Elinski v. Palm Colony Homeowners Assn.

Filed 6/17/08 Elinski v. Palm Colony Homeowners Assn. CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

Richard Michael Elinski got into an argument with the manager of the complex where he rented a condominium. The manager called the police, who arrested Elinski for suspected drug use. Elinski subsequently sued the manager, respondent Karen Marie Vaughn, and her employer, Palm Colony Homeowners Association, for false arrest, assault and battery, intentional infliction of emotional distress, and invasion of privacy. The trial court sustained with prejudice respondents' demurrer to the complaint on the ground that Elinski's claims, all of which were premised on Vaughn's telephone call to the police, were barred by the absolute immunity provided by Civil Code^[1]section 47, subdivision (b). Elinski appeals from the order of dismissal. He contends (1) that Vaughn's communications with the police were malicious and should therefore be subject to the qualified privilege afforded by subdivision (c) of section 47, as opposed to the absolute privilege conferred by subdivision (b); and (2) that the court abused its discretion in denying him leave to amend his complaint to add a cause of action for violation of his civil rights under 42 United States Code section 1983 (42 USC 1983). We affirm.

FACTS AND PROCEDURAL HISTORY^[2]

On August 23, 2005, Elinski drove into the parking area near his residence at the Palm Colony Condominiums in Camarillo and saw his roommate arguing with two of the complex's security guards, who were threatening to tow the roommate's car from one of the designated guest parking spaces. After Elinski "came to the aid of his roommate," one of the guards summoned Vaughn, the resident manager, to the scene. According to the complaint, Vaughn "proceeded to castigate, malign and humiliate [Elinski] in the presence of the guards, the roommate and the woman that [Elinski] was planning to meet subsequently, by saying he was a mere 'renter.'" Vaughn also "egregiously slandered" Elinski by stating that he and his roommates had gotten over $2,000 in parking tickets, when in fact the tickets totaled $150. Elinski responded "by yelling back that she was tactless, undiplomatic and wholly classless."

Approximately 90 minutes later, Elinski went to Vaughn's office and requested an application for a parking permit. Vaughn "rudely and boisterously" responded that there was a waiting list for permits "and that she didn't need to speak with [him]." She also said that the owner of the condominium Elinski rented was "very upset" about the situation. Vaughn then ordered Elinski out of the office, locked the door, and yelled, "I'm calling the Cops!"

Elinski returned to his condominium and continued preparing a letter to the owner regarding the parking problem. About 45 minutes later, Ventura County Sheriff's Deputy Julie Novak knocked on his front door and asked him about the dispute with Vaughn. Elinski stepped outside the front door and said that he never threatened Vaughn. Deputy Edward Beauvais arrived in another patrol car shortly thereafter. Both officers examined Elinski's eyes and told him they believed he was under the influence of drugs. Deputy Novak took his pulse and told him it was 140, which led her to believe he was under the influence. Elinski was placed under arrest and transported to the police station. He was released after a urinalysis indicated there were no drugs in his system.

Elinski filed a complaint, then a first amended complaint against respondents, the Ventura County Sheriff's Department, Deputies Novak and Beauvais, and Sheriff Robert Brooks.^[3] Each cause of action against respondents was premised on the allegation that Vaughn "summoned the police without reasonable cause . . . ." Respondents demurred to the first amended complaint on the ground that all of the claims against them were barred by the litigation privilege pursuant to section 47, subdivision (b). The court sustained the demurrer with prejudice, and accordingly dismissed the complaint pursuant to Code of Civil Procedure section 581, subdivision (f)(1).

DISCUSSION

Elinski contends that the trial court erred in finding that Vaughn's statements to the police were absolutely privileged under section 47, subdivision (b), because he "can demonstrate antecedent and preexisting animus/malice or bias . . . ." According to Elinski, police reports should be governed by subdivision (c) of section 47, which confers a privilege only for nonmalicious communications. He also asserts that the trial court abused its discretion in denying him leave to amend his complaint to add a cause of action against respondents for conspiracy to violate his civil rights under 42 USC 1983. Neither claim has merit.

