Opinion
NOT TO BE PUBLISHED
Sonoma County Super. Ct. No. SCV-242514
Lambden, J.
Colleen Puterbaugh, the former wife of Troy Roatch, works for the United States Postal Service (USPS) in Oregon. She applied for a transfer to the USPS Santa Rosa office. Roatch and his current wife, Eliza Carrington, live in Santa Rosa. Carrington did not want Puterbaugh to transfer back to Santa Rosa and wrote a series of letters to the USPS accusing Puterbaugh of misconduct. Puterbaugh’s request for a transfer was denied, and she sued Carrington for libel, interference with contract, and intentional infliction of emotional distress on the basis of these letters. At the close of Puterbaugh’s opening statement at trial, Carrington moved the court for nonsuit. The trial court granted the motion, finding the letters written by Carrington were connected to an official proceeding and privileged under Civil Code section 47, subdivision (b).
All further unspecified code sections refer to the Civil Code.
Puterbaugh appeals from the judgment, arguing that the letters written by Carrington were not privileged and that Carrington waived raising the privilege as an affirmative defense because she failed to plead it in her answer. We conclude that the facts set forth in Puterbaugh’s opening statement do not establish that the letters were connected to any official proceeding and therefore the facts did not establish as a matter of law that the privilege under section 47, subdivision (b) applies. Accordingly, we reverse the judgment.
BACKGROUND
The trial court entered judgment for Carrington upon granting a motion for nonsuit after Puterbaugh’s opening statement. We therefore “accept as true all facts [Puterbaugh] asserted in [her] opening statement and indulge every legitimate inference those facts support.” (Hoff v. Vacaville Unified School Dist. (1998) 19 Cal.4th 925, 930.)
Puterbaugh is the former wife of Roatch; they divorced in 1998. Puterbaugh was employed as a mail carrier with the Santa Rosa branch of the USPS; she worked at that office until 2005. In December 2005, Puterbaugh moved with her new husband and child to Oregon, and worked for the USPS in Bend, Oregon.
In 1999, Carrington married Roatch. Carrington and Roatch live in Santa Rosa. According to Puterbaugh, Carrington intensely disliked her.
Puterbaugh wanted to live closer to her oldest son who had recently returned to Santa Rosa to live with his father. In April 2007, she requested a transfer back to the USPS Santa Rosa branch. Carrington learned about Puterbaugh’s application for a transfer and was upset about it. Even though Carrington knew the postmaster in Santa Rosa had no control over Puterbaugh’s off-duty conduct, Carrington wrote a series of letters to the USPS to attempt to convince the USPS to deny Puterbaugh’s request for a transfer.
Carrington claimed in one letter to the USPS that Puterbaugh impersonated Carrington in a phone call to Carrington’s mortgage company. In another letter, Carrington wrote that Puterbaugh had on several occasions tampered with Carrington’s mail while Puterbaugh was off duty from her employment. In another letter, Carrington complained that Puterbaugh asked a friend, who was also a postal worker, to harass Carrington. Finally, in another letter, Carrington maintained that, in February 2007, Puterbaugh threatened to kill her. As a result of these letters, the Santa Rosa Postmaster denied Puterbaugh’s transfer request.
On March 12, 2008, Puterbaugh filed a lawsuit against Carrington for libel, interference with contract, and intentional infliction of emotional distress. She alleged that the letters sent by Carrington to the USPS contained false statements.
Carrington filed an answer on April 14, 2008. Carrington raised a number of affirmative defenses, but did not raise the affirmative defense of privilege.
A jury trial began on February 8, 2010. At the close of Puterbaugh’s opening statement, Carrington moved the court for nonsuit and asserted that the letters, which were the basis for all of Puterbaugh’s claims, were absolutely privileged under section 47, subdivision (b). The court twice asked Puterbaugh if she wanted to supplement her opening statement, but she did not wish to add to her opening statement.
