatory statements varied to some extent from those originally pled in the slander cause of action of Hunt’s first amended complaint. Hunt realleged Anderson made statements during the rifle training course that Hunt attempted to, and did, take ammunition from the shooting range during training with the intent to convert it to his personal use. In the third amended complaint, Hunt added allegations explaining that “[a]mong the circumstances surrounding the defamation was the alleged incident after the Wednesday night shoot alleging [Hunt] failed to return a box of .223 bullets into the collection receptacle before returning to the classroom, requiring instructor Darren Griem to request him twice to check his pockets for extra ammunition.” Hunt also alleged Anderson made a statement to other deputies and staff that Hunt “would try to steal ammunition from the ammo shack.” According to the third amended complaint, Anderson watched Hunt and a friend “engage in horse play with a magazine (container of bullets), and made the false statement within the hearing range of [other deputies and class members] that [Hunt] forcibly took the magazine from his friend.” Anderson was alleged to have made false reports to the instructor that Hunt “was ‘loaded down with ammo,’ which he intended to take home for his personal use with a firearm he owned.” Hunt alleged Anderson made the false statements with actual malice. His statements were heard and repeated by various other deputies and class members, eventually resulting in his wrongful discipline and termination from employment.
The Motion For Summary Judgment on the Third Amended Complaint
Defendants Anderson and the County sought summary judgment on the third amended complaint on the ground that Anderson never made any statement that Hunt was stealing or that Hunt forcibly took an ammunition magazine from another officer. Defendants also asserted that the statements Anderson did make did not constitute actionable slander as they were true statements and any communications by the defendants to third persons were privileged pursuant to Civil Code section 47. Hunt opposed the motion for summary judgment, claiming there were disputed material facts showing unprivileged false statements by Anderson. The trial court granted the motion for summary judgment, concluding, in part, that the statements made by Anderson were not slanderous and were absolutely privileged. Summary judgment was entered in favor of the County and Anderson.
In October 2006, Hunt filed a notice of appeal from the judgment after the order granting summary judgment. We assigned the appeal case No. C053886.
The Judgments
The First Amended Complaint:
In December 2006, 14 months after its order sustaining the demurrer without leave to amend to Hunt’s first amended complaint, the trial court entered judgment in favor of defendant Iwasa based on that order. The judgment did not include the other defendants named in such complaint, the County and Anderson.
The Supplemental Complaint:
In January 2007, 15 months after its order sustaining the demurrer to the supplemental complaint, the trial court signed a judgment of dismissal that entered judgment only in favor of defendant Lind based on its ruling on the supplemental complaint. The judgment did not include the other three defendants, the County, Anderson and Iwasa, named in Hunt’s supplemental complaint.
Hunt’s Second Appeal
In March 2007, Hunt filed a second notice of appeal. On the form notice of appeal, Hunt checked boxes indicating he was appealing from: (1) the judgment after an order granting a summary judgment motion (already appealed in case No. C053886); (2) the judgment of dismissal after an order sustaining a demurrer, and (3) “other [...]: Defendants’s [sic] Demurrer to Supplemental Complaint against David Lind together with Demurrer to First Amended Complaint against Darren Anderson.” We assigned this appeal case No. C055248 and granted Hunt’s motion to consolidate both appeals.
After a preliminary review of the record on appeal, we requested the parties to inform us whether “(1) a judgment in favor of defendants County of Sacramento and/or Darren Anderson has been entered relating to the Amended First Amended Complaint and (2) whether a judgment in favor of defendants County of Sacramento, Mark Iwasa and/or Darren Anderson has been entered relating to the Supplemental Complaint[.]” Hunt responded with a motion to augment the record with a judgment of dismissal entered as to the supplemental complaint on July 2, 2008, nunc pro tunc to January 10, 2007, in favor of all defendants. We granted augmentation. No judgments of dismissal have been entered in favor of the defendants, the County and Anderson on the first amended complaint.
The record on appeal consists of an appellant’s appendix and a respondent’s appendix pursuant to rule 8.124 of the California Rules of Court. Further rule references are to the California Rules of Court.
DISCUSSION
I.
Preliminary Issue Of Jurisdiction On Appeal
We are confronted initially with whether these consolidated appeals are properly before us. “The existence of an appealable judgment is a jurisdictional prerequisite to an appeal. A reviewing court must raise the issue on its own initiative whenever a doubt exists as to whether the trial court has entered a final judgment or other order or judgment made appealable by Code of Civil Procedure section 904.1.” (Jennings v. Marralle (1994) 8 Cal.4th 121, 126.)
Hunt alleged 16 causes of action against the various defendants; eight were related to actions occurring prior to his employment termination and eight were related to actions occurring after his termination. All of the causes of action were resolved in favor of defendants at the trial court level.
However, despite there being four documents labeled judgments subsequently entered by the trial court, the language of the judgments still does not cover all of the causes of action in favor of all of the defendants. By the judgment recently entered nunc pro tunc augmenting the earlier judgment, judgment was entered on the supplemental complaint in favor of all defendants. On the third amended complaint (which is essentially the slander cause of action from the first amended complaint) summary judgment was entered. However, as to the First Amended Complaint a judgment in favor of only one defendant -- Iwasa -- was entered on the rest of the first amended complaint; judgments have not been entered in favor of the other two defendants, the County and Anderson.
Hunt takes the position that the summary judgment “completely disposed of every cause of action for the County and Darren Anderson” in the first amended complaint. Not so. Contrary to Hunt’s claims, the summary judgment actually entered only disposes of the third amended complaint.
Therefore, as to defendants Anderson and the County, there is no judgment reflecting the trial court’s order sustaining their demurrer without leave to amend the first amended complaint. There is only the order sustaining the demurrer, appealed by Hunt. “Orders sustaining demurrers are not appealable. (Code Civ. Proc., § 904.1; Otworth v. Southern Pac. Transportation Co. (1985) 166 Cal.App.3d 452, 457 [212 Cal.Rptr. 743].) An appeal can be taken after entry of such an order only after the court enters an order of dismissal. (Beazell v. Schrader (1963) 59 Cal.2d 577, 579 [30 Cal.Rptr. 534, 381 P.2d 390].)” (Hill v. City of Long Beach (1995) 33 Cal.App.4th 1684, 1695.) There is no judgment of dismissal as to Anderson and the County.
It is inexplicable why counsel for Hunt submitted an augmented judgment to the trial court regarding the supplemental complaint in response to our request for information, but failed to submit a judgment completely resolving all of the causes of action in the first amended complaint.
If this case involved solely a purported appeal from the order sustaining defendant’s demurrer to the first amended complaint, we would dismiss this appeal. Along with a number of other districts, we have long since abandoned the practice of saving appeals by deeming a nonappealable order to include an appealable judgment. (Jordan v. Malone (1992) 5 Cal.App.4th 18, 22 [“The trend of recent cases of the Courts of Appeal is to hold appellate counsel to strict account for ensuring that their appeal rights are perfected according to the applicable statutes and rules of court”]; Modica v. Merin (1991) 234 Cal.App.3d 1072, 1075 [“Even before the Court of Appeal in the Second District, Division Seven, publicly declared its exasperation with this dolorous state of affairs (of parties attempting to appeal from nonappealable orders in) Cohen v. Equitable Life Assurance Society (1987) 196 Cal.App.3d 669, 671, this court had abandoned its policy of tolerance. We have long since determined the proper role of an appellate court is to adhere to and apply Code of Civil Procedure section 904.1, not to devise and employ strategies for its wholesale avoidance”].)
