SCHNEIDER v. CERIO

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Court of Appeal, First District, Division 2, California.

Dawna M. SCHNEIDER, Plaintiff and Appellant, v. Gary A. CERIO et al., Defendants and Respondents.

No. A052271.

Decided: April 10, 1992

Joseph A. Filippelli, Thomas Eastridge, Filippelli & Eastridge, San Francisco, for plaintiff and appellant. Robert J. Glynn, Elizabeth Greene, Glynn & Harvey, Corinne Stockstill, San Francisco, for defendants and respondents.

Introduction

Dawna M. Schneider (plaintiff) sought damages resulting from her alleged wrongful eviction by defendants Bernard Dervin (individually and as the administrator of the estates of Dolores L. Bacon and Michael R. Bacon) and Dervin's attorneys, Gary A. Cerio and the law firm of Glynn & Harvey.   She appeals from a judgment of the San Francisco Superior Court dismissing her second amended complaint as to respondents Cerio and Glynn & Harvey following the court's sustaining of their demurrer without leave to amend.   Plaintiff contends the court erred in sustaining the demurrer.   Specifically, she argues that the litigation privilege of Civil Code section 47, subdivision (b)(2) does not bar her action against respondents and that she did not otherwise fail to state a cause of action against respondents.

Facts and Procedural Background

 As this case arises on demurrer, “we assume the truth of all properly pleaded material allegations of the complaint [citations] and give the complaint a reasonable interpretation by reading it as a whole and its parts in their context [citation].”  (Silberg v. Anderson (1990) 50 Cal.3d 205, 210, 266 Cal.Rptr. 638, 786 P.2d 365.)   At the same time we do not treat the demurrer as admitting contentions, deductions, or conclusions of fact or law.   (Blank v. Kirwan (1985) 39 Cal.3d 311, 318, 216 Cal.Rptr. 718, 703 P.2d 58.)   We may also consider matters which may be judicially noticed.   (Ibid.)

The material facts are these:  Dolores L. Bacon was the sole owner of a single family residence located on Portola Drive in San Francisco.   Her only child, Michael Bacon, resided at the Portola residence.   In July 1987, plaintiff moved in with Michael.   Dolores L. Bacon died in September 1987, survived by her husband, William C. Bacon (who died a month later) and by Michael R. Bacon.   On November 26, 1988, Michael Bacon died in the premises.

Defendant Bernard Dervin, brother of Dolores and uncle of Michael, was their closest living relative.   On learning of Michael's death, Dervin, who resides in Monterey County, contacted respondent Cerio, an attorney with respondent law firm Glynn & Harvey, requesting legal advice on how to handle the estates.   On November 28, 1988, after consulting with Cerio, Dervin took possession of the only two keys to the subject premises from plaintiff.   At the time, plaintiff was staying with her sister.   Dervin told plaintiff that in order to protect the estate and the property in the residence, only he and plaintiff would possess keys.   Dervin asked for both keys under the pretext of ensuring that they worked properly.   Dervin later informed plaintiff that he would keep the keys and not return them.   Dervin thereafter demanded that plaintiff remove her personal possessions and immediately vacate the residence.   He made this demand without notice or legal process.   Dervin thereafter gave Cerio one of the two sets of keys, retaining the other.

Critical allegations of the complaint are contained in paragraphs 15 and 16 as follows:

“15. During the months of November and December 1988 the defendant CERIO allowed the plaintiff to enter the subject premises while in his presence.   The defendant CERIO personally controlled the plaintiffs access to the subject premises and denied her repeated requests to renew her tenancy there.   The defendant CERIO required the plaintiff to make appointments with him in order for him to unlock the house and be present so that she could recover her personal belongings.   It was only under these circumstances that the defendant CERIO would allow the plaintiff into the subject premises.   The defendant CERIO further personally supervised her entry into the subject premises as well as her removal of her personal belongings.   Once the plaintiff left the house on these occasions, the defendant CERIO would again lock the house using the keys which the defendant DERVIN had given to him.   The plaintiff observed the defendant CERIO, on at least one occasion, personally removing her personal effects from the subject premises.