On March 25, 2010, the trial court issued its order granting Carrington’s motion for judgment of nonsuit pursuant to Code of Civil Procedure section 581c, subdivision (a). The court explained: “[Puterbaugh] having completed her opening statement, the matter having been argued, and good cause for an order for judgment of nonsuit having been shown in that [Puterbaugh’s] proposed evidence does not support her case and does not permit a jury to find in [Puterbaugh’s] favor, that there is no substantial conflict in the evidence, and that [Carrington] has the absolute privilege to write letters to the United States Post Office requesting the post office to take action.” The court dismissed Puterbaugh’s action.
Puterbaugh filed a timely notice of appeal from the judgment.
DISCUSSION
I. Standard of Review
Code of Civil Procedure section 581c permits a defendant to move for a nonsuit following the plaintiff’s opening statement. A trial court’s ruling on a motion for nonsuit is “reviewed for the existence of substantial evidence.” (OCM Principal Opportunities Fund, L.P. v. CIBC World Markets Corp. (2007) 157 Cal.App.4th 835, 845.) “[T]he body of evidence pertinent to nonsuit is that identified in the plaintiff’s opening statement or case-in-chief.” (Ibid.) “A motion for nonsuit allows a defendant to test the sufficiency of the plaintiff’s evidence before presenting his or her case.... A trial court must not grant a motion for nonsuit if the evidence presented by the plaintiff would support a jury verdict in the plaintiff’s favor. [Citations.] [¶] ‘In determining whether plaintiff’s evidence is sufficient, the court may not weigh the evidence or consider the credibility of witnesses. Instead, the evidence most favorable to plaintiff must be accepted as true and conflicting evidence must be disregarded. The court must give “to the plaintiff[’s] evidence all the value to which it is legally entitled, ... indulging every legitimate inference which may be drawn from the evidence in plaintiff[’s] favor....” ’ [Citations.]” (Carson v. Facilities Development Co. (1984) 36 Cal.3d 830, 838-389.) Substantial evidence is not synonymous with any evidence, but must be reasonable, credible, and of solid value. (OCM Principal Opportunities Fund, L.P., supra, at p. 845.)
“In an appeal from a judgment of nonsuit, the reviewing court is guided by the same rule requiring evaluation of the evidence in the light most favorable to the plaintiff. ‘The judgment of the trial court cannot be sustained unless interpreting the evidence most favorably to plaintiff’s case and most strongly against the defendant and resolving all presumptions, inferences and doubts in favor of the plaintiff a judgment for the defendant is required as a matter of law.’ [Citations.]” (Carson v. Facilities Development Co., supra, 36 Cal.3d at p. 839.) A judgment of nonsuit “must not be reversed if plaintiff’s proof raises nothing more than speculation, suspicion, or conjecture.” (Ibid.)
II. The Application of Section 47, Subdivision (b)
It is undisputed that all of Puterbaugh’s claims are based on the injury she suffered as a result of letters sent by Carrington to the USPS. The letters alleged that Puterbaugh had engaged in misconduct while not working. As a result of these letters, the postmaster rejected Puterbaugh’s request for a transfer. The trial court found that Carrington’s letters were privileged under section 47, subdivision (b). Thus, the issue on appeal is whether the facts as set forth in Puterbaugh’s opening statement establish that the privilege applies to the letters as a matter of law. For the reasons discussed below, we conclude that the judgment of nonsuit must be reversed.
Section 47, subdivision (b) establishes an absolute privilege barring any liability in tort, with the exception of malicious prosecution, for the making of certain statements. (Hagberg v. California Federal Bank (2004) 32 Cal.4th 350, 360 (Hagberg).) “Any doubt as to whether the privilege applies is resolved in favor of applying it.” (Adams v. Superior Court (1992) 2 Cal.App.4th 521, 529.) Section 47, subdivision (b) bars a civil action for damages for communications made “[i]n any (1) legislative proceeding, (2) judicial proceeding, (3) in any other official proceeding authorized by law, or (4) in the initiation or course of any other proceeding authorized by law and reviewable pursuant to [statutes governing writs of mandate], ” with certain statutory exceptions that do not apply to the present case. Here, the letters were not written in connection with a legislative or judicial proceeding. Thus, the question is whether Carrington’s letters are privileged because they were made “in any other proceeding authorized by law” (§ 47, subd. (b)).
