Currie v. O’Gorman
Filed 12/12/12 Currie v. O’Gorman CA2/5
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IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND
APPELLATE DISTRICT
DIVISION
FIVE
MANEVA A. CURRIE,
Plaintiff and Appellant,
v.
TIMOTHY O’GORMAN,
Defendant and Respondent.
B236182
(Los Angeles
County Super.
Ct.
No. SC108184)
APPEAL from
a judgment of the Superior Court
of
County, Elizabeth Allen White, Judge. Affirmed.
Maneva A.
Currie, in pro. per., for Plaintiff and Appellant.
Carmen A.
Trutanich, City Attorney, Amy Jo Field and Kjehl T. Johansen, Deputy City
Attorneys, for Defendant and Respondent.
______________________________
Plaintiff
and appellant Maneva A. Currie appeals from a judgment of dismissal following
an order sustaining a demurrer without leave to amend in favor of Los Angeles
Police Department Sergeant Timothy O’Gorman in this action arising out of a
bank foreclosure on residential property.
Currie contends that if given leave to amend, she could allege facts
sufficient to state a cause of action for conspiracy to force her out of her
home. We disagree and affirm.
BACKGROUND
Facts Alleged in
the Operative Complaint
In April
2009, Currie rented a house in Los Angeles
for a two-year term, where she lived with her adult child Miranda White and her
two minor children. A single man rented
the detached garage unit on the rear of the property from the owner.
In July
2009, One West Bank, FSB, FKA IndyMac Bank, FSB purchased the house at a
foreclosure sale. Currie spoke with a
realtor for One West about relocation expenses and the conditions around the
house that required repair. Currie
submitted a form to One West describing her lease and her concerns about
habitability issues. On November 16, 2009, Currie received a
notice to cure or quit, which stated she had failed to provide access for the
purpose of inspections, repairs, and showing the unit to prospective
buyers. Currie denied that she had
failed to provide access. Over the next
several months, One West’s real estate agent visited the property on several
occasions. One West paid relocation
expenses to the man living in the garage unit on the property.
On April 21, 2010, a notice of intent to
enter the main house was posted at the property to allow One West to cure code
violations set forth in a notice of violation issues by the Los Angeles County
Department of Public Health. On May 2, 2010, a notice to cure or quit
the main house was placed on her front porch concerning access to cure code
violations. A representative from One
West arrived at the house on May 6,
2010. The One West
representative took pictures and referred to a document with information about
the habitability of the premises. One
West’s real estate agents, construction workers, process servers, and property
management employees surprised Currie with unscheduled visits to the property,
or they scheduled visits and failed to show up.
On May 8, 2010, Currie received copies of
unlawful detainer actions filed by One
West as to the rear unit on the property.
Currie filed an answer. Prowlers
tried to break into the rear unit. On
another night, her car was broken into.
On May 20, 2010, an
unknown man watched and followed her, reporting on her movements using a cell
phone, but he later went into a neighbor’s home. Currie filed a police report.
At some
point, Currie made a 911 call. A police
sergeant came to the property to investigate the call. He was alone and treated the matter as
insignificant. At the time, an AT&T
van was parked around the corner from the house. A man sat in the van for two hours. He appeared to be the same man that had
followed Currie another time. She called
911 again later that day.
Procedural
Background
On May 27, 2010, Currie and her children
filed a complaint against One West and other defendants. On July
6, 2010, One West obtained a judgment against Currie and White for
possession of the rear unit on the property.
On December 14, 2010,
Currie and her children filed the operative verified second amended complaint
against One West and other defendants.
The complaint alleged causes of action for wrongful forcible entry and
detainer proceedings, breach of the covenant of
injunctive relief, unlawful eviction proceedings, discrimination, defamation,
landlord retaliation, quiet title and declaratory relief, breach of contract,
legal malpractice, unfair competition, and intentional and negligent infliction
of emotional distress.
On April 20, 2011, Currie filed an
amendment to the second amended complaint substituting “Sergeant T. O’Gormanâ€
as a Doe defendant. O’Gorman filed a
demurrer on June 2, 2011,
on the ground that the complaint was uncertain, failed to state facts
sufficient to constitute a cause of action against him, and was barred by the
broad immunity under Government Code section 821.6 for actions incidental to
instituting judicial proceedings, including investigating crimes. Currie did not file an opposition to the
demurrer.
