*1 Dist., Div. Three. Mar. Second B016289. 1987.] [No. Appellant, CARDEN, v. Plaintiff and
EDWARD D. al., Respondents. et Defendants and N. GETZOFF STEVEN *2 Counsel
Maginnis Maginnis, Maginnis Maginnis Patrick & Jeannette Torrel and J. Appellant. for Plaintiff and Dicker, Parminter, D. Elser, Moskowitz, & Steven R. Lisa
Wilson, Edelman Respondents. Kelly for and Patrick M. Defendants Norlander *3 Opinion Carden, M.D., appeals D. from the dismissal
LUI, P. J.Plaintiff Edward complaint to amended without leave amend. of his second complaint Appellant’s alleged process, second abuse of inten- amended distress, negligent infliction of emotional and infliction of emotional tional distress, allegations respondent1 had false all related manufactured expert accounting appellant’s in a an witness for former wife evidence as action.2 dissolution Complaint Second Amended anesthesiologist, proceedings was in
Appellant, an involved dissolution Respondent prepared practice appel- of with his wife. medical valuation practice anesthesiology negotiation be used in the of a settlement lant’s agreement. Respondent purported to have examined anesthesi- goodwill practice compared to determine the and to ology therein have goodwill appellant’s practice found in evaluation of to that of “other respondent. Appellant examined practices” that had also been similar representations were alleges that those false and that no evaluation was made practice comparison appellant’s anesthesiology no made. If and was respondent comparisons, had made evaluations “they such and would have goodwill no in practice [appellant], determined that existed since a practices’ comparison with ‘other similar have also would shown that no such practices.” in goodwill existed the similar Stephen Accountancy Corporation 1Stephen N. Getzoff and N. Getzoff named as are both reference, “respondent” singular discussing use For ease shall in
defendants. parties prevailing below. greater below, allegations, 2Basically in same which will be set forth also factual detail deceit, complaint malprac appellant’s original accounting for fraud formed the basis infliction tice, negligent of emotional distress and his first amended intentional deceit, accounting malpractice, negligent and intentional infliction for fraud and amend, complaints first two were sustained with Demurrers to the leave emotional distress. support grounds respondent having in of Civil Code section and other raised the complaints emphasized allegedly false statements made The first two of the demurrers. testifying relied by respondent dissolution action. The second amended when respondent’s practice preparation testimony of the evalua on medical on court and both the tion.
Negotiations stymied allegedly for settlement were based on the evalua- goodwill was any goodwill actuality.” tion of “far in excess of There- fore, appellant go trial, respondent was forced to to trial. At allegedly misused court when testified that “he had made appraisal [appellant’s] practice upon anesthesiology based an examination practice comparison of the and a goodwill of the evaluation of the of the practice comparable practices.” to that of three other anesthesiology medical complaint alleges purported
The second amended practi- that those three anesthesiologists comparable practices tioners were not with and in fact did anesthesiologists Appellant even exist the State alleges of California. goodwill practice that no part existed his he since was on staff as of a *4 group Center, rotation at Centinela patients own, Medical had no of his and goodwill. Appellant alleges thus no that he was forced to settle his dissolution pay $50,000 portion action and to his wife community as her property of goodwill practice, his practice, of when no value existed for that because respondent’s wrongful testifying falsely processes of acts in misusing and of the court.
