On 12/12/2018 CHRISTIAN FUHRER filed a Personal Injury - Other Personal Injury lawsuit against BEVERLY HILLS UNIFIED SCHOOL DISTRICT. This case was filed in Los Angeles County Superior Courts, Santa Monica Courthouse located in Los Angeles, California. The Judges overseeing this case are LAURA A. SEIGLE, SAMANTHA JESSNER and DAVID J. COWAN. The case status is Pending - Other Pending.
Pending - Other Pending
Los Angeles County Superior Courts
Santa Monica Courthouse
Los Angeles, California
LAURA A. SEIGLE
DAVID J. COWAN
BEVERLY HILLS UNIFIED SCHOOL DISTRICT
BEVERLY HILLS COURIER LLC
BREGY DR. MICHAEL
BOARD OF EDUCATION FOR BEVERLY HILLS UNIFIED SCHOOL DISTRICT
ATKINSON ANDELSON LOYA RUDD & ROMO
ATKINSON ANDELSON LOYA RUUD & ROMO
TYTELL ANDREA MARCY
SONNENBERG SCOTT ARTHUR
MARSHALL BROOKS PATERSON
MOSS ROBERT M
PETTIT JESSICA MARIE
MARCUS WENDY KARA
WALSH DENNIS J
DUMONT LOUIS R.
1/6/2021: Reply - REPLY TO DEFENDANTS' OPPOSITION TO AMENDED MOTION FOR LEAVE TO FILE A FOURTH AMENDED COMPLAINT
1/13/2021: Minute Order - MINUTE ORDER (HEARING ON MOTION FOR LEAVE TO FILE A FOURTH AMENDED COMPLAINT)
1/15/2021: Amended Complaint - FOURTH AMENDED COMPLAINT
12/30/2020: Opposition - OPPOSITION DEFENDANT LISA KORBATOV'S MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO PLAINTIFFS' AMENDED MOTION FOR LEAVE TO FILE FOURTH AMENDED COMPLAINT; DECLARATION OF LOUIS R. D
10/14/2020: Brief - BRIEF PLAINTIFF'S SUPPLEMENTAL BRIEF IN SUPPORT OF THEIR OPPOSITION TO THE MOTION TO QUASH PLAINTIFF'S SUBPOENA FOR BUSINESS RECORDS TO THE LAW OFFICES OF NANCY SOLOMON
10/7/2020: Notice of Ruling
9/1/2020: Case Management Statement
7/31/2020: Substitution of Attorney
6/22/2020: Stipulation and Order - STIPULATION AND ORDER TO RESCHEDULE INFROMAL DISCOVERY CONFERENCE
4/22/2020: Unknown - NOTICE OF CONTINUANCE DUE TO COVID-19 STATE OF EMERGENCY DECLARATIONS
3/19/2020: Notice Re: Continuance of Hearing and Order
10/9/2019: Amended Complaint - AMENDED COMPLAINT (THIRD)
11/12/2019: Motion for Leave - NOTICE OF MOTION AND MOTION FOR LEA VE TO FILE THIRD AMENDED COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES
11/22/2019: Case Management Statement
7/15/2019: Proof of Service by Mail
5/24/2019: Proof of Service (not Summons and Complaint)
4/10/2019: Proof of Personal Service
12/19/2018: Other - - Amended Complaint---Personal Injury, Property Damage, Wrongful Death
Hearing10/18/2021 at 09:30 AM in Department M at 1725 Main Street, Santa Monica, CA 90401; Jury TrialRead MoreRead Less
Hearing10/12/2021 at 09:00 AM in Department M at 1725 Main Street, Santa Monica, CA 90401; Final Status ConferenceRead MoreRead Less
Hearing03/18/2021 at 08:30 AM in Department M at 1725 Main Street, Santa Monica, CA 90401; Status ConferenceRead MoreRead Less
DocketFourth Amended Complaint; Filed by Christian Fuhrer (Plaintiff); Christinia Fuhrer (Plaintiff)Read MoreRead Less
Docketat 08:30 AM in Department M; Hearing on Motion for Leave (to File a Fourth Amended Complaint) - HeldRead MoreRead Less
DocketMinute Order ( (Hearing on Motion for Leave to File a Fourth Amended Complaint)); Filed by ClerkRead MoreRead Less
DocketCertificate of Mailing for ((Hearing on Motion for Leave to File a Fourth Amended Complaint) of 01/13/2021); Filed by ClerkRead MoreRead Less
DocketReply (to Defendants' Opposition to Amended Motion for Leave to File a Fourth Amended Complaint); Filed by Christian Fuhrer (Plaintiff); Christinia Fuhrer (Plaintiff)Read MoreRead Less
DocketMotion for Judgment on the Pleadings; Filed by Lisa Korbatov (Defendant)Read MoreRead Less
DocketProof of Service (not Summons and Complaint); Filed by Lisa Korbatov (Defendant)Read MoreRead Less
DocketProof of Personal Service; Filed by Christian Fuhrer (Plaintiff); Lucas Fuhre (Plaintiff); Christinia Fuhrer (Plaintiff)Read MoreRead Less
DocketSummons (on Complaint); Filed by Christian Fuhrer (Plaintiff); Lucas Fuhre (Plaintiff); Christinia Fuhrer (Plaintiff)Read MoreRead Less
DocketApplication And Order For Appointment of Guardian Ad Litem (for Lucas); Filed by Christian Fuhrer (Plaintiff); Lucas Fuhre (Plaintiff); Christinia Fuhrer (Plaintiff)Read MoreRead Less
