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S&B Services, Inc., et al v. Service First of Northern California et al

May 30, 2012

S&B SERVICES, INC., ET AL., PLAINTIFFS AND APPELLANTS,
v.
SERVICE FIRST OF NORTHERN CALIFORNIA ET AL., DEFENDANTS AND RESPONDENTS. SAN JOAQUIN SAFETY COUNCIL ET AL., PLAINTIFFS AND APPELLANTS,
v.
SERVICE FRIST OF NORTHERN CALIFORNIA ET AL., DEFENDANTS AND RESPONDENTS.



(Super. Ct. No. 39200800194070CUBTSTK) (Super. Ct. No. 39200800194066CUBTSTK)

The opinion of the court was delivered by: Robie , J.

S&B Services v. Service First of No. Cal. CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 both of these cases, plaintiffs sought to hold defendant Service First of Northern California (Service First) and one of its officers, defendant Sharon Simas, liable for statements Simas made before the San Joaquin County Board of Supervisors (the board) in seeking a recommendation from the board for the licensure of Service First as a driving-under-the-influence program in San Joaquin County. The trial court granted summary judgment to Service First and Simas on several grounds, including that the actions complained of were absolutely privileged under subdivision (b) of Civil Code section 47 (section 47(b)).

On appeal, plaintiffs have failed to show any error in the trial court's application of section 47(b). Accordingly, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

The State Department of Alcohol and Drug Programs (the department) is responsible for licensing "driving-under-the-influence" (DUI) programs in each county upon recommendation by the county board of supervisors. (Health & Saf. Code, §§ 11750, 11752, 11836; Cal. Code Regs., tit. 9, § 9801.) As part of its recommendation that the department license a new program, the county board of supervisors must "include a statement assuring there is a need for a new DUI program in the county and assuring that the establishment of an additional DUI program will not jeopardize the fiscal integrity of existing licensed DUI programs." (Cal. Code Regs., tit. 9, § 9801.5, subd. (a)(1).)

In February 2008, Simas, a vice-president and administrator with Service First, sent a letter to the board indicating that Service First was seeking a recommendation from the board that the department license Service First as a DUI program in San Joaquin County. Based on a recently completed needs assessment, however, the county initially responded that it could not recommend licensure for Service First because it could not find there was demonstrated need for a new DUI program or that the establishment of an additional program would not jeopardize the fiscal integrity of existing licensed DUI programs.

Service First disagreed with the conclusions in the needs assessment. Accordingly, in July 2008 Simas attended a meeting of the board on behalf of Service First to present evidence that there was a need for a new DUI program and that the establishment of an additional program would not jeopardize the fiscal integrity of existing licensed DUI programs. At the meeting, the board agreed Simas had refuted the county's needs assessment, and the board adopted an order recommending that the department license Service First as a DUI program in the county.

Thereafter, plaintiffs S&B Services Inc. and San Joaquin Safety Council -- both of which were operating existing DUI programs in the county -- sued Service First and Simas (among others).*fn1 The gist of their complaints was that Simas's representations to the board were false and Service First's intent in obtaining a license as a DUI program was to drive plaintiffs out of business.

Service First and Simas moved for summary judgment in both cases, arguing (among other things) that they could not be held liable because Simas's provision of information to the board was absolutely privileged under section 47(b). The trial court agreed, explaining as follows: "In this case, all the actions complained of relate to Service First's efforts to obtain a recommendation from the County Board of Supervisors for a DUI program license. The complaints relate to the presentation that Simas made to the Board and the allegedly inaccurate information that Simas provided to the Board in order to convince the Board that there was a need for a new DUI program and that a new DUI program would not jeopardize the fiscal integrity of the existing providers. The process to obtain the recommendation of the Board is an official proceeding under Civil Code § 47. Furthermore, all of the comments made and information provided by Service First and Simas related directly to the efforts to obtain the Board's recommendation for a license. Therefore, the actions complained of are absolutely privileged under Civil Code § 47. Because the actions are absolutely privileged, all of the claims in the complaint are barred."

Plaintiffs timely appealed in ...


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