Plummer v. Lopez

Filed 12/17/09 Plummer v. Lopez CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FOUR

APPEAL from a judgment of the Superior Court of Los Angeles County, James C. Chalfant, Judge. Affirmed.

Edward Plummer, Jr., in pro. per., for Plaintiff and Appellant.

Edmund G. Brown, Jr., Attorney General, Douglas Press, Senior Assistant Attorney General, Leslie P. McElroy and Ernest Martinez, Deputy Attorneys General, for Defendants and Respondents.

Plaintiff and appellant Edward Plummer, Jr. appeals the dismissal of his petition for writ of mandate after the trial court sustained respondents demurrer without leave to amend. We find no error, and we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Plummer filed the present mandate proceeding on July 6, 2007. The operative amended petition for writ of mandate alleges as follows.

Petitioner, Edward Plummer, Jr., is a former employee of the Department of Health Services [now, the Department of Health Care Services]. He retired from the Department of Health Services on or about March 12, 2004 after being served with a Notice of Adverse Action on or about March 05, 2004. On or about April 26, 2004 Plummer was contacted via telephone by Mei Chen. It was Chens citizen complaint in 2003 that led to the adverse action. According to Chen, it was her understanding that all the information she gave to the Department of Health Services (DHS) in 2003, inter alia, her address and phone number, was confidential. Chen called Plummer to inform him that she had been contacted that day (on or about April 26, 2004) by a woman who identified herself as Maria Diaz. Chen alleged that Diaz indicated that she knew that Chen was connected with the action (adverse action) that led to Plummers retirement. Chen said that Diaz encouraged her to take additional legal action (sue) against Plummer. Chen also alleged that Diaz offered to work in concert with her, should she decide to proceed with litigation against Plummer. Chen said that Diaz provided [a phone number]. Chen said that Diaz encouraged her to call that phone number should she decide to pursue legal action. Chen also alleged that Diaz suggested that she (Chen) could benefit from a legal action because Plummer had retired with good benefits.

Chen allegedly questioned Diaz as to how she (Diaz) had acquired her home telephone number. Chen said that Diaz informed her that someone had placed the information in her workplace in-box. Diaz did not offer any explanation as to why this information was distributed to her. Diaz, an employee of DHS, did not work in a supervisory or managerial position. She was not a party to the investigation. Diaz initially worked under Plummers supervision. However, Diaz was transferred in 2002 to work in another region of the department, under the supervision of another supervisor, after Plummer filed a complaint with the Department of Fair Employment and Housing (DFEH) regarding, inter alia, Diaz conferring surrep[ti]tiously with Plummers supervisor, Mike Pearlman. Subsequent to Plummers complaint to the DFEH, Diaz filed a specious grievance in May 2002, and was assigned to another supervisor. Plummer believes that Diaz had not worked under his supervision for a year or more when she received confidential information regarding Plummer and Chen. [Fn. omitted.]

Respondent, Department of Consumer Affairs, Office of Privacy Protection, is authorized by the California Business and Professions Code 350 et seq. to protect the privacy rights of the people of California. Petitioner, a lawful resident of the State of California, did petition the Office of Privacy Protection, Joanne McNabb (chief) to investigate the aforementioned allegations in April 2005 and March 2006. The Office of Privacy Protection did not render a timely decision in this matter. From all indications, the Office of Privacy Protection totally neglected or ignored Plummers lawful concerns, and the inher[ent] violations to his person and privacy. The Office of Privacy Protection and Joanne McNabb did not investigate, or otherwise adjudicate this matter as requested; nor was the matter referred to any other agency for review. At no time did Plummer agree, advise or in any manner authorize the Office of Privacy Protection to delay, prolong or cease the prosecution of this matter. Prior to petitioning the Office of Privacy Protection to investigate this matter, Plummer advised the Department of Health Services, Larry Malm (Chief), his assistant chief Mike Pearlman, and their legal counsel of these allegations in 2004. Plummer gave the Department of Health Service[s] more than a reasonable amount of time to investigate, or otherwise resolve this matter. [Fn. omitted.]