DocketComplaint ( (1st)); Filed by Christian Fuhrer (Plaintiff); Lucas Fuhre (Plaintiff); Christinia Fuhrer (Plaintiff)Read MoreRead Less
DocketComplaint ( (2nd)); Filed by Christian Fuhrer (Plaintiff); Lucas Fuhre (Plaintiff); Christinia Fuhrer (Plaintiff)Read MoreRead Less
DocketComplaint; Filed by Christian Fuhrer (Plaintiff); Lucas Fuhre (Plaintiff); Christinia Fuhrer (Plaintiff)Read MoreRead Less
DocketNotice of Rejection - Ex Parte Application Without Hearing (for Guardian ad litem re: Lucas)Read MoreRead Less
DocketAmended Complaint---Personal Injury, Property Damage, Wrongful Death; Filed by Christian Fuhrer (Plaintiff); Lucas Fuhre (Plaintiff); Christinia Fuhrer (Plaintiff)Read MoreRead Less
DocketNotice of Case Assignment - Unlimited Civil Case; Filed by ClerkRead MoreRead Less
DocketCivil Case Cover Sheet; Filed by Christian Fuhrer (Plaintiff); Lucas Fuhre (Plaintiff); Christinia Fuhrer (Plaintiff)Read MoreRead Less
Case Number: 18STCV08076 Hearing Date: January 13, 2021 Dept: M
Case Name: Christian Fuhrer, et al. v. Beverly Hills Unified School District, et al.
Case No.: 18STCV08076
Motion: Plaintiffs’ Motion for Leave to File a Fourth Amended Complaint
Hearing Date: 1/13/2021
Plaintiffs filed this action on December 12, 2018. On October 9, 2019, Plaintiffs Christian Fuhrer and L.F. through his guardian ad litem Christiana Fuhrer (“Plaintiffs”), filed a third amended complaint containing six causes of action for (1) violation of privacy under the California Constitution and California Civil Code section 1708, (2) constructive discharge, (3) defamation, (4) negligence, (5) intentional infliction of emotional distress, and (6) negligent infliction of emotional distress. On November 17, 2020, Plaintiffs dismissed Defendants Noah Margo, Howard Goldstein and Laura Chism with prejudice. (See 11/17/2020 Request for dismissal.)
On December 2, 2020, Plaintiffs filed a motion for leave to file a fourth amended complaint (4AC). Plaintiffs seek leave to amend the second cause of action to add a claim for Wrongful Termination in Violation of Public Policy (Second Cause of Action) and to add two causes of action, including (1) Violations of California Labor Code § 1102.5 et seq. (Seventh Cause of Action), and (2) Breach of Contract (Eighth Cause of Action). On December 16, 2020, Plaintiffs filed an amended notice of motion and an amended motion seeking leave to file a 4AC.
Defendants Lisa Korbatov opposes on procedural grounds. Defendants Beverly Hills Unified School District, Laura Chism (“Chism”) and Michael Bregy (“Bregy”) oppose on procedural and substantive grounds.
“The court may, in furtherance of justice, and on any terms as may be proper, allow a party to amend any pleading or proceeding by adding or striking out the name of any party, or by correcting a mistake in the name of a party, or a mistake in any other respect.” (CCP § 473.) California Code of Civil Procedure section 576 also grants the court power to allow a party to amend its pleading.
California courts are required to permit liberal amendment of pleadings in the interest of justice between the parties to an action. (Dieckmann v. Superior Court (1985) 175 Cal.App.3d 345, 352.) Generally, amendment must be permitted unless there is unwarranted delay in requesting leave to amend or undue prejudice to the opposing party. (Duchrow v. Forrest (2013) 215 Cal.App.4th 1359, 1377.) Even if a good amendment is proposed in proper form, unwarranted delay in presenting it may – of itself—be a valid reason for denial. (Emerald Bay Community Association v. Golden Eagle Ins. Corp. (2005) 130 Cal.App.4th 1078, 1097.)
The Court can deny a plaintiff's motion for leave to file an amended complaint when the proposed causes of action fail to state a valid claim as a matter of law. (See Yee v. Mobilehome Park Rental Rev. Bd. (1998) 62 Cal.App.4th 1409, 1428-29 [affirming denial of leave to amend complaint on eve of trial when proposed cause of action was time barred].)
