This case was last updated from Los Angeles County Superior Courts on 10/23/2020 at 04:28:00 (UTC).

RICK ALVARADO VS CITY OF SIERRA MADRE ET AL

Case Summary

On 04/03/2018 RICK ALVARADO filed a Labor - Other Labor lawsuit against CITY OF SIERRA MADRE. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judge overseeing this case is PATRICIA D. NIETO. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****0542

  • Filing Date:

    04/03/2018

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Labor - Other Labor

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Stanley Mosk Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judge

PATRICIA D. NIETO

 

Party Details

Plaintiff and Petitioner

ALVARADO RICK

Defendants and Respondents

CHRISTMAS GREG

SIERRA MADRE CITY OF

DOES 1 TO 10

CITY OF SIERRA MADRE

Attorney/Law Firm Details

Plaintiff and Petitioner Attorneys

MATH STEPHAN ESQ.

STEPHAN MATH LAW OFFICES OF

MATH STEPHAN

Attorney at Law Offices of Stephan Math

2625 Townsgate Rd Ste 330

Westlake Village, CA 91361

Defendant Attorneys

KESSEL & ASSOCIATES

KESSEL ELIZABETH MARY

Attorney at Kessel & Associates

2410 Beverly Blvd

Los Angeles, CA 90057-1000

KAMAU VANESSA

WILLIAMS WARREN M

 

Court Documents

Minute Order - MINUTE ORDER (NUNC PRO TUNC ORDER)

10/20/2020: Minute Order - MINUTE ORDER (NUNC PRO TUNC ORDER)

Notice - NOTICE OF PLAINTIFF'S NON-OPPOSITION OT DEFENDANT'S PITCHESS MOTION

9/24/2020: Notice - NOTICE OF PLAINTIFF'S NON-OPPOSITION OT DEFENDANT'S PITCHESS MOTION

Minute Order - MINUTE ORDER (HEARING ON DEMURRER - WITH MOTION TO STRIKE (CCP 430.10))

12/3/2019: Minute Order - MINUTE ORDER (HEARING ON DEMURRER - WITH MOTION TO STRIKE (CCP 430.10))

Memorandum of Points & Authorities - MEMORANDUM OF POINTS & AUTHORITIES IN OPPOSITION TO DEFENDANT'S MOTION TO STRIKE PLAINTIFF'S THIRD AMENDED COMPLAINT

10/21/2019: Memorandum of Points & Authorities - MEMORANDUM OF POINTS & AUTHORITIES IN OPPOSITION TO DEFENDANT'S MOTION TO STRIKE PLAINTIFF'S THIRD AMENDED COMPLAINT

Memorandum of Points & Authorities - MEMORANDUM OF POINTS & AUTHORITIES IN OPPOSITION TO DEFENDANT DEMURRER TO PLAINTIFF'S THIRD AMENDED COMPLAINT

10/21/2019: Memorandum of Points & Authorities - MEMORANDUM OF POINTS & AUTHORITIES IN OPPOSITION TO DEFENDANT DEMURRER TO PLAINTIFF'S THIRD AMENDED COMPLAINT

Ex Parte Application - EX PARTE APPLICATION TO CONTINUE TRIAL AND TRIAL RELATED DATES

7/10/2019: Ex Parte Application - EX PARTE APPLICATION TO CONTINUE TRIAL AND TRIAL RELATED DATES

Stipulation and Order - STIPULATION AND ORDER RE CONTINUANCE OF STATUS CONFERENCE

6/12/2019: Stipulation and Order - STIPULATION AND ORDER RE CONTINUANCE OF STATUS CONFERENCE

Minute Order - MINUTE ORDER (NUNC PRO TUNC ORDER)

6/12/2019: Minute Order - MINUTE ORDER (NUNC PRO TUNC ORDER)

Proof of Service by Substituted Service

6/5/2019: Proof of Service by Substituted Service

NOTICE OF CASE MANAGEMENT CONFERENCE

4/25/2018: NOTICE OF CASE MANAGEMENT CONFERENCE

Declaration - of armineh megrabyan re meet and confer efforts

10/12/2018: Declaration - of armineh megrabyan re meet and confer efforts

Minute Order - Minute Order (Hearing on Motion to Quash Service of Summons)

11/14/2018: Minute Order - Minute Order (Hearing on Motion to Quash Service of Summons)

Minute Order - Minute Order (Hearing on Demurrer - with Motion to Strike (CCP 430.10), Ord...)

11/9/2018: Minute Order - Minute Order (Hearing on Demurrer - with Motion to Strike (CCP 430.10), Ord...)

CIVIL DEPOSIT

8/15/2018: CIVIL DEPOSIT

CASE MANAGEMENT STATEMENT

8/16/2018: CASE MANAGEMENT STATEMENT

REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF DEMURRER AND MOTION TO STRIKE PLAINTIFF'S FIRST AMENDED COMPLAINT

8/30/2018: REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF DEMURRER AND MOTION TO STRIKE PLAINTIFF'S FIRST AMENDED COMPLAINT

COMPLAINT FOR DAMAGES

4/3/2018: COMPLAINT FOR DAMAGES

99 More Documents Available

 

Docket Entries

  • 01/03/2022
  • Hearing01/03/2022 at 10:00 AM in Department 24 at 111 North Hill Street, Los Angeles, CA 90012; Jury Trial

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  • 12/16/2021
  • Hearing12/16/2021 at 09:30 AM in Department 24 at 111 North Hill Street, Los Angeles, CA 90012; Final Status Conference

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  • 10/20/2021
  • Hearing10/20/2021 at 08:30 AM in Department 24 at 111 North Hill Street, Los Angeles, CA 90012; Status Conference

