Victor M. RODAS, Plaintiff and Appellant,
v.
David SPIEGEL et al., Defendants and Respondents.
Court of Appeal, Second District, Division One.
*440 Kusion & Campana and David E. Campana, Lawndale, for Plaintiff and Appellant.
Bill Lockyer, Attorney General, David P. Druliner, Chief Assistant Attorney General, Margaret A. Rodda, Senior Assistant Attorney General, Richard J. Rojo, Supervising Deputy Attorney General, and Jung D. Shin, Deputy Attorney General, for Defendants and Respondents.
SPENCER, P.J.
INTRODUCTION
Plaintiff Victor M. Rodas, doing business as Victor Rodas Wood Floors, appeals from an order dismissing his complaint as to defendants David Spiegel and Spiegel Certified Restoration. We affirm the order.
STATEMENT OF FACTS[1]
In October 1994, plaintiff installed hardwood flooring in Laura Keddington's (Keddington) home. On December 6, 1994, Keddington wrote a letter to the Contractor's Licensing Board, complaining about plaintiffs workmanship. Rosalind Yates (Yates) investigated Keddington's complaint on behalf of the Board.
*441 On January 4, 1995, Keddington filed a claim with Farmers Insurance Company, her insurer, for water damage rеsulting from a roof leak during a storm. After inspection of the Keddington home, the insurer paid Keddington for damage to the second floor but not for damage to the first floor.
In 1997, Farmers Insurance Company hired defendant Spiegel to evaluate Keddington's claim regarding the condition of thе wood floor. Although the insurer knew of the water damage to Keddington's home, Farmers Insurance Company concealed this information from defendant Spiegel, as did Keddington. After inspecting the floors in August 1997, defendant Spiegel reported to the insurer that the condition of the flooring was related to a lack of expansion space at the walls during installation, combined with an insufficient acclimation period before the floor was sanded and finished. Defendant Spiegel estimated the cost to repair the condition, as he recommended, was $7853.88, primarily removing the baseboards, sanding the floor, and applying the finish. Two months later, at the behest of Farmers Insurance Company's adjuster, he prepared a second estimate of $43,758.87. This estimate included moving of all furniture, demolition of the existing floor, and installation of a new floor, as Kеddington desired.
At Keddington's request, defendant Spiegel returned to inspect the floors on April 2, 1999. He wrote a report, which was transmitted to the Contractor's Licensing Board. He reiterated his earlier opinion as to the cause of damage and stated his method of correction. He estimated the cost of correction to be $7838.00.
Later in 1999, defendant Spiegel testified at the Board's citation hearing that the wood floors were damaged as a result of plaintiffs faulty workmanship. The Board dismissed the counts concerned with faulty workmanship but sustained a count concerned with the manner in which Keddington's contract had been drawn. At some point in 1999, plaintiff learned that Keddington's home suffered water damage approximately one month after he installed the wood floors.
DISCUSSION
A demurrer tests the sufficiency of a complaint by raising questions of law. (Rader Co. v. Stone (1986)
In addition to the facts actually pleaded, the court considers facts of which it may or must take judicial notice. (Cantu v. Resolution Trust Corp., supra,
On appeal, we do not review the validity of the trial court's reasoning but only the propriety of the ruling itself. (Lee v. Bank of America (1990)
Plaintiffs first amended complaint alleges four causes of action. The first three allege fraud, intentional and negligent interference with contract, and intentional interference with business relations. The fourth allеges malicious prosecution based upon the proceeding before the Contractor's Licensing Board.
Immunity
Civil Code section 47, subdivision (b), provides that "[a] privileged publication or broadcast is one 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 Chapter 2 (commencing with Section 1084) of Title 1 of Part 3 of the Code of Civil Procedure...." The report defendant Spiegel preрared for Keddington to forward to the board falls in the fourth category. Defendant Spiegel's hearing testimony falls in the third. The immunity conferred by subdivision (b) of Civil Code section 47 extends to all tort claims other than malicious prosecution. (Harris v. King (1998)
As noted above, we consider facts of which we must or may take judicial notice, as well as those plaintiff has pleaded. (Cantu v. Resolution Trust Corp., supra,
Farmers Insurance Company hired defendant Spiegel to inspect the Keddington floor in 1997 to determine whether an incident that would be covered by her policy caused the condition of her hardwood floor. After inspecting the floor, defendant Spiegel made a report to the insurance company, in which he concluded the condition of the flooring was related to a lack of expansion spacing at the walls during installation, combined with an insufficient acclimation period before the floor was sanded and finished. Defendant Sрiegel estimated the cost to repair the condition was $7853.88, primarily removing the baseboards, sanding the floor, and applying the finish. Two months later, at the behest of Farmers Insurance Company's adjuster, he prepared a second estimate of $43,758.87. This estimate included moving of all furniture, demolition of the existing floor, and installation of a nеw floor.