Defendants argue that the motion should be denied due to unwarranted delay in bringing forth the proposed amendments. (See District Defs.’ Opp. at 5:4-7:18.) Defendants further argue that Plaintiffs have conceded that the amendment to add these three causes of action are not based upon any new facts or law. Finally, Defendant correctly point out that the motion is procedurally defective by failing to comply with California Rules of Court Rules 3.1324(a) and 3.1324(b). As to the procedural defects, Plaintiffs’ reply brief remedied these issues. The Court understands that correcting these issues on reply is insufficient, but in light of the Court’s congested calendar and the upcoming trial date, the Court – on this occasion – is willing to consider the merits of the motion.
The proposed second cause of action is barred. The Supreme Court held that a “Tameny cause of action for wrongful termination in violation of public policy lies only against an employer.” (Miklosy v. Regents of University of California (2008) 44 Cal.4th 876, 901.) “[T]he ‘classic Tameny cause of action’ is a common law, judicially created tort ... and not authorized by statute.” (Id. at 899.) The Supreme Court recognized that “[a]lthough the Court of Appeal's discussion of section 815 was dictum [citation omitted], we agree with the Palmer court that section 815 bars Tameny actions against public entities. (Footnote omitted.)” (Id. at 899–900.) Here, the proposed second cause of action is against the District. The District is a public entity and so the action is barred. Therefore, the Court denies the motion as to the proposed second cause of action.
The Court declines the invitation to address the sufficiency of the seventh and eighth causes of action. Defendants make arguments as to these causes of action that are best reserved for demurrer or a motion for judgment on the pleadings. The Court finds that Defendants will not be prejudiced by the amendments since trial is scheduled for October 18, 2021. Therefore, the motion for leave to file a 4AC is granted in part and denied in part. Plaintiff is to remove the proposed amendments to the second cause of action and file/serve a revised 4AC by January 15, 2021.
Case Number: 18STCV08076 Hearing Date: October 20, 2020 Dept: M
CASE NAME: Christian Fuhrer, et al v. Beverly Hills Unified School District, et al
CASE NUMBER: 18STCV08076
MOTION: Motion to quash business records subpoena
HEARING DATE: 10/19/2020
On March 10, 2020, Plaintiffs issued a subpoena for a report prepared by Christina McGovern of the Law Offices of Nancy Solomon. On April 3, 2020, Defendant Beverly Hills Unified School District filed a motion to quash the business records subpoena served by Plaintiffs. On July 8, 2020, Plaintiffs filed an opposition. On October 14, 2020, Defendant filed a reply.
A subpoena duces tecum for the production of personal records shall be served in sufficient time to allow the witness a reasonable time, as provided in Section 2020.410, to locate and produce the records or copies thereof. (Code Civ. Proc., § 1985.3(d).)
“Any consumer whose personal records are sought by a subpoena duces tecum and who is a party to the civil action in which this subpoena duces tecum is served may, prior to the date for production, bring a motion under Section 1987.1 to quash or modify the subpoena duces tecum. Notice of the bringing of that motion shall be given to the witness and deposition officer at least five days prior to production. The failure to provide notice to the deposition officer shall not invalidate the motion to quash or modify the subpoena duces tecum but may be raised by the deposition officer as an affirmative defense in any action for liability for improper release of records.” (Code Civ. Proc., § 1985.3(g).)
California Rules of Court require separate statements for motions “[t]o compel or to quash the production of documents or tangible things at a deposition.” (CRC Rule 3.1345(a)(5).) However, “A separate statement is not required when no response has been provided to the request for discovery.” (CRC Rule 3.1345(b).)
Defendants request that the memorandum of points and authorities also be considered as the separate statement given that the subpoena only requests one document. This request is reasonable and GRANTED.
On October 14, 2020, Plaintiffs submitted a supplemental brief arguing that the brief was submitted in response to the Courts’ September 16, 2020 Minute Order. Plaintiffs specifically note: “This Supplemental Brief responds to Hon. Mark A. Young's Minute Order dated September 16, 2020, wherein the status of the McGovern Report as an educational record is at issue.” The Court’s minute order does not contain a request for any supplemental brief, and no request was made by the Court. (See 9/16/2020 Minute Order.) Since the Court did not request supplemental briefing, the Court does not consider Plaintiffs’ supplemental brief.
Defendants Beverly Hills Unified School District (“BHUSD”) seek to quash the subpoena arguing that the subpoena seeks a report that is protected by the attorney-client privilege and is subject to attorney work product. The Subpoena seeks the investigative report prepared by Christina McGovern sometime in May or June of 2018 regarding Christian Fuhrer, in the matter of H.W. v. Beverly Hills School District. (See Exh. A. to Marcus Decl. [attachment 3 to Business Records Subpoena].) The subpoena was issued to the Law Offices of Nancy Solomon on March 10, 2020. (See Id.)
