Opinion
H044038
10-05-2018
SAK ONKVISIT, Plaintiff and Appellant, v. MARGARET DE LA MERE et al., Defendants and Respondents.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Santa Clara County Super. Ct. No. 115CV279005)
This lawsuit arises out of a workplace dispute. Plaintiff Sak Onkvisit sued several coworkers, alleging they had falsely accused him of committing fraud in seeking reimbursement for airfare to a conference. The trial court sustained a demurrer to the complaint and entered judgment for defendants. We find no error and will affirm.
I. BACKGROUND
Plaintiff is a professor at San Jose State University. In 2013, he attended an academic conference in Thailand and upon return sought reimbursement from the university for the cost of his plane ticket. Two employees responsible for processing the request refused to do so and instead reported that plaintiff was attempting to defraud the university by seeking payment for the airfare of a travel companion. Plaintiff sued those employees, as well as their supervisor, the dean of the university, the associate dean, and a department chair.
In an amended complaint, plaintiff (representing himself) asserted causes of action for defamation, intentional infliction of emotional distress, invasion of privacy, and retaliation. Defendants demurred to the complaint and moved to strike it under Code of Civil Procedure section 425.16 (the "anti-SLAPP" statute, which prohibits lawsuits that target free speech about a matter of public importance). The trial court granted the motion to strike as to the causes of action for defamation and intentional infliction of emotional distress, and sustained the demurrer to the remaining causes of action with leave to amend.
Plaintiff filed a second amended complaint alleging causes of action for retaliation under the California Whistleblower Protection Act (Gov. Code, § 8547, et seq.) and invasion of privacy. The claims were again based on the refusal of university employees to process plaintiff's reimbursement request, and the resulting dispute and accusations of fraud. Defendants demurred to the second amended complaint. Among the grounds stated for the demurrer was that plaintiff had not complied with the pre-lawsuit notice provision of the Government Claims Act (Gov. Code, §810, et seq.) as required for a lawsuit against a public entity or employee. The trial court sustained the demurrer without leave to amend and entered judgment for defendants. Plaintiff attempts to appeal both the judgment and the preceding order on defendants' motion to strike.
II. DISCUSSION
A. APPEAL OF THE ANTI-SLAPP ORDER IS FORFEITED
Much of plaintiff's briefing is devoted to arguments regarding the order granting defendants' motion to strike under the anti-SLAPP statute (Code Civ. Proc., § 425.16.) We need not address those arguments because plaintiff forfeited his appeal of the anti-SLAPP ruling by not filing a notice of appeal within 60 days from notice of the order granting the motion. (See Cal. Rules of Court, rule 8.104(a).) An order granting an anti-SLAPP motion is directly appealable even if it does not dispose of all causes of action. (Old Republic Construction Program Group v. The Boccardo Law Firm, Inc. (2014) 230 Cal.App.4th 859, 866, fn. 4.) And when such an interlocutory order is appealable it must be timely appealed or the right to do so is forfeited. (In re Baycol Cases I & II (2011) 51 Cal.4th 751, 761, fn. 8.) Notice of the order granting defendants' anti-SLAPP motion was served on December 8, 2015. Plaintiff filed his notice of appeal on September 12, 2016. The appeal of the anti-SLAPP order is therefore untimely and we have no jurisdiction to consider it. (Sanchez v. Strickland (2011) 200 Cal.App.4th 758, 762.)
Plaintiff asserts that he should be relieved from failure to timely file a notice of appeal because "defendants, aided by their counsel, obtained the order through fraud." But nothing in the record suggests fraud by defendants or their attorneys, and plaintiff does not dispute the dispositive fact that he was served with the anti-SLAPP order some nine months before filing his notice of appeal. Plaintiff also urges us to liberally construe the notice of appeal to encompass the anti-SLAPP ruling. But even the most liberal construction of the notice of appeal would not assist him here, because the problem is not the document's content but its timing: the notice was filed too late to give us jurisdiction to consider the anti-SLAPP order.
B. DEMURRER PROPERLY SUSTAINED
Plaintiff contends the trial court erred by sustaining the demurrer to his second amended complaint. Our review of an order sustaining a demurrer is de novo. We assume the allegations of the complaint are true and use our independent judgment to determine whether it states a cause of action under any legal theory. (California Logistics, Inc. v. State of California (2008) 161 Cal.App.4th 242, 247.) We do not defer to the trial court's reasoning and will affirm the judgment if any asserted ground for the demurrer has merit. (Melton v. Boustred (2010) 183 Cal.App.4th 521, 528 .)
Plaintiff does not include in his briefing any arguments regarding the sustained demurrer to his cause of action for retaliation under the California Whistleblower Protection Act. To the extent plaintiff seeks to challenge that aspect of the trial court's decision, the issue is forfeited due to the lack of meaningful argument and no citation to authority. (Allen v. City of Sacramento (2015) 234 Cal.App.4th 41, 52. ["When legal argument with citation to authority is not furnished on a particular point, we may treat the point as forfeited and pass it without consideration."].) In any event, a basis for the trial court's ruling was that plaintiff failed to state a claim under the Whistleblower Protection Act because he did not first file a sworn complaint with his supervisor, a requirement for bringing a lawsuit under that statute (see Gov. Code, § 8547.12, subd. (c).) Plaintiff does not offer any reason to believe the court's decision on that point was erroneous.
The remaining cause of action in the second amended complaint is for invasion of privacy, based on the allegation that defendants placed plaintiff in a false light by publicly accusing him of defrauding the university. (See Price v. Operating Engineers Local Union No. 3 (2011) 195 Cal.App.4th 962, 970 ["False light is a species of invasion of privacy, based on publicity that places a plaintiff before the public in a false light that would be highly offensive to a reasonable person[.]"].) The trial court sustained the demurrer to that cause of action because, among other reasons, the complaint does not allege plaintiff complied with the Government Claims Act (Gov. Code, § 810, et seq.).
