Carden v. Getzoff

• Decision Date: 27 March 1987
• Citation: 235 Cal.Rptr. 698,190 Cal.App.3d 907
• Court: California Court of Appeals Court of Appeals
• Parties: Edward D. CARDEN, Plaintiff and Appellant, v. Stephen N. GETZOFF, et al., Defendants and Respondents. * B016289.

Page 698

235 Cal.Rptr. 698

190 Cal.App.3d 907

Edward D. CARDEN, Plaintiff and Appellant, v. Stephen N. GETZOFF, et al., Defendants and Respondents. ^*

B016289.

Court of Appeal, Second District, Division 3, California.

March 27, 1987.

Review Denied June 17, 1987.

Maginnis & Maginnis, Jeannette Torrel Maginnis and J. Patrick Maginnis, Los Angeles, for plaintiff and appellant.

Wilson, Elser, Moskowitz, Edelman & Dicker, Steven R. Parminter and Lisa D. Norlander, Los Angeles, for defendants and respondents.

LUI, Presiding Justice.

Plaintiff Edward D. Carden, M.D., appeals from the dismissal of his second amended complaint without leave to amend.

Appellant's second amended complaint alleged abuse of process, intentional infliction of emotional distress, and negligent infliction of emotional distress, all related to allegations that respondent ¹ had manufactured false evidence as an expert accounting witness for appellant's former wife in a dissolution action. ²

The Second Amended Complaint

Appellant, an anesthesiologist, was involved in dissolution proceedings with his wife. Respondent prepared a Medical Practice Valuation of appellant's anesthesiology practice to be used in the negotiation of a settlement agreement. Respondent purported to have examined appellant's anesthesiology practice to determine the goodwill therein and to have compared the evaluation of the goodwill found in appellant's practice to that of "other similar practices" that had also been examined by respondent. Appellant alleges that those representations were false and that no evaluation was made of appellant's anesthesiology practice and no comparison was made. If respondent had made such evaluations and comparisons, "they would have determined that no goodwill existed in the practice of [appellant], since a comparison with 'other similar practices' would have also shown that no such goodwill existed in the similar practices."

Negotiations for settlement were allegedly stymied based on the evaluation of goodwill that was "far in excess of any goodwill in actuality." Therefore, appellant was forced to go to trial. At trial, respondent allegedly misused the process of the court when respondent testified that "he had made an appraisal of [appellant's] anesthesiology practice based upon an examination of the practice and a comparison of the evaluation of the goodwill of the practice to that of three other comparable anesthesiology medical practices."

The second amended complaint alleges that those three purported practitioners were not anesthesiologists with comparable practices and in fact did not even exist as anesthesiologists in the State of California. Appellant alleges that no goodwill existed in his practice since he was on a staff as part of a rotation group at Centinela Medical Center, had no patients of his own, and thus no goodwill. Appellant alleges that he was forced to settle his dissolution action and to pay his wife $50,000 as her community property portion of the goodwill of his practice, when no value existed for that practice, because of respondent's wrongful acts in testifying falsely and misusing the processes of the court.

The second amended complaint asserted theories of abuse of process, intentional infliction of emotional distress, and negligent infliction of emotional distress. Appellant sought compensatory and punitive damages.

The Demurrer to the Second Amended Complaint

In respondent's demurrer to appellant's second amended complaint, respondent argues regarding the first cause of action that there was no substantive abuse of process in the preparation of the documentary evidence and that, in any event, the preparation of documentary evidence and the giving of testimony are protected by the absolute privilege of California Civil Code section 47, subdivision (2). ³

Respondent demurred to the second and third causes of action in the second amended complaint, alleging that appellant had pled facts substantially similar to those pleaded in the first amended complaint to which respondent's demurrer had been sustained and, therefore, those causes of action are to be considered a sham. The A minute order dated April 24, 1985, reflects that the trial court sustained the demurrer without leave to amend "on [the] grounds stated" and dismissed as to the demurring defendants. Appellant filed a motion for reconsideration, which included exhibits of discovery sought following the sustaining of the demurrer in which respondent asserted his Fifth Amendment privileges and a reporter's transcript of respondent's testimony in the dissolution action. ⁴

parties filed additional opposition to the demurrer and a reply thereto.

The trial court denied the motion for reconsideration as untimely, on its merits, and because the "evidence" could have been presented at the initial hearing. The evidence appellant presented was stricken from the record. An order of dismissal followed, and this appeal was taken therefrom.