However, the situation is more complicated here. In this case, we do have multiple judgments. The problem is the judgments do not cover all the causes of action against all of the defendants. The existence of judgments covering some causes of action against some defendants, but only a nonappealable order as to other causes of action in favor of some defendants, implicates the final judgment rule. The “one final judgment rule” provides that an appeal may be taken from a final judgment, not an interlocutory order, and requires there be a complete disposition of all causes of action or counts in order for the judgment to be appealable. (Code Civ. Proc., § 904.1, subd. (a)(1) [interlocutory judgments generally not appealable]; Morehart v. County of Santa Barbara (1994) 7 Cal.4th 725, 740-741 (Morehart); Bank of America v. Superior Court (1942) 20 Cal.2d 697, 701.) “There are sound reasons for the one final judgment rule,” including the avoidance of piecemeal dispositions and multiple costly and oppressive appeals. (Morehart, supra, at p. 741, fn. 9.)
Nevertheless, an exception to the one final judgment rule exists where the “order appealed from may be amended so as to convert it into a judgment encompassing actual determinations of all remaining issues by the trial court or, if determinable as a matter of law, by the appellate court, and the notice of appeal may then be treated as a premature but valid appeal from that judgment. . . . [Citations.]” (Morehart, supra, 7 Cal.4th at p. 740.) “Judgments that leave nothing to be decided between one or more parties and their adversaries, or that can be amended to encompass all controverted issues, have the finality required by [Code of Civil Procedure] section 904.1, subdivision (a).” (Id. at p. 741; see also Tenhet v. Boswell (1976) 18 Cal.3d 150, 154 [appellate court may amend judgment where trial court’s failure to dispose of all claims results from inadvertence rather than an intention to retain the remaining claims].)
Following this California Supreme Court authority, we will, reluctantly, because we do not condone the sloppiness of counsel in preparing the judgments in this case, amend the judgment of dismissal in the first amended complaint to include a judgment of dismissal of defendants County and Anderson based on the trial court’s order sustaining their demurrer without leave to amend. Judgment will thus have been entered on all causes of action in favor of all defendants and we can treat Hunt’s notices of appeal as premature, but valid. (Morehart, supra, 7 Cal.4th at pp. 740-741; rule 8.104(e).) We turn to the merits of Hunt’s appeals from the judgments on the first amended complaint, the supplemental complaint, and the third amended complaint.
II.
The First Amended Complaint - The Trial Court Properly Sustained Defendants’ Demurrer Without Leave To Amend
A. Standard of Review
“In reviewing the sufficiency of a complaint against a general demurrer, we are guided by long-settled rules. ‘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.]” (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) Other than matters that may be judicially noticed, we do not consider any factual claims that are not set forth in the complaint. (Afuso v. United States Fid. & Guar. Co. (1985) 169 Cal.App.3d 859, 862, disapproved on another ground in Moradi-Shalal v. Fireman’s Fund. Ins. Companies (1988) 46 Cal.3d 287, 311.) “[W]e give the complaint a reasonable interpretation, reading it as a whole and its parts in their context. [Citation.]” (Blank v. Kirwan, supra, at p. 318; accord, Randi W. v. Muroc Joint Unified School Dist. (1997) 14 Cal.4th 1066, 1075.)
In the factual summary of his opening brief relating to the trial court’s orders sustaining the demurrers to his first amended complaint and supplemental complaint, Hunt includes a number of facts not alleged in those pleadings, but found in either evidence submitted in connection with Hunt’s supplemental opposition to the demurrers, Hunt’s motion to reconsider the denial of leave to amend his Supplemental Complaint, or the subsequent summary judgment motion. We will not consider those facts in reviewing the sufficiency of the complaints.
In independently reviewing the complaint (Jones v. Omnitrans (2004) 125 Cal.App.4th 273, 277), we affirm the judgment if any ground offered in support of the demurrer was well taken, but find error if the plaintiff has stated a cause of action under any possible legal theory. (Aubry v. Tri-City Hosp. Dist. (1992) 2 Cal.4th 962, 967.) “[I]t is an abuse of discretion to sustain a demurrer without leave to amend if the plaintiff shows there is a reasonable possibility any defect identified by the defendant can be cured by amendment. [Citation.]” (Ibid.)
B. Hunt’s Libel Cause of Action
“Libel is a false and unprivileged publication by writing, printing, picture, effigy, or other fixed representation to the eye, which exposes any person 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.)
In the first amended complaint Hunt alleged libel with malice against the County, Anderson, and Iwasa, arising out of statements made by Anderson and other sheriff’s deputies at the rifle instruction course held in April 2002. Hunt specifically claimed Anderson and other deputies falsely accused Hunt of theft and attempted theft of ammunition. Hunt alleged Deputy Manning republished the false words, stating Hunt was “unethical” and “unprofessional” in an IDC to Sergeant Giannelli, which IDC initiated the Internal Affairs Investigation that ultimately resulted in his termination.
Hunt also alleged Anderson made false reports to the instructor of the rifle training course, Detective Griem, that Hunt was “loaded down with ammo” that Hunt intended to take home for his own personal use and that Hunt was “‘“playing around” with live ammunition in the classroom.’” Griem reported such statements in his IDC, which became part of the investigation. Defendant Iwasa republished Anderson’s statements in his IDC to Chief Deputy Smith, finding Hunt “dishonest” and recommending Hunt be terminated from employment. Smith thereafter recommended Hunt’s termination “for theft and veracity.”
Hunt alleged Anderson and other deputies made “other statements” that “were either false or were jokes and opinions intended as harassment or hazing[.]” Hunt was terminated from his employment as a deputy sheriff by the County on January 29, 2003. Hunt alleged the false statements made by defendants were defamatory on their face, were published with malice and oppression, and were intended to, and did, cause Hunt to be terminated from his employment. Hunt alleged defendants had neither an absolute nor a qualified privilege to publish the false statements.
The trial court sustained defendants’ demurrer without leave to amend to this cause of action, ruling as follows: “The complaint alleges that the statements allegedly made by Anderson were oral, not written. [Hunt] also alleges that the statements were jokes or opinion[s], which are not actionable. [Hunt] alleged that an Internal Investigation was commenced, following which Iwasa made findings and recommended termination. From the allegations it appears that the statements made by Iwasa were privileged. Civil Code section 47[, subdivision] (b). [Hunt] argues that the statements were not made in connection with an investigation or personnel action, an argument that is directly contradicted by his pleading. The County cannot be liable if its employee is not liable. It does not appear possible for [Hunt] to state a cause of action for libel against the County and Iwasa on these facts[;] hence no leave to amend is granted. Further no leave to amend as to Anderson is granted because his claim against Anderson, if any, is slander and that is the subject of the second cause of action.”
