Opinion
G031398.
10-28-2003
JOYCE McCULLAH, Plaintiff and Appellant, v. FULLERTON SCHOOL DISTRICT et al., Defendants and Respondents.
Cheryl Thomas for Plaintiff and Appellant. DeClues & Burkett, Jeffrey P. Thompson, Gregory A. Wille; Lewis Brisbois Bisgaard & Smith, Keri Lynn Bush and Jessica A. Fortner for Defendants and Respondents.
Following a disciplinary proceeding, plaintiff Joyce McCullah sued her employer, the Fullerton School District (District), Lourene Happoldt, the Districts director of student support services, and her direct supervisor, Principal Carolyn Millikin for defamation and intentional infliction of emotional distress. McCullah appeals from a judgment of dismissal entered after a demurrer to her first amended complaint was sustained without leave to amend. For the reasons set forth below, we affirm.
I
According to the allegations of the first amended complaint, McCullah was an instructional assistant in the special education class at Ladera Vista Junior High School in the District. Her troubles began when she advised Millikin that a teacher in her special education class fell asleep during class in August 1999. Millikin promised to take care of the matter, but no action was forthcoming, and the situation did not change.
In March 2001, Millikin assigned McCullah to monitor Kurt S., a problem student with a known history of violent and aggressive behavior, including assaults on female students and teachers, including McCullah herself. Around March 28, McCullah received a document captioned "Written Reprimand." Based on reports from two unnamed junior high students, McCullah was accused of grabbing Kurt by the back of his shirt and forcefully pulling him back to his lunch table. Reminded of earlier admonitions regarding the use of force and prohibitions against touching a child, Millikin indicated McCullah had "acted inappropriately," and "[p]hysical control was not necessary nor warranted under these circumstances." McCullah was admonished to "use good judgment in the future" and to "call or send for help" if unsure of the best course of action. The complaint alleged Millikins remarks were made with "oppression and fraud," in retaliation for McCullahs earlier report of improprieties in the special education classroom.
Some three weeks later, McCullah received a "Notice of Proposed Disciplinary Action" from the District, detailing the specific charges against her. Repeating the allegations in the "Written Reprimand," the "notice" added some new twists, i.e., allegations that McCullah had been trained regarding the appropriate use of physical control of students, Millikin had met with McCullah to discuss appropriate methods to control a disruptive student, and instructional aides had been instructed never to touch a student, even if their physical safety was at issue.
Most, if not all, of this information was repeated in yet a third document, entitled "Amended Notice of Proposed Disciplinary Action." This time, McCullah was chastised for her failure to prevent Kurt S. from entering the girls restroom. Five months later, the same accusations were republished in a "Letter of Reprimand" sent to various school officials and placed in McCullahs personnel file. As a consequence of these actions, McCullah alleged she suffered severe emotional distress. This lawsuit followed.
II
McCullah complains the first amended complaint states viable causes of action for defamation and intentional infliction of emotional distress, and the trial court erred in sustaining the defendants demurrer without leave to amend. When a demurrer is sustained, our task on appeal "is to determine whether the complaint states, or can be amended to state, a cause of action. For that purpose we accept as true the properly pleaded material factual allegations of the complaint, together with facts that may properly be judicially noticed. [Citations.] . . ." (Crowley v. Katleman (1994) 8 Cal.4th 666, 672, fn. omitted.) We review the trial courts refusal to allow leave to amend under an abuse of discretion standard. (Hendy v. Losse (1991) 54 Cal.3d 723.)
To state viable causes of action, McCullah was required to surmount a formidable hurdle, the defense of government immunity. Government Code section 820.2[] embodies a long-standing principle of California law, that a government official is personally immune from lawsuits challenging the exercise of discretionary acts within the scope of his or her authority.[] Johnson v. State of California (1968) 69 Cal.2d 782, the first California Supreme Court case to construe section 820.2, drew a distinction between "planning" and "operational" activity. Immunity applies to deliberate and considered policy decisions involving a balancing or risks and advantages, but not to lower-level "ministerial" decisions implementing existing policies.
