Green v. Uccelli

• Decision Date: 08 February 1989
• Docket Number: No. A037223,A037223
• Citation: 255 Cal.Rptr. 315,207 Cal.App.3d 1112
• Court: California Court of Appeals Court of Appeals
• Parties: James Paul GREEN, Plaintiff and Appellant, v. David P. UCCELLI, etc., Defendant and Respondent.

Page 315

255 Cal.Rptr. 315

207 Cal.App.3d 1112

James Paul GREEN, Plaintiff and Appellant, v. David P. UCCELLI, etc., Defendant and Respondent.

No. A037223.

Court of Appeal, First District, Division 5, California.

Feb. 8, 1989.

James Paul Green, in pro. per.

Janet L. Falletti, Bergeron & Garvic, San Mateo, Bernard N. Wolf, Dowgialo & Wolf, San Francisco, for defendant and respondent.

KING, Associate Justice.

In this case we hold that withdrawing an order to show cause re contempt from the calendar in a marital dissolution action cannot constitute the basis of an action for malicious prosecution, abuse of process or intentional infliction of emotional distress against the attorney for the moving party. If the order to show cause was brought in bad faith or for harassment or violated the policy in family law cases to promote settlement and reduce the costs of litigation, relief is appropriately sought not through an independent action but through an award of attorney fees and sanctions against the attorney for the moving party within the dissolution action. Additionally, we hold that an order that the county clerk seal the file in a marital dissolution action cannot be used as the basis for an action for invasion of privacy against the attorney for the other spouse.

James Paul Green appeals from a dismissal after an order sustaining a demurrer to each cause of action of his complaint against David P. Uccelli without leave to amend. The complaint alleged causes of action for invasion of privacy, malicious prosecution, abuse of process and intentional infliction of emotional distress arising out of Uccelli's representation of Mrs. Green in an underlying action in which Mr. Green had filed for nullity and dissolution of their marriage. ¹ We affirm. ²

In August 1985, Green, in ex parte applications, obtained two so-called "confidentiality orders" withholding from public inspection the papers on file in his then pending action for nullity and to dissolve his marriage. ³

On November 18, 1985, the trial court in the underlying dissolution action issued an order to show cause re contempt, based on the declaration of Uccelli, representing Green's wife, that Green had failed to pay court-ordered attorney fees. According to Green, the order to show cause re contempt was dismissed for lack of prosecution. Uccelli maintains he took the contempt proceeding off calendar when the attorney fees were belatedly paid. This factual dispute is irrelevant in view of our holding.

On August 27, 1986, the trial court issued a second order to show cause re contempt, based on Uccelli's declaration that Green had failed to return a garage door opener to Mrs. Green as ordered by the court on July 31. Uccelli took the contempt hearing off calendar when Green returned the garage door opener.

On September 4, 1986, with the dissolution action still pending, ⁴ Green filed a complaint against Uccelli for damages for invasion of privacy, malicious prosecution, abuse of process, and intentional infliction of emotional distress, which is the subject of this appeal. In his demurrer and motion to strike each cause of action of that complaint, Uccelli requested the trial court to take judicial notice of "all documents, papers, proceedings, and records" in the underlying dissolution action. (Evid.Code, § 452, subd. (d).) The trial court granted the request, sustained the demurrer to the entire complaint without leave to amend, and dismissed the action.

"In reviewing the sufficiency of a complaint against a general demurrer, we are guided by long-settled rules. 'We treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. We also consider matters which may be judicially noticed.' Further, we give the complaint a reasonable interpretation, reading it as a whole and its parts in their context. When a demurrer is sustained, we determine whether the complaint states facts sufficient to constitute a cause of action. 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. The burden of proving such reasonable possibility is squarely on the plaintiff." (Blank v. Kirwan (1985) 39 Cal.3d 311, 318, 216 Cal.Rptr. 718, 703 P.2d 58, citations omitted.)

I.

In his first cause of action for invasion of privacy Green alleged that "from and after the approximate date of September 25, 1985," in violation of the confidentiality orders, Uccelli "caused to be published" among unspecified persons unspecified "particulars of the domestic relations dispute, and other facts," subjecting him to "public notoriety and disregard."