The petition sought a writ of mandate ordering Carrie Lopez, director of the Department of Consumer Affairs, and Joanne McNabb, chief of the Office of Privacy Protection (OPP), to take jurisdiction and investigate the complaint alleged in the petition or to refer the matter to an appropriate federal or state agency for investigation. It also sought costs and other appropriate relief.

Respondents demurred. They contended: (1) the court lacked jurisdiction to issue a writ compelling a state agency to perform an act or conduct an investigation that it is not required to perform; and (2) since the OPP is no longer under the authority of the director of the Department of Consumer Affairs, the director is not an appropriate party to this action.

Plummer opposed the demurrer. He claimed that he had not been served with the demurrer by mail, as the proof of service indicated, although he conceded that he had been personally served on the evening of April 28, 2008. He therefore urged that the demurrer should be denied as an abuse of legal process. Further, he asserted that he had relied on the directions provided by state employees, who requested that Plummer provide them with the information necessary to process his complaint. Accordingly, he claimed that he reasonably believed that the OPP would either investigate his complaint or refer him to another agency. Finally, he contended that the OPP, as a state executive agency, has inherent enforcement power to enforce state laws, including those relating to individual privacy, and Government Code section 11549.5, subdivision (e)(4) specifically provided the OPP the latitude to investigate or assist in the investigation of petitioners privacy-related complaint.

The trial court sustained the demurrer without leave to amend. With regard to the issue of proper service, the court stated the proofs of service indicated that the demurrer and supporting documents were served by mail on April 28, 2008, and there was no evidence that they were not so served. The court noted that mail service on April 28 was untimely; however, because Plummer received the demurrer, filed opposition, and did not show any prejudice, the court exercised its discretion to hear the demurrer on the merits.

On the merits, the court stated that under former Business and Professions Code section 350, the OPP was required to conduct an investigation of a privacy-related complaint only in situations involving alleged identity theft or other privacy-related crimes. Because Plummer had not alleged that he was the victim of either identity theft or a privacy-related crime, the OPP had no duty to investigate. The court explained: There are crimes the general subject matter of which is invasion of privacy. See Penal Code 630 et seq. These generally concern eavesdropping (Pen. Code 632) and similar offences. Plummer points to no Penal Code section making it a crime to invade someones privacy by disclosing information about a sexual harassment complaint. OPP has no authority to conduct the type of investigation which Plummer seeks to have the court order it to perform. A claim that his privacy was invaded may support a damages claim against Diaz or DHS, but it was not a crime for OPP to investigate.

Further, the court rejected Plummers contention that because invasions of privacy are important, the OPP should have inherent authority to investigate them. It said: Agencies have only the authority conferred on them by statute. It would be abhorrent public policy to confer inherent authority in an agency to conduct an investigation, and there is no reason to believe that the Legislature intended OPP to investigate any invasion of privacy claim filed by a consumer. [Fn. omitted.] [] Even if arguendo OPP had statutory authority to conduct an investigation, it has discretion as to what matters it will investigate. OPP is not required to investigate all complaints made to it. The court cannot compel an agency through mandamus to exercise its discretion in a particular manner.

Judgment of dismissal was entered on June 13, 2008, and notice of entry of judgment was served on June 16, 2008. Plummer timely appealed.

DISCUSSION

I. The Trial Court Did Not Abuse Its Discretion by Rejecting Plummers Claim of Improper Service

Plummer claims that respondents did not serve him with notice of the demurrer by mail on April 28, 2008, as the proof of service stated. As a result, he contends that the trial court abused its discretion by considering the merits of the demurrer.

We conclude that any alleged defect with the notice of motion was waived. It is well settled that the appearance of a party at the hearing of a motion and his or her opposition to the motion on its merits is a waiver of any defects or irregularities in the notice of motion. [Citations.] This rule applies even when no notice was given at all. [Citations.] Accordingly, a party who appears and contests a motion in the court below cannot object on appeal or by seeking extraordinary relief in the appellate court that he had no notice of the motion or that the notice was insufficient or defective. (Carlton v. Quint (2000) 77 Cal.App.4th 690, 697.) Here, there is no dispute that Plummer received a copy of the demurrer on April 28, filed substantive opposition, and appeared and argued at the demurrer hearing. He did not request a continuance of the hearing, and he never claimed that he was prejudiced by inadequate notice or service. Under these circumstances, we conclude that Plummer waived any claim of inadequate notice or service. (See ibid.)