Defendant Beverly Hills Unified School District argues that it has not waived the attorney-client privilege and that the firm that performed the investigation and prepared the report has also not waived privilege. (See Marcus Decl. ¶ 2.) In opposition, Plaintiffs argue that the report at issue is not subject to attorney work product or attorney client privilege. Plaintiffs argue that the McGovern Report is not a "confidential communication between client and lawyer . . . transmitted . . . in confidence . . ." in the sense of Evidence Code § 952. Plaintiffs make several arguments about what the report contains, but provide no evidence to support such arguments. Plaintiffs also speculate that the report contains assessments of plaintiffs, their accusers, and the witnesses to the “incident.” Again, Plaintiffs provide no evidence to support this assertion.
Plaintiffs also argue that the privilege has been waived. Plaintiffs provides no evidence or support for this argument. Plaintiffs speculate that the “McGovern Report” has been leaked because the Ludwin Report was leaked. Speculation is not evidence.
A party that seeks to protect communications from disclosure based upon the attorney-client privilege must establish the preliminary facts necessary to support its exercise—i.e., a communication made in the course of an attorney-client relationship. [Citation omitted.] “Once that party establishes facts necessary to support a prima facie claim of privilege, the communication is presumed to have been made in confidence and the opponent of the privilege has the burden of proof to establish the communication was not confidential or that the privilege does not for other reasons apply.” [Citation omitted.]
(City of Petaluma v. Superior Court (2016) 248 Cal.App.4th 1023, 1032 [emphasis added].) The declaration provided by Beverly Hills Unified School District’s trial counsel states that the “subpoena requests a copy of a confidential investigation report that was done by an attorney at the Law Offices of Nancy Solomon, Christina McGovern, at the request of the District and/or School Board.” (Marcus Decl. ¶ 2.) Here, Beverly Hills Unified School District has made a prima facie showing that the attorney-client privilege applies because the communication was made in the course of an attorney-client relationship. Therefore, the burden shifts to Plaintiffs to show that the privilege does not apply or that the communication was not confidential.
Plaintiffs argue that the privilege was waived because Defendants released the information contained in the McGovern Report to third parties. (See Opp. at 9:18-19, 26-28.) “The protections of the attorney-client privilege and the work product doctrine may be waived by disclosure of privileged communications or work product to a party outside the attorney-client relationship if the disclosure is inconsistent with goals of maintaining confidentiality or safeguarding the attorney's work product. [Citation omitted.]” (City of Petaluma, supra, 248 Cal.App.4th at 1033.) As stated, Plaintiffs present no evidence that the McGovern Report was released to third parties that were outside of the attorney-client relationship.
Plaintiffs also attempt to argue that the communication is not subject to attorney-client privilege because it allegedly contains information and assessments of Plaintiffs. Again, Plaintiffs present no evidence for this contention. Plaintiffs’ attempt to cast the report as that of an expert witness fail. The report was produced by an attorney in the course of an attorney-client relationship. “Privileged communications do not become discoverable because they are related to issues raised in the litigation.” (Schlumberger Limited v. Superior Court (1981) 115 Cal.App.3d 386, 393.). Code of Civil Procedure section 2017.010 states that the permissible scope of discovery depends on three factors of whether the information is: (1) relevant to the subject matter involved; (2) admissible or appears reasonably calculated to lead to the discovery of admissible evidence; and (3) privileged. (See Code Civ. Proc., § 2017.010.) Plaintiffs are not entitled to privileged communications. Plaintiffs have failed to meet their burden of proof. Therefore, motion to quash is GRANTED.
Case Number: 18STCV08076 Hearing Date: October 06, 2020 Dept: M
CASE NAME: Christian Fuhrer, et al. v. Beverly Hills Unified School District, et al.
CASE NO.: 18STCV08076
MOTION: Defendants Atkinson, Andelson, Loya, Ruud & Romo and Kimberly Ludwin’s Special Motion to Strike
HEARING DATE: 10/6/2020
On October 9, 2019, Plaintiffs Christian Fuhrer, L.F., through his guardian ad litem, and Christiana Fuhrer filed a third amended complaint (TAC) against Defendants Beverly Hills Unified School District (“BHUSD”), Atkinson, Andelson, Loya, Ruud & Romo, a law firm and as Attorneys for Beverly Hills Unified School District, Kimberly Ludwin, individually and as Attorney for Beverly Hills Unified School District; DOES 1-25, and others. The TAC contains six causes of action for (1) violation of privacy under the California Constitution and the California Civil Code section 1708, (2) constructive discharge, (3) defamation, (4) negligence, (5) intentional infliction of emotional distress, and (6) negligent infliction of emotional distress.