Focusing on the trial court’s findings that Anderson’s statements were not written and that the statements were absolutely privileged, Hunt contends the trial court erred in sustaining the demurrer because his first amended complaint alleged Manning republished the initial accusations of Anderson in a written IDC to Giannelli, Anderson is liable for such foreseeable written republication, and the absolute privilege of Civil Code section 47, subdivision (b) (section 47(b)), is subject to an exception for police officers pursuant to Civil Code section 47.5 (section 47.5).
We need not discuss Hunt’s argument regarding the statements being republished in writings so as to state a claim for libel since we conclude the statements by defendants Anderson and Iwasa were absolutely privileged under section 47(b). Section 47.5 is not applicable to Anderson’s allegedly false statements, as republished by Manning, Griem, or Iwasa, or to Iwasa’s allegedly defamatory statements.
“Section 47 establishes a privilege that bars liability in tort for the making of certain statements. Pursuant to section 47(b), the privilege bars a civil action for damages for communications made ‘[i]n any (1) legislative proceeding, (2) judicial proceeding, (3) in any other official proceeding authorized by law, or (4) in the initiation or course of any other proceeding authorized by law and reviewable pursuant to [statutes governing writs of mandate],’ with certain statutory exceptions that do not apply to the present case. The privilege established by this subdivision often is referred to as an ‘absolute’ privilege, and it bars all tort causes of action except a claim for malicious prosecution.” (Hagberg v. Cal. Federal Bank (2004) 32 Cal.4th 350, 360 (Hagberg); see Silberg v. Anderson (1990) 50 Cal.3d 205, 215-216.)
“[G]overnmental proceedings or quasi-judicial proceedings otherwise reviewable by writ of mandate come within the scope of an ‘official proceeding authorized by law’ which is covered by the absolute privilege[.]” (Cuenca v. Safeway San Francisco Employees Federal Credit Union (1986) 180 Cal.App.3d 985, 994, fn. omitted.) The absolute privilege applicable to these proceedings is not limited to communications made during the course of the actual proceeding. The absolute privilege of section 47(b) extends to communications intended to instigate official investigation into wrongdoing. (Hagberg, supra, 32 Cal.4th at pp. 362-370; see Rubin v. Green (1993) 4 Cal.4th 1187, 1194; Imig v. Ferrar (1977) 70 Cal.App.3d 48, 55 [communication designed to prompt action by official administrative agency is part of the official proceeding].) “Complaints or communications regarding an officer’s fitness or performance of duty are firmly established as being within this privilege.” (Shaddox v. Bertani (2003) 110 Cal.App.4th 1406, 1415.)
Here, Hunt’s first amended complaint alleged Anderson’s false statements of Hunt’s theft and attempted theft during the sheriff department’s rifle training course were the basis for the IDCs that triggered an official internal affairs investigation by the sheriff’s department. Hunt alleged Iwasa republished Anderson’s statements in his IDC, found Hunt was “dishonest,” and recommended he be terminated. Hunt alleged Anderson and Iwasa intended their statements to cause Hunt to be disciplined and terminated. Hunt further alleged he was terminated from his employment as a deputy sheriff as a proximate result of defendants’ statements. Section 47(b) applies to the situation described by these allegations.
Nevertheless, Hunt argues on appeal that section 47.5 provides an exception to the absolute privilege of section 47(b), which is applicable to this case.
“Although courts have debated constitutional issues presented by section 47.5 (see People v. Stanistreet (2002) 29 Cal.4th 497, 512 [127 Cal.Rptr.2d 633, 58 P.3d 465] [noting constitutional debate but declining to resolve it]), they have agreed that the statute constitutes an exception to the general rule that ‘[a] communication to an official agency which is designed to prompt action is considered a part of an official proceeding for purposes of Civil Code section 47.’ (Walker v. Kiousis (2001) 93 Cal.App.4th 1432, 1439–1440 [114 Cal.Rptr.2d 69]; see also Loshonkohl v. Kinder (2003) 109 Cal.App.4th 510, 514 [135 Cal.Rptr.2d 114].)” (Hagberg, supra, 32 Cal.4th at p. 370.) Assuming for purposes of argument the validity of the exception, it is not applicable here.
“When construing statutes, our goal is ‘“to ascertain the intent of the enacting legislative body so that we may adopt the construction that best effectuates the purpose of the law.”’ [Citation.] We first examine the words of the statute, ‘giving them their ordinary and usual meaning and viewing them in their statutory context, because the statutory language is usually the most reliable indicator of legislative intent.’ [Citation.]” (City of Santa Monica v. Gonzalez (2008) 43 Cal.4th 905, 919.) “If the statute’s text evinces an unmistakable plain meaning, we need go no further. [Citation.]” (Beal Bank, SSB v. Arter & Hadden, LLP (2007) 42 Cal.4th 503, 508.)
Section 47.5 provides, in relevant part: “Notwithstanding Section 47, a peace officer may bring an action for defamation against an individual who has filed a complaint with that officer’s employing agency alleging misconduct, criminal conduct, or incompetence, if that complaint is false, the complaint was made with knowledge that it was false and that it was made with spite, hatred, or ill will.”
By its plain language, section 47.5 is limited to actions against individuals who have “filed a complaint” with the officer’s employing agency. Such phrase logically refers to the formal filing of a citizen’s “complaint” pursuant to Penal Code section 832.5. There is nothing in the language suggesting it refers to informal comments made by peace officers regarding other officers even if the statements were made with the intent of instigating an internal investigation of the fellow officer. Officers making such statements have not “filed a complaint” with the officer’s employing agency and we will not stretch the language of section 47.5 beyond what is necessarily included. While section 47(b) is broadly construed, the exception of section 47.5 is narrowly construed. (Hagberg, supra, 32 Cal.4th at p. 370.)
Retaining an absolute privilege for law enforcement officers to internally discuss, criticize, and report each other’s conduct in a law enforcement setting fosters an important public interest in the maintenance of honest, informed and professional law enforcement departments. In situations were there is misconduct, it may be addressed before the public or other officers are injured. Such communication does not necessarily trigger or result in the formal and serious consequences that necessarily result from a citizen’s complaint. (See Pen. Code, § 832.5.)
Since there appears no possibility Hunt could amend his complaint to avoid the absolute privilege of section 47(b), the trial court did not err in sustaining defendants’ demurrer without leave to amend to the libel cause of action in Hunt’s first amended complaint
Hunt raises no issues on appeal regarding other causes of action in his first amended complaint resolved by the trial court’s order sustaining defendants’ demurrer.
III.
The Supplemental Complaint--The Trial Court Properly Sustained Defendants Demurrer To The Slander and Libel Causes Of Action But Erred In Denying Leave To Amend
A. Hunt’s Statement of His Causes of Action for Slander and Libel In His Supplemental Complaint
A cause of action for the tort of defamation (including both libel and slander) requires “(a) a publication that is (b) false, (c) defamatory, and (d) unprivileged, and that (e) has a natural tendency to injure or that causes special damage.” (Witkin, Summary of Cal. Law (10th ed. 2005) Torts, § 529, p. 782.)
