Case Name: Dandridge v. Hsuchai, et al.

Case No.: 16-CV-292019

This action initiated by plaintiff Joshua Dandridge (“Plaintiff”) against defendants Annabel Hsuchai, David Chai[1] (collectively “Defendants”), and the Milipitas Police Department (the “Police”) arises out of Plaintiff’s false arrest.

According to the complaint (“Complaint”), in August 2015, the Police received a “code 3” call for help.  (Complaint, Cause of Action – General Negligence.)  Nine police officers responded and pointed pistols and rifles at Plaintiff, believing he was armed and dangerous.  (Ibid.)  Plaintiff was subsequently arrested.  (Ibid.)  After reviewing all the evidence, it was determined the arrest was made based on a “false report.”  (Ibid.)  Defendants’ false accusations caused Plaintiff injury to his body and nervous system.  (Ibid.)

Plaintiff asserts a single cause of action for negligence against all defendants.  Defendants presently move for judgment on the pleadings to the negligence cause of action on the ground it fails to state sufficient facts to constitute a cause of action.  (Code Civ. Proc., § 438.)

A defendant may move for judgment on the pleadings on the basis the complaint does not state facts sufficient to constitute a cause of action.  (Code Civ. Proc., § 438, subd. (c)(1)(B)(ii).)  “The grounds for motion provided . . . shall appear on the face of the challenged pleading or from any matter of which the court is required to take judicial notice.”  (Code Civ. Proc., § 438, subd. (d).)  In ruling on the motion, the court accepts as true all material factual allegations but does not consider conclusions of fact or law, opinions, speculation, or allegations contrary to law or judicially noticed facts.  (See Shea Homes Ltd. Partnership v. County of Alameda (2003) 110 Cal.App.4th 1246, 1254.)

Defendants assert the claim is barred under the privilege prescribed by Civil Code section 47, subdivision (b) (“Section 47(b)”) because it is based on statements reported to the Police.

Section 47(b), often referred to as the litigation privilege, provides a statement made in the course of a judicial proceeding are privileged.  (See Silberg v. Anderson (1990) 50 Cal.3d 205, 212.)  “The usual formulation is that the [litigation] privilege applies to any communication (1) made in judicial or quasi-judicial proceedings; (2) by litigants or other participants authorized by law; (3) to achieve the objects of the litigation; and (4) that have some connection or logical relation to the action.”  (Ibid., citations omitted.)  The “principal purpose” of the litigation privilege “is to afford litigants and witnesses [citation] the utmost freedom of access to the courts without fear of being harassed subsequently by derivative tort action.”  (Id. at p. 213.)  “[A] communication is privileged under section 47(b) if made in, or in anticipation of, litigation by litigants or other authorized participants to achieve the objects of the litigation, and if the communication has some connection or logical relation to the action.”  (Rothman v. Jackson (1996) 49 Cal.App.4th 1134, 1145.)  “The absolute privilege found in section 47(b) bars all tort causes of action, except for a claim of malicious prosecution.”  (Chabak v. Monroy (2007) 154 Cal.App.4th 1502, 1514.)

Defendants primarily rely on Hagberg v. California Federal Bank FSB (2004) 32 Cal.4th 350 (“Hagberg”) for the proposition that statements made to the police are privileged.  In Hagberg, the plaintiff attempted to cash a check at the defendant bank.  (Hagberg, supra, 32 Cal.4th at p. 355.)  A bank teller suspected the check was a counterfeit and reported it to her supervisor.  (Ibid.)  The supervisor contacted the bank issuing the check and was told it was not valid and to contact the police.  (Id. at p. 356.)  The supervisor subsequently telephoned the police, reported the plaintiff was attempting to cash an invalid check, and described the plaintiff’s appearance.  (Ibid.)  While the supervisor was on the phone with the police, the bank received another phone call from the bank that issued the check, retracting its earlier statement that the check was invalid and confirming it was actually valid.  (Ibid.)  The defendant bank attempted to call the police to cancel the report.  (Ibid.)  The police did not receive the message and came to the bank.  (Ibid.)  At the bank, the police detained the plaintiff and frisked her.  (Ibid.)  The police released her approximately twenty minutes later.  (Ibid.)  The plaintiff then filed an action against the bank asserting various causes of action, including false arrest and negligence.  (Id. at p. 357.)  The bank filed a motion for summary judgment on the basis its statements to the police concerning suspected criminal activity were privileged under Section 47(b).  (Ibid.)  The trial court granted the motion and stated: “Although it is subject to abuse, it seems to me the right of a private citizen, or a public citizen for that matter, to contact the police and advise the police of what they suspect to be criminal activity must be absolute and must be without threat of recourse.”  (Id. at p. 358.)  The Court of Appeal affirmed the trial court’s order based on the same reasoning.  (Ibid.)