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  • 11/03/2020
  • Hearing11/03/2020 at 14:00 PM in Department 24 at 111 North Hill Street, Los Angeles, CA 90012; In-Camera Hearing

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  • 10/22/2020
  • DocketNotice of Ruling; Filed by City of Sierra Madre (Defendant); Greg Christmas (Defendant)

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  • 10/20/2020
  • Docketat 09:00 AM in Department 24; Nunc Pro Tunc Order

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  • 10/20/2020
  • Docketat 08:30 AM in Department 24; Trial Setting Conference (and In-Camera Setting) - Held

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  • 10/20/2020
  • DocketCase Management Order; Filed by Clerk

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  • 10/20/2020
  • DocketMinute Order ( (Nunc Pro Tunc Order)); Filed by Clerk

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  • 10/20/2020
  • DocketMinute Order ( (Trial Setting Conference and In-Camera Setting)); Filed by Clerk

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153 More Docket Entries
  • 06/21/2018
  • DocketNOTICE OF CASE REASSIGNMENT AND OF ORDER FOR PLAINTIFF TO GIVE NOTICE

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  • 06/21/2018
  • DocketNotice of Case Reassignment and Order for Plaintiff to Give Notice; Filed by Clerk

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  • 05/29/2018
  • DocketDECLARATION OF RODOLFO AGUADO III FOR AN AUTOMATIC 30-DAY EXTENSION FOR DEFENDANT, CITY OF SIERRA MADRE TO FILE A RESPONSIVE PLEADING PURSUANT TO C.C.P. 430.41 AND 435.5

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  • 05/29/2018
  • DocketDeclaration; Filed by City of Sierra Madre (Defendant)

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  • 05/23/2018
  • DocketNOTICE OF CASE MANAGEMENT CONFERENCE

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  • 04/25/2018
  • DocketNotice of Case Management Conference; Filed by Clerk

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  • 04/25/2018
  • DocketNOTICE OF CASE MANAGEMENT CONFERENCE

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  • 04/03/2018
  • DocketSUMMONS

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  • 04/03/2018
  • DocketComplaint; Filed by Rick Alvarado (Plaintiff)

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  • 04/03/2018
  • DocketCOMPLAINT FOR DAMAGES

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Tentative Rulings

Case Number: BC700542    Hearing Date: October 01, 2020    Dept: 24

Defendants City of Sierra Madre and Greg Christmas’s motion for an order to compel peace officer’s records subject to a protective order is GRANTED.

On April 3, 2018, Plaintiff Rick Alvarado commenced this action against Defendants, City of Sierra Madre (“City”) and Greg Christmas, (“Christmas”). The operative fourth amended complaint (“4AC”) alleges the following four causes of action: (1) intentional violation of Labor Code §§ 1050, 1054; (2) defamation – slander per se; and (3) intentional interference with prospective economic relations. These claims arise out of allegations that he has been unable to obtain employment with a law enforcement agency or fire department since he was terminated by the City in August 2008 because the City’s employee, Christmas, made false and defamatory statements about him to prospective employers.

On July 6, 2020, Defendants filed a Pitchess motion, seeking records of internal investigation files in which Plaintiff is the subject of the investigation, all of which are in the possession and custody of the Los Angeles City Police Department (“LAPD”), and for a protective order regarding the documents. No opposition was submitted. On September 24, 2020, Defendants filed a notice of non-opposition.

Legal Standard

Generally, peace officer personnel records are confidential and are not disclosed in any civil proceeding. Pen. Code section 832.7 provides, in pertinent part, as follows:

(a) Peace officer or custodial officer personnel records and records maintained by any state or local agency pursuant to Section 832, or information obtained from these records, are confidential and shall not be disclosed in any criminal or civil proceeding except by discovery pursuant to Sections 1043 and 1046 of the Evidence Code. This section shall not apply to investigations or proceedings concerning the conduct of peace officers or custodial officers, or an agency or department that employs those officers, conducted by a grand jury, a district attorney's office, or the Attorney General's office…

(f) Nothing in this section shall affect the discovery or disclosure of information contained in a peace or custodial officer's personnel file pursuant to Section 1043 of the Evidence Code.”

Under Pen. Code section 832.8 the term “personnel records” as used in Section 832.7, includes “[c]omplaints, or investigations of complaints, concerning an event or transaction in which he or she participated, or which he or she perceived, and pertaining to the manner in which he or she performed his or her duties.” (Pen. Code §832.8(e).)

A party in a civil proceeding may gain access to police officer records and citizen complaint records through the procedures established in Evidence Code sections 1043 and 1045. (See Haggerty v. Superior Court (2004) 117 Cal. App. 4th 1079, 1085.) Evidence Code section 1043 provides as follows:

(a) In any case in which discovery or disclosure is sought of peace or custodial officer personnel records or records maintained pursuant to Section 832.5 of the Penal Code or information from those records, the party seeking the discovery or disclosure shall file a written motion with the appropriate court or administrative body upon written notice to the governmental agency which has custody and control of the records. The written notice shall be given at the times prescribed by subdivision (b) of Section 1005 of the Code of Civil Procedure. Upon receipt of the notice the governmental agency served shall immediately notify the individual whose records are sought.

(b) The motion shall include all of the following:

(1) Identification of the proceeding in which discovery or disclosure is sought, the party seeking discovery or disclosure, the peace or custodial officer whose records are sought, the governmental agency which has custody and control of the records, and the time and place at which the motion for discovery or disclosure shall be heard.

(2) A description of the type of records or information sought.

(3) Affidavits showing good cause for the discovery or disclosure sought, setting forth the materiality thereof to the subject matter involved in the pending litigation and stating upon reasonable belief that the governmental agency identified has the records or information from the records.