The absolute privilege established by section 47, subdivision (b) “serves the important public policy of assuring free access to the courts and other official proceedings. It is intended to ‘ “assure utmost freedom of communication between citizens and public authorities whose responsibility is to investigate and remedy wrongdoing.” ’ [Citation.] We have explained that both the effective administration of justice and the citizen’s right of access to the government for redress of grievances would be threatened by permitting tort liability for communications connected with judicial or other official proceedings. Hence, without respect to the good faith or malice of the person who made the statement, or whether the statement ostensibly was made in the interest of justice, ‘courts have applied the privilege to eliminate the threat of liability for communications made during all kinds of truth-seeking proceedings: judicial, quasi-judicial, legislative and other official proceedings.’ [Citation.]” (Hagberg, supra, 32 Cal.4th at pp. 360-361.)
The Supreme Court in Hagberg, supra, 32 Cal.4th 350 considered the application of the privilege under section 47, subdivision (b) to communications related to any official proceeding. In Hagberg, the plaintiff attempted to cash a check. (Hagberg, at p. 356.) The bank erroneously believed that the check was counterfeit and reported the matter to the police. (Ibid.) The police responded and detained the plaintiff for 20 minutes. (Ibid.) The plaintiff sued the bank and others alleging slander, among other causes of action. (Id. at pp. 356-357.) The bank moved for summary judgment, which the trial court granted, and the Court of Appeal affirmed the judgment. (Id. at p. 358.) The Supreme Court granted review and agreed that the absolute privilege under section 47, subdivision (b) applied to reports made to the police about a possible crime. (Hagberg, at p. 364.)
Similarly, Mulder v. Pilot Air Freight (2004) 32 Cal.4th 384 (Mulder), a decision the Supreme Court filed the same day it filed its decision in Hagberg, also concerned communications to the police department. In Mulder, supra, 32 Cal.4th 384, one of the defendants contacted the police and reported that the plaintiff possessed a stolen flight recorder. (Id. at p. 386.) After the police detained, handcuffed, and searched the plaintiff, the plaintiff sued for false imprisonment and intentional infliction of emotional distress. (Ibid.) The court held that the plaintiff’s claims were barred by the absolute privilege under section 47, subdivision (b). The court explained that this privilege applies “to a communication ‘ “concerning possible wrongdoing, made to an official governmental agency such as a local police department, ... [if the] communication is designed to prompt action by that entity....” ’ ” (Mulder, supra, at p. 387, citing Hagberg, supra, 32 Cal.4that p. 364.)
Puterbaugh maintains that implicit to the decisions in Hagberg and Mulder is a requirement that the authorized public official receiving the communication must have the authority to investigate or remedy the wrongdoing alleged in the communication. She cites the language in Hagberg pointing out that the policy underlying the application of the privilege is to facilitate communication between members of the public and “ ‘ “public authorities whose responsibility is to investigate and remedy wrongdoing.” ’ ” (Hagberg, supra, 32 Cal.4th at p. 360.) Puterbaugh argues that the USPS could not investigate or remedy any of her alleged misconduct because the actions alleged in Carrington’s letters were outside the scope of Puterbaugh’s employment and the postmaster had no authority to regulate her private life.