Hunt, in his supplemental complaint, incorporated by reference all the allegations of his first amended complaint and then alleged as the factual basis for his slander per se and libel causes of action a series of false statements issued by Lind to the media beginning in December 2004. Specifically, the supplemental complaint alleged Lind, during an interview conducted by a local television station, “made statements intended as slander, harassment and hazing regarding [Hunt]. Among these were false statements that [Hunt] was fired from the Sacramento County Sheriff’s Department because he was dishonest and a thief, and further that [Hunt] was assigned to duties within the county jail system because his honesty would be questioned were he to be assigned to patrol or any other position and were he called to testify in a criminal trial. In making these false statements and innuendo,” Lind “adopted and ratified the false statements as set forth and alleged above, and incorporated herein.” Hunt also alleged that Lind falsely accused him of being in violation of a regulation requiring him to be clean-shaven by stating Hunt attended the sheriff department’s Christmas party wearing a goatee and that the correctional center was allowing him to appear at work in violation of the order. Hunt claimed he did not attend the Christmas party and has not worn a goatee since he was reinstated to work. Hunt alleged Lind intended to destroy Hunt’s career by making the false statements that Hunt is dishonest, a thief, and insubordinate and that Lind continues to make such false statements.
Civil Code section 46 defines slander, in pertinent part, as “a false and unprivileged publication, orally uttered, and also communications by radio or any mechanical or other means which: [¶] 1. Charges any person with crime, or with having been indicted, convicted, or punished for crime. [¶] . . . [¶] 3. Tends directly to injure him in respect to his office, profession, trade or business, either by imputing to him general disqualification in those respects which the office or other occupation peculiarly requires, or by imputing something with reference to his office, profession, trade or business that has a natural tendency to lessen its profits . . . .”
The trial court sustained defendants’ demurrer to these causes of action, ruling as follows: “The ninth and 10th causes of action are for slander and libel based on statements made to the Bee and KOVR. [Hunt] has not alleged that the statements made by Lind were untrue. In fact, at paragraph 12 of his amended complaint he alleges he was terminated for ‘theft and veracity.’ If this is the reason he was terminated then the statement is true (reason for termination) even though [Hunt] may believe it was unjust or based on false information provided by others. [¶] [Hunt] alleges Lind made the statements in December 2004. [Hunt] was terminated in January 2003 and filed his lawsuit in January 2004. Therefore any statements made by Lind concerning the termination concerned matters already in the public record.”
Hunt contends on appeal the trial court erred in this ruling because, when liberally construed together with his first amended complaint, his supplemental complaint successfully stated causes of action for libel and slander per se. Hunt argues the trial court improperly gave his complaint a narrow reading, misinterpreting the totality of the meaning of the referenced paragraph from his first amended complaint. Hunt claims his supplemental complaint should be understood to allege Lind ratified, adopted, and republished Anderson’s defamatory statements that he was stealing and attempting to steal ammunition from the County. Thus, Hunt would have us read his allegation that Lind stated “that [Hunt] was fired from the Sacramento County Sheriff’s Department because he was dishonest and a thief” as a statement that he was dishonest and a thief. We conclude the trial court properly read Hunt’s supplemental complaint.
In reviewing the sufficiency of a complaint, “its allegations must be liberally construed, with a view to substantial justice between the parties.” (Quelimane Co. v. Stewart Title Guaranty Co. (1998) 19 Cal.4th 26, 43, fn. 7, quoting Code Civ. Proc., § 452.)
Hunt’s complaint states Lind’s false statements included a statement to the media that Hunt “was fired . . . because” of a stated reason - his veracity and theft. Yet, his first amended complaint (which Hunt reminds us he incorporated into his supplemental complaint), admits he was fired for that stated reason. The complaint goes on to allege Lind, “[i]n making these false statements and innuendo,” “adopted and ratified the false statements as set forth and alleged above, and incorporated herein.” This language appears to refer to Hunt’s allegations in his first amended complaint of Anderson’s purported statements that Hunt was stealing or attempting to steal ammunition. But, the supplemental complaint does not explain how and why Lind’s statement of the reason for Hunt’s termination would reasonably be understood as Lind stating that Hunt had stolen ammunition. “Where the words or other matters which are the subject of a defamation action are of ambiguous meaning, or innocent on their face and defamatory only in the light of extrinsic circumstances, the plaintiff must plead and prove that as used, the words had a particular meaning, or ‘innuendo,’ which makes them defamatory. [Citations.] Where the language at issue is ambiguous, the plaintiff must also allege the extrinsic circumstances which show the third person reasonably understood it in its derogatory sense (the inducement). [Citations.]” (Smith v. Maldonado (1999) 72 Cal.App.4th 637, 645-646.) Hunt’s defamation causes of action in his supplemental complaint did not adequately plead the specific circumstances that allegedly made Lind’s true stated reason for Hunt’s termination defamatory. The trial court correctly concluded this portion of the complaint did not support a claim for defamation.
The supplemental complaint also alleges Lind informed the media of the reason for Hunt’s assignment to duties at the jail. The trial court did not address such alleged statement in its ruling on the demurrer and Hunt does not argue on appeal any error based on this allegation. We will simply note Hunt’s allegation regarding Lind’s statements of his duty assignment suffers from the same defect as the allegation of Lind’s statement of the reason for Hunt’s termination.
The supplemental complaint alleges further statements by Lind falsely accusing Hunt of wearing a goatee in violation of a regulation requiring him to be clean-shaven. The supplemental complaint does not contain any allegations indicating Lind made the statements to any third party. One of the elements of defamation is publication of the statement and “[p]ublication, which may be written or oral, is defined as a communication to some third person who understands both the defamatory meaning of the statement and its application to the person to whom reference is made.” (Ringler Associates, Inc. v. Maryland Casualty Co. (2000) 80 Cal.App.4th 1165, 1179.) Hunt’s failure to allege publication of Lind’s statement regarding Hunt’s goatee renders this portion of his complaint defective.
We conclude the trial court properly sustained defendant’s demurrer to the slander and libel causes of action in Hunt’s supplemental complaint.
B. Leave To Amend Hunt’s Causes of Action for Slander and Libel
Code of Civil Procedure section 472a, subdivision (c), provides in pertinent part: “When a demurrer is sustained, the court may grant leave to amend the pleading upon any terms as may be just.” Whether to grant leave to amend is entrusted to the sound discretion of the trial court. We review the trial court’s decision for abuse of discretion. (CAMSI IV v. Hunter Technology Corp. (1991) 230 Cal.App.3d 1525, 1538.) “[W]e must decide whether there is a reasonable possibility the plaintiff could cure the defect with an amendment. [Citation.] If we find that an amendment could cure the defect, we conclude that the trial court abused its discretion and we reverse; if not, no abuse of discretion has occurred. [Citation.] The plaintiff has the burden of proving that an amendment would cure the defect. [Citation.]” (Schifando v. City of Los Angeles (2003) 31 Cal.4th 1074, 1081.) “A showing that the complaint can be amended to state a cause of action ‘need not be made in the trial court so long as it is made to the reviewing court.’ If there is a reasonable possibility that a plaintiff can amend his complaint to cure the defects, leave to amend must be granted. [Citation.]” (Kong v. City of Hawaiian Gardens Redevelopment Agency (2002) 108 Cal.App.4th 1028, 1041-1042, fn. omitted; see Code Civ. Proc., § 472c, subd. (a).)