The Government Claims Act generally requires that claims for damages against a public entity be presented to the entity before the injured party files a lawsuit to recover those damages. (Gov. Code, § 905.) The purpose of that requirement is " 'to provide the public entity sufficient information to enable it to adequately investigate claims and to settle them, if appropriate, without the expense of litigation.' " (City of Stockton v. Superior Court (2007) 42 Cal.4th 730, 738.) "The claims statutes also 'enable the public entity to engage in fiscal planning for potential liabilities and to avoid similar liabilities in the future.' " (Ibid.) Failure to timely present a claim to the public entity in the manner required by statute bars a plaintiff's suit against that entity. (State of California v. Superior Court (2004) 32 Cal.4th 1234, 1240.) The claim presentation requirement applies to a lawsuit against an employee of a public entity as well, so long as the lawsuit is based on conduct within the course and scope of employment. (Gov. Code, § 950.2.) To state a cause of action for damages against a public entity or employee, the plaintiff must allege facts in the complaint demonstrating compliance with the claim presentation requirement. (State of California v. Superior Court, supra, 32 Cal.4th at p. 1239.)
Plaintiff's second amended complaint does not demonstrate compliance with the claim presentation requirement. Plaintiff contends, however, that the Government Claims Act does not apply. He does not dispute that San Jose State University is a public entity as defined by the Act (see Gov. Code, § 811.2 [including "the California State University" within the definition of public entity].) Nor does he dispute that each defendant is an employee of San Jose State University. But he argues his suit is not subject to the claims presentation requirement because the defendants were acting outside the course and scope of their employment. And indeed, the second amended complaint alleges as much: "Defendants, as private parties for their act outside the course and scope of their employment, are not immune from liability, and it is thus not necessary to present a claim to the employing public entity."
As we have noted, when ruling on a demurrer the allegations of a complaint are assumed true. That rule applies to factual allegations, however; not to legal conclusions such as whether a defendant acted within the course and scope of employment. (C.R. v. Tenet Healthcare Corp. (2009) 169 Cal.App.4th 1094, 1102.) We are not required to accept plaintiff's assertion that defendants were acting outside the scope of their employment. Further, "[w]here a pleading includes a general allegation, such as an allegation of an ultimate fact, as well as specific allegations that add details or explanatory facts ... California courts have adopted the principle that specific allegations in a complaint control over an inconsistent general allegation. [Citations.] Under this principle, it is possible that specific allegations will render a complaint defective when the general allegations, standing alone, might have been sufficient." (Perez v. Golden Empire Transit Dist. (2012) 209 Cal.App.4th 1228, 1235-1236.) Here, while plaintiff's complaint recites the conclusory allegation that defendants acted outside the course and scope of employment, the more specific factual allegations tell us that the invasion of privacy claim arises out of allegedly false statements defendants made about plaintiff, while they were working, and regarding a work-related issue. We conclude the specific factual allegations of the complaint establish as a matter of law that the conduct in question occurred in the course and scope of defendants' employment with the university. (See Fowler v. Howell (1996) 42 Cal.App.4th 1746, 1751 [when the operative facts are undisputed and there are no conflicting inferences, the issue of course and scope of employment is a question of law that can be resolved on demurrer].)
An employee acts within the scope of employment when engaged in work he or she was employed to perform or when an act is incident to a work-related duty and was performed for the benefit of the employer and not to serve the employee's own purpose. (Fowler v Howell, supra, 42 Cal.App.4th. at pp. 1750-1751.) The inquiry is not whether the wrongful act was itself authorized by the employer but whether it was committed while performing acts which were authorized. (Id. at p. 1751.) Applying those standards, it is clear to us that when defendants accused plaintiff—falsely or otherwise—of deceptively submitting a travel reimbursement request, that conduct was within the scope of their employment. Particularly instructive is Hardy v. Vial (1957) 48 Cal.2d 577, where a college professor likewise sued several university employees for falsely accusing him of "gross immorality and unprofessional conduct." The California Supreme Court held that the defendant employees acted within the scope of their employment in making the accusations. (Id. at p. 583.)
Plaintiff argues that defendants' conduct was necessarily outside the course and scope of their employment because (as he alleges in the complaint) they acted intentionally, maliciously, and with ill-will toward him. But the term "scope of employment" is broadly construed to include willful and malicious torts as well as negligent conduct. (Fowler v. Howell, supra, 42 Cal.App.4th 1746, 1751.) Accordingly, conduct such as that complained of here—a derogatory statement about a co-worker regarding a work-related matter—is within the scope of employment. (Mazzola v. Feinstein (1984) 154 Cal.App.3d 305, 312.)
The alleged misconduct giving rise to plaintiff's cause of action for invasion of privacy occurred in the course and scope of defendants' employment with San Jose State University. As a result, plaintiff was required to present the claim to the university as provided by the Government Claims Act. Since he did not, the lawsuit is barred under Government Code section 950.2 and the trial court correctly sustained the demurrer. Because plaintiff has not shown how he could amend the complaint to correct the defect, the court did not abuse its discretion by sustaining the demurrer without leave to amend. (Cantu v. Resolution Trust Corp. (1992) 4 Cal.App.4th 857, 890.)
III. DISPOSITION
The judgment is affirmed. Respondents are awarded costs on appeal.
/s/_________
Grover, J.
WE CONCUR:
/s/_________
Greenwood, P. J. /s/_________
Bamattre-Manoukian, J.