The California Supreme Court affirmed the Court of Appeal’s decision.  (Hagberg, supra, 32 Cal.4th at p. 355.)  The court first emphasized that the litigation privilege is absolute and bars all tort causes of action with the exception of a claim for malicious prosecution.  (Id. at p. 360.)  The court examined the long history of Section 47(b) and noted it “is not limited to statements made in a courtroom” and includes statements made prior to a lawsuit.  (Id. at p. 361.)  The court also observed that Section 47(b) applies to complaints to governmental agencies requesting it investigate or remedy a wrongdoing, including police investigation.  (Id. at pp. 363, 370.)  The court concluded the privilege under Section 47(b) extends to citizens contacting law enforcement personnel to report suspected criminal activity and to instigate a response from them.  (Id. at p. 364.)

Plaintiff asserts Hagberg is inapposite because it is limited to cases involving suspected criminal activity and he does not allege Defendants made a report based on suspected criminal activity.  Plaintiff contends the Complaint merely alleges Defendants knowingly filed a false report, and thus Hagberg does not apply.  This argument is misguided.  It is clear the principles distilled in Hagberg extend to filing a police report.  In its decision, the court relied on cases broadly stating that the “privilege applies to a communication intended to prompt an administrative agency charged with enforcing the law to investigate or remedy a wrongdoing” and a complaint to agencies to “investigate or remedy wrongdoing.”  (Hagberg, supra, 32 Cal.4th at pp. 362-363.)  The court observed such cases are analogous to the circumstances present in Hagberg where the statement to the police was “designed to prompt investigation of crime[.]”  (Id. at p. 368.)  Thus, the emphasis in the court’s analysis was on both the instigation of an investigation and alleged wrongdoing.  Here, the cause of action against Defendants is predicated on their false accusations to the Police.  It is reasonable to infer the alleged false accusations were made to instigate an investigation of wrongdoing because there is no other apparent reason to contact the Police and file a report.  In light of Hagberg, these accusations to the Police are privileged under Section 47(b).

Plaintiff additionally argues Section 47(b) does not bar his claim because it applies to communications and not conduct, and Defendants’ conduct caused the false arrest.  In support of this argument, Plaintiff relies on facts stated in the police report describing his arrest, which is attached as an exhibit to his counsel’s declaration.  The Court is limited here to reviewing only the contents within the four corners of the complaint and any judicially noticeable material.  (See Smiley v. Citibank (South Dakota) N.A. (1995) 11 Cal.4th 138, 146.)  Plaintiff did not file a request for judicial notice in opposition to the motion and police reports do not fall within the categories of documents subject to judicial notice.  (See Evid. Code, §§ 452, 453; see also People v. Medina (1990) 51 Cal.3d 870, 890.)  Therefore, Plaintiff’s reliance on evidence outside the Complaint is impermissible and the Court may not consider such evidence.

The Complaint is otherwise devoid of any facts alleging any conduct forming the basis of a cause of action for false arrest.  “[T]he tort of false imprisonment is the nonconsensual, intentional confinement of a person, without lawful privilege, for an appreciable length of time. . . . A person is falsely imprisoned ‘if he is wrongfully deprived of his freedom to leave a particular place by the conduct of another.’”  (Hagberg, supra, 32 Cal.4th at pp. 372-373, citations omitted.)  The allegations do not clearly reflect Plaintiff was wrongfully deprived of his freedom based on Defendants’ conduct.  The Complaint simply alleges “Defendants [sic] false acusisions [sic] caused plaintiff injuries to his body and nervous system.”  (Complaint, Cause of Action – General Negligence.)  Accordingly, the argument is without merit.

In sum, Plaintiff fails to state a cause of action against Defendants because the alleged accusations are privileged under Section 47(b) and he does not plead any facts reflecting Defendants’ actions caused his false arrest.  Defendants’ motion for judgment on the pleadings is therefore SUSTAINED with 30 days’ leave to amend.

[1] The Complaint states David Chai’s name as “David Chan.”  In the moving papers, he states the correct spelling of his name is Chai.