(c) No hearing upon a motion for discovery or disclosure shall be held without full compliance with the notice provisions of this section except upon a showing by the moving party of good cause for noncompliance, or upon a waiver of the hearing by the governmental agency identified as having the records.

Further, Evidence Code section 1045 provides in full as follows:

(a) Nothing in this article shall be construed to affect the right of access to records of complaints, or investigations of complaints, or discipline imposed as a result of those investigations, concerning an event or transaction in which the peace officer or custodial officer, as defined in Section 831.5 of the Penal Code, participated, or which he or she perceived, and pertaining to the manner in which he or she performed his or her duties, provided that information is relevant to the subject matter involved in the pending litigation.

(b) In determining relevance, the court shall examine the information in chambers in conformity with Section 915, and shall exclude from disclosure:

(1) Information consisting of complaints concerning conduct occurring more than five years before the event or transaction that is the subject of the litigation in aid of which discovery or disclosure is sought.

(2) In any criminal proceeding the conclusions of any officer investigating a complaint filed pursuant to Section 832.5 of the Penal Code.

(3) Facts sought to be disclosed that are so remote as to make disclosure of little or no practical benefit.

(c) In determining relevance where the issue in litigation concerns the policies or pattern of conduct of the employing agency, the court shall consider whether the information sought may be obtained from other records maintained by the employing agency in the regular course of agency business which would not necessitate the disclosure of individual personnel records.

(d) Upon motion seasonably made by the governmental agency which has custody or control of the records to be examined or by the officer whose records are sought, and upon good cause showing the necessity thereof, the court may make any order which justice requires to protect the officer or agency from unnecessary annoyance, embarrassment or oppression.

(e)The court shall, in any case or proceeding permitting the disclosure or discovery of any peace or custodial officer records requested pursuant to Section 1043, order that the records disclosed or discovered may not be used for any purpose other than a court proceeding pursuant to applicable law.

Once a showing of good cause is made, Evidence Code section 1045 provides for an in-camera hearing. Subject to certain statutory exceptions, a trial court should permit the disclosure of information that is relevant to the subject matter involved in the pending proceeding. (See People v. Mooc (2001) 26 Cal.4th 1216, 1226.)

Discussion

Defendants seek documents relating to the background investigation conducted between January 1, 2013 and January 1, 2015 for Rick Alvarado’s application for employment as a LAPD Police Officer and subsequent communications/correspondences in 2015 related to his application for employment/background check. (See Williams Decl., ¶ 2.)

Defendants satisfy the procedural requirements detailed above. (Evid. Code § 1043(a), (b)(1)-(3).) The Los Angeles Police Department (“LAPD”) has been provided with written notice of these proceedings by service of this motion. (Supp. Williams Decl., ¶ 4-5, Ex. B.) Defendants identify this proceeding in which discovery or disclosure is sought, the records sought, the governmental agency which has custody and control of the records, and the hearing date in this department. The affidavit of counsel attached to the motion shows good cause for the discovery or disclosure sought, and that the governmental agency identified has the records or information from the records.

Good cause is shown. Defendants intend to use the records sought for disclosure to defend themselves against the allegations of the 4AC. Specifically, these records may show that Christmas did not knowingly provide any false misrepresentations to LAPD concerning Plaintiff, that Defendants had absolutely no intention of preventing Plaintiff from obtaining employment, and that Defendants did not prevent Plaintiff from obtaining employment.

Plaintiff does not oppose. Further, Defendants provided for his stipulation for a protective order concerning these documents. (Supp. Williams Decl., Ex. A.)

Accordingly, good cause is found. The Court will hold an in-camera hearing to review the records. (Brown v. Valverde (2010) 183 Cal.App.4th 1531, 1541; see also Evid. Code § 915(b).)

Moving party is ordered to give notice.

Case Number: BC700542    Hearing Date: July 29, 2020    Dept: 24

Defendant Greg Christmas’s demurrer to the Fourth Amended Complaint is OVERRULED.

On April 3, 2018, Plaintiff Rick Alvarado commenced this action against Defendants, City of Sierra Madre (“City”) and Greg Christmas (“Christmas”). The operative fourth amended complaint (“4AC”) alleges the following four causes of action: (1) intentional violation of Labor Code §§ 1050, 1054; (2) defamation – slander per se; and (3) intentional interference with prospective economic relations. These claims arise out of allegations that he has been unable to obtain employment with a law enforcement agency or fire department since he was terminated by the City in August 2008 because the City’s employee, Christmas, made false and defamatory statements about him to prospective employers.

Plaintiff alleges he was employed by the City as a part-time paramedic from April 2007 until August 2008. While employed by the City, Plaintiff performed his duties in a satisfactory manner and was never subjected to disciplinary action. Plaintiff was informed that he was terminated due to overstaffing. While employed by the City, Plaintiff filed two complaints concerning Christmas. After Plaintiff was terminated from employment with the City, he applied for a number of law enforcement jobs. Plaintiff was rejected from those positions after the law enforcement agencies conducted a background cheek.

In August 2015, Plaintiff requested a copy of his personnel file from the City so that he could review it for derogatory information. After receiving his personnel file from the City, Plaintiff confirmed that there was no derogatory information or notations contained therein. Plaintiff continued applying for law enforcement and fire department jobs. Plaintiff’s applications continued to be rejected, so in September 2016, Plaintiff sought legal counsel and was advised to retain the services of Allison and Taylor, a nationally recognized firm which performs job reference, employment verification, and employee background checking services by holding themselves out as to be a prospective employer.

On September 23, 2016, Plaintiff received a written report from Checkmyreference.com which stated their consultant, Claudia, spoke to Christmas and represented herself to be a prospective employer. During their conversation, Christmas told Claudia that “... I believe he was terminated. You may want to come down and talk to personnel. It was regarding a possible theft on scene. I shouldn't be talking to you on the phone about this ... he does not have the responsibility or morality and he's a pathological liar."

