Colbert v. Callejas

1

ZURI K. COLBERT et al., Plaintiffs and Appellants, v. MICHELLE CALLEJAS et al., Defendants and Respondents

C098344

California Court of Appeals, Third District, Sacramento

June 28, 2024

NOT TO BE PUBLISHED

Super Ct. No. 34-2021-00301184.

ROBIE J.

Plaintiffs Zuri K. Colbert and Nafisah Timmons sued defendants County of Sacramento (County) and County employees Michelle Callejas Lisa Wullenwaber, and Zackary Kollross for fraud and negligence based on child protective services records linking plaintiffs with individuals who had a history of committing serious abuse. The trial court granted defendants' motion for judgment on the pleadings and denied leave to amend finding defendants immune from liability for making misrepresentations. On appeal, plaintiffs argue the trial court erred in granting the motion. We reverse the denial of leave to amend.

FACTUAL AND PROCEDURAL BACKGROUND

Plaintiffs in propria persona, filed a complaint against defendants on May 21, 2021, and then an amended complaint on June 10 2021.^[1] The amended complaint, handwritten on a Judicial Council form, asserted causes of action for fraud and negligence.

As best as we can glean, the amended complaint alleged defendants maintained erroneous records linking plaintiffs with unrelated third parties sharing the same names and who have sustained child protective services allegations. For fraud, plaintiffs alleged the County acknowledged the records were inaccurate but "these horrific and unexplainable [discrepancies] continue." And the copy of the records the County provided plaintiffs "concealed and [suppressed] facts by redacting client name and referral I.D.'s." Plaintiffs checked boxes asserting "defendant knew [the representations] were false" and that "[d]efendant concealed or suppressed material facts" "defendant was bound to disclose."

For negligence, plaintiffs reasserted the County associated plaintiffs with "unknown individuals" and alleged it shares this information with other County departments "as well as outside government entities." The amended complaint states it alleges causes of action generally against all defendants, the two causes of action are specifically alleged against only the County, and the allegations contained within the causes of action reference a "[child protective services] [g]atekeeper" as the individual who supplied the inaccurate records and Kollross, the County's custodian of records, as the individual that verified the records were true and correct copies of plaintiffs' records.

Plaintiffs requested exemplary damages based on: "hav[ing] suffered and continu[ing] to endure emotional distress, defamation of character, legal expenses, and general fear"; "be[ing] severely violated with stalking, hacking, and on-going intentional usage of the severe [discrepancies] but still no security and safety measures implemented as required"; and violations to them, their "small business, and civil rights for [their] family." Plaintiffs sought exemplary damages of $500,000.

Defendants filed an answer on October 1, 2021, and a motion for judgment on the pleadings on September 12, 2022.

The trial court granted defendants' motion. For the fraud cause of action, the court noted defendants argued plaintiffs failed to allege sufficient facts for fraud but the court "decline[d] to rule on this argument because it [found] [d]efendants' immunity argument . . . dispositive." The trial court explained Government Code^[2] sections "822.2 and 818.8 provide governmental entities and employees immunity from liability for misrepresentations" and "[h]ere, the [amended complaint] alleges intentional or negligent misrepresentation and/or concealment based on [d]efendants furnishing records that contained inaccurate information. The [amended complaint] lacks any factual allegations that [d]efendants acted for corrupt purposes and/or with malice towards [p]laintiffs. The [amended complaint] also does not cite or refer to any particular statutory provision that creates liability on the part of any of the [d]efendants. Thus, the [c]ourt finds the fraud claim is not sufficiently pled and is subject to immunity under . . . sections 818.8, 822.2, and 815."

For the negligence cause of action, the trial court similarly found, "Even assuming [p]laintiffs had sufficiently pled a claim for negligence, the [c]ourt finds [d]efendants are immune from liability pursuant to . . . sections 822.2, 815.2, 818.8, and 815 for the same reasons as discussed above."

The trial court also explained it was granting the motion without leave to amend because plaintiffs "did not identify how the legal infirmities could be fixed. [Colbert] also stated that the immunities asserted by [defendants] were 'valid.' Because the [c]ourt ha[d] not been shown how the pleading could be successfully amended, the motion [was] granted for the reasons set forth in the tentative ruling and leave to amend [wa]s denied." The trial court entered judgment on February 17, 2023.