“16. During November and December 1988 and the ensuing months, the defendant CERIO personally informed the plaintiff that she would have to vacate the subject premises.   The defendant made this demand without written notice or legal process.   The defendant CERIO further instructed the plaintiff that she would be required to remove her personal effects and belongings from the residence.   The defendant CERIO personally restricted the plaintiffs access to the subject premises and refused her requests to renew her tenancy.” 1

Subsequent paragraphs of the complaint allege that Cerio thereafter wrote plaintiff's previous attorney explaining his decision to evict her and confirming his personal involvement, that Cerio refused to return the house keys to plaintiff and refused to permit her to reoccupy the premises.

On January 11, 1989, Dervin filed petitions to administer the estates of Dolores L. Bacon and Michael Bacon.   On March 3, 1989, Dervin was appointed administrator of the estates.

Plaintiff alleged that the actions of respondents were tortious and in violation of the San Francisco Administrative Code.   She further alleged they caused her damage, including emotional distress, and she sought punitive as well as compensatory and statutory damages.

Respondents Cerio and Glynn & Harvey demurred to the second amended complaint on July 3, 1990, on the ground that each of the thirteen causes of action failed to state facts sufficient to constitute a cause of action against them and that all were barred by application of the privilege of Civil Code section 47, subdivision (b)(2).   On October 4, 1990, the demurrer was sustained on all grounds without leave to amend.   A judgment dismissing the complaint against respondents was entered and this timely appeal followed.

Discussion

The recent opinion in Kupiec v. American Internat. Adjustment Co. (1991) 235 Cal.App.3d 1326, 1 Cal.Rptr.2d 371, discusses the scope of the privilege afforded by Civil Code section 47, subdivision (b)(2):

“Section 47, subdivision (b)(2), makes privileged any publication or broadcast made in a judicial proceeding.   The privilege has been given broad application to further the public policies it is designed to serve.   The section affords litigants freedom of access to the courts and open channels of communication by absolutely protecting them from derivative litigation based on communicative acts during the judicial proceedings.  (Silberg v. Anderson (1990) 50 Cal.3d 205, 211, 213–216 [266 Cal.Rptr. 638, 786 P.2d 365]․)

 “Originally designed to provide a privilege in defamation situations, the section now applies to any communication, not just a publication, and applies to all torts except malicious prosecution.   The privilege applies to any communication (1) made in a judicial or quasi-judicial proceeding, (2) by litigants or other participants authorized by law, in or out of court, (3) to achieve the objects of litigation and (4) has some connection or logical relation to the action.  (Silberg v. Anderson, supra, 50 Cal.3d at p. 212 [266 Cal.Rptr. 638, 786 P.2d 365].) 2

 “However, section 47, subdivision (b)(2) applies only to communicative acts and does not privilege tortious courses of conduct.   (Kimmel v. Goland (1990) 51 Cal.3d 202, 205 [271 Cal.Rptr. 191, 793 P.2d 524] ․;  Pacific Gas & Electric Co. v. Bear Stearns & Co. (1990) 50 Cal.3d 1118, 1132, fn. 12 [270 Cal.Rptr. 1, 791 P.2d 587]․)  In Kimmel v. Goland, supra, 51 Cal.3d 202 [271 Cal.Rptr. 191, 793 P.2d 524], our Supreme Court determined the recording of a confidential telephone conversation in anticipation of litigation in violation of Penal Code section 632 was not privileged by section 47, subdivision (b)(2).   The key in determining whether section 47, subdivision (b)(2), applied is whether the harm alleged was the result of a communicative act or a course of conduct.  (Kimmel v. Goland, supra, 51 Cal.3d at pp. 210–212 [271 Cal.Rptr. 191, 793 P.2d 524].)   In Kimmel the court noted the damages sought were not for the publication of the statements intercepted but rather for the violation of privacy inherent in the interception itself.   The court was not prepared to extend section 47, subdivision (b)(2), to privilege unlawful conduct undertaken to obtain evidence in anticipation of litigation.  (Id., at p. 212 [271 Cal.Rptr. 191, 793 P.2d 524].)”  (Kupiec v. American Internat. Adjustment Co., supra, 235 Cal.App.3d at p. 1331, 1 Cal.Rptr.2d 371.)