On October 21, 2016, Plaintiff received a written report from Allison and Taylor which stated that their consultant, Ms. Sue Lynn (“Lynn”), spoke to Christmas and represented herself to be a prospective employer. During their conversation, Christmas told Lynn that “[Plaintiff] doesn’t need to be a police officer and you need to come in and look at his file. I can tell you that is one job he does not need to be involved in. He is one person that rang a bell that cannot he unrung and not ethical enough to be there. You can come in and speak with our HR department and see the files. There [’s] are a lot of stuff with that gentleman and he doesn’t need to be a cop. There are plenty of other people on earth to be a cop and he doesn’t need to be one.” Regarding Plaintiff’s job skills and personal integrity, Christmas told Lynn “No Comment.” Christmas also told Lynn “[A]ctually[,] I believe he was terminated . . . it was regarding a possible theft on scene shouldn’t be talking to you on the phone about this.” Christmas told Lynn he would not rehire Plaintiff because he was a “pathological liar.”

Plaintiff alleges that Christmas’ statements were made with malice, had no factual basis, and were in retaliation for Plaintiff having filed complaints against Christmas while Plaintiff was employed with the City. Plaintiff believes that Christmas’ statements were malicious due to Christmas’ knowledge of their falsity. Plaintiff also believes that Christmas’ defamatory statements were the reason he has been denied employment by each and every law enforcement agency he has applied to. This is due, in part, to the fact that law enforcement agencies require applicants to disclose the identity of any other law enforcement agencies they have applied to. Plaintiff alleges that Christmas’ statements constitute a personnel file. Plaintiff has lost prospective income as a result of Christmas’ statements. Plaintiff alleges he has suffered and continues to suffer lost employment, earnings, bonuses, deferred compensation, lost employment benefits, embarrassment, humiliation, mental anguish and injury to his reputation.

On January 9, 2017, Plaintiff filed a claim for damages with the City. The City denied Plaintiff’s claims as untimely. On May 8, 2017, applied to the City for leave to present a late claim for damages. On June 19, 2017, the City denied said application. On August 23, 2017, Plaintiff filed a petition with the court for an order relieving him from the provisions of Gov. Code §945.4. On February 23, 2018, the Petition was denied.

On February 6, 2020, Christmas filed a demurrer to the third cause of action. On July 9, 2020, Plaintiff filed oppositions. On July 22, 2020, Christmas filed replies.

Legal Standard

A demurrer for sufficiency tests whether the complaint states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.) When considering demurrers, courts read the allegations liberally and in context. In a demurrer proceeding, the defects must be apparent on the face of the pleading or via proper judicial notice. (Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) A demurrer tests the pleadings alone and not the evidence or other extrinsic matters. Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed. (CCP §§ 430.30, 430.70.) At the pleading stage, a plaintiff need only allege ultimate facts sufficient to apprise the defendant of the factual basis for the claim against him. (Semole v. Sansoucie (1972) 28 Cal. App. 3d 714, 721.) A “demurrer does not, however, admit contentions, deductions or conclusions of fact or law alleged in the pleading, or the construction of instruments pleaded, or facts impossible in law.” (S. Shore Land Co. v. Petersen (1964) 226 Cal.App.2d 725, 732 [internal citations omitted].)

Meet and Confer

Before filing a demurrer or motion to strike, the moving party must meet and confer in person or by telephone with the party who filed the pleading to attempt to reach an agreement that would resolve the objections to the pleading. (CCP §§ 430.41, 435.5.) Counsel’s declaration satisfies the meet and confer requirement. (Williams Decl. ¶¶ 1-3.)

Request for Judicial Notice

 

Christmas requests that the Court take judicial notice of the following supplied documents:

  1. Exhibit A: Minute Order, Rick Alvarado vs City of Sierra Madre et al. BC700542, dated December 3, 2019;

  2. Exhibit B: Fourth Amended Complaint, Rick Alvarado vs City of Sierra Madre et al. BC700542, dated December 13, 2019;

  3. Exhibit C: Third Amended Complaint, Rick Alvarado vs City of Sierra Madre et al. BC700542, dated January 9, 2019;

  4. Exhibit D: February 19, 2019, Letter from the LAPD (a more legible version of Exhibit A attached to Plaintiff’s Complaint); and

  5. Exhibit E: December 9, 2014, Letter from the LAPD (a more legible version of Exhibit B attached to Plaintiff’s Complaint).

As each document is essentially a court record and/or public record, the Court grants judicial notice. (Evid. Code § 452(c), (d), (h).)

Plaintiff and Christmas both attach factual declarations which are not subject to judicial notice. Those declarations are not considered.

Fourth Cause of Action: Intentional Interference with Prospective Economic Advantage

 

The elements for interference with prospective economic advantage are: (1) the existence of a prospective economic relationship with the probability of future economic benefit to plaintiff; (2) defendant’s knowledge of the relationship and intent to disrupt it; (3) actual disruption of the relationship; (4) caused by the defendant’s wrongful and unjustified conduct; and (5) plaintiff suffered damages as a result. (Youst v. Longo (1987) 43 Cal.3d 64, 71.) Further, the interference must be wrongful by some measure beyond the fact of the interference itself. (Della Penna v. Toyota Motor Sales (1995) 11 Cal.4th 376, 393.) A plaintiff may plead a specific intent to interfere or, alternatively, that defendant knew the interference was certain or substantially certain to occur as a result of its action. (Korea Supply Co. v. Lockheed Martin Corp. (2003) 29 Cal.4th 1134, 1153; see CACI 2202.)