II. The Trial Court Properly Sustained Respondents Demurrer

Plummer contends that the trial court erred in sustaining respondents demurrer because he stated a cause of action under several legal theories. For the reasons that follow, we disagree.

A. Standard of Review

On appeal from a judgment dismissing an action after the court sustained a demurrer, a reviewing court must determine whether the complaint states facts sufficient to constitute a cause of action. [Citation.] We give the complaint a reasonable interpretation, reading it as a whole and its parts in their context. [Citation.] We treat the demurrer as admitting all material facts properly pleaded, but do not assume the truth of contentions, deductions or conclusions of law. [Citation.] We exercise our independent judgment as to whether, as a matter of law, the complaint states a cause of action on any available legal theory. [Citation.] (Coffman Specialties, Inc. v. Department of Transportation (2009) 176 Cal.App.4th 1135, 1144.)

B. Plummer Failed to Allege Facts Sufficient to State a Cause of Action

Plummer asserts that the OPP was required to investigate his complaint to determine whether his privacy rights were violated. Because his petition alleges that respondents failed to investigate, he urges that it stated a claim for relief and the trial court erred in sustaining respondents demurrer.

The purpose and duties of the OPP are statutorily defined. We therefore look first to the words of the statute, giving the language its usual, ordinary meaning. If there is no ambiguity in the language, we presume the Legislature meant what it said, and the plain meaning of the statute governs. [Citations.] Ordinarily, the literal meaning of the words of a statute governs. [Citation.] (Southern Cal. Edison Co. v. Public Utilities Co. (2000) 85 Cal.App.4th 1086, 1103.) Further, In construing the words of a statute or constitutional provision to discern its purpose, the provisions should be read together; an interpretation which would render terms surplusage should be avoided, and every word should be given some significance, leaving no part useless or devoid of meaning. [Citation.] (Id. at p. 1104.)

Former section 350 of the Business and Professions Code (now, Gov. Code,  11549.5) defined the purpose and duties of the OPP as follows:

(a) There is hereby created in the Department of Consumer Affairs an Office of Privacy Protection under the direction of the Director of Consumer Affairs and the Secretary of the State and Consumer Services Agency. The offices purpose shall be protecting the privacy of individuals personal information in a manner consistent with the California Constitution by identifying consumer problems in the privacy area and facilitating development of fair information practices in adherence with the Information Practices Act of 1977 (Chapter 1 (commencing with Section 1798) of Title 1.8 of Part 4 of Division 3 of the Civil Code).

(b) The office shall inform the public of potential options for protecting the privacy of, and avoiding the misuse of, personal information.

(c) The office shall make recommendations to organizations for privacy policies and practices that promote and protect the interests of California consumers.

(d) The office may promote voluntary and mutually agreed upon nonbinding arbitration and mediation of privacy-related disputes where appropriate.

(e) The Director of Consumer Affairs shall do all of the following:

(1) Receive complaints from individuals concerning any person obtaining, compiling, maintaining, using, disclosing, or disposing of personal information in a manner that may be potentially unlawful or violate a stated privacy policy relating to that individual, and provide advice, information, and referral, where available.

(2) Provide information to consumers on effective ways of handling complaints that involve violations of privacy-related laws, including identity theft and identity fraud. If appropriate local, state, or federal agencies are available to assist consumers with those complaints, the director shall refer those complaints to those agencies.

(3) Develop information and educational programs and materials to foster public understanding and recognition of the purposes of this article.

(4) Investigate and assist in the prosecution of identity theft and other privacy-related crimes, and, as necessary, coordinate with local, state, and federal law enforcement agencies in the investigation of similar crimes.

(5) Assist and coordinate in the training of local, state, and federal law enforcement agencies regarding identity theft and other privacy-related crimes, as appropriate.