A hearing
was held on the demurrer on August 25,
2011. Currie requested leave
to amend to allege that police officers usually respond to 911 calls in pairs
and O’Gorman was part of a scheme to harass her. The trial court sustained the demurrer
without leave to amend. The court
entered a judgment of dismissal on August
15, 2011. Currie filed a
timely notice of appeal from the judgment.
DISCUSSION
Standard of Review
“‘A
sufficiency of the complaint as a matter of law; as such, it raises only a question
of law. [Citations.]’ [Citation.]
Thus, the standard of review
on appeal is de novo. [Citation.] ‘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.
[Citation.] We also consider
matters which may be judicially noticed.â€
[Citation.] Further, we give the
complaint a reasonable interpretation, reading it as a whole and its parts in
their context. [Citation.] When a demurrer
is sustained, we determine whether the complaint states facts sufficient to
constitute a cause of action.
[Citation.]’ [Citations.]†(Berg & Berg Enterprises, LLC v. Boyle
(2009) 178 Cal.App.4th 1020, 1034.)
“However, it is error for a trial
court to sustain a demurrer when the plaintiff has stated
a cause of action under any possible legal theory. [Citation.]
And it is an abuse of discretion to sustain a demurrer
without leave to amend if the
plaintiff shows there is a reasonable possibility any defect identified by the
defendant can be cured by amendment.
[Citation.]†(Aubry v.
Tri–City Hospital Dist. (1992) 2 Cal.4th 962, 966–967.)
Conspiracy
On appeal, Currie contends that she
could amend her complaint to state a cause of action against O’Gorman for
conspiracy to force her out of her home.
Specifically, if given leave to amend, Currie would allege the
following additional allegations. The
day that O’Gorman responded to the 911 call, Currie’s friend showed him harmful
substances inside a white car parked in the driveway that belonged to US
Bank. O’Gorman said that it looked like
someone was using the car for storage purposes.
Currie’s friend asked O’Gorman to tow the car away. O’Gorman responded that it was a civil matter
and he was not a towing service. At
Currie’s request, O’Gorman provided a card on which he wrote his name. Currie’s friend called 911 again 30 minutes later and asked
if it was customary for a police officer to respond alone to a 911 call. The operator stated that a sergeant can
respond alone. The operator was
surprised that O’Gorman was still at work, as he had come in early and been out
all day. Currie requested a
police report, but there is no record of a 911 call and no record of a police
report. There is a record of the second
911 call. Currie believes O’Gorman did not write a report of
the visit to her house, because he was protecting a scheme to intentionally
cause her harm, either to burn down her residence or create an explosion in her
house that would kill her and her family.
Even with the proposed amendment,
Currie’s allegations fail to allege a cause of action for conspiracy of any
kind. “‘[T]he basis of a civil
conspiracy is the formation of a group of two or more persons who have agreed
to a common plan or design to commit a tortious act.’ [Citations.]
The conspiring defendants must also have actual knowledge that a tort is
planned and concur in the tortious scheme with knowledge of its unlawful
purpose. [Citations.] [¶]
However, actual knowledge of the planned tort, without more, is
insufficient to serve as the basis for a conspiracy claim. Knowledge of the planned tort must be
combined with intent to aid in its commission.â€
(Kidron v. Movie Acquisition Corp. (1995) 40 Cal.App.4th 1571,
1582.) Knowledge and intent “‘may be
inferred from the nature of the acts done, the relation of the parties, the
interest of the alleged conspirators, and other circumstances’ [citation] . . .
.†(Ibid.)
Currie does not allege that O’Gorman
knew any of the other defendants or agreed with any of them to take any action
to harm Currie or force her out of her home.
No reasonable inference of an agreement could be made based on the
allegations. The demurrer was properly
sustained without leave to amend.
DISPOSITION
The
judgment is affirmed. Respondent Timothy
O’Gorman is awarded his costs on appeal.
KRIEGLER, J.
We
concur:
ARMSTRONG, Acting P. J.
MOSK, J.