The second amended process, asserted theories of of abuse distress, intentional infliction of negligent emotional and of infliction Appellant sought punitive compensatory emotional distress. damages. and Complaint Demurrer to the Second Amended respondent’s In complaint, demurrer second amended respondent argues regarding the first cause of action that there no was preparation documentary of substantive abuse evidence that, event, any preparation documentary evidence and the protected giving testimony the absolute California Civil Code section subdivision 2.3
Respondent demurred to the second and third causes of action in the pled complaint, alleging appellant second amended had facts substan- provides: privileged publication 2 of Civil “A or 3Subdivision Code section broadcast any legislative (2) judicial proceeding, any is made— or one ... or other [H] proceeding law...; provided, allegation authorized or official an averment contained any pleading prosecuted filed in or affidavit an action for divorce or action under Section concerning person by against 137 of this code made of or a or whom no affirmative relief publication prayed privileged person making shall not be a as to such action or broadcast allegation pleading meaning said or averment within the of this unless such be verified to, malice, by having probable or affidavit sworn and be made without one reasonable and believing allegation allegation the truth such and unless such or cause for or averment aver in such ment material relevant to the issues action.” indicated, statutory otherwise all further references are to Civil Code. Unless to which pleaded in the first amended tially to those similar therefore, and, causes of respondent’s had been sustained those demurrer opposition parties a filed sham. The additional action are be considered reply and a thereto. to the demurrer April
A reflects that the trial court sustained minute order dated grounds “on without leave to amend stated” the demurrer [the] Appellant filed motion for demurring as to the defendants. dismissed following reconsideration, discovery sought which included exhibits of sustaining of in which asserted his Fifth Amend- the demurrer reporter’s transcript respondent’s testimony in privileges and ment dissolution action.4 untimely, on its
The trial court denied motion reconsideration presented merits, “evidence” could have been at the initial and because the appellant presented An hearing. The stricken from the record. evidence was followed, appeal of dismissal and this was taken therefrom. order Appeal
Contentions On *5 appeal Appellant’s may contentions on be summarized follows: operate privilege 1. The of section subdivision as a limi- should not upon respondent’s liability publication in good tation since the was not made contemplation litigation. of faith nor serious Respondent appellant duty honestly good
2. owed a to to act and in faith. recognize of 3. A trend California to new torts where the which being are subverted allows court formulate new tort courts this to spoliation analogized recently recognized of can be evidence tort this state. analogized also tort
4. The facts this case can be of misuse process. damages Appellant’s punitive for and intentional
5. causes of action for with causes negligent of emotional distress are related the other infliction valid, pled if action; are valid they if then these causes of action correctly. transcript proceedings reporter’s that counsel of the dissolution demonstrates 4The suspected respondent’s testimony hearing, apparently during for the first at the dissolution respondent allegedly comparable practices might anesthesiologists
time, for had used that the not exist. Respondent contends that the absolute
2, precludes fraud, professional action negligence, causes of for abuse of process, negligent intentional or infliction emotional distress. addi- tion, assuming even no bar privilege, complaints none of the three states facts sufficient to state causes of action in that: Appellant
1. allege has failed to facts sufficient to show that any appellant; owed duty of care Appellant
2. state cannot a cause of action for intentional infliction of produce emotional alleged outrage; distress since the facts do extreme Appellant negligent cannot state a cause of action infliction of emotional duty. distress where there is no
Respondent argues prosecution appeal of this frivolous entitles him to sanctions.
Discussion Standard Review “ admitting properly ‘We treat the demurrer as all material facts pleaded, contentions, but not deductions or conclusions of fact or law. [Cita may judicially We also matters consider which noticed.’ tion.] [Citations.] Further, give interpretation, reading a reasonable it as a *6 parts sustained, whole and its in When a their context. demurrer is [Citation.] facts determine whether the states sufficient to constitute a amend, cause of And when without leave to action. it is sustained [Citation.] possibility we decide is a that the defect can be whether there reasonable be, by cured if it court has abused its amendment: can the trial discretion reverse; not, and we if there of discretion and we affirm. has been no abuse proving possibility squarely The burden such reasonable [Citations.] plaintiff. (1985) 311,318 (Blank on the v. Kirwan 39 Cal.3d [Citation.]” [216 Cal.Rptr. 718, 58].) 703 P.2d Finding Privilege Err that the
1. Did Not in The Trial Court Complaint Section 47 Bars part privileged publication “A or provides in relevant that:
Section 47 judicial proceeding, (3) or in any (2) broadcast is one made ... ... [If] law----” any proceeding by authorized other official
913 in statutory privilege accorded to statements made “[Although defamation, chapter proceedings appears code in the on it judicial action, exception with the of an action applies virtually all other causes Cal.App.3d 484, prosecution. Levy (1972) 28 489 (Pettit v. for malicious 355, Cal.Rptr. 143, 696 (Ribas (1985) v. 38 Cal.3d 364 ....)” Clark [212 770, 637, Kilgore Younger (1982) v. 30 Cal.3d 778 417]; P.2d 49 A.L.R.4th 657, in Fuhrman v. Cal.Rptr. 793].) 640 P.2d The decisions [180 California Cal.App.3d 408, Cal.Rptr. 140], 420 Systems (1986) 179 Satellite [225 Cal.App.3d Cal.Rptr. (1982) 135 125 Rosenthal v.Irell & Manella [185 applied 92], privilege “has been to defeat tort actions make it clear that publications protected proceedings grounded but on different based on supra, Cal.App.3d p. 125), listing liability” (Rosenthal, 135 at theories of attempted rejected, including liability, several theories of but abuse process,5 inducing intentional infliction of mental distress breach of contracts, fraud, prospective privacy, invasion of interference with economic advantage, negligent misrepresentation, negligence. (See also Block v. Labs, Cal.App.3d 386, (1982) Clinical Inc. 131 390-391 Sacramento Cal.Rptr. 438].)6 scope argued privilege (see Barbary
While courts have about the of the Cal.App.3d 319, Sjolie (1985) Coast Furniture Co. v. 332-335 [213 Cal.Rptr. privilege applied publications 168]), it is clear that “the has been private parties which were communications between and which communica only potential (Rosenthal, tions were related not to actual but court actions.” supra, Cal.App.3d p. 126.) at exception applies, privilege some other to the it seems clear
Unless “publications” prepared by respon to us that the made both in the document respondent’s testimony proceedings dent and at the dissolution covered the absolute of section subdivision 2. The dissolu pending, expert was tion action had been hired as witness appellant’s clearly part judicial proceeding, wife. This situation is private processing unlike the of dental claims found not to be covered privilege in Slaughter v. Friedman 32 Cal.3d 156 [185 244, 649 Cal.Rptr. allegations P.2d second amended 886]. Bradley are also unlike v. Acc. & Indem. Co. Hartford *7 protection 47, question extending section subdivision 5The of whether the rationale 2, convincing recently by our to actions for abuse of was raised but not decided Karma, Bernhard, (Oren Supreme Royal Greenberg, & Inc. Court. Oaks Venture v. Weiss Cal.Rptr. 567, 1202].) (1986) 42 1157 728 P.2d Cal.3d [232 Block, aspirin toxicologist negligently in a deceased 6In who had calculated the number of a mother, charged baby’s bloodstream, by murder and who had been with was sued infant’s complaint neglect The was dismissed child of the mistaken calculations. criminal because Appeal preliminary hearing. The Court of were discovered at the when the miscalculations 47, by was decided mother’s action barred 914
Cal.App.3d
Cal.Rptr. 718],
privilege
826
where the
was errone
[106
ously
by people
witnesses,
litigants,
attorneys,
claimed
who were not
or
persons
“designated
...
to whom the absolute
has been extended
law,”
defamatory
and the
statements
allegedly
were
communicated to
“strangers ... who had no interest in the action.” Fuhrman v. California
Systems, supra,
Cal.App.3d 408,
distinguished
Satellite
179
can also be
since
“
judicial
herein,
dissolution,
proceeding
‘contemplated
good
was
in
”
(Id.,
p.
and under serious consideration.’
at
italics in original.)
faith
Appellant’s attempt
analogize
recently recognized
to the
tort of inten
spoliation
misplaced.
Superior
tional
of evidence is also
In Smith v.
Court
(1984)
Cal.App.3d 491,
Cal.Rptr. 829],
recognized
151
494
this court
[198
in
alleged
such a tort
a case where it was
a van
dealer to which a vehicle
repairs immediately
was towed for
agreed
after an accident had
to maintain
parts
physical
pending
certain
investigation
automotive
evidence
further
lost,
destroyed,
evidence,
physical
“making impos
but
or transferred said
it
experts
inspect
parts
sible for the ...
pinpoint
and test those
in order to
assembly
court,
the cause of the failure of
relying
the wheel
on the van.” This
part
Supreme
opinion
in
on the
Court
in Williams v. State of California
(1983)
Cal.Rptr.
915 hand, bench, other the accountant’s statements were case on the the at good- the and the determination of the directly to dissolution action related appellant’s practice. will, any, if of Supreme Royal in case Oren Oaks v. Court the recent of Venture
Our Bernhard, Karma, Inc., supra, 1157, ques- & 42 Cal.3d Greenberg, Weiss 2, 47, that subdivision to bar abuse the rationale of cases use tioned Instead, 1164-1167) {id., pp. but did not decide that issue. process suits at of 47, 2, evidentiary the does not bar court found that section the if during to negotiation statements made sessions determine defendant use of improper motive; for an “ulterior” it in an abuse of action acted improperly instituting may the of action constitute further held that act established, prosecution, if but does state malicious other elements are process. emphasized “protecting for of the cause action abuse court a judicial {id., p. 1170) “appropriate right to seek relief’ at and the accommo- prosecution the malicious between freedom of an indi- dation [in actions] potential in and the interest of vidual to seek redress the courts defendant {Id., p. being unjustified litigation.” 