Ellenberger v. Espinosa

Citation30 Cal.App.4th 943,36 Cal.Rptr.2d 360
Decision Date18 November 1994
Docket NumberNo. E011662,E011662
CourtCalifornia Court of Appeals
PartiesJames Dennis ELLENBERGER, Plaintiff and Appellant, v. Jennie ESPINOSA, Defendant and Respondent.
OPINION

HOLLENHORST, Associate Justice.

Plaintiff, James Dennis Ellenberger, D.D.S., appeals from a judgment entered against him and in favor of defendant Jennie Espinosa, (hereinafter "defendant") based on the trial court's action of sustaining her demurrer to plaintiff's second amended complaint without leave to amend.

PROCEDURAL BACKGROUND

On April 10, 1992, plaintiff filed his second amended complaint against defendant and several other parties, including the State of California. Five causes of action were alleged against defendant: (1) conspiracy to violate Civil Rights (42 U.S.C. § 1983); (2) slander per se; (3) intentional interference with contractual relationships; (4) intentional interference with prospective economic advantage; and (5) conspiracy. On May 14, 1992, defendant demurred to each of these causes of action. On June 26, 1992, plaintiff filed his opposition to the demurrer. The court reviewed defendant's challenges, sustained the demurrer without leave to amend, and entered judgment in her favor. Plaintiff appeals from such judgment.

STANDARD OF REVIEW

Where a trial court sustains a demurrer without leave to amend, we review such action under the abuse of discretion standard. (Hendy v. Losse (1991) 54 Cal.3d 723, 742, 1 Cal.Rptr.2d 543, 819 P.2d 1.) If there is a reasonable possibility that the pleading can be cured by an amendment, the trial court's ruling will be reversed. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318, 216 Cal.Rptr. 718, 703 P.2d 58.)

On review, we examine the complaint's factual allegations to determine whether they state a cause of action on any available legal theory. (Saunders v. Cariss (1990) 224 Cal.App.3d 905, 908, 274 Cal.Rptr. 186.) We treat the demurrer as admitting all material facts which were properly pleaded. (Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 967, 9 Cal.Rptr.2d 92, 831 P.2d 317.) However, we will not assume the truth of contentions, deductions, or conclusions of fact or law (Moore v. Regents of University of California (1990) 51 Cal.3d 120, 125, 271 Cal.Rptr. 146, 793 P.2d 479) and we may disregard any allegations that are contrary to the law or to a fact of which judicial notice may be taken. (Fundin v. Chicago Pneumatic Tool Co. (1984) 152 Cal.App.3d 951, 955, 199 Cal.Rptr. 789.)

DID THE TRIAL COURT ABUSE ITS DISCRETION BY FAILING TO GRANT PLAINTIFF LEAVE TO AMEND HIS COMPLAINT?

In his opening brief, plaintiff focuses his arguments on the civil rights and defamation causes of action. Thus, plaintiff's opening brief only addresses the two causes of action: (1) conspiracy to violate Civil Rights (42 U.S.C. § 1983), and (2) slander per se. The other three causes of action, intentional interference with contractual relationships, intentional interference with prospective economic advantage, and conspiracy are not addressed.

We are not required to make an independent unassisted study of the record in search of error or grounds to challenge a trial court's action. We are entitled to the assistance of counsel. When a brief fails to contain a legal argument with citation of authorities on the points made, we may "treat any claimed error in the decision of the court sustaining the demurrer as waived or abandoned." (Wilson v. Board of Retirement (1957) 156 Cal.App.2d 195, 212-213, 319 P.2d 426; 9 Witkin, Cal. Procedure (3d ed. 1985) Appeal, § 479, pp. 469-471.) Thus, our review is limited to only those causes of action briefed on appeal.

A. Facts. 1

Since June, 1970, plaintiff has been engaged in the practice of dentistry, treating pediatric, adult, Denti-Cal, insured, private, handicapped, and indigent patients. Beginning in September or October 1990, plaintiff was accused of physically and psychologically abusing, threatening, or harming one or more of his patients, who were children, during the course of administering dental care. Investigation by local police and prosecutors concluded that the accusations were false and groundless.