(6) The authority of the office, the director, or the secretary, to adopt regulations under this article shall be limited exclusively to those regulations necessary and appropriate to implement subdivisions (b), (c), (d), and (e).

Plummer argues that because subdivision (e)(1) of former section 350 of Business and Professions Code required the OPP to [r]eceive complaints concerning any person . . . disclosing personal information, it necessarily also had a duty to investigate the complaints received, at least insofar as necessary to determine the merits of his claim. That is, he assumes that a duty to receive complaints necessarily implies a duty to investigate those complaints. While such an assumption might be warranted in some contexts, it is not warranted here, where the final clause of subdivision (e)(1) describes precisely what the OPP is to do upon receiving a privacy-related complaintthat is, it must provide advice, information, and referral, where available. Subdivision (e)(1) expressly does not charge OPP with investigating the complaints it receives. The OPPs duty to investigate complaints is set out, instead, in subdivision (e)(4); that section provides that the OPP must investigate and assist in the prosecution of identity theft and other privacy-related crimes.

In view of the foregoing, we conclude that the OPPs duty to investigate is not coextensive with its duty to [r]eceive complaints. While the OPP is charged with receiving complaints concerning all manner of privacy-related violations, it need investigate only those alleged invasions of privacy that, if established, would constitute identity theft or privacy-related crimes.[1]

Accordingly, Plummer could state a claim for a violation of former section 350 of Business and Professions Code only if he properly pled that the OPP failed to investigate an alleged privacy-related violation of the criminal law. We conclude that he did not. As indicated above, Plummers mandate petition is based entirely on the OPPs failure to investigate the alleged disclosure to Maria Diaz of the reason for Plummers termination and the name and phone number of Mei Chen, the individual whose complaint apparently led to Plummers termination. Notwithstanding how Plummer characterizes this disclosure, it is not a crime.

Plummer contends that the OPP had a duty to investigate his complaint because he is a former peace officer, and thus was guaranteed certain protections as to his personal information by the Peace Officers Procedural Bill of Rights Act[] (Gov. Code  3300 et seq.). Not so. While Plummers former peace officer status may have entitled him to additional privacy protection, it does not convert the alleged disclosure of his personal information into a crime, and thus it does not bring his complaint within the scope of alleged violations that the OPP has a duty to investigate.

Plummer also asserts that his petition stated a claim for a privacy-related crime because it referenced Penal Code section 832.7. In pertinent part, that section provides that Peace officer or custodial officer personnel records and records maintained by any state or local agency pursuant to Section 832.5, or information obtained from these records, are confidential and shall not be disclosed in any criminal or civil proceeding except by discovery pursuant to Sections 1043 and 1046 of the Evidence Code. (Pen. Code, 832.7, subd. (a).) Assuming without deciding that Plummer has demonstrated that he could amend his petition to allege that his records come within this section, his reference to Penal Code section 832.7 does not allege a privacy-related crime because that section does not criminalize the disclosure of peace officer personnel records. Rather, it defines the scope of discovery of such personnel records in a criminal proceeding. (E.g., Fletcher v. Superior Court (2002) 100 Cal.App.4th 386, 400 [The statutory scheme carefully balances two directly conflicting interests: the peace officers just claim to confidentiality, and the criminal defendants equally compelling interest in all information pertinent to the defense.].) Thus, Plummers citation to Penal Code section 832.7 does not bring his complaint within the scope of former section 350 of Business and Professions Code.

C. Plummer Did Not Allege Detrimental Reliance Sufficient to Create a Special Relationship

Plummer contends that, even if the OPP did not have a mandatory statutory duty to investigate his complaint, the OPP voluntarily assumed such a duty by requesting that [Plummer] provide[] more and more information, and stating that they would follow-up and get back with him. According to Plummer, respondents encouragement not only created a reliance and expectation on the part of the petitioner, but also created a special relationship between the parties. Thus, he urges that the OPP had a duty to assist, protect or otherwise act on his behalf.