“[T]he interference tort applies to interference with existing noncontractual relations which hold the promise of future economic advantage. In other words, it protects the expectation that the relationship eventually will yield the desired benefit, not necessarily the more speculative expectation that a potentially beneficial relationship will eventually arise.” (Westside Center Associates v. Safeway Stores 23, Inc. (1996) 42 Cal.App.4th 507, 524.)

Here, Christmas challenges the cause on the specific grounds that Exhibit B of the 4AC demonstrates that Plaintiff did not have a reasonable expectation of economic benefit because Plaintiff did not allege that he appealed LAPD’s decision to withdraw their conditional employment offer. Christmas’s argument essentially states that Plaintiff could and should have disproven Christmas’s defamation to prevent the effects of the interference after-the-fact.

Christmas fails to cite any authority that states that an essential element of the claim is that the plaintiff must do his best to prevent or undo the interference. Based on Christmas’s own cited authority, there is no such obligation. Reviewing Exhibit B, the letter does not somehow disprove or contradict the existence of an economic relationship. In fact, it supports the existence of a non-contractual relationship, to wit, a conditional employment offer that was withdrawn due to an issue with Plaintiff’s honesty. Plaintiff alleges that issue relates to Christmas’s false reference. The letter does not in any way contradict the factual allegations that Defendant knew and intended to disrupt the relationship, and actually disrupted that existing relationship with such references. (4AC ¶¶ 43-47.) This evidence actually tends to prove those elements, at least partially.

Accordingly, Defendant’s demurrer is OVERRULED.

Moving party is ordered to give notice.

Case Number: BC700542    Hearing Date: December 03, 2019    Dept: 24

Defendant Greg Christmas’s demurrer to the Third Amended Complaint is SUSTAINED with leave as to the fourth cause of action and OVERRULED as to the remainder.

Defendant’s motion to strike is GRANTED without leave as to attorneys’ fees and DENIED as to the remainder.

On April 3, 2018, Plaintiff Rick Alvarado commenced this action against Defendants, City of Sierra Madre (“City”) and Greg Christmas, (“Christmas”). The operative third amended complaint (“TAC”) alleges the following four causes of action: (1) intentional violation of Labor Code §§ 1050, 1054; (2) defamation – slander per se; (3) intentional violation of Gov. Code §§ 3251, 3255, 3260(c)(1), (d); and (4) intentional interference with prospective economic relations. This action arises out of Plaintiff’s claims that he has been unable to obtain employment with a law enforcement agency or fire department since he was terminated by the City in August 2008 because the City’s employee, Christmas, has made false and defamatory statements about him to prospective employers.

Plaintiff alleges he was employed by the City as a part-time paramedic from April 2007 until August 2008. While employed by the City, Plaintiff performed his duties in a satisfactory manner and was never subjected to disciplinary action. Plaintiff was informed that he was terminated due to overstaffing. While employed by the City, Plaintiff filed two complaints concerning Christmas. After Plaintiff was terminated from employment with the City, he applied for a number of law enforcement jobs. Plaintiff was rejected from those positions after the law enforcement agencies conducted a background cheek.

In August 2015, Plaintiff requested a copy of his personnel file from the City so that he could review it for derogatory information. After receiving his personnel file from the City, Plaintiff confirmed that there was no derogatory information or notations contained therein. Plaintiff continued applying for law enforcement and fire department jobs. Plaintiff’s applications continued to be rejected, so in September 2016, Plaintiff sought legal counsel and was advised to retain the services of Allison and Taylor, a nationally recognized firm which performs job reference, employment verification, and employee background checking services by holding themselves out as to be a prospective employer.

On September 23, 2016, Plaintiff received a written report from Checkmyreference.com which stated their consultant, Claudia, spoke to Christmas and represented herself to be a prospective employer. During their conversation, Christmas told Claudia that “... I believe he was terminated. You may want to come down and talk to personnel. It was regarding a possible theft on scene. I shouldn't be talking to you on the phone about this ... he does not have the responsibility or morality and he's a pathological liar."

On October 21, 2016, Plaintiff received a written report from Allison and Taylor which stated that their consultant, Ms. Sue Lynn (“Lynn”), spoke to Christmas and represented herself to be a prospective employer. During their conversation, Christmas told Lynn that “[Plaintiff] doesn’t need to be a police officer and you need to come in and look at his file. I can tell you that is one job he does not need to be involved in. He is one person that rang a bell that cannot he unrung and not ethical enough to be there. You can come in and speak with our HR department and see the files. There [’s] are a lot of stuff with that gentleman and he doesn’t need to be a cop. There are plenty of other people on earth to be a cop and he doesn’t need to be one.” Regarding Plaintiff’s job skills and personal integrity, Christmas told Lynn “No Comment.” Christmas also told Lynn “[A]ctually[,] I believe he was terminated . . . it was regarding a possible theft on scene shouldn’t be talking to you on the phone about this.” Christmas told Lynn he would not rehire Plaintiff because he was a “pathological liar.”

Plaintiff alleges that Christmas’ statements were made with malice, had no factual basis, and were in retaliation for Plaintiff having filed complaints against Christmas while Plaintiff was employed with the City. Plaintiff believes that Christmas’ statements were malicious due to Christmas’ knowledge of their falsity. Plaintiff also believes that Christmas’ defamatory statements were the reason he has been denied employment by each and every law enforcement agency he has applied to. This is due, in part, to the fact that law enforcement agencies require applicants to disclose the identity of any other law enforcement agencies they have applied to. Plaintiff alleges that Christmas’ statements constitute a personnel file. Plaintiff has lost prospective income as a result of Christmas’ statements. Plaintiff alleges he has suffered and continues to suffer lost employment, earnings, bonuses, deferred compensation, lost employment benefits, embarrassment, humiliation, mental anguish and injury to his reputation.