On February 14, 2020, Defendants Atkinson, Andelson, Loya, Ruud & Romo and Kimberly Ludwin (“Moving Defendants” or “Defendants”) filed a special motion to strike. Defendants seek to strike the five causes of action against them.
A special motion to strike “may be filed within 60 days of the service of the complaint or, in the court's discretion, at any later time upon terms it deems proper. The motion shall be scheduled by the clerk of the court for a hearing not more than 30 days after the service of the motion unless the docket conditions of the court require a later hearing.” (Code Civ. Proc., § 425.16(f).)
“A cause of action against a person arising from any act of that person in furtherance of the person's right of petition or free speech under the United States Constitution or the California Constitution in connection with a public issue shall be subject to a special motion to strike” (Code Civ. Proc., § 425.16(b)(1).)
Courts resolving an anti-SLAPP motion under Code of Civil Procedure section 425.16 must follow a two-step process. (Jarrow Formulas, Inc. v. LaMarche (2003) 31 Cal.4th 728, 733.) In the first step (“prong one”), the court determines whether the conduct underlying the plaintiff’s claim arises from the defendant’s constitutional rights of free speech or petition as defined by Civil Code section 425.16. (Baral v. Schnitt (2016) 1 Cal. 5th 376, 395.) This is a threshold issue. If the moving party fails to show that the conduct is constitutionally protected, then the court need not address the second prong. (Jarrow, supra 31 Cal.4th at 733.)
Under the second prong, the burden shifts to plaintiff to prove that he or she has a legally sufficient claim and to prove with admissible evidence a probability that the plaintiff will prevail. (E.g. Navellier v. Sletten (2002) 29 Cal.4th 82, 88.) To fulfill prong two, a plaintiff cannot rely on the allegations of the complaint, but must produce evidence that is admissible at trial. (HMS Capital, Inc. v. Lawyers Title Co. (2004) 118 Cal.App.4th 204, 212.) If the plaintiff fails to do so, the motion to strike is granted and the prevailing defendant is entitled to recover his or her attorney fees and costs. (Argentieri v. Zuckerberg (2017) 8 Cal.App.5th 768, 780.)
“In making its determination, the court shall consider the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based.” (Code Civ. Proc., § 425.16(b)(2).)
Objection no. 1 – SUSTAINED IN PART as to “in connection with her role as an independent investigator hired by Beverly Hills Unified School District to make factual determinations regarding the allegations concerning L.F. and Christian Fuhrer."
Objection nos. 2 through 7 – SUSTAINED.
Prong One – Protected Conduct
Moving Defendants seek to strike the entire complaint against them. Moving Defendants argue that Plaintiffs seek to hold Moving Defendants liable for violation of privacy, defamation, negligence, intentional infliction of emotional distress and negligent infliction of emotional distress for engaging in protected conduct under the Anti-SLAPP statute. The Court notes that all allegations of the complaint are incorporated by reference into the at-issue causes of action. Defendants argue that the conduct is protected under Code of Civil Procedure section 425.16, subdivision (e)(l), (e)(2), or (e)(4).
Plaintiffs and Defendants disagree that the TAC is based on protected conduct. Defendants argue that the investigation and report underly the causes of action in the TAC while Plaintiffs argue that the investigation and report are mere evidence or are incidental to the causes of action. Plaintiffs allege in paragraph 18, on information and belief, that “either [the law firm] and [attorney Kimberly] LUDWIN failed to conduct a meaningful investigation or they simply parroted BHUSD’s baseless conclusions in order to expedite and engineer an exit strategy designated to force CF’s resignation and LF’s withdrawal from school.” (TAC ¶ 18.) The TAC clearly alleges that the investigation was wrongful from its inception. Indeed, Plaintiffs admit in their opposition that “[t]he injury producing conduct here is the preparation of a fraudulent, contrived report that was unsupported by the facts and evidence as well as the Defendant's failure to take steps to regain the non-redacted report from those who received it in an unlawful manner.” (Opp. at 6:20-23).
Under Code of Civil Procedure section 425.16(e)(2), an act in furtherance of a person's right of petition or free speech under the United States Constitution or the California Constitution in connection with a public issue includes “any written or oral statement or writing made in connection executive, or judicial body, or any other official proceeding authorized by law.” (Code Civ. Proc., § 425.16(e)(2) [emphasis added].) “The authorities support the proposition that an internal investigation by a state-created entity [or local entity] is an ‘official proceeding authorized by law.’ (See Hansen v. Department of Corrections & Rehabilitation (2008) 171 Cal.App.4th 1537, 1544, 90 Cal.Rptr.3d 381 [state entity's internal investigation into allegations that the plaintiff had engaged in misconduct and criminal activity “itself was an official proceeding authorized by law”].)” (Jeffra v. California State Lottery (2019) 39 Cal.App.5th 471, 482–483, reh'g denied (Sept. 18, 2019).)