The conduct found to be unprivileged in Kimmel v. Goland (1990) 51 Cal.3d 202, 271 Cal.Rptr. 191, 793 P.2d 524 was the act of recording in violation of the law and the transcription of that recording by the plaintiffs' attorney.   The court characterized this conduct as involving “noncommunicative acts” (id., at p. 205, 271 Cal.Rptr. 191, 793 P.2d 524), stating its holding was limited “to the narrow facts before us involving noncommunicative acts—the illegal recording of confidential telephone conversations—for the purpose of gathering evidence to be used in future litigation.”  (Ibid.)  The court also noted that “[t]o the extent the complaint rests on [the attorney's] alleged communicative acts of ‘counseling’ and ‘advising’ his clients, the privilege is clearly operative.”  (Id., at p. 208, fn. 6, 271 Cal.Rptr. 191, 793 P.2d 524, citing Silberg v. Anderson, supra, 50 Cal.3d 205, 266 Cal.Rptr. 638, 786 P.2d 365.)

 Kimmel posits an ostensibly simple demarcation “between injury allegedly arising from communicative acts ․ and injury resulting from noncommunicative conduct․  This distinction has traditionally served as a threshold issue in determining the applicability of section [47(b)(2) ].”   (Id., at p. 211, 271 Cal.Rptr. 191, 793 P.2d 524.)   The distinction is not, however, so simple, because most conduct is at least in part communicative.   The critical question, it seems to us, is whether the conduct was part of an intentional effort to convey information that “had some connection or logical relation to the action.”  (Silberg v. Anderson, supra, 50 Cal.2d at p. 212, 266 Cal.Rptr. 638, 786 P.2d 365.)

Cases following Kimmel have to some extent clarified the type of communicative conduct that is within the privilege.   In Kupiec v. American Internat. Adjustment Co., supra, 235 Cal.App.3d 1326, 1 Cal.Rptr.2d 371, an artist sued a hotel's insurance company and its claims adjustor for tortious interference with an earlier insurance claim and civil action, intentional concealment of evidence, and intentional infliction of emotional distress.   The artist alleged that defendants withheld knowledge concerning both the destruction of her painting inside the hotel, and the insurer's probable liability under the hotel's insurance policy.   She further alleged that defendants directed the hotel's counsel to falsely deny knowledge of the whereabouts of the painting.   The trial court sustained the demurrer without leave to amend and the appellate court affirmed.   The court concluded that the causes of action were based solely upon acts which “are all communicative in nature.   The alleged concealment and misrepresentation of facts and the alleged actions of [defendant] to abuse the discovery process are all acts that are, in their essential nature communicative.   Significantly, there is no allegation of physical destruction of evidence.   The core of Kupiec's lawsuit is that [defendant] made misstatements to her;  and in communications with its agents and attorneys, [defendant] carried out a plan to delay the prior lawsuit and to avoid liability.   Such conduct is communicative and comes within the privilege defined by section 47, subdivision (b)(2).”  (Id., at p. 1333, 1 Cal.Rptr.2d 371.)  (See also Doctors' Co. Ins. Services v. Superior Court (1990) 225 Cal.App.3d 1284, 275 Cal.Rptr. 674, holding privileged the communicative conduct of a malpractice carrier in allegedly concealing its insured's liability and instructing its insured and another doctor to lie at their depositions.)

Howard v. Drapkin (1990) 222 Cal.App.3d 843, 271 Cal.Rptr. 893, evolved from a family law matter in which child custody and visitation were disputed.   Defendant, a psychologist, performed an evaluation of plaintiff and her family.   Plaintiff sued the psychologist, alleging that she had verbally abused plaintiff in an evaluation session, omitted pertinent information in the evaluation report, failed to divulge her lack of expertise in the area of child and sexual abuse, failed to disclose that she and the husband had a prior professional relationship, and failed to disclose that she was a close personal friend of the wife of one of the husband's law partners.   The Court of Appeal affirmed the dismissal of the action following the sustaining of the demurrer on the grounds the psychologist was protected by both common law quasi-judicial immunity and the absolute statutory privilege of Civil Code section 47, subdivision (b)(2).   The court noted that “the statutory privilege extends to bar liability for ‘communicative acts' but not conduct or ‘noncommunicative acts.’  (Kimmel v. Goland (1990) 51 Cal.3d 202, 211 [271 Cal.Rptr. 191, 793 P.2d 524] ․;  Pacific Gas & Electric Co. v. Bear Stearns & Co. (1990) 50 Cal.3d 1118, 1132, fn. 12 [270 Cal.Rptr. 1, 791 P.2d 587]․)  ․ [A]ny conduct in which defendant engaged was secondary to and intertwined with the alleged offensive and dishonest communicative acts.”  (222 Cal.App.3d at p. 851, fn. 2, 271 Cal.Rptr. 893.)  (Accord Gootee v. Lightner, supra, 224 Cal.App.3d 587, 274 Cal.Rptr. 697, holding the privilege applied to shield a psychologist retained by parties to a child custody dispute where plaintiff alleged negligence in administering tests and wrongful destruction of certain raw test data.   The court held these actions were protected as the asserted conduct occurred in conjunction with or anticipation of privileged testimony.)