Defendant Spiegel returned on April 2, 1999, at Keddington's request. He wrote a report for transmittal to the board. He described the cupping he had found, reiterated his opinion as to the cause and stated his method of correction. He estimated the cost of corrеction to be $7838.00. In short, defendant Spiegel prepared his reports and estimates at the *443 behest of Farmers Insurance Company and Keddington, both of whom were interested parties.
Civil Code section 47, subdivision (c) provides that "[a] privileged publication or broadcast is one mаde[ ] ... [i]n 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 innocеnt, or (3) who is requested by the person interested to give the information." Defendant Spiegel falls in the third category. Two interested partiesKeddington and Farmers Insurance Companyrequested that he prepare reports, one of which was forwarded to the Board. They also rеquested that he prepare repair and replacement estimates, which he did.
Plaintiff argues that defendant Spiegel nonetheless is not immune from liability under the provisions of Civil Code section 47, subdivision (c), in that he has alleged malice. Plaintiff is mistaken.
Plaintiff has indeed alleged that all dеfendants "falsely represented that Keddington's wood floors were damaged as a result of faulty workmanship on the part of plaintiff.... Defendants knew said representations were false when they were made or made said false representations recklessly without knowledge whether they were true or false. Defendants ... made said false representations with the intent to defraud plaintiff by intentionally and/or negligently misrepresenting and concealing material facts from the Los Angeles County Superior Court and the State Contractors Licensing Board...." Plaintiff also has alleged, however, that "[n]either Keddington nor Farmers (who had knowledge of the rain damage [to the wood floors plaintiff had installed] ) informed Spiegel of the rain damage which occurred only weeks subsequent to plaintiff leaving the unfinished job site.... [Spiegel's] reports were made rеcklessly and without knowledge of whether they were true or false.... Farmers intentionally] concealed said information from the expert estimator they hired to inspect Keddington's floors."
Plaintiffs more specific allegations shift the alleged malice to the shoulders of Keddington and Farmers Insurance Company, leaving defendant Spiegel liable, at most, for negligent misrepresentation. That may be a form of deceit (Civ.Code, § 1710, subd. 2; Gagne v. Bertran (1954)
Plaintiff also alleges that defendant Spiegel "intentionally misrepresented the alleged extent of damage to Keddington's floor by submitting an аdmittedly false repair estimate which inflated the alleged damage repair cost." As noted above, however, from judicially noticed facts and plaintiffs admissions, defendant Spiegel did not prepare an "admittedly false repair estimate." He prepared two estimates at the behest of Keddington and Farmers Insurance Company: one reflecting the cost of repair, as defendant Spiegel advised, and another reflecting the cost of replacement, as Keddington desired. Both clearly stated what they covered. Inasmuch as defendant Spiegel always made clear both to the Board and to the insurer that he believed repair to be adequate, he made no false representation in preparing an estimate of replacement cost. Inasmuch as preparation of that estimate does not qualify as an intentional falsehood, it does not qualify as malice. (Civ.Code, § 3294, subd. (c)(1).) Moreover, it is clear that plaintiff cannot allege facts that do qualify as malice.
In summary, all of defendant Spiegel's publications, from inspecting and reporting on the condition of Keddington's floor on two occasions, through the preparation of two estimates, to his testimony before the Board, are privileged publications rendering him immune from liability for any tort other than malicious prosecution. The trial court therefore did not abuse its discretion in sustaining without leave to amend *444 the demurrer to plaintiffs first through third causes of action.
Malicious Prosecution
In Hogen v. Valley Hospital, supra,
Plaintiff attempts to distinguish these cases by arguing that the Contractors' Licensing Board is not "empowеred and directed to conduct an ... investigation" of consumer complaints. (Hogen v. Valley Hospital, supra,
There is no qualitative difference in the manner in which these two state boards are "empowered and directed" to investigate complaints from the public. (Hogen v. Valley Hospital, supra,
In summary, defendant Spiegel only filed a report with the Board. It is the Board itself that initiated a citation proceeding. Accordingly, although defendant Spiegel's allegedly false report resulted in initiation of the citation proсeeding, defendant Spiegel is immune from liability for malicious prosecution. (Hogen v. Valley Hospital, supra,
The order of dismissal is affirmed.
ORTEGA, J., and MALLANO, J., concur.
NOTES
Notes
[1] Inasmuch as this appeal follows the sustaining of a demurrer, we draw our facts from those pleaded in the complaint (Moore v. Conliffe (1994)