Defendants rely on City of Costa Mesa v. D'Alessio Investments, LLC (2013) 214 Cal.App.4th 358 in support of their argument that the challenged activity is protected under subdivision (e)(2). In City of Costa Mesa, the Court engaged in a three-part analysis to determine whether the conduct fell into subdivision (e)(2). The Court asked “(a) was there an “issue under consideration or review by a legislative, executive, or judicial body”; (b) were the[re] . . . statements made ‘in connection with’ this issue; and (c) did the causes of action pleaded by [Plaintiff] “aris[e] from” the . . . statements? [footnote omitted.]”. (City of Costa Mesa 214 Cal.App.4th at 372–373 [citing Code Civ. Proc., § 425.16(e)(2)].)
Plaintiffs argue that the investigation by the firm is not an official proceeding authorized by law, citing Kibler v. Northern Inyo County Local Hospital Dist. (2006) 39 Cal.4th 192, 199- 200. Plaintiffs argue that Kibler sets forth the elements to establish an official proceeding (Opp. at 7.), and that those elements are not met in this case. Kibler, however, is distinguishable. Kibler involved the peer-review process at a hospital, and determined that the peer-review process was not an “official proceeding” under the Anti-SLAPP statute.
Unlike Kibler, in this case there was an issue under consideration by a governmental body – the Beverly Hills Unified School District (“BHUSD”), and that issue was whether there was sexual misconduct by minor L.F. against minor H.W., and what, if any, were appropriate disciplinary steps. (See TAC ¶¶ 8-14.) BHUSD retained counsel to investigate these allegations.  (TAC ¶ 14.) The alleged instances of misconduct by L.F. occurred in November 2016 and February 2017. (TAC ¶¶ 8, 11.) The fact that BHUSD retained Kimberly Ludwin and the law firm to conduct this investigation does not remove the issue from consideration of a governmental body.
In addition, Plaintiffs allege that all defendants were the agents of each other. (See TAC ¶¶ 61.) The complaint explains that the investigation took place from February through May 2017, the statements made in connection to the investigation were not kept confidential, and that the contents of the report was leaked to the public. (See TAC ¶¶ 16 -17.) Finally, Plaintiffs’ causes of action all arise from the leaked statements, which is the report. (See, e.g., TAC ¶¶ 70, 84, 85, 93, 99 [non-exhaustive list of allegations].)
Since the Court concluded that Defendants have met their burden on prong one under Code of Civil Procedure section 425.16(e)(2), the Court does not consider the other subdivisions under which Defendants argue are applicable. Since Defendants have met their initial burden, the burden shifts to Plaintiffs to show probable validity.
Prong Two – Probability of Success
Under the second prong, plaintiffs must prove that they have a legally sufficient claim and must also include admissible evidence of a probability that the plaintiff will prevail. (See e.g., Navellier v. Sletten (2002) 29 Cal.4th 82, 88.) Defendants argue that Plaintiffs will not be able to meet their burden on prong two.
First COA: Invasion of Privacy & Third COA: Defamation
The first cause of action is for violation of privacy under Civil Code section 1708 et seq. and the California Constitution. “[A] plaintiff alleging an invasion of privacy in violation of the state constitutional right to privacy must establish each of the following: (1) a legally protected privacy interest; (2) a reasonable expectation of privacy in the circumstances; and (3) conduct by defendant constituting a serious invasion of privacy.” (Weaver v. Superior Court (2014) 224 Cal.App.4th 746, 751 [quoting Hill v. National Collegiate Athletic Assn. (1994) 7 Cal.4th 1, 39–40] [citing International Federation of Professional & Technical Engineers, Local 21 AFL–CIO v. Superior Court (2007) 42 Cal.4th 319, 338].) There are also common law torts for false light/public disclosure of private facts and the elements to those causes of action vary.
Plaintiffs’ third cause of action is for defamation. Defamation involves the (1) intentional publication, (2) of a statement of fact, (3) which is false, (4) unprivileged, and (5) has a natural tendency to injure or which causes special damage. (Smith v. Maldonado (1999) 72 Cal.App.4th 637, 645; Civil Code §§ 45, 46.) The words constituting the alleged defamation must be specifically identified, if not pleaded verbatim, in the complaint. (Gilbert v. Sykes (2007) 147 Cal.App.4th 13, 31 [citing Vogel v. Felice (2005) 127 Cal.App.4th 1006, 1017 fn. 3.]) “When a false light claim is coupled with a defamation claim, the false light claim is essentially superfluous, and stands or falls on whether it meets the same requirements as the defamation cause of action.” (Jackson v. Mayweather (2017) 10 Cal.App.5th 1240, 1264, as modified (Apr. 19, 2017) [quoting Eisenberg v. Alameda Newspapers, Inc. (1999) 74 Cal.App.4th 1359, 1385, fn. 13].). Finally, to allege a cause of action for public disclosure of private facts, Plaintiffs need to allege that Defendants made a “(1) public disclosure (2) of a private fact (3) which would be offensive and objectionable to the reasonable person and (4) which is not of legitimate public concern.’ ” (Moreno v. Hanford Sentinel, Inc. (2009) 172 Cal.App.4th 1125, 1129–1130, as modified (Apr. 30, 2009) [quoting Shulman v. Group W Productions, Inc. (1998) 18 Cal.4th 200, 214].)