Hunt contends he can amend his complaint to resolve any shortcomings. He claims he can amend the paragraph the trial court relied upon in finding that Lind’s statement for the reason for Hunt’s termination is true. He also refers us to his proposed first amended supplemental complaint, which he submitted with his motion for reconsideration of the trial court’s denial of leave to amend the supplemental complaint.
The parties’ briefs are confusing on the issue of leave to amend. Hunt’s opening brief seems to offer only amendment of paragraph 12 of the first amended complaint, but defendants in their respondents’ brief argue Hunt has failed to show he can amend his complaint referring us to evidentiary materials (a transcript of the TV newscast and quotations from Sacramento Bee articles) Hunt submitted in the trial court with his supplemental opposition to the demurrer to the supplemental complaint.
In his proposed first amended supplemental complaint, Hunt stated, as the basis for his slander per se and libel causes of action, false statements by Lind to reporters for a newspaper and three television stations “that [Hunt] is a police officer guilty of stealing from his employer, the Sacramento County Sheriff’s Department, and further because he is guilty of dishonesty and theft, the Sheriffs Department has no choice but to assign him to duties within the county jail system because his honesty would be questioned were he to be assigned to patrol or any other position and were he called to testify in a criminal trial.” Hunt alleges Lind’s statements “were slanderous per se because they tend to injure [Hunt] in his occupation by imputing to him criminal, dishonest and unethical behavior, and the imputation of these character defects naturally disqualify him as a police officer. The words uttered were false statements because [Hunt] was not, and is not dishonest, had no intent to steal ammunition, or to conceal any attempt at theft. The words carried a defamatory meaning because they were said neither in jest nor as opinion, but as fact.”
These allegations sufficiently cure the defects identified in Hunt’s earlier supplemental complaint. We cannot say they are contradicted by Hunt’s proposed support for his request for leave to amend in the trial court because the allegations cover statements to additional television stations beyond those included in the transcriptions offered with Hunt’s supplemental opposition to defendants’ demurrers. Hunt should be allowed leave to amend his supplemental complaint.
Given our conclusion, we need not reach Hunt’s claims regarding Lind’s liability for republication of Anderson’s statements or the applicability of absolute privilege to Hunt’s previous allegations of Lind’s statements.
We emphasize our conclusion is limited to the defects raised by the demurrer to Hunt’s supplemental complaint and that the issues before us are entirely matters of pleading. We express no opinion as to other potential issues or the merits of Hunt’s claim.
IV.
The Supplemental Complaint--The Trial Court Properly Sustained Defendants’ Demurrer Without Leave To Amend To The Cause of Action for Violation of Section 832.7
The supplemental complaint included a cause of action alleging a violation by the County and Lind of section 832.7, which provides for the confidentiality of peace officer personnel records. Incorporating by reference his previous allegations about Lind’s statements, Hunt alleged Lind released to the media confidential information from, as well as false information purportedly from, his personnel records. The trial court sustained defendants’ demurrer on the basis that there is no private remedy for violation of section 832.7, citing Rosales v. City of Los Angeles (2000) 82 Cal.App.4th 419, 427 (Rosales). On appeal, Hunt claims Rosales has now been eroded by a case decided by the California Supreme Court since the trial court’s ruling, Copley Press, Inc. v. Superior Court (2006) 39 Cal.4th 1272 (Copley Press). We disagree.
In Rosales, supra, 82 Cal.App.4th 419, a city disclosed a police officer’s personnel files as part of its discovery compliance in a civil action brought on behalf of an underage female police Explorer Scout who alleged the officer engaged in inappropriate sexual conduct with her in his capacity as a police officer. (Id. at p. 423.) Counsel for the city disclosed the files without complying with the statutory procedures set forth in section 832.7 and Evidence Code sections 1043 through 1045. The police officer filed an action seeking damages for the improper disclosure. (Rosales, supra, at p. 423.) On appeal, the reviewing court concluded the officer had a conditional privilege in his personnel records (id. at pp. 424-427), but that the officer did not have a private right of action for violation of the statutory disclosure procedures. (Id. at pp. 427-428.) The court primarily based this last conclusion on the fact the Legislature did not provide a remedy or penalty for violation of section 832.7 in its comprehensive statutory scheme on the subject. (Rosales, supra, at pp. 427-428.)
In Copley Press, supra, 39 Cal.4th 1272, a newspaper sought disclosure under the California Public Records Act (CPRA) (Gov. Code, § 6250 et seq.) of documents and tape recordings of a closed Civil Service Commission (Commission) hearing relating to a peace officer’s administrative appeal of a disciplinary matter. (Copley Press, supra, at p. 1279.) When it failed to get all the records it sought from the Commission, the newspaper filed a petition for writ of mandate seeking access to the remaining records. (Ibid.) The Supreme Court reversed the Court of Appeal’s judgment regarding what records were to be disclosed. (Id. at p. 1279.) The Supreme Court found records that are confidential under section 832.7 are exempted from disclosure under the CPRA (Copley Press, supra, at p. 1283), section 832.7 is not limited in its application to criminal and civil proceedings (Copley Press, supra, at pp. 1284-1286),section 832.7 applied to the Commission’s records (Copley Press, supra, at pp. 1286-1299), and that there is no constitutional right of access to records covered by section 832.7. (Copley Press, supra, at pp. 1299-1305.)
The Supreme Court was presented in Copley Press with issues surrounding a newspaper’s effort to force disclosure of records, not issues stemming from an alleged improper release of records. Copley Press did not involve the question of whether there is private cause of action for violation of section 832.7 and we discern nothing in the language of Copley Press, supra, 39 Cal.4th 1272,suggesting the conclusion of the Court of Appeal in Rosales, supra, 82 Cal.App.4th 419, that there is no such private remedy, was wrong.
Other than his argument regarding Copley Press, Hunt does not argue Rosales, supra, 82 Cal.App.4th 419, was erroneously decided. Having rejected his sole argument, we conclude the trial court did not err in sustaining defendants’ demurrer without leave to amend to Hunt’s cause of action for violation of section 832.7.
V.
The Supplemental Complaint--The Trial Court Erred In Denying Hunt Leave To Amend His Cause of Action for Invasion Of Privacy
Hunt alleged a cause of action for invasion of privacy in his supplemental complaint. After incorporating all the other allegations of his first amended complaint and supplemental complaint, Hunt alleged he had a reasonable expectation of privacy in his confidential peace officer personnel records and that defendants disclosed the content or alleged content of those records causing Hunt to suffer harm.