To the extent that Puterbaugh is arguing that the absolute privilege does not apply whenever the communications concern off-duty actions, she is incorrect. A case not cited by either party, Shaddox v. Bertani (2003) 110 Cal.App.4th 1406, concerned application of section 47, subdivision (b) to communications regarding off-duty conduct. In Shaddox, a dentist revealed information in an officer’s medical files when reporting to the police department his suspicions that one of its officers was, or was at risk of becoming, dependent upon prescription drugs. (Shaddox, supra, at pp. 1409-1410.) The police department conducted an internal investigation and the officer was disciplined for improper conduct. (Id. at p. 1410.) The officer sued the dentist for revealing his private medical information and argued that the privilege under section 47, subdivision (b) should not apply because he was off duty when he consulted the dentist. One of the two independent grounds the appellate court used to reject this argument was that the dentist’s report to the police department was absolutely privileged under the official proceeding privilege of section 47, subdivision (b). (Shaddox, supra, at pp. 1415-1417.) The appellate court concluded that a person’s unfitness for law enforcement could be determined from off-duty performance. (Id. at pp. 1416-1417.)
Carrington argues that the privilege of section 47, subdivision (b) does apply because, as stated in Puterbaugh’s opening statement, Carrington wrote the letters with the purpose of prompting the postmaster to deny Puterbaugh’s transfer and the letters did result in the government entity’s taking that action. Carrington cites language in Hagberg, which is quoted by Mulder, indicating that the privilege applies whenever there is a communication “ ‘ “concerning possible wrongdoing, made to an official governmental agency... [if the] communication is designed to prompt action by that entity....” ’ ” (Mulder, supra, 32 Cal.4th at p. 387, citing Hagberg, supra, 32 Cal.4th at p. 364.) Carrington maintains that this quote establishes that only the following need to be present to invoke the privilege: “(1) communication of possible wrongdoing, and (2) an intent to prompt action by that entity.” She asserts that the facts as set forth in Puterbaugh’s opening statement unequivocally demonstrate that Carrington’s letters alleged misconduct by Puterbaugh and Carrington sent the letters with the intent of having the postmaster deny Puterbaugh’s transfer and the letters had that intended result.
The trial court was persuaded by Carrington’s argument that the privilege applies when the foregoing two elements are present, but Carrington completely ignores the purpose of the privilege under section 47, and the context of the Supreme Court’s sentence when it stated that the communication must be designed to prompt action by the government agency (Mulder, supra, 32 Cal.4th at p. 387). When the court refers to “action, ” it is clearly not suggesting that any decision by a government entity is sufficient. Under Carrington’s analysis, any decision by the government entity following or influenced by communications would result in the absolute privilege being applied to those communications. Such an interpretation is ludicrous and ignores the purpose underlying section 47, subdivision (b).
“The statutory phrase ‘in any other official proceeding authorized by law’ has been broadly interpreted to include those proceedings which resemble judicial and legislative proceedings, such as transactions of administrative boards and proceedings which are quasi-judicial or quasi-legislative in nature.” (Brody v. Montalbano (1978) 87 Cal.App.3d 725, 732.) The official proceeding privilege, like the privilege associated with judicial or legislative proceedings, protects communications that are connected to the truth-seeking purpose of the proceeding and the policy underlying this privilege is that the truth-seeking purpose of the proceeding would be frustrated or defeated if citizens had to worry about liability for disclosing information. (See, e.g., Long v. Pinto (1981) 126 Cal.App.3d 946, 949 [the purpose of the privilege is to encourage “unabashed input into investigations”].) In order for the privilege to attach to the communications, the communications must be designed to trigger some type of proceeding, hearing, or investigation by the government agency to assess the truth of the alleged misconduct.