However, in Spring 1991, the Board of Dental Examiners conducted an administrative hearing regarding the accusations wherein evidence was presented and plaintiff was given an opportunity to be heard in his defense. After taking the matter under submission, the administrative law judge submitted the proposed decision which was adopted by the board on July 12, 1991. Both parties petitioned the board for reconsideration. Their petitions were granted and on March 13, 1992, the board entered its decision (case no. 1990-19, OAH L-52153) which found that good cause existed (1) to impose discipline on plaintiff for acts of gross negligence and repeated negligent acts pursuant to Business and Professions Code section 1670; (2) to impose discipline on plaintiff for acts of gross immorality substantially related to the practice of dentistry pursuant to Business and Professions Code section 1680, subdivision (e); (3) to impose discipline on plaintiff for violation of Business and Professions Code section 1682, subdivision (e) for failure to obtain written informed consent of a patient or the patient's parent or guardian prior to administering conscious sedation; and (4) to impose discipline on plaintiff for violation of Business and Professions Code section 1680, subdivision (n). Among other things, plaintiff's dental certificate was suspended for a period of 12 months and he was directed to complete 40 hours of continuing education.

With these facts in mind, we examine the trial court's rulings regarding the demurrer.

B. Conspiracy to Violate Civil Rights (42 U.S.C. § 1983).

The trial court correctly concluded that plaintiff failed to allege facts sufficient to support a cause of action for conspiracy to violate civil rights. This claim was based on the allegation that defendant, together with others, agreed to and actively aided and abetted, and encouraged the other defendants to do the acts claimed in the first cause of action for civil rights violation. The first cause of action alleged, among other things that defendants presented defamatory statements in connection with the Board of Dental Examiners' hearing. Moreover, it concluded that by virtue of plaintiff's vested right to practice dentistry, he was "entitled to substantive and procedural due process and equal protection of the law as guaranteed by the Fifth and Fourteenth Amendments to the Constitution of the United States with respect to any actions taken against his dental license under authority or under color of authority by the State of California or its agents."

In her demurrer, defendant argued that the publication of defamatory statements does not violate the federal constitution. (Paul v. Davis (1976) 424 U.S. 693, 694, 96 S.Ct. 1155, 1157, 47 L.Ed.2d 405.) We agree. In its Paul opinion, the Supreme Court held that a person who was defamed by the police department's distribution of a flyer containing names and photos of "known shoplifters" could not assert a due process claim under section 1983 although he might have a claim under state defamation law. In Siegert v. Gilley (1991) 500 U.S. 226, 111 S.Ct. 1789, 114 L.Ed.2d 277, the Supreme Court refused to limit its decision in Paul to cases where the defamation was not accompanied by loss of business or other property interests.

In Siegert, plaintiff, a psychologist at a federal government hospital, resigned to avoid a discharge that would adversely affect future employment. After finding employment at another hospital operated by the U.S. Army, plaintiff's supervisor, Gully, sent a highly negative reference letter to the hospital stating, among other things, that plaintiff was inept, unethical and untrustworthy. As a result of the letter, plaintiff was denied the credential required for him to continue his employment, and he was later terminated. In affirming the dismissal of plaintiff's claims, the Supreme Court held that even if plaintiff's allegations were true, they "failed to establish the violation of any constitutional right at all." (Siegert v. Gilley, supra, 500 U.S. 226, 233, 111 S.Ct. 1789, 1794, 114 L.Ed.2d 277, 287.)

Nonetheless, plaintiff contends that the allegations supporting his claim for violation of civil rights and conspiracy are similar to the allegations set forth in Buckey v. County of Los Angeles (9th Cir.1992) 968 F.2d 791. In Buckey, plaintiff, acquitted in a highly publicized child molestation case (McMartin Preschool), brought a section 1983 action against several defendants alleging that the policies and actions of these defendants deprived her of her rights to due process, privacy, equal protection, and fair trial contrary to the Fourteenth Amendment. The district court dismissed the complaint and denied plaintiff leave to amend.

On appeal, the Ninth Circuit reversed such decision stating, "We believe [plaintiff may be able to make a claim] that all the parties described in the complaint conspired under the color of state law to subject Buckey to the hardships and injuries which she suffered. [However, w]e express no opinion on whether such a claim ethically and professionally can be filed. We only indicate that it is a possibility. [p] This putative claim would ... assert that due process was unconstitutionally denied 'regardless of the purity of the procedures themselves.' [Citation.] ... [p] Under the putative claim, Buckey ... would assert that the defendants, for their various reasons, conspired to attempt to send her to jail for child molestation, in the course of which great injury was suffered...

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