Plaintiffs appeal.

DISCUSSION

Plaintiffs argue the trial court's order granting defendants' motion for judgment on the pleadings must be reversed because public entity and employee misrepresentation immunity only applies to suits involving financial or commercial interests. Quoting case law, plaintiffs assert," '[T]he immunity provided governmental entities and public employees by sections 818.8 and 822.2 does not shield the County from liability for misrepresentation and deceit in this social service area.'" (See Michael J. v. Los Angeles County Dept. of Adoptions (1988) 201 Cal.App.3d 859, 872 (Michael J.).) Plaintiffs contend this exclusion applies to their suit. Defendants counter that plaintiffs forfeited this argument by not making it before the trial court. And even if we did consider this argument, defendants contend the closest plaintiffs come to identifying injury is by "alleg[ing] defamation of character and legal expenses among the damages they have suffered. [Citation.] These appear to encompass financial or commercial concerns." We conclude plaintiffs' position is more persuasive given the posture of the case.

I Legal Standards

"In an appeal from a motion granting judgment on the pleadings we accept as true the facts alleged in the complaint and review the legal issues de novo. 'A motion for judgment on the pleadings, like a general demurrer, tests the allegations of the [operative pleading], supplemented by any matter of which the trial court takes judicial notice, to determine whether [the party] has stated a cause of action. [Citation.] Because the trial court's determination is made as a matter of law, we review the ruling de novo assuming the truth of all material facts properly pled.'" (Angelucci v. Century Supper Club (2007) 41 Cal.4th 160, 166.)

"We review the trial court's decision denying leave to amend for abuse of discretion." (Olson v. Hornbrook Community Services Dist. (2019) 33 Cal.App.5th 502, 516.) Typically, "leave to amend is properly granted where resolution of the legal issues does not foreclose the possibility that the plaintiff may supply necessary factual allegations. [Citation.] If the plaintiff has not had an opportunity to amend the complaint in response to the demurrer [or motion for judgment on the pleadings], leave to amend is liberally allowed as a matter of fairness, unless the complaint shows on its face that it is incapable of amendment." (City of Stockton v. Superior Court (2007) 42 Cal.4th 730, 747.) Consequently, "it is an abuse of discretion to grant a motion for judgment on the pleadings without leave to amend' "if there is any reasonable possibility that the plaintiff can state a good cause of action." '" (Dudley v. Department of Transportation (2001) 90 Cal.App.4th 255, 260.)

In California, "[e]xcept as otherwise provided by statute," "[a] public entity is not liable for an injury, whether such injury arises out of an act or omission of the public entity or a public employee or any other person." (§ 815, subd. (a).) One statute states public entities are "liable for injury proximately caused by an act or omission of an employee of the public entity within the scope of his [or her] employment if the act or omission would, apart from this section, have given rise to a cause of action against that employee or his [or her] personal representative." (§ 815.2, subd. (a).) This "[v]icarious liability is a primary basis for liability on the part of a public entity, and flows from the responsibility of such an entity for the acts of its employees under the principle of respondeat superior." (Zelig v. County of Los Angeles (2002) 27 Cal.4th 1112, 1128.) But public entities are "not liable for an injury caused by misrepresentation by an employee of the public entity, whether or not such misrepresentation be negligent or intentional." (§ 818.8.) Similarly, public employees are "not liable for an injury caused by [their] misrepresentation, whether or not such misrepresentation be negligent or intentional, unless [they are] guilty of actual fraud, corruption or actual malice." (§ 822.2.)

As we have recognized, the term "misrepresentation" as used in the public immunity statutes" 'potentially lends itself to extremely expansive and elusive interpretations.'" (Jopson v. Feather River Air Quality Management Dist. (2003) 108 Cal.App.4th 492 495.) Our Supreme Court in Johnson found public entities and employees' immunity from misrepresentations applies only to "interferences with financial or commercial interest." (Johnson v. State of California (1968) 69 Cal.2d 782, 800 (Johnson).) Our Supreme Court noted the United States Supreme Court had found misrepresentation under the analogous Federal Tort Claims Act section"' "has been identified with the common...