Filed 7/7/15 Medeiros v. George Hills Company, Inc. 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                                          NOT TO BE PUBLISHED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 This opinion has not been certified for publication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 THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                     THIRD APPELLATE DISTRICT
                                                    (Sacramento)
                                                            ----




THOMAS MEDEIROS,                                                                       C076021

                   Plaintiff and Appellant,                                   (Super. Ct. No.
                                                                      34-2010-00070076-CU-FR-GDS)
         v.

GEORGE HILLS COMPANY, INC.,

                   Defendant and Respondent.




         Defendant George Hills Company, Inc. (George Hills), is the administrator for the
City of Palo Alto (the City), processing claims against the City under the Government
Claims Act (Gov. Code, § 810 et seq.).1 Plaintiff Thomas Medeiros had previously
alleged that employees of George Hills falsely represented in a letter to him that his claim
against the City was untimely. The letter was accompanied by a notice of late claim
(§ 911.3, subd. (a)) that did not contain the admonitions required under the statute to


1 Undesignated statutory references are to the Government Code.



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“apply without delay . . . for leave to present a late claim” and to consult “immediately”
with counsel. (Medeiros v. George Hills Company, Inc. (Jan. 14, 2013, C068995)
[nonpub. opn.] slip opn. at p. 4 (hereafter Slip Opn. [contained in the record of this
appeal, C076021]).) In our prior Medeiros opinion, we reversed a judgment of dismissal,
finding Medeiros had adequately alleged a cause of action for intentional fraud. (Slip
Opn. at pp. 5-6.)

       On remand, Medeiros filed a second amended complaint.2 George Hills filed its
answer, and then moved for judgment on the pleadings on the ground that the litigation
privilege—codified in Civil Code section 47—immunized its conduct. The trial court
granted the motion and entered a judgment of dismissal. Medeiros filed a timely notice
of appeal after receipt of the notice of entry of judgment.

       On appeal, Medeiros again conflates a possible basis for pursuit of a late claim
against a public entity with a litigation opponent’s liability in tort for committing alleged
extrinsic fraud in the course of litigation. (See Slip Opn., supra, at p. 7.) He contends
“equity,” section 911.3, and his constitutional right of petition, do not allow operation of
the litigation privilege to prevent his claim of damages for intentional extrinsic fraud.
We shall affirm.

                    FACTUAL AND PROCEDURAL BACKGROUND

       On appeal from a ruling sustaining a demurrer without leave to amend, we assume
the truth of well-pleaded factual allegations, shorn of any legal conclusions. (Fuller v.
First Franklin Financial Corp. (2013) 216 Cal.App.4th 955, 959 (Fuller).) Since a
motion for judgment on the pleadings (formerly nonstatutory, now codified at Code Civ.



2 Exceeding the scope of our remittitur, Medeiros also included a count alleging
negligent misrepresentation. He abandons any argument in connection with this theory
on appeal.


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Proc., § 438) is the equivalent of a demurrer with the same purpose and effect, the same
rules apply. (People v. $20,000 United States Currency (1991) 235 Cal.App.3d 682,
691.) Thus, as with a demurrer, we may also consider facts that are the proper subject of
judicial notice, such as the appellate opinion in People v. Medeiros (Aug. 1, 2007,
H028934) [nonpub. opn.]), to which Medeiros adverts (absent the underlying facts) in his
pleading. (Bach v. McNelis (1989) 207 Cal.App.3d 852, 864-865; Code Civ. Proc.,
§ 438, subd. (d).)

       In December 2001 (meaning the genesis of this dispute is nearly 14 years old),
Medeiros was part of a work crew dispatched to clean the grease interceptor at the Palo
Alto Hills Golf and Country Club. Later that morning, the employees of the municipal
wastewater department discovered grease flowing out of manholes into a nearby creek,
which they quickly connected with the activities of the work crew uphill. The trial court
found Medeiros guilty of three felony and misdemeanor pollution and discharge offenses
as an accomplice. A divided panel of the Court of Appeal, Sixth Appellate District,
reversed his convictions because it did not find sufficient evidence of his knowing
assistance in the dumping of grease into the sewer system. (People v. Medeiros, supra,
H028934.) The remittitur issued on October 2, 2007.

       Medeiros, who has only a high school education, filed a claim with the City for
malicious prosecution on the entity’s standard claims form in January 2008. (The claim
itself is not part of the record.) By letter dated February 7, 2008, George Hills informed
Medeiros that his claim was untimely because the “incident occurred” in December 2001
and his convictions were in spring 2005, therefore, George Hills would not take any
action on the claim because Medeiros had only two years in which to file a claim stating,
“You have no viable claim against the City.” The two employees of George Hills
involved in processing Medeiros’s claim were well versed in the application of statutes of
limitation to claims against public entities, and through these representations concealed


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from Medeiros that a cause of action for malicious prosecution did not accrue until the
remittitur issued for the reversal of his convictions (the fact of which was “readily
available to any person”), after which he then had six months to file his claim with the
City. George Hills’s employees intended for Medeiros to rely on the representations
(seeking thereby to gain favor with the City), and Medeiros in fact relied on them.