Here, the TAC does not plead a cause of action for defamation since it does not identify the alleged false statements of facts. In addition, Plaintiffs have not pled a cause of action for violation of privacy under the California Constitution. Plaintiffs pled that they had a legally protected privacy interest in their employee personnel records and minor Plaintiffs’ disability and education issues. (See TAC ¶ 66.) However, Plaintiffs do not allege that they had a reasonable expectation of privacy under the circumstances of an investigation. Moreover, Plaintiffs do not allege how Moving Defendants caused the release of the non-redacted report (see TAC ¶ 70) or that the release of the report constituted a serious invasion of privacy. (See generally TAC ¶¶ 70-72). In addition, Defendants presented evidence that they did not disclose the alleged report with anyone who was not the client. Plaintiffs fail to meet their burden on prong two, and the special motion to strike is granted as to the first and third causes of aciton.
Fourth and Sixth COAs: Negligence and Negligent Infliction of Emotional Distress (“NEID”)
The elements of negligence are duty, breach, causation, and damages. (Johnson v. Prasad (2014) 224 Cal.App.4th 74, 78.) In order to allege a cause of action for NEID, Plaintiff has to allege a (1) legal duty to use due care (direct victim or bystander); (2) breach of such legal duty; (3) damage or injury (serious emotional distress); and (4) cause of the resulting damage or injury. (Huggins v. Longs Drug Stores California, Inc. (1993) 6 Cal.4th 124, 129.
Moving Defendants argue that Plaintiffs have not alleged an attorney-client relationship or any other duty of care between the Moving Defendants and Plaintiffs. In opposition, Plaintiffs agree but argue that the Moving Defendants owed them the ordinary standard of care, and that they breached this standard of care by not conducting a fair investigation, only releasing a redacted report and otherwise not protecting confidential, sensitive and private information.
The Moving Defendants argue that Plaintiffs have not alleged that they owed a fiduciary duty to Plaintiffs. In opposition, Plaintiffs agree but argue that the Moving Defendants owed them the ordinary standard of care, and that they breached this standard of care by not conducting a fair investigation, only releasing a redacted report and otherwise not protecting confidential, sensitive and private information. (See opp. at 12:18-19.) The various breaches of this standard of care identified by Plaintiffs, however, are in fact an argument that the Moving Defendants owed them a professional duty of care. (See opp. at 13:12-14.) The Moving Defendants correctly rely upon Bily v. Arthur Young & Co. (1992) 3 Cal.4th 370, in which the Supreme Court declined to extend negligence liability to third parties in the context of an audit. The Supreme Court held:
an auditor's liability for general negligence in the conduct of an audit of its client financial statements is confined to the client, i.e., the person who contracts for or engages the audit services. Other persons may not recover on a pure negligence theory. [footnote omitted.]. [¶] There is, however, a further narrow class of persons who, although not clients, may reasonably come to receive and rely on an audit report and whose existence constitutes a risk of audit reporting that may fairly be imposed on the auditor. Such persons are specifically intended beneficiaries of the audit report who are known to the auditor and for whose benefit it renders the audit report. While such persons may not recover on a general negligence theory, we hold they may. . . recover on a theory of negligent misrepresentation.
(Bily 3 Cal.4th at 406–407.)
In B.L.M. v. Sabo & Deitsch, the Court of Appeal relied on Bily in concluding that “it would be inappropriate to hold an attorney liable to a third party for a legal opinion which the third party could not, under the Rules of Professional Conduct, have contracted to obtain from that attorney . . .. We do not suggest that an attorney should be exempt from liability for negligent misrepresentation under circumstances in which a nonattorney could be held liable; we merely decline to extend professional liability under a negligent misrepresentation theory to individuals who are not clients of the attorney. [Footnote omitted.] ” (B.L.M. v. Sabo & Deitsch (1997) 55 Cal.App.4th 823, 839.) The B.L.M. court also expressed in a footnote, “Extending liability for legal opinions under such a theory seems to us to undercut the holding of Bily, supra, that liability for legal malpractice extends only to clients and to those identified as third[-]party beneficiaries of the professional employment agreement. [¶] To hold that reliance by a nonclient on an attorney's professional opinion, in combination with an inference that the attorney intended such reliance, is sufficient to hold the attorney liable for unknown errors in that opinion, seems to extend professional liability beyond what was approved in Bily.” (B.L.M. 55 Cal.App.4th at 839 [emphasis added].)