"Section 47 establishes a privilege that bars liability in tort for the making of certain statements. Pursuant to section 47(b), the privilege bars a civil action for damages for communications made '[i]n any (1) legislative proceeding, (2) judicial proceeding, (3) in any other official proceeding authorized by law, or (4) in the initiation or course of any other proceeding authorized by law and reviewable pursuant to [statutes governing writs of mandate],' with certain statutory exceptions that do not apply to the present case. The privilege established by this subdivision often is referred to as an 'absolute' privilege, and it bars all tort causes of action except a claim for malicious prosecution. [Citations.]" (Hagberg v. California Federal Bank FSB (2004) 32 Cal.4th 350, 360.) By contrast, "[s]ection 47, subdivision (c) extends a qualified privilege to other communications. Under section 47, subdivision (c), a qualified privilege, that is a privilege that applies only to communications made without malice, applies to 'communication[s] . . . to a person interested therein, (1) by one who is also interested or (2) by one who stands in such a relation to the person interested as to afford a reasonable ground for supposing the motive for the communication to be innocent, or (3) who is requested by the person interested to give the information.' ( 47, subd. (c).)" (Ibid.)

As Elinski acknowledges, the California Supreme Court has expressly recognized that "statements made when a citizen contacts law enforcement personnel to report suspected criminal activity on the part of another person . . . are privileged pursuant to Civil Code section 47, subdivision (b) . . . and can be the basis for tort liability only if the plaintiff can establish the elements of the tort of malicious prosecution." (Hagberg v. California Federal Bank FSB, supra, 32 Cal.4th at p. 355.) Elinski's claim that the privilege should not be extended to malicious statements to the police was also expressly considered and rejected, and we have no authority to deviate from the Supreme Court's pronouncements on the subject. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) Accordingly, the trial court did not err in sustaining respondents' demurrer to Elinski's causes of action against respondents, all of which were premised on statements Vaughn allegedly made when she called the police and complained about Elinski's behavior.

Elinski's claim that the court erred in denying him leave to amend his complaint is also without merit. When a demurrer 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." (Blank v. Kirwan, supra, 39 Cal.3d at p. 318; Zelig v. County of Los Angeles (2002) 27 Cal.4th 1112, 1126.)

Elinski fails to meet his burden here. Even if we accept the proposition that the litigation privilege conferred by section 47, subdivision (b) does not apply to 42 USC 1983 causes of action (see, e.g., Kimes v. Stone (9th Cir. 1996) 84 F.3d 1121, 1127), Elinski failed to allege facts sufficient to state a federal claim for conspiracy to violate his civil rights. "In order to state a valid cause of action for damages under 42 United States Code section 1983, two elements must be present: (1) The conduct complained of must have deprived plaintiff of a right, privilege, or immunity secured to him by the federal Constitution and (2) defendant's action must have been taken under color of state law." (Kanarek v. Davidson (1978) 85 Cal.App.3d 341, 344.) To prove that two or more parties engaged in a conspiracy to violate civil rights under 42 USC 1983, "the plaintiff must show an agreement or 'meeting of the minds' by the defendants to violate his constitutional rights." (Caldeira v. County of Kauai (9th Cir. 1989) 866 F.2d 1175, 1181.) Elinski failed to allege any facts demonstrating that Vaughn directed or controlled the actions of the police officers who responded to her call, or that the three of them had an agreement to arrest him without probable cause. While he alleges that he heard Deputy Novak report over her police radio that she had picked him up and that the resident manager should be notified, there is no indication that the authority to arrest was conferred to Vaughn or that the officers abdicated their duty to independently investigate and pursue the matter. Under the circumstances, it cannot be said that the court abused its discretion in denying Elinski leave to amend his complaint to add a federal civil rights claim.

The judgment (order of dismissal) is affirmed. Respondents shall recover

their costs on appeal.

NOT TO BE PUBLISHED.

PERREN, J.

We concur:

GILBERT, P.J.

YEGAN, J.

Ken W. Riley, Judge

Superior Court County of Ventura

______________________________

Richard Michael Elinski, in pro. per., for Appellant.

Mark R. Weiner & Associates and Kathryn Albarian for Respondents.

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^[1]All further undesignated statutory references are to the Civil Code.

^[2]For purposes of analyzing the demurrer, we accept as true the facts alleged in the complaint. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)

^[3]Sheriff Brooks' demurrer was sustained without leave to amend. Elinski did not appeal from that order.