In Boston v. Nelson (1991) 227 Cal.App.3d 1502, 278 Cal.Rptr. 386, the buyer of a condominium in Hawaii sued the seller's attorneys for fraud, intentional misrepresentation, and conspiracy to interfere with prospective business advantage based on their conduct in causing a nonfinal deficiency judgment issued in a Hawaiian foreclosure proceeding to be entered in California and their misleading the trial court in order to delay an order vacating the judgment.   The appellate court held the privilege applied, rejecting the buyer's argument that the defendant's conduct, in violation the provisions of the Civil Code regarding deceit (Civ.Code, §§ 1709, 1710) and in recording a judgment that was not final, caused the injuries.   The court concluded that all of the defendant's actions involved written or verbal communications with the court and therefore came with in the statutory privilege.

Kimmel and the cases that follow indicate that conduct is privileged if its primary purpose is to communicate information related to the legal action.   Because the acts alleged in this case are fundamentally communicative in this sense, they are privileged.

 Certainly, to the extent plaintiff challenges respondents' actions in counselling Dervin, advising him as to how to proceed, informing plaintiff that she would not be permitted unsupervised access to the premises, rejecting her claim of a possessory interest and refusing to admit her to the residence, such acts were quintessentially communicative, were embodied in words or writing, and were unquestionably within the ambit of the privilege.   Although plaintiff couches her claims in terms of respondent Cerio's “personally controll[ing] ․ access to the premises and den[ying] her repeated requests to renew her tenancy,” it is evident that these claims refer to communications to opposing counsel and to plaintiff (with her counsel's permission) denying her access.

The only physical acts plaintiff alleges respondent Cerio performed were accepting the key from Dervin and personally supervising plaintiff's access to the house by unlocking the door, watching her remove her belongings (on one occasion assisting her in removing her effects), and relocking the door.   These non-verbal acts cannot fairly be divorced from Cerio's entire course of conduct, performed in his role as legal counsel to Dervin, which was calculated to and did impart information relating to issues that are at the heart of the present legal dispute.   The physical acts were entirely consistent with the information Cerio endeavored to convey to plaintiff:  that her right of access to the premises had terminated.   Application of the privilege is warranted in light of the communicative nature of the conduct in question.   Accordingly, the demurrer was properly sustained.

The judgment is affirmed.   Respondents shall recover their costs on this appeal.

FOOTNOTES

1.   Cerio had been given permission from plaintiff's attorney to speak to her directly.

2.   Communications with an attorney preliminary to a judicial proceeding are protected by the immunity granted under Civil Code section 47, subdivision (b)(2), as are communications with potential parties made prior to and in anticipation of litigation.  (Fuhrman v. California Satellite Systems (1986) 179 Cal.App.3d 408, 421, 231 Cal.Rptr. 113, disapproved on other grounds in Silberg v. Anderson, supra, 50 Cal.3d 205, 219, 266 Cal.Rptr. 638, 786 P.2d 365;  Gootee v. Lightner (1990) 224 Cal.App.3d 587, 594, 274 Cal.Rptr. 697.)Plaintiff's sole basis for contending the privilege does not apply is that she alleged a course of conduct by respondents which involved more than protected communications.   She does not contend the alleged conduct or communications were not connected with an anticipated judicial proceeding or otherwise failed to meet the statutory standards.

KLINE, Presiding Justice.

SMITH and BENSON, JJ., concur.

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