As noted, the Bily Court expressly permitted liability under a negligent misrepresentation theory. Here, there are no facts in the complaint that support a negligent misrepresentation theory. Even if there were facts to support a negligent misrepresentation cause of action, Plaintiffs have not demonstrated why the Moving Defendants would owe Plaintiffs such a duty without Defendants violating their duty of loyalty to the school district. As to the negligence claims, Plaintiffs allege “Defendants breached their duty to Plaintiffs by failing to properly investigate the meritless claims against LF, by failing to keep the investigation and report confidential . . ..” (TAC ¶ 93.) As to the NEID, Plaintiffs allege that Defendants “owed Plaintiffs a duty to act as reasonable . . . legal counsel by safeguarding and protecting Plaintiff’s privacy, confidentiality and standing in the community.” (TAC ¶ 103.) “It is . . . an attorney's duty to protect his client in every possible way, and it is a violation of that duty for him to assume a position adverse or antagonistic to his client without the latter's free and intelligent consent given after full knowledge of all the facts and circumstances. [Citation.]” (Flatt v. Superior Court (1994) 9 Cal.4th 275, 289 [quoting another source].) Here, Defendants were retained by BHUSD. (See Ludwin ¶ 5.) Despite this clear attorney-client relationship between the Moving Defendants and BHUSD, Plaintiffs attempt to impose another client-like duty upon the Moving Defendants and themselves. Defendants, however, do not owe a duty to Plaintiffs as third-party beneficiaries and Plaintiffs have failed to direct the Court to any authority supporting that position, under facts applicable similar to this case. Moreover, Defendants present evidence that they did not present any confidential report to anyone that was outside the attorney-client relationship, i.e. anyone not the client. (See Ludwin Decl. ¶ 11.)
As a result, Plaintiffs have failed to show, as a matter of law, that Defendants owed them a duty of care. In addition, the Court cannot foresee Plaintiffs ever being able to show that Defendants owed them a duty of care, because the evidence demonstrates that Defendants only gave the alleged report to their client, and no one else. Plaintiffs have failed to meet their burden on prong two as to the fourth and sixth causes of action, and the special motion to strike is granted.
Fifth COA: Intentional Infliction of Emotional Distress (IIED)
To plead a cause of action for IIED, a plaintiff must allege “that [Plaintiff(s)] suffered severe emotional distress caused by the defendant's outrageous conduct. In addition, the defendant must have intended his conduct would cause the plaintiff[/s]emotional distress or recklessly disregarded such a possibility.” (Saunders v. Cariss (1990) 224 Cal.App.3d 905 [citing Truestone, Inc. v. Travelers Ins. Co. (1976) 55 Cal.App.3d 165, 171].) Defendants argue that “the allegation that the investigation was not conducted in a manner to reach conclusions Plaintiffs believe Ludwin [that attorney,] allegedly should have found does not rise to the level of such acts ‘so extreme that it goes beyond all possible bounds of decency.’” (Opp. at 18:22-24 [citing TAC ¶ 100].) Plaintiffs allege “Defendant’s conduct was also extreme and outrageous by forcing CF to respond to a District Attorney’s investigation about his alleged failure to report the incident between LF and HW to the authorities. Defendants were each aware of the exculpatory evidence, specifically the edict that CF not be involved with any disciplinary procedures concerning LF. Had Defendants come forward with the exculpatory evidence, that would have immediately terminated that investigation . . ..” (TAC ¶ 99.) Here, Plaintiffs have not alleged facts to support an IIED claim. Plaintiffs merely allege conclusion of facts and the Court does not treat conclusion of facts as true. (Young v. Gannon (2002) 97 Cal.App.4th 209, 220 [Courts “may not consider contentions, deductions or conclusions of fact or law” when analyzing the sufficiency of the complaint].)
For example, Plaintiffs have not alleged or argued that the initiation of an investigation is, in and of itself, outrageous conduct. In addition, Plaintiffs have not alleged that Defendants intended that their conduct (in conducting the investigation and producing the alleged report) would intentionally or recklessly result in injury to Plaintiffs. (Davidson v. City of Westminster (1982) 32 Cal.3d 197, 210 [conduct must be “intended to inflict injury or engaged in with the realization that injury will result”]; see also TAC ¶¶ 97-101].) Plaintiffs have also failed to produce evidence that Defendants intended to cause harm to Plaintiffs, or that Defendants acted recklessly in giving their client their findings. Since Plaintiffs have not pled a sufficient cause of action for IIED, Plaintiffs fail to meet their burden on prong two, and the special motion to strike count five is granted.
Plaintiffs have failed to meet their burden as to prong two of the Court’s analysis, and therefore, Plaintiffs have failed to show that their first, third, fourth, fifth and sixth causes of action against Defendants have probable validity. Defendants’ special motion to strike is GRANTED.
 The firm was retained by the school district, not by the school, as alleged in the TAC.
Get Deeper Insights on Court Cases