1169.) from at in free mind, Supreme public policy in With similar considerations of our Court peijury ago injurious peijury suborning be long ruled that such cannot 489, (Taylor (1884) v. basis of a civil action. Bidwell 65 Cal. 490 P. the [4 observed, just may 491].) Taylor As court “however it the and reasonable another, by peijury a man who has should appear,... injured be answer able, inspection, upholding yet, resulting nearer when the from on mischiefs proposition considered, are conclusion must that it would be be phrased in dangerous {Ibid.) to the extreme sustain action.” However theories, damages respon for legal essentially the action before us is one from explanation provides Taylor alleged peijury. The v. Bidwell dent’s barring at of a further public policy reasons for the case bench. the absence Court, Taylor Supreme (Auto v. Bidwell. holding our bound Sales, 450, Cal.Rptr. Superior Inc. v. 57 Cal.2d Equity Court 937].) 369 P.2d allegations If way alleged peijury. We in no condone outrageous. true, respondent’s indeed conduct complaint are suit, bring even malicious However, good to when there is a faith intention part paid protected price affording litigants “are publications (Fuhrman v. Satellite courts.” utmost freedom access California 5; p. Izzi v. Rellas supra, Cal.App.3d at fn. Systems, Otherwise, Cal.Rptr. adverse witnesses Cal.App.3d 689].) 264 [163 extremely subsequent and would be always civil suits would fearful assist unwilling testify. Appellant’s potential remedies are to or hesitant report any allegations dereliction prosecution charges; criminal *9 916 Accountancy; attempt
to litigate any the Board of and to might claims he against attorney. have his trial light of our applies determination that section precludes
to and the alleged by appellant, causes of action we need not respondent’s that, consider assuming other contentions section 47 does not apply, the any demurrer should be sustained in event since the does not otherwise state a cause of action.7 Respondent
2. We Decline to Award Sanctions to Respondent appellant prosecuted contends that appeal has a frivolous respondent that Although therefore entitled to sanctions. we have found appellant’s argument merit, to be without do find them to frivo- lous, and we decline to award sanctions. judgment (order
The dismissal) is affirmed. *
Horn, J., concurred. DANIELSON, I fully opinion, J. concur the above but submit this addi opinion express following thoughts, tional order to which need to be expressed. allegations
If respondent in the are true the manufactured false compel payment evidence which was used of an settle- excessive appellant ment underlying dissolution action. The false phase evidence was during action, again used first the settlement of the during the trial.
If
allegations
respondent
are true the
testified that “he had made an
appraisal
[appellant’s] anesthesiology practice
upon
based
an examination
practice
comparison
goodwill
and a
evaluation of the
of the
practice
comparable
practices.”
anesthesiology
three other
medical
could not have conducted such an examination and
comparison because,
fact,
purported
(1)
anesthesiologists
the three other
practices
purportedly comparable
with
not even exist in the
of Cali-
did
State
appellant’s argument regarding
duty
7Neither do we consider
an accountant’s
of care. What
Accountancy Corp.
duty
Mortgage
ever
Butler
International
Co. v. John P.
Cal.App.3d
places
Cal.Rptr. 218],
financial
on an accountant
for accurate audited
statements,
applicability
we need not decide its
to the case before us since we conclude
respondent.
precludes appellant’s
against
set forth in section 47
actions
* Assigned by
Chairperson
of the Judicial Council.
practiced
he
practice
goodwill
no
since
had
fomia,
*10
patients
his
no
own.
group and had
in a rotation
member
staff
compulsion
case,
of stare
join
in which I
under the
opinion in this
Our
Sales,
Superior
Court
Equity
Inc. v.
decision in Auto
and the
decisis
upon
Cal.Rptr. 321,
937], is based
369 P.2d
Cal.2d
Taylor
v. Bidwell
Cal.
Supreme
in the case of
holding of
Court
our
915, ante). Taylor
should
(see page
v. Bidwell
be
489, 490 [
2 should be reviewed suborning peijury, perjury, and the a Taylor that holds government. damages by for proceeding a cause action do not constitute criminal forward to countenance principle that has been carried injured, and person proceedings. malconduct civil the same holding just predicates its on its statement that “however
Taylor proposition, appear, upon the view of the that a man may first reasonable it another, answerable, yet, be on a injured should nearer peijury has who proposition resulting upholding from that inspection, are when mischiefs considered, dangerous be it would be in the extreme conclusion must (Id., p. 490.) at sustain the action.’’ dangers which would identify dread “mischiefs” and
Taylor does not in a holding his accountable civil peijuring from witness or suborner result only by imaginations they is limited unlimited Just what action. judicial system can survive the burdens faith than I our with less
those testimony. compelling truth damages a civil they are is to bar action for leave matters where To injured by peijury and false evidence. Such evidence is who been one has courts, People upon litigants of our state. It subverts a fraud justice. It should not countenanced. the administration 20,1987, April appellant’s peti- petition rehearing was denied A Supreme was denied June by the Court for review tion