In support of her argument that the privilege under section 47, subdivision (b) applies to any communication of wrongdoing that is intended to prompt any action by an official entity, Carrington cites a number of cases. (Long v. Pinto, supra, 126 Cal.App.3d at p. 949 [a surgeon’s letter calling attention to surgical activity by another doctor sent to the board of directors at the hospital was privileged because the letter was designed to prompt an investigation]; Martin v. Kearney (1975) 51 Cal.App.3d 309, 311 [“ ‘official proceeding’ ” privilege extended to parents’ letters to a school principal when parents were seeking to have the principal investigate their complaints regarding a teacher’s poor performance]; Cabesuela v. Browning-Ferris Industries of California, Inc. (1998) 68 Cal.App.4th 101, 112 [absolute privilege applied to defendants’ communication to the police that plaintiff threatened violence]; Lee v. Flick (2005) 135 Cal.App.4th 89, 96 [privilege applied to parents’ letter complaining about a coach to the school board as the letter was written to prompt the school authorities to investigate and remove the plaintiff as coach]; King v. Borges (1972) 28 Cal.App.3d 27, 31-34 [the privilege under section 47, subdivision (b) extended to a letter written by a lawyer to the state’s Division of Real Estate complaining that a real estate agent improperly refused to pay a refund out of an escrow fund as the communication was intended to prompt official action by the Division of Real Estate]; Picton v. Anderson Union High School Dist. (1996) 50 Cal.App.4th 726, 737 [privilege applied to communications to the Committee of Teacher Credentials regarding accusations of unprofessional conduct against a high school teacher]). However, in each of the cases cited by Carrington, the communications deemed privileged were sent to prompt the official entity to hold or conduct some type of proceeding or quasi-hearing to investigate and assess the competence or worthiness of the person.
Thus, the absolute privilege applies “if the following conditions have been met: “the publication (1) was made in a judicial [or official] proceeding; (2) had some connection or logical relation to the action; (3) was made to achieve the objects of the [proceeding]; and (4) involved [a government agency] authorized by law.” (Long v. Pinto, supra, 126 Cal.App.3d at p. 950.) The evidence shows that Carrington intended her letters to cause the postmaster to deny Puterbaugh’s request for a transfer, but denying a request for a transfer is not an official proceeding. There is no evidence that the postmaster conducted any internal investigation or engaged in any truth-seeking proceeding to assess Puterbaugh’s character or that Carrington intended such an investigation when sending her letters. Thus, given the facts in this record, we cannot conclude that the absolute privilege under section 47, subdivision (b) applies to the letters written by Carrington.
We note that Puterbaugh also contends that Carrington cannot rely on section 47, subdivision (b) as to her claims because she did not raise this privilege as an affirmative defense in her answer. (See California Academy of Sciences v. County of Fresno (1987) 192 Cal.App.3d 1436, 1442 [a party who fails to plead affirmative defenses waives them]; Mayes v. Sturdy Northern Sales, Inc. (1979) 91 Cal.App.3d 69, 80 [“The affirmative defense of privilege was not asserted and therefore is deemed waived”], disapproved on another ground in Applied Equipment Corp. v. Litton Saudi Arabia Ltd. (1994) 7 Cal.4th 503, 521, fn. 10.) Since we conclude that Carrington has not shown that the absolute privilege under section 47, subdivision (b) applies, we need not decide whether Carrington sufficiently raised legal privilege to provide Puterbaugh with notice of this defense.
We note that one of Carrington’s arguments is that Puterbaugh has the “burden to prove a defamatory statement and the lack of privilege in order to establish her cause of action for defamation[.]” Carrington maintains that, consequently, her first affirmative defense asserting that Puterbaugh failed to state a cause of action was sufficient. To the extent that Carrington is suggesting that she, as the defendant, did not have the burden of proof to establish the privilege defense, she is incorrect. It is elementary that when a defendant advances an affirmative defense to the plaintiff’s claims, the defendant bears the burden of proof on that defense. (Peregrine Funding, Inc. v. Sheppard Mullin Richter & Hampton LLP (2005) 133 Cal.App.4th 658, 676.) If no such defense is advanced, the plaintiff does not have a burden of showing that no defense applies.
DISPOSITION
The judgment is reversed. Carrington is to pay the costs of appeal.
We concur: Haerle, Acting P.J. Richman, J.