On January 9, 2017, Plaintiff filed a claim for damages with the City. The City denied Plaintiff’s claims as untimely. On May 8, 2017, applied to the City for leave to present a late claim for damages. On June 19, 2017, the City denied said application. On August 23, 2017, Plaintiff filed a petition with the court for an order relieving him from the provisions of Gov. Code §945.4. On February 23, 2018, the Petition was denied.

On September 20, 2019, Christmas filed a demurrer to the first, second and fourth causes of action and motion to strike against certain damages requests. On October 21, 2019, Plaintiff filed oppositions. On October 29, 2019, Christmas filed replies.

Legal Standard

A demurrer for sufficiency tests whether the complaint states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.) When considering demurrers, courts read the allegations liberally and in context. In a demurrer proceeding, the defects must be apparent on the face of the pleading or via proper judicial notice. (Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) A demurrer tests the pleadings alone and not the evidence or other extrinsic matters. Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed. (CCP §§ 430.30, 430.70.) At the pleading stage, a plaintiff need only allege ultimate facts sufficient to apprise the defendant of the factual basis for the claim against him. (Semole v. Sansoucie (1972) 28 Cal. App. 3d 714, 721.) A “demurrer does not, however, admit contentions, deductions or conclusions of fact or law alleged in the pleading, or the construction of instruments pleaded, or facts impossible in law.” (S. Shore Land Co. v. Petersen (1964) 226 Cal.App.2d 725, 732 [internal citations omitted].)

A special demurrer for uncertainty, CCP section 430.10(f), is disfavored and will only be sustained where the pleading is so bad that defendant cannot reasonably respond—i.e., cannot reasonably determine what issues must be admitted or denied, or what counts or claims are directed against him/her. (Khoury v. Maly’s of Calif., Inc. (1993) 14 Cal.App.4th 612, 616.) Moreover, even if the pleading is somewhat vague, “ambiguities can be clarified under modern discovery procedures.” (Ibid.)

Any party, within the time allowed to respond to a pleading may serve and file a notice of motion to strike the whole or any part thereof. (CCP § 435(b)(1); Cal. Rules of Court, Rule 3.1322(b).) The court may, upon a motion or at any time in its discretion and upon terms it deems proper: (1) strike out any irrelevant, false, or improper matter inserted in any pleading; or (2) strike out all or any part of any pleading not drawn or filed in conformity with the laws of California, a court rule, or an order of the court. (CCP §§ 436(a)-(b); Stafford v. Shultz (1954) 42 Cal.2d 767, 782 [“Matter in a pleading which is not essential to the claim is surplusage; probative facts are surplusage and may be stricken out or disregarded”].)

Meet and Confer

Before filing a demurrer or motion to strike, the moving party must meet and confer in person or by telephone with the party who filed the pleading to attempt to reach an agreement that would resolve the objections to the pleading. (CCP §§ 430.41, 435.5.) Counsel’s declaration satisfies the meet and confer requirement. (Counsel Decl.)

Request for Judicial Notice

In reply, Defendant requests that the Court take judicial notice of its previous tentative ruling. The Court grants this request. (Evid. Code § 452(d).)

Demurrer: Statute of Limitations

Christmas demurs to the first and second causes of action on the grounds they are barred by the statute of limitations.

“Where the dates alleged in the complaint show the action is barred by the statute of limitations, a general demurrer lies. . . . The running of the statute must appear ‘clearly and affirmatively’ from the face of the complaint. It is not enough that the complaint might be time-barred.” (Geneva Towers Ltd. Partnership v. City of San Francisco (2003) 29 Cal.4th 769, 781; Committee for Green Foothills v. Santa Clara County Bd. of Supervisors (2010) 48 Cal.4th 32, 42.)

Particularly, Christmas cites to the one-year statute of limitations found in CCP section 340(c). While this may facially apply to the defamation claim, Christmas does not provide adequate analysis that the first cause of action is subject to this particular statute of limitations. CCP section 340(c) states that a one-year statute of limitations applies to:

(c) An action for libel, slander, false imprisonment, seduction of a person below the age of legal consent, or by a depositor against a bank for the payment of a forged or raised check, or a check that bears a forged or unauthorized endorsement, or against any person who boards or feeds an animal or fowl or who engages in the practice of veterinary medicine as defined in Section 4826 of the Business and Professions Code, for that person’s neglect resulting in injury or death to an animal or fowl in the course of boarding or feeding the animal or fowl or in the course of the practice of veterinary medicine on that animal or fowl.

The first cause of action is based on a statute, Lab. Code sections 1050 and 1054. This provides civil liability for a former employer or agent of a former employer from preventing an employee’s hiring with a prospective employer through misrepresentation. This is not a claim for any of the categories found in CCP section 340(c). Instead, the three-year statute of limitations applies to this claim, found in CCP section 338. This provides a three-year limitations period for “[a]n action upon a liability created by statute, other than a penalty or forfeiture” which is facially applicable to this claim. As the discovery of this cause of action was in September/October 2016. (TAC ¶ 21.) The instant action was filed within 3 years of that date. Absent contrary authority, the demurrer as to the first cause of action is not well taken.

Turning to the second cause of action, Christmas gives no reason why the previous equitable tolling arguments would not also apply in this instance. The doctrine of equitable tolling may apply to the limitation periods imposed by the claims statutes or the substantive statutes. (See Addison v. State of California (1978) 21 Cal.3d 313.) Courts recognize “a general policy which favors relieving plaintiff from the bar of a limitations statute when, possessing several legal remedies he, reasonably and in good faith, pursues one designed to lessen the extent of his injuries or damage.” (Id. at 317.) In Addison, the plaintiffs presented a timely claim. When it was rejected they filed a federal lawsuit, which was eventually dismissed for lack of jurisdiction. In these circumstances, the period for suing in state court was equitably tolled during the pendency of the federal action. The elements of timely notice, lack of prejudice to the defendant, and reasonable good faith conduct by the plaintiff were satisfied. (Id. at 319.)

