APPEAL from an judgment of the Superior Court of Imperial County, Joseph W. Zimmerman, Judge. Affirmed.(Super. Ct. No. ECU04523)
The opinion of the court was delivered by: O'rourke, J.
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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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Ruben Antonio Magana, representing himself, appeals from a judgment of dismissal based on an order sustaining a demurrer to his second amended complaint for libel filed against Daniel Alarcon. The trial court sustained the demurrer without leave to amend on grounds Magana failed to allege sufficient facts to state a cause of action within the meaning of Code of Civil Procedure section 430.10, subdivision (e), because Alarcon is immune from liability under both Civil Code section 47, and under Government Code*fn1 section 821.6. Magana appeals, contending the court erred in sustaining the demurrer without leave to amend. We affirm the judgment.
Magana, an inmate at Centinela State Prison, alleged in his second amended complaint that on January 20, 2006, two correctional officers forcibly removed two inmates from their cell to conduct a cell search. Consequently, those inmates were charged with attempted murder of the guards.
While investigating the incident, Alarcon, a correctional officer, prepared a rules violation report and attributed this statement to Magana: "I was on the shitter during this attempted murder thing. I heard noises but I did not see anything. I heard later on that inmate RAMIREZ tried throwing Officer Morris off the 2nd tier." Magana alleged Alarcon did not interview him and he did not make the statement.
Magana's arguments in his opening brief are not entirely clear. He appears to contend sufficient facts support his libel claim and the court erred in applying absolute immunity because Alarcon "fabricated" the statements, and only reports that "trigger proceedings governed by adequate procedural safeguards . . . made in good faith, and without malice, merit protection as privileged." Magana asserts Alarcon in effect labeled him a "snitch" at the prison, thus exposing him to "hatred, contempt, ridicule, [and] obloquy" within the meaning of Civil Code section 45.
We apply the following settled standard of review to an order sustaining a demurrer without leave to amend: "The reviewing court gives the complaint a reasonable interpretation, and treats the demurrer as admitting all material facts properly pleaded. [Citations.] The court does not, however, assume the truth of contentions, deductions or conclusions of law. [Citation.] The judgment must be affirmed 'if any one of the several grounds of demurrer is well taken. [Citations.]' [Citation.] 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 demurer without leave to amend if the plaintiff shows there is a reasonable possibility any defect identified by the defendant can be cured by amendment." (Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 966-967.) The burden is on Magana to demonstrate the manner in which the complaint could be amended to state a viable cause of action. (Careau & Co. v. Security Pacific Business Credit, Inc. (1990) 222 Cal.App.3d 1371, 1386.)
Section 821.6 states that "[a] public employee is not liable for injury caused by his instituting or prosecuting any judicial or administrative proceeding within the scope of his employment, even if he acts maliciously and without probable cause." The immunity applies even if a public employee abused his discretion. (Accord, Miller v. Hoagland (1966) 247 Cal.App.2d 57, 62.) The statute is not limited to conduct occurring during formal proceedings, but "also extends to actions taken in preparation for formal proceedings. Because investigation is 'an essential step' toward the institution of formal proceedings, it 'is also cloaked with immunity.' " (Amylou R. v. County of Riverside (1994) 28 Cal.App.4th 1205, 1209-1210.) "California courts construe section 821.6 broadly in furtherance of ...