COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA
December 21, 2010
RUBEN ANTONIO MAGANA, PLAINTIFF AND APPELLANT,
DANIEL ALARCON, DEFENDANT AND RESPONDENT.
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.
Magana v. Alarcon CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
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.
I. Standard of Review
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.)
II. Alarcon's Immunity
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 its purpose to protect public employees in the performance of their prosecutorial duties from the threat of harassment through civil suits." (Gillan v. City of Marino (2007) 147 Cal.App.4th 1033, 1048.)
The statute confers immunity only regarding conduct within the scope of employment. "An employee is acting in the course and scope of his employment when he is engaged in work he was employed to perform, or when the act is incident to his duty and is performed for the benefit of his employer, not to serve his own purposes or convenience." (Richardson-Tunnell v. School Insurance Program for Employees (SIPE) (2007) 157 Cal.App.4th 1056, 1062.) The statute bars liability for any injury caused by the investigation of an administrative or judicial proceeding, even if the person suffering the injury is not the target of the prosecution. (Amylou R. v. County of Riverside, supra, 28 Cal.App.4th at pp. 1211-1212.) Immunity under the statute "is not limited to claims for malicious prosecution, but also extends to other causes of action . . . including defamation." (Gillan v. City of Marino, supra, 147 Cal.App.4th at p. 1048.)
Here, Magana does not dispute Alarcon is a public employee under section 821.6. Alarcon's interviews and report are immune under section 821.6 because he acted within the scope of his employment by fulfilling his assigned duty to investigate the incident. Although Magana contends Alarcon fabricated statements for the purpose of subjecting him to hatred, contempt, and ridicule, section 821.6 expressly bars liability for malicious conduct. (§ 821.6.) Accordingly, even if the statements were fabricated with malicious intent to label Magana as a "snitch," Alarcon is immune from liability. Moreover, section 821.6 broadly bars liability for harm to third party witnesses like Magana.
Because section 821.6 provides absolute immunity to a public employee conducting an internal investigation of a criminal charge, Magana's libel claim fails. In light of our conclusion that Alarcon is immune from suit under section 821.6, we need not consider whether Civil Code section 47 grants absolute privilege to the publication of the rules violation report.*fn2
III. Leave to Amend
"[I]t 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." (Bragg v. Valdez (2003) 111 Cal.App.4th 421, 428.) Magana bears the burden of demonstrating a reasonable possibility that he may cure defects by an amendment, by showing in what manner the complaint can be amended and how amendment will change the legal effect of the pleadings. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 349.)
Magana has not met this burden. He has not argued on appeal that the trial court abused its discretion in not allowing him to further amend his complaint, or that he can further amend the complaint to allege facts constituting a cause of action. Accordingly, we must conclude the court did not abuse its discretion in granting Alarcon's demurrer to the complaint without leave to amend.
The judgment is affirmed.
McCONNELL, P. J.