All further statutory references are to the Government Code unless otherwise indicated.
"Except as otherwise provided by statute, a public employee is not liable for an injury resulting from his act or omission where the act or omission was the result of the exercise of the discretion vested in him, whether or not such discretion be abused."
Challenging the applicability of the immunity doctrine, McCullah contends Millikin and Happoldt did not exercise any discretionary authority, and even if they did, they "negligently investigated the alleged event once she made the determination to investigate." According to McCullah, Millikin had no reasonable basis to believe the allegations were true because she did not personally witness McCullahs encounter with Kurt S. and instead relied on reports from two "unidentified" students. Along these lines, the complaint alleged the disciplinary action was defendants way of getting even with McCullah for her earlier reports of improper behavior in the special education classroom. Absent any balancing of risks and advantages, the decision to discipline was nothing more than a purely "ministerial" action.
Not so. We begin our analysis with Kemmerer v. County of Fresno (1988) 200 Cal.App.3d 1426. In that case, a civil service employee sued two supervisors and the county for damages arising out of an alleged wrongful discharge. The Court of Appeal affirmed a judgment of dismissal following an order sustaining the defendants demurrer without leave to amend. As to the relevant tort causes of action, the court noted the defendants "decision . . . to institute disciplinary proceedings against [the plaintiff] was a policy decision involving the exercise of discretion entitling [defendants] to immunity under Government Code section 820.2. The decision whether or not to initiate disciplinary proceedings and what discipline to impose is placed initially on the department head and the decision is entirely within his [or her] discretion. The decision involves the exercise of analysis and judgment as to what is just and proper under the circumstances and is not a purely ministerial act." (Id. at p. 1438.)
As the appellate panel explained, "strong policy considerations" militate in favor of immunity in such situations: "If every public entity employee who was found to have committed an act of misconduct and later disciplined were allowed to bring a tort action against his coworkers and superiors, this would certainly bode ill for the continuing efficiency and morale of the . . . system. Supervisors . . . would not be able to fulfill their function without the overhanging threat of legal action from employees who become subject to discipline." (Kemmerer v. County of Fresno, supra, 200 Cal.App.3d at p. 1439.) At the same time, the court also noted the absence of any authority to support the notion "that the decision to commence disciplinary proceedings against an employee is a discretionary act." (Id. at p.1439.)
Similarly, in Caldwell v. Montoya (1995) 10 Cal.4th 972, the California Supreme Court held the doctrine of discretionary immunity barred any action against the members of an elected school board for their collective decision not to retain a school district superintendent, even where it was alleged the votes were cast against the dismissed official for improper, discriminatory reasons. In reaching its conclusion, the court found unpersuasive any suggestion that the complaint failed to disclose a conscious balancing of risks and benefits in the boards decision: "The complaint admits of no theory that the Board acted unconsciously or failed to weigh pros and cons. . . . For reasons already stated, claims of improper evaluation cannot divest a discretionary policy of its immunity." (Id. at p. 984.)
Following this line of authority, we conclude the trial court properly determined the doctrine of discretionary immunity barred any action against defendants based on their decision to discipline McCullah. The decision to discipline McCullah was a policy decision, necessarily involving a balancing of risks and benefits, entitling defendants to immunity under section 820.2. Because the individual immunity provided by section 820.2 precluded McCullah from asserting any viable causes of action, the trial court properly sustained the demurrer without leave to amend.
Given this conclusion, it necessarily follows the Districts demurrer was also properly sustained without leave to amend. By itself, section 820.2 expressly immunizes a government employee only. Under section 815.2, however, if an employee is immune, so is the District. (See Kayfetz v. State of California (1984) 156 Cal.App.3d 491, 496.) Thus, there was no possibility McCullah could prevail against the District as a result of the immunity provided by section 815.2.