The trial court found these allegations failed to set forth ultimate facts constituting the right to privacy, wrongful invasion or resulting injury. (See 5 Witkin, Cal. Procedure (3d ed. 1985) Pleading, § 695, p. 146.) Green maintains he stated a cause of action for invasion of privacy based on article I, section 1 of the California Constitution and/or the common law tort of public disclosure of private facts. ⁵

One of the principal "mischiefs" at which the constitutional privacy provision is directed is "the improper use of information properly obtained for a specific purpose, for example, the use of it for another purpose or the disclosure of it to some third party." (White v. Davis (1975) 13 Cal.3d 757, 775, 120 Cal.Rptr. 94, 533 P.2d 222.) "As discerned from the decisions of our courts, the public disclosure tort contains the following elements: (1) public disclosure (2) of a private fact (3) which would be offensive and objectionable to the reasonable person and (4) which is not of legitimate public concern." (Diaz v. Oakland Tribune, Inc., supra, 139 Cal.App.3d at p. 126, 188 Cal.Rptr. 762.)

Green's allegations are indeed too vague to state a cause of action under either theory. The trial court also found Green could not rectify this defect by amendment because his "uncertain and conclusionary allegations ... are contrary to facts of which judicial notice was taken." As a rule, "a demurrer tests the sufficiency of the complaint alone and not the evidence or other extrinsic matters. Thus, a demurrer ordinarily lies only where a defect appears on the face of the complaint.... [p] However, a complaint may be read as if it included matters judicially noticed. Such matters may show the complaint fails to state a cause of action though its bare allegations do not disclose the defect." (Lazzarone v. Bank of America (1986) 181 Cal.App.3d 581, 590, 226 Cal.Rptr. 855, citations omitted.)

The trial court stated, "To the extent [the first cause of action] is based on a violation of the order referred to therein, judicial notice of said order establishes the same does not state nor have the effect alleged by plaintiff, and to that extent the allegations of the purported First Cause of Action are contrary to facts of which judicial notice was taken." The trial court thus accepted Uccelli's contention that the confidentiality orders did not restrain him, but applied only to the superior court clerk. We agree.

It is clear from Green's pleading, as from his statements to this court at oral argument, that this cause of action is based upon his contention Uccelli violated the court's order sealing the file in the underlying dissolution action. If there is any validity to this contention, Green should have brought it to the attention of the court in the dissolution action and obtained that court's assistance in enforcing the order. That court certainly possesses the power to enforce its own orders under Code of Civil Procedure section 128 and its inherent power to control the court's processes.

Green never attempted to enforce the order in the dissolution action. Probably this is because Uccelli's contention is correct: the court's order at most directed the clerk of the court to keep the file sealed from public view. Indeed, the authorities Green relied on to obtain this ex parte order, Civil Code sections 4309, 4351.5 and 4360, do not authorize sealing the file. Section 4309, which relates to premarital examinations, is not relevant here. Section 4351.5 refers to the confidentiality of child custody and visitation mediations which are confidential by statute without any court order. Section 4360 only authorizes, under limited circumstances, the exclusion of the public from a family law trial. The only case Green cited in seeking the order sealing the file was Whitney v. Whitney (1958) 164 Cal.App.2d 577, 330 P.2d 947, which did not discuss sealing a file, only the closing of a hearing to the public.

In order to state a cause of action for invasion of privacy, Green must allege that Uccelli publicly disclosed private facts, not that he violated a court order. The contents of the file of a divorce proceeding are "historically and presumptively" a matter of public record. (Pantos v. City and County of San Francisco (1984) 151 Cal.App.3d 258, 263, 198 Cal.Rptr. 489.) In short, as an attorney, Green should have realized that when he filed his action for dissolution in superior court he was entering a public forum which would result in public disclosure of private facts. Indeed, during the dissolution action Green himself virtually relinquished any right of privacy as to matters in the dissolution when he filed in the public record of this court a writ of mandate which included more than 50 pages of material relating to his dissolution of marriage. ⁶

II.

In his second and fourth causes of action Green alleged malicious prosecution based on Uccelli's allegedly false declarations in support of the two orders to show cause re contempt issued by the superior court in the underlying dissolution action. "To sustain an action for malicious prosecution of a...