Further, claim presentation to the public entity is also required before suit may be brought against a public employee for injury caused by an action in the scope of their employment. (Gov. Code § 950.2; Briggs v. Lawrence (1991) 230 Cal.App.3d 605, 613; Fowler v. Howell (1996) 42 Cal.App.4th 1746, 1751.) A separate claim for damages need not be presented against the employees. (Julian v. City of San Diego (1986) 183 CA3d 169, 176.) Therefore, the same claims issue previously discussed would equally apply here.

On January 9, 2017, Plaintiff filed a claim for damages with the City, including his claims against Christmas. (TAC ¶ 24.) On February 24, 2017, the City denied Plaintiff’s claims as untimely. (Ibid.) On May 8, 2017, applied to the City for leave to present a late claim for damages. (Ibid.) On June 19, 2017, the City denied said application. (Ibid.) On August 23, 2017, Plaintiff filed a petition with the court for an order relieving him from the provisions of Gov. Code §945.4. (Id. ¶ 25.) On February 23, 2018, the Petition was denied. (Ibid.) Plaintiff filed suit on April 3, 2018, approximately a month and a half after the petition was denied. The accrual took place in September/October 2016 at the earliest, as held above. (TAC ¶ 21.)

Plaintiff incorrectly pursued unnecessary relief instead of simply filing suit following denial. The Court held that during the pursuit of this alternative remedy equitable tolling principles could apply. Christmas does nothing to support his argument that the one year statute of limitations would not also be tolled during this period, for the same reasons as the government tort claims limitations period.

Accordingly, the demurrer is OVERRULED on these grounds.

Demurrer: First Cause of Action – Lab. Code § 1050

Christmas demurs to the Lab. Code section 1050 cause of action, which provides for a civil cause of action where:

Any person, or agent or officer thereof, who, after having discharged an employee from the service of such person or after an employee has voluntarily left such service, by any misrepresentation prevents or attempts to prevent the former employee from obtaining employment, is guilty of a misdemeanor.

(See also Lab. Code § 1054 [creating a civil cause of action for a violation of section 1050].)

Here, Christmas argues that the claim fails because: 1) the investigators Plaintiff hired were not prospective employers; and 2) there are no specific police agencies or fire departments identified. These arguments fail for multiple reasons.

First, Christmas fails to address the impact of the statutory language providing liability for an “attempt[] to prevent the former employee from obtaining employment[].” (Lab. Code § 1050.) Given the lack of authority proffered, the Court does not find it unreasonable that Christmas’s statements made to the investigators could be categorized as an “attempt” to prevent Plaintiff from obtaining employment, even if the conduct was factually impossible, i.e. that they were not actually prospective employers but only posing as such. (See People v. Vang (2001) 87 Cal.App.4th 554, 564 [there is no fixed meaning to this concept of impossibility, and the proof is generally deemed sufficient if the means used by the defendant, and the surrounding 

circumstances see also People v. Grant (1951) 105 Cal.App.2d 347, 356 [approving instruction that “[i]t is immaterial whether or not the crime attempted was impossible of completion if you find that it was apparently possible of completion to the defendant so acting with the necessary intent”]; People v. Siu (1954) 126 Cal.App.2d 41 [defendant sheriff’s deputy convicted for attempted possession of narcotics when he only possessed white talcum powder he believed to be heroin].) This alone requires overruling the demurrer to this cause, since there is a viable claim on the statute.

Second, as to the failure to identify specific departments, Christmas cites no authority that this would be required in pleading. Simply put, the specific identity of a prospective employer does not appear to be an element of the cause of action.

Accordingly, Christmas’s demurrer is OVERRULED as to this cause of action.

Demurrer: Second Cause of Action for Defamation

Christmas demurs on two grounds: 1) that statements made to law enforcement agencies are subject to the absolute privilege found in Civ. Code section 47(a)-(b); and 2) other statements made to third parties are subject to the qualified privilege found in Civ. Code section 47(c). Plaintiff concedes that the first group of statements to law enforcement agencies would be subject to immunity. Thus, the Court will only address the viability of the claim as to the second group.

Pursuant to Civil Code section 47(c), a communication is entitled to conditional privilege if it is made without malice, to a person interest 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.

“[S]ection 48 of the Civil Code expressly declares that ‘malice is not inferred from the communication’ [in the case provided for in subdivision (c)] of section 47. Hence, where the complaint discloses a case of qualified privilege, no malice is presumed and in order to state a cause of action the pleading must contain affirmative allegations of malice in fact.” (Locke v. Mitchell (1936) 7 Cal.2d 599, 602.) The complaint must plead facts showing malice existed at the time the communication was published. (Ibid.) The malice necessary to defeat a qualified privilege is “actual malice,” which is established by a showing that the publication was motivated by hatred or ill will towards the plaintiff or by a showing that the defendant lacked reasonable grounds for belief in the truth of the publication and therefore acted in reckless disregard of the plaintiff's rights. (Noel v. River Hills Wilsons, Inc. (2003) 113 Cal.App.4th 1363.) While malice may not be inferred from the fact alone of the communication of the defamatory statement, the tenor of the communicated defamatory statement may lend support for malice. (Brewer v. Second Baptist Church of Los Angeles (1948) 32 Cal.2d 791, 799.)