The trial court sustained defendants’ demurrer to this cause of action on the basis that “[t]here are no facts alleged to support this cause of action. If the disclosure is based on the allegations of the preceding causes of action, then the information disclosed concerns information already made public by [Hunt].”
On appeal, Hunt claims he can state a cause of action for invasion of privacy because disclosure of his confidential personnel records was prohibited once he requested his disciplinary matter be held in closed session and Lind violated his right to privacy when he alluded to the disciplinary matter during the post-hearing press conference.
Defendants contend Hunt has failed to show he has any facts upon which to base his claim for invasion of privacy. Defendants rely on the transcriptions of several media interviews attached to Hunt’s supplemental opposition to the demurrer to contend Lind did not identify Hunt or disclose any information not already public in his statements to the media.
The issue before the court on demurrer, however, is not whether the plaintiff can prove his claim, but whether the plaintiff has sufficiently alleged the claim. In reviewing the sufficiency of the complaint, we accept as true all well-pleaded facts and matters judicially noticed. (Aubry v. Tri-City Hospital Dist., supra, 2 Cal.4th 962, 966-967; Blank v. Kirwan, supra, 39 Cal.3d 311, 318.) Applying this standard, Hunt has the better argument.
Hunt also advances an argument regarding his expectation of privacy and of “freedom from retaliation,” claiming he would not have been compelled to file suit in a public forum to vindicate his rights if Lind and the County had not brought the meritless charges against him or violated the statutory prohibition against public disclosure of his personnel records. It is difficult to tell from Hunt’s argument whether he is attempting to address the trial court’s finding that the information disclosed by Lind was already in the public forum or claiming he can additionally state some other unspecified cause of action. We do not believe it necessary to separately address Hunt’s argument in light of our conclusion that he should be allowed to amend the invasion of privacy cause of action in his supplemental complaint.
By incorporating the prior allegations of his supplemental complaint, Hunt referenced his allegations of Lind’s statements to the press regarding the reason for his termination, his assignment to the jail, and the reason for such assignment. These subjects do appear to relate to matters that would be part of Hunt’s “personnel records” as that term has been interpreted by Copley Press, supra, 39 Cal.4th at pages 1286-1299. The last two matters, his assignment to the jail and the reason for such assignment were not disclosed by Hunt in his original complaint. They could not have been disclosed then. He was not assigned to the jail until after his reinstatement, which apparently occurred after the filing of his complaint. Therefore, there is no indication in the pleadings before us that these matters were in the public domain when Lind allegedly disclosed them in his media interviews.
However, to the extent Hunt’s very general allegations in his invasion of privacy cause of action could nevertheless be considered uncertain (Code Civ. Proc., § 430.10, subd. (f)), making it appropriate for the trial court to sustain defendants’ demurrer, Hunt should have been granted leave to amend.
Hunt’s proposed first amended supplemental complaint contains the following proposed allegations:
“37. [Hunt] at all times relevant had a reasonable expectation of privacy in the confidential nature of the Civil Service Commission hearing held to litigate the charges of theft, dishonesty, and lack of veracity, such that Defendants, and each of them, would not disclose to third parties or members of the public the contents of proceedings. The COUNTY specifically deemed the nature of the evidentiary hearing will be closed to the public. No one from the media or the public in general was allowed to attend. Further, the COUNTY does not reveal the contents of any employee’s personnel records to the public without written authorization from the employee.
“38. Notwithstanding [Hunt’s] reasonable expectation of privacy, Defendants disclosed the content or alleged content of the closed hearing and his confidential personnel file to the newspapers and the local TV stations. Defendant Assistant Sheriff LIND identified [Hunt] to reporters and during public newspaper and TV broadcasts and implied [Hunt] was one of five deputies guilty of misconduct, who were wrongly reinstated to their jobs. Further, LIND referred to Bruce Hunt by identifying him publicly as a police officer caught stealing on duty, who was wrongly reinstated to his job. LIND made statements regarding the cost of providing back pay to [Hunt], regarding his co-workers turning him in and testifying at the closed hearing, regarding his assignment at the county jail after being fired for dishonesty, which tainted his credibility were he to testify at criminal trial, and other confidential contents and allegations of the closed hearings and his personnel records.”
The proposed first amended supplemental complaint goes on to allege Hunt never waived his privilege to the confidentiality of the disciplinary hearing or his personnel file or consented to disclosure of such matters. He alleges he suffered impairment of his reputation and standing in the community, as well as other injuries, as a proximate result of defendants’ conduct.
These proposed allegations are sufficient to establish Hunt should be granted leave to amend his cause of action for invasion of privacy.
VI.
The Third Amended Complaint--The Trial Court Properly Granted Summary Judgment On The Third Amended Complaint
A. Standard of Review
A motion for summary judgment shall be granted when “all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” (Code Civ. Proc., § 437c, subd. (c).) A moving defendant is entitled to judgment as a matter of law when the defendant shows without rebuttal one or more elements of the plaintiff’s case cannot be established or there is a complete defense to that cause of action. (Id., subds. (a), (o); Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 356.)
On appeal after a summary judgment has been granted, we review de novo the trial court’s decision to grant summary judgment and are not bound by the trial court’s stated reasons. (Hersant v. Department of Social Services (1997) 57 Cal.App.4th 997, 1001; Prilliman v. United Air Lines, Inc. (1997) 53 Cal.App.4th 935, 951.) In reviewing the summary judgment, we apply the same three-step analysis used by the trial court: we (1) identify the issues framed by the pleadings; (2) determine whether the moving party has negated the opponent’s claims; and (3) determine whether the opposition has demonstrated the existence of a triable, material factual issue. (Silva v. Lucky Stores, Inc. (1998) 65 Cal.App.4th 256, 261.) Like the trial court, we view the evidence in the light most favorable to the losing party and accept all inferences reasonably drawn therefrom. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.)
B. Hunt’s Slander Cause of Action
In the third amended complaint, Hunt described two separate incidents that served as the backdrop for the slander cause of action. Hunt alleged Anderson made statements during the rifle training course that Hunt attempted to, and did, steal ammunition. Anderson was alleged to have made false reports to the instructor of the course that Hunt “was ‘loaded down with ammo,’ which he intended to take home for his personal use with a firearm he owned.” Hunt also alleged Anderson made a statement to other deputies and staff that Hunt “would try to steal ammunition from the ammo shack.”
In the second incident Hunt alleged that Anderson also falsely stated Hunt forcibly took an ammunition magazine from his friend. Hunt alleged Anderson made the false statements with actual malice. His statements were heard and repeated by various other deputies and class members, eventually resulting in his wrongful discipline and termination from employment.
Defendants Anderson and the County sought summary judgment, submitting evidence regarding the two incidents at the rifle training course that apparently generated the alleged defamatory comments by Anderson.