CONTENTIONS ON APPEAL

Appellant's contentions on appeal may be summarized as follows:

1. The privilege of section 47, subdivision (2), should not operate as a limitation upon respondent's liability since the publication was not made in good faith nor in serious contemplation of litigation.

2. Respondent owed a duty to appellant to act honestly and in good faith.

3. A trend in California to recognize new torts where the process of the courts are being subverted allows this court to formulate a new tort which can be analogized to the spoliation of evidence tort recently recognized in this state.

4. The facts of this case can also be analogized to the tort of misuse of process.

5. Appellant's causes of action for punitive damages and for intentional and negligent infliction of emotional distress are related with the other causes of action; if they are valid, then these causes of action are valid if pled correctly.

Respondent contends that the absolute privilege of section 47, subdivision (2), precludes causes of action for fraud, professional negligence, abuse of process, and intentional or negligent infliction of emotional distress. In addition, even assuming no bar by privilege, none of the three complaints states facts sufficient to state causes of action in that:

1. Appellant has failed to allege facts sufficient to show that respondent owed any duty of care to appellant;

2. Appellant cannot state a cause of action for intentional infliction of emotional distress since the facts alleged do not produce extreme outrage; and

3. Appellant cannot state a cause of action for negligent infliction of emotional distress where there is no duty.

Respondent argues that appellant's prosecution of this frivolous appeal entitles him to sanctions.

DISCUSSION

Standard of Review

" 'We treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. [Citation.] We also consider matters which may be judicially noticed.' [Citations.] Further, we give the complaint a reasonable interpretation, reading it as a whole and its parts in their context. [Citation.] When a demurrer is sustained, we determine whether the complaint states facts sufficient to constitute a cause of action. [Citation.] And when it is sustained without leave to amend, we decide whether there is a reasonable possibility that the defect can be cured by amendment: if it can be, the trial court has abused its discretion and we reverse; if not, there has been no abuse of discretion and we affirm. [Citations.] The burden of proving such reasonable possibility is squarely on the plaintiff. [Citation.]" (Blank v. Kirwan (1985) 39 Cal.3d 311, 318, 216 Cal.Rptr. 718, 703 P.2d 58.)

1. The Trial Court Did Not Err in Finding that the Privilege of Section 47 Bars the Complaint

Section 47 provides in relevant part that: "A privileged publication or broadcast is one made ... [p] 2. In any ... (2) judicial proceeding, or (3) in any other official proceeding authorized by law ...."

"[A]lthough the statutory privilege accorded to statements made in judicial proceedings appears in the code in the chapter on defamation, it applies to virtually all other causes of action, with the exception of an action for malicious prosecution. (Pettitt v. Levy (1972) 28 Cal.App.3d 484, 489 ....)" (Ribas v. Clark (1985) 38 Cal.3d 355, 364, 212 Cal.Rptr. 143, 696 P.2d 637; Kilgore v. Younger (1982) 30 Cal.3d 770, 778, 180 Cal.Rptr. 657, 640 P.2d 793.) The decisions in Fuhrman v. California Satellite Systems (1986) 179 Cal.App.3d 408, 420, 231 Cal.Rptr. 113, and Rosenthal v. Irell & Manella (1982) 135 Cal.App.3d 121, 125, 185 Cal.Rptr. 92, make it clear that the privilege "has been applied to defeat tort actions based on publications in protected proceedings but grounded on different theories of liability" (Rosenthal, supra, 135 Cal.App.3d at p. 125, 185 Cal.Rptr. 92), listing several theories of liability, attempted but rejected, including abuse of process, ⁵ intentional infliction of mental distress, inducing breach of contracts, invasion of privacy, fraud, interference with prospective economic advantage, negligent misrepresentation, and negligence. (See also Block v. Sacramento Clinical Labs, Inc. (1982) 131 Cal.App.3d 386, 390-391, 182 Cal.Rptr. 438.) ⁶

While courts have argued about the scope of the privilege (see Barbary Coast Furniture Co. v. Sjolie (1985) 167 Cal.App.3d 319, 332-335, 213 Cal.Rptr. 168), it is clear that "the privilege has been applied to publications which were private communications between parties and which communications were related not only to actual but potential court actions." (Rosenthal, supra, 135 Cal.App.3d at p. 126, 185 Cal.Rptr. 92.)

Unless some other exception to the privilege applies, it seems clear to us that the "publications" made both in the document prepared by respondent and in respondent's testimony at the dissolution proceedings are covered by the absolute...