We do not agree. A person who has not created a peril is not liable in tort merely for failure to take affirmative action to assist or protect another unless there is some relationship between them which gives rise to a duty to act. (Rest.2d Torts, 314; 4 Witkin, Summary of Cal. Law (8th ed.) Torts, 554, p. 2821.) (State of California v. Superior Court (1984) 150 Cal.App.3d 848, 862.) In common parlance, the assumption of a duty by the public entity and detrimental reliance thereon by a citizen create a special relationship between the public entity and the citizen sufficient to impose a duty of due care on the public entity. [Citations.] [] It is clear, however, that where . . . the public entity neither creates the peril nor acts affirmatively so as to increase the risk to plaintiffs, detrimental reliance by a citizen on the statements or conduct of a public entity is essential to the creation of a special relationship. (Ibid.)

The Supreme Court applied these principles in Williams v. State of California (1983) 34 Cal.3d 18. There, the plaintiff was injured when a piece of a heated brake drum from a passing vehicle was propelled through her car windshield. Police officers arrived on the scene within minutes of the accident, but so negligently and carelessly investigated the accident as to virtually destroy any opportunity on plaintiffs part to obtain compensation for the severe injuries and damages she suffered from any other defendants or any other persons who concurred in causing them. Included amongst said acts of negligence was the failure to investigate the brake drum to determine it was still hot, failure to identify other witnesses at the scene or even the other motorists damaged by brake drums, and failure to attempt any investigation or pursuit of the owner or operator of the truck whose brake drum broke and caused plaintiffs injuries. [Fn. omitted.] (Id. at pp. 21-22.) The court concluded that the plaintiff failed to state a cause of action: There are no allegations that the officers assured her, either expressly or impliedly, that they would do any of the acts she faults them for not doing, no allegations that they conducted themselves in such a manner as to warrant reliance upon them to do the acts which plaintiff alleges they should have done nor, finally, is there any hint that they prevented plaintiff from conducting an investigation of her own. [Fn. omitted.] (Id. at p. 27.) Accordingly, The officers did not create the peril in which plaintiff found herself; they took no affirmative action which contributed to, increased, or changed the risk which would have otherwise existed; there is no indication that they voluntarily assumed any responsibility to protect plaintiffs prospects for recovery by civil litigation; and there are no allegations of the requisite factors to a finding of special relationship, namely detrimental reliance by the plaintiff on the officers conduct, statements made by them which induced a false sense of security and thereby worsened her position. [Fn. omitted.] (Id. at pp. 27-28.)

The present case is analogous to Williams. Plummer does not allege that the OPP was responsible for the alleged disclosure of his personal information or increased the risk of further disclosures. Moreover, Plummer does not allege that OPP employees did anything to warrant reliance on them to investigate his complaint, nor is there any hint that they hindered Plummer from conducting an investigation of his own. Accordingly, he has not pled the existence of a special relationship.

III. The Trial Court Properly Denied Plummer Leave to Amend

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 (1985) 39 Cal.3d 311, 318.) To meet this burden, the plaintiff must demonstrate how the complaint can be amended to state a cause of action. (Taxpayers for Improving Public Safety v. Schwarzenegger (2009) 172 Cal.App.4th 749, 781.)

Plummer urges that he should be given an opportunity to amend his complaint to correct any defects, but neither in the trial court nor on appeal has he indicated how his petition can be amended to state a cause of action. Accordingly, the trial court did not err in sustaining the demurrer without leave to amend.

DISPOSITION

The judgment of dismissal is affirmed. Respondents shall recover their costs on appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

SUZUKAWA, J.

We concur:

EPSTEIN, P.J.

MANELLA, J.

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[1] Our conclusion is not changed by Plummers citation to the Information Practices Act of 1977 (IPA), Civil Code section 1798 et seq. Although Plummer is correct that the IPA declares that the right to privacy is a personal and fundamental right (Civ. Code,  1798.1), it does not authorize government agencies to conduct unbounded investigations of alleged privacy violations or courts to order such investigations. Rather, it carefully circumscribes the circumstances in which individuals, the Attorney General, or any district attorney may prosecute an action for an alleged violation of privacy. (Civ. Code, 1798.45-1798.47.)