III
As if this were not enough, the qualified privilege set forth in Civil Code section 47, subdivision (c), precluded McCullah from asserting any viable causes of action. That statute provides immunity for non-malicious statements made to others on a topic of common interest, including the evaluation or departure of an employee.[]
Per Civil Code section 47, subdivision (c), a privileged communication is one made: "In a communication, without malice, to a person interested therein, (1) by one who is also interested, or (2) by one who stands in such a relation to the person interested as to afford a reasonable ground for supposing the motive for the communication to be innocent, or (3) who is requested by the person interested to give the information. This subdivision applies to and includes a communication concerning the job performance or qualifications of an applicant for employment, based upon credible evidence, made without malice, by a current or former employer of the applicant to, and upon request of, the prospective employer . . . ."
Here, the complained of statements were made to McCullahs direct supervisors, and her union representative and president, in the context of a disciplinary proceeding. In other words, the statements were made to other persons sharing a common interest in the performance of her duties, in the course of an official disciplinary investigation and hearing.[]
That all of this discussion was limited to McCullahs supervisors and her union representatives defeats any claim that the privilege was somehow lost as a result of "excessive publication."
McCullah correctly notes the qualified privilege may be defeated by a showing of malice, e.g., where the defendant lacks any reasonable grounds for belief in the truth of the publication. As Witkin explains, "A qualified or conditional privilege is given in certain situations where the statement is made to protect some recognized interest, in good faith and without malice. Under the Restatement rule, this qualified privilege is abused and liability exists not only where there is malice or other improper purpose, but also where the defendant does not believe in the truth of the statement or has no reasonable grounds for believing it true. [Citations.]" (5 Witkin, Summary of Cal. Law (9th ed. 1988) Torts, § 519, p. 609.)
The interest at stake having been statutorily recognized, it follows that any oral or written statements made by defendants were within the scope of the qualified privilege unless abuse of the privilege were shown. Thus, McCullah was required to plead and prove either malice or lack of probable cause. To demonstrate malice, McCullah repeats her claim that defendants relied on reports from two unidentified students, and did not witness the incident themselves. That argument will not carry the day here. That the supervisors were not percipient witnesses does nothing to prove they acted recklessly or that they had no reason to believe the students report of the underlying incident.[]
We note the "Written Reprimand" specifically states "The two students are considered reliable witnesses."
Measured by these standards, McCullah has failed to live up to her obligation to plead facts demonstrating malice. Allegations that defendants initiated this disciplinary action in retaliation for McCullahs reports of improprieties in the special education classroom were mere speculation, nothing more. And bare conclusions of malice, without more, are clearly insufficient to show the privilege is unavailable in a particular case. (Locke v. Mitchell (1936) 7 Cal.2d 599, 602; Glenn v. Gibson (1946) 75 Cal.App.2d 649, 659, disapproved on other grounds in Lipman v. Brisbane Elementary Sch. Dist. (1961) 55 Cal.2d 224, 233.)
In sum, the complaint is bereft of any facts demonstrating preexisting ill will, hatred, threats, or evil motive on defendants part. None of the ultimate facts alleged in the complaint suggest defendants had any reason to take disciplinary action against McCullah other than the safety and protection of the schools students.
Thus, the qualified privilege serves as an independent ground supporting the judgment of dismissal. The conclusion that defendants statements were privileged (even if, as alleged, libelous) necessarily means plaintiff has no tort remedy against them. Putting all conclusory allegations aside, the complaint does not plead facts from which any showing of malice might be discerned.
Our review of the record persuades us there is no reasonable probability McCullah could amend the complaint to allege viable claims, and we discern no abuse of discretion on this record. (See Hernandez v. City of Pomona (1996) 49 Cal.App.4th 1492, 1497-1498.) The demurrer was properly sustained and there are no grounds for reversal.
The judgment is affirmed. Respondents shall recover their costs on appeal.
WE CONCUR: BEDSWORTH, ACTING P. J. and IKOLA, J.