The first incident involved a field exercise at night involving the use of live ammunition. In his deposition, Anderson explained officers participating in the training took only the amount of ammunition needed for that particular drill because they were not allowed to take live rounds of ammunition back into the classroom or off the shooting range. If an officer did end up with extra rounds at the conclusion of the drill, the established procedure was to deposit the ammunition in a cardboard box located at the training site before returning to the classroom. After the night shoot involved in this case, the instructor told the participating officers to put away their earphones and head back to class. Anderson understood this to be an instruction to put their earphones away, to empty out any live rounds into the box, and to meet the instructor back in the classroom for a debriefing. Anderson and Manning noticed Hunt had what appeared to be a large, heavy weight in a pocket of his cargo pants, which was jingling. Both Anderson and Manning could see a couple of rounds of ammunition through a hole or gap in the pocket. Hunt bypassed the cardboard box where extra ammunition was to be placed and began to walk towards the classroom. Anderson, who was talking to Instructor Griem, told Griem he might want to pay attention to Hunt as Hunt was walking off with rounds of ammunition still in his pocket. Griem called to Hunt and asked him if he had any ammunition on him. Hunt initially denied he had any, but then patted his pockets and said he might have a couple of rounds. Hunt walked back to the box and put them in. Anderson denied he thought Hunt was stealing the ammunition. He claimed he told Griem about the ammunition in Hunt’s pocket because he was concerned that no live rounds were brought into the classroom. Anderson said he had no memory of ever stating Hunt was a thief or that he had stolen any ammunition.
With regard to the second incident, Anderson denied making any statement that Hunt forcibly took an ammunition magazine from a friend during a training session. Anderson declared he had witnessed Hunt hold a magazine for another officer who was participating in the training session and that Hunt had said he wanted to keep the magazine. Anderson learned Hunt ultimately returned the magazine to the other officer. Manning witnessed the same incident. According to Manning, Hunt was given a magazine to hold while another officer ran his course. Hunt made some comments about “wow, this thing’s brand new. That’s pretty cool.” When the other officer got back and asked for the magazine back, Hunt refused, telling the officer to go get another one, “[t]his one’s brand new[,]” and “[t]hey’ll never miss it.” According to Manning, Hunt’s body language did not look like he was just joking. Manning thought Hunt was trying to keep the magazine and it was not until several people, including Manning, spoke up that Hunt finally gave the magazine back. Anderson also thought Hunt was being serious.
Manning expressed his concern about Hunt’s behavior in both incidents, as well as in an additional incident, to a supervisor, Sergeant Giannelli, in an IDC report.
In opposition to the motion for summary judgment, Hunt did not dispute he had placed live ammunition in his pocket at the night shoot. He had no recollection whether he returned the ammunition in his pocket to the ammunition box and did not recall the incident with Griem as described by Anderson, but had no information that led him to believe Anderson’s description was not true. However, Hunt disputed that all ammunition had to be emptied into the cardboard box at the end of the training exercise. Hunt claimed deputies routinely obtained ammunition from, and returned unused rounds to, the ammo shack. Hunt admitted that if Anderson felt Hunt had ammunition in his pocket and if Anderson felt it was a violation of policy to leave the range with the ammunition in his pocket, Anderson was under a duty to inform one of the instructors of his belief.
Hunt did submit deposition testimony of two other deputies to the effect they did not see Hunt with his pockets full of ammunition; nor did they hear any jingling noises coming from Hunt’s pockets.
With respect to the second incident, Hunt did not dispute he held an ammunition magazine for another officer while the officer completed a training segment. Hunt did not dispute his comment, when the other officer returned, that he wanted to keep the magazine, but claimed he was just joking with a friend. He returned the magazine, not because the other officers spoke up, but because he never intended to keep it.
Hunt disputed Anderson’s claim of never saying Hunt was a thief or that he had stolen any ammunition. Hunt contended the day after the night shoot Anderson told other officers in the training class Hunt was stealing ammunition. In support of his claim, Hunt submitted a portion of the deposition of Deputy Duncan Brown, one of Hunt’s friends. Brown remembered an occasion when he heard Anderson making fun of Hunt’s physical appearance and weight. But Brown said he could not remember telling another deputy, Deputy Brace, that Anderson was talking about Hunt wanting to take ammunition from the ammo shack. Brown did remember telling Hunt that Anderson was talking about him behind his back. Brown could not remember specifically what Anderson said. Brown told Hunt that (1) Anderson was not his friend, and (2) allegations were going around that he was stealing ammunition or was going to steal ammunition. Brown advised Hunt not to do it. Brown thought the rumor regarding Hunt stealing or wanting to steal ammunition came from Anderson, but did not remember Anderson specifically saying it. The trial court sustained a hearsay objection to a portion of Hunt’s declaration in which Hunt said Brown had told him Anderson was telling everyone that Hunt was stealing ammunition.
Although Hunt argues the testimony of Brown (as well as another deputy, Deputy Brace, who was the officer who asked Hunt to hold his ammunition magazine for him) was not inadmissible hearsay because it was not offered for the truth that Hunt was stealing, but to prove defamatory statements were made, Hunt does not challenge the trial court’s evidentiary ruling regarding Hunt’s statement. Moreover, Hunt has forfeited any claim of evidentiary error by his failure to submit specific argument on such point under a separate heading. (Rule 8.204(a)(1)(B); People v. Turner (1994) 8 Cal.4th 137, 214, fn. 19.)
Defendants Anderson and the County took the position the evidence established Anderson never made any statement that Hunt was stealing, and Anderson never said Hunt forcibly took an ammunition magazine from another officer. Defendants further asserted that the statements Anderson made did not constitute actionable slander as they were true statements and any communications by Anderson to third persons were privileged pursuant to Civil Code section 47.
Hunt claimed there were disputed material facts showing unprivileged false statements by Anderson.
The trial court granted the motion for summary judgment concluding, in part, the statements made by Anderson were not slanderous and were absolutely privileged.
Relying heavily on a recent California Supreme Court opinion, Action Apartment Assoc. v. City of Santa Monica (2007) 41 Cal.4th 1232 (Action Apartment), Hunt claims on appeal the trial court erred because (1) it was a question of fact for the jury whether Anderson’s statements were sufficiently connected with the later internal affairs investigation or disciplinary hearing and made in good faith contemplation of such official proceedings, (2) Anderson’s statements were not logically or proximately connected to the subsequent litigation because the statements were made before any discipline or internal investigation was contemplated in good faith and under serious consideration, (3) defendants could not establish the defense of truth because the issues surrounding whether Hunt stole the ammunition were fully resolved in Hunt’s favor by the Civil Service disciplinary hearing in 2004, and (4) section 47.5 provides an exception to the absolute privilege of section 47(b). We are unpersuaded.