Here, malice readily alleged. The TAC recalls several paragraphs of racist, demeaning and threatening remarks made by Christmas towards Plaintiff throughout his employment. (See TAC ¶¶ 11-16.) Moreover, the TAC alleges that Christmas made the statements while knowing they were false and without a factual basis for doing so. (TAC ¶ 21.) These allegations must be accepted as true for demurrer purposes.

Christmas contends that the “ ‘[a]ctual facts of malice must be… apparent from the communications themselves.’ ” (Rep. at 5-6; quoting Martin v. Kearney (1975) 51 Cal.App.3d 309, 312.) Of course, the full quote, omitted by Christmas through an ellipse, reveals the following language: “[a]ctual facts of malice must be alleged or be apparent from the communications themselves.” (Ibid. [emphasis added].) The court also specifically noted that “[n]o facts establishing malice appear in the complaint.” (Ibid.) Christmas therefore does not persuasively state that facts concerning malice need to only be apparent in the communications themselves. Rather, malice may be inferred through the communications “or” actual facts of malice. Christmas points to no authority that malice cannot be inferred through circumstances or that the Court is limited to only reading the communications themselves. The Court cannot ignore the pled facts of actual malice.

Accordingly, Christmas’s demurrer is OVERRULED as to the second cause of action.

Demurrer: Fourth Cause of Action for Intentional Interreference with Prospective Economic Advantage

The elements for interference with prospective economic advantage are: (1) the existence of a prospective economic relationship with the probability of future economic benefit to plaintiff; (2) defendant’s knowledge of the relationship and intent to disrupt it; (3) actual disruption of the relationship; (4) caused by the defendant’s wrongful and unjustified conduct; and (5) plaintiff suffered damages as a result. (Youst v. Longo (1987) 43 Cal.3d 64, 71.) Further, the interference must be wrongful by some measure beyond the fact of the interference itself. (Della Penna v. Toyota Motor Sales (1995) 11 Cal.4th 376, 393.) A plaintiff may plead a specific intent to interfere or, alternatively, that defendant knew the interference was certain or substantially certain to occur as a result of its action. (Korea Supply Co. v. Lockheed Martin Corp. (2003) 29 Cal.4th 1134, 1153; see CACI 2202.)

“[T]he interference tort applies to interference with existing noncontractual relations which hold the promise of future economic advantage. In other words, it protects the expectation that the relationship eventually will yield the desired benefit, not necessarily the more speculative expectation that a potentially beneficial relationship will eventually arise.” (Westside Center Associates v. Safeway Stores 23, Inc. (1996) 42 Cal.App.4th 507, 524.)

Christmas asserts that the claim fails because there are no allegations confirming an existing, non-contractual relationship. The TAC alleges that such relationships existed between Plaintiff and various law enforcement agencies/fire departments. (TAC ¶¶ 50-54.) The Court agrees that the allegations concerning applications to a job does not necessarily create a sufficient economic relationship with a reasonable expectation of economic benefit. The allegations appear speculative, since Plaintiff only alleges that he applied to unspecified prospective employers, with no additional facts as to how he reasonably expected that he would have gotten the job. Additional factual allegations are required to determine whether Plaintiff reasonably expected economic benefit from an existing relationship from these application. Plaintiff cites to extrinsic facts no found in the TAC, which are not considered on the merits of the demurrer but will be considered for leave to amend purposes.

Christmas’s other asserted basis for demurrer is without merit. The cited authority does not stand for the proposition that a public entity or employee cannot be held liable for intentional interference with prospective economic relations. (Blank v. Kirwan (1985) 39 Cal.3d 311, 330.)

Accordingly, Defendant’s demurrer is SUSTAINED with leave to amend as to this cause of action.

Motion to Strike: Treble Damages/Punitive Damages

Christmas moves to strike the treble damages request because he argues that it is duplicative with the punitive damages request. While recovering both punitive and treble damages would be improper double recovery, this is simply an election of remedies issue. As his own authority recognizes:

"We ... recognize that '[t]he primary purpose of punitive damages is to punish the defendant and make an example of him.' Since this purpose is the same as the treble damages authorized by Labor Code section 1054, we do not sanction a double recovery for the plaintiff. In the new trial on damages, the jury should be instructed on the subject of punitive damages based on malice or oppression ... Any verdict finding compensatory damages must be trebled by the court. Plaintiff may then elect to have judgment entered in an amount which reflects either the statutory trebling, or the compensatory and punitive damages." (Marshall v. Brown (1983) 141 Cal.App.3d 408, 419 [citation omitted, emphasis added].)

As this only poses an election of remedies at the end of a suit, striking a requested remedy for potential “double recovery” would be error. Plaintiff will simply elect his remedies at the end of the suit, if successful.

Accordingly, Christmas’s motion to strike is DENIED as to requests nos. 1-6.

Motion to Strike: Attorneys’ Fees

Plaintiff concedes that the attorneys’ fees request is improper. The Court agrees. Therefore, Christmas’s motion to strike is GRANTED as to request no. 7.

Moving party is ordered to give notice.

Case Number: BC700542    Hearing Date: November 05, 2019    Dept: 24

Defendant Greg Christmas’s demurrer and motion to strike to the Third Amended Complaint is CONTINUED.

Meet and Confer

Before filing a demurrer or motion to strike, the moving party must meet and confer in person or by telephone with the party who filed the pleading to attempt to reach an agreement that would resolve the objections to the pleading. (CCP § 430.41; 435.5.) Defense Counsel’s declaration regarding an email correspondence with Plaintiff’s counsel is inadequate. (Kamau Decl., ¶ 3, Ex. A.) Accordingly, the Court will continue the hearing to allow for code-compliant meet and confer efforts to take place, and for counsel to provide a code-compliant meet and confer declaration regarding these efforts at least five days in advance of the continued hearing. 

The hearing is therefore continued to December 3, 2019.

Moving party is ordered to give notice.