First, Hunt claims the essence of his claim for slander was an assertion by Anderson that Hunt was dishonest and a thief. Hunt specifically alleged in his complaint that Anderson told other deputies that Hunt was stealing or trying to steal ammunition. However, in his declaration in support of his motion for summary judgment, Anderson had no memory of ever stating Hunt was a thief or was stealing ammunition and Hunt failed to provide, in opposition, any admissible evidence of a statement by Anderson that Hunt was stealing ammunition. At most, Hunt submitted evidence of only a rumor at the rifle training that he was stealing. Hunt offered speculation by Brown that Anderson was the source of the rumor. In his reply brief, Hunt asserts it is enough for liability by the County if Brown can testify he heard the rumor from some deputy sheriff at the rifle training course because there was a limited number of deputies at the course, including “Anderson and his cohorts.” Hunt did not argue this dubious theory of County liability in the trial court and mere speculation does not raise a triable issue of fact that Anderson accused Hunt of stealing ammunition, starting a rumor heard by Brown.
A false statement that Hunt was a thief or stole ammunition certainly would be slanderous, if made. (See Clay v. Lagiss (1956) 143 Cal.App.2d 441, 448; 5 Witkin, Summary of Cal. Law (10th ed. 2005) Torts, § 552, p. 807.)
Hunt’s briefs on appeal continue to reference such statements as if they were proved, ignoring the actual state of the evidence before the trial court.
Nor did Hunt establish Anderson made the alleged statement that Hunt forcibly took an ammunition magazine from another deputy. In fact, the evidence submitted in connection with the summary judgment motion showed that Anderson observed Hunt holding a magazine for another deputy and then heard Hunt state he wanted to keep the magazine. Manning also observed this incident and Manning reported Hunt’s statements in his IDC. There was no evidence Anderson made any false statements to anyone about this incident.
And, contrary to Hunt’s argument in his reply brief, the evidence did not establish Anderson told Griem that Hunt was “loaded down with ammo.” There was no evidence Anderson stated to Griem or others that Hunt had a large amount of ammunition in his pocket, i.e., that he was “loaded down with ammo.” The only statement made by Anderson shown in the evidence before the trial court on summary judgment was Anderson’s statement to Griem that Griem might want to pay attention to Hunt as Hunt was walking off with rounds of ammunition still in his pocket.
As to this statement, Hunt did not dispute he had ammunition in his pocket. While Hunt did not recall walking past the ammunition box without depositing his ammunition in it, he had no information that Anderson’s description of him doing so was inaccurate. Essentially, Hunt admitted the underlying facts of the incident were true.
In a related claim, Hunt claims defendants cannot prove the truth of all important aspects of their defamatory statements involving dishonesty and theft because the issues surrounding whether he stole ammunition were fully litigated at the Civil Service disciplinary hearing in 2004 and resolved in his favor. Hunt did not oppose defendants’ motion for summary judgment on this basis, did not include any such claim in his statement in opposition to defendants’ statement of undisputed facts, did not provide any evidence to support such a claim in connection with the motion for summary judgment and does not provide on appeal any citations to the record establishing his claim.
Nevertheless, Hunt claims Anderson is liable for the defamatory insinuation in this statement that suggested Hunt was stealing the ammunition when, in fact, he was not. We need not consider whether Anderson’s statement contained a factual statement by innuendo that Hunt was a thief because we conclude Anderson’s statement was absolutely privileged under section 47(b) in any event. Action Apartments, supra, 41 Cal.4th 1232, does not change our conclusion.
In Action Apartments, supra, 41 Cal.4th 1232, the California Supreme Court considered whether the “litigation privilege” of section 47(b) preempted a local municipal ordinance that prohibited a landlord from maliciously serving a notice of eviction or bringing any action to recover possession of a rental unit without a reasonable factual or legal basis. (Action Apartments, supra, at p. 1237.) The Supreme Court concluded the privilege of section 47(b) preempted entirely the provision regarding filing an action to recover possession, but preempted only partially the provision regarding serving a notice of eviction. (Action Apartments, supra, at p. 1237.) With respect to the latter, the Supreme Court noted the litigation privilege applies only to a publication “made as part of a ‘judicial proceeding’” and that a “notice of eviction is a communication regarding prospective litigation, and, as such, it is not necessarily part of a judicial proceeding.” (Id. at p. 1250, italics added.) “A prelitigation communication is privileged only when it relates to litigation that is contemplated in good faith and under serious consideration. [Citations.]” (Id. at p. 1251.) Because this test is a question of fact, the Supreme Court found it impossible to conclude that every action brought pursuant to the notice provision necessarily would be barred by the litigation privilege, precluding a declaration that the entire ordinance was preempted by the privilege. (Id. at pp. 1251-1253.)
Citing Action Apartment, supra, 41 Cal.4th 1232, Hunt claims the trial court erred in granting summary judgment here because it was a question of fact for the jury whether Anderson’s statements were sufficiently connected with the later internal affairs investigation or disciplinary hearing and made in good faith contemplation of such official proceedings. Hunt claims Anderson and the County cannot make this showing because Anderson’s statements “were not logically or proximately connected to the subsequent litigation [the Internal Affairs investigation and the resulting Civil Service disciplinary hearing] because [Anderson] made the statement before any discipline or internal investigation was contemplated in good faith and under serious consideration.” We disagree.
Anderson stated the purpose of his statement was to bring a safety concern to the attention of Griem, the rifle course instructor. Hunt admitted that if Anderson felt Hunt had ammunition in his pocket and if Anderson felt it was a violation of policy to leave the range with the ammunition in his pocket, Anderson was under a duty to inform one of the instructors of his belief. Anderson’s statement was clearly logically and proximately connected to the subsequent official investigation of the incident.
Anderson’s statement was absolutely privileged under section 47(b). We have already rejected Hunt’s claim that section 47.5 provides an applicable exception making the privilege in this case only conditional.
The trial court properly granted summary judgment in favor of defendants on Hunt’s third amended complaint.
DISPOSITION
The judgment entered on July 2, 2008 nunc pro tunc to January 10, 2007, is amended to include a judgment of dismissal of defendants Anderson and the County from Hunt’s first amended complaint based on the trial court’s order sustaining defendants’ demurrer without leave to amend to the first amended complaint.
The portion of the judgment of dismissal of the supplemental complaint based on the trial court’s order sustaining defendants’ demurrer without leave to amend to the slander per se, libel and invasion of privacy causes of action is reversed and the trial court is directed to grant Hunt leave to amend those causes of action of his supplemental complaint. In all other respects, the judgment in favor of defendants is affirmed. The parties shall bear their own costs on appeal. (Cal. Rules of Court, rule 8.278(a)(3).)
We concur: DAVIS , Acting P. J., NICHOLSON , J.
Then Hunt in his appellant’s reply brief asserts the evidence cited by defendants is not relevant at the pleading stage of litigation and for the first time directs our attention to his proposed first amended supplemental complaint. Ordinarily we do not consider points raised for the first time in a reply brief because consideration would deprive the respondent of an opportunity to counter the argument. (American Drug Stores, Inc. v. Stroh (1992) 10 Cal.App.4th 1446, 1453; Neighbours v. Buzz Oates Enterprises (1990) 217 Cal.App.3d 325, 335, fn. 8.) Here, however, defendants have already responded to more than was raised in the opening brief by broadly considering points Hunt raised in the trial court. The proposed first amended supplemental complaint was submitted, and defendants filed an opposition arguing it failed to rectify the deficiencies of the supplemental complaint.