       Included with the letter was a notice of late claim (see § 911.3, subd. (a)), which
stated that the City would not be taking any action on Medeiros’s claim, citing section
911.2 (which contains the six-month limitations period for presenting a tort claim against
public entities). Although the notice appended the text of various provisions of the
Government Code (including section 911.4, prescribing the procedures for application to
file a late claim, and section 946.6, prescribing the procedures for resort to court on the
denial of permission to file a late claim), the notice did not include either the text of
section 911.3 itself, nor the disclosures required under section 911.3 when entities return
a claim without action as untimely.3 George Hills’s employees omitted the statutory
admonitions intentionally in order to prevent Medeiros from detecting their
misrepresentation about the expiration of the limitations period. As a result, Medeiros
suffered damages in the amount of his lost cause of action.

       The trial court found the litigation privilege applied. It rejected Medeiros’s two
arguments (not renewed on appeal), finding that the exception for malicious prosecution
did not apply to a tort action against a defendant that is independent of the underlying




3 In pertinent part, section 911.3 requires the notice to state in substance that, “Your only
recourse at this time is to apply without delay to (name of public entity) for leave to
present a late claim. See Sections 911.4 to 912.2, inclusive, and Section 946.6 of the
Government Code. . . . [¶] You may seek the advice of an attorney of your choice in
connection with this matter. If you desire to consult an attorney, you should do so
immediately.” (Italics added.)


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claim against the City, and that George Hills’s employees made the statements at issue at
a time when litigation over the claim against the City was reasonably being contemplated.

                                       DISCUSSION

       We review a ruling on a demurrer de novo (Fuller, supra, 216 Cal.App.4th at
p. 962), and may consider theories either to sustain or overturn the ruling even if not
raised in the trial court (id. at pp. 966-967; Connerly v. State of California (2014)
229 Cal.App.4th 457, 460; Code Civ. Proc., § 472c). As noted above, it is proper to
apply these principles to a ruling on a motion for judgment on the pleadings.

1.0 The Litigation Privilege Does Not Have an Exception for Extrinsic Fraud

       Although his introduction invokes the concept of equity, Medeiros’s analysis rests
on a purported exception in the common law to the litigation privilege. The cases do not
support the premise.

       Silberg v. Anderson (1990) 50 Cal.3d 205 reaffirmed the vitality of the litigation
privilege. A plaintiff sought tort and contract damages against his opponent’s attorney
for concealing bias on the part of a purportedly neutral expert. (Id. at p. 210.) Silberg
disavowed precedent that conditioned the litigation privilege for communications made in
the course of a judicial proceeding to achieve the objects of the litigation on an “interest
of justice” criterion; it concluded the “evils inherent in permitting derivative tort actions”
far outweighed the price of leaving the “occasional ‘unfair’ result” without redress. (Id.
at p. 213.) It explained the privilege protected the right of access to judicial proceedings
because it shielded litigants and witnesses from the threat of liability and promoted
zealous advocacy on the part of attorneys, a position that the United States Supreme
Court had endorsed as a matter of federal common law. (Id. at pp. 213-214.) It is not a
matter of protecting shady practitioners; it is a matter of protecting honest ones from the
fear of derivative liability. (Id. at p. 214.) In an aside upon which Medeiros seizes,



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Silberg noted, “To allow a litigant to attack the integrity of evidence after the proceedings
have concluded, except in the most narrowly circumscribed situations, such as extrinsic
fraud, would impermissibly burden, if not inundate, our justice system.” (Ibid., italics
added.)

       From this dictum Medeiros would derive authorization to pursue a derivative tort
action for damages where a litigation opponent is guilty of extrinsic fraud. But Silberg
was not suggesting any such thing. It cited three authorities in support of this dictum.
The first was the United States Supreme Court case precluding an action for damages.
(Briscoe v. LaHue (1983) 460 U.S. 325 [75 L.Ed.2d 96].) The second was Pico v. Cohn
(1891) 91 Cal. 129, which explored the circumstances under which a litigant could set
aside a judgment on the basis of extrinsic fraud, limiting the meaning of that term to
situations in which “the unsuccessful party is really prevented, by the fraudulent
contrivance of his adversary, from having a trial . . . .” (Id. at p. 134.) The third was
Kachig v. Boothe (1971) 22 Cal.App.3d 626 (an earlier decision by the author of Silberg),
which found the absence of extrinsic fraud that would allow setting aside the prior
judgment (Kachig, at p. 636), and the litigation privilege otherwise precluded derivative
tort liability (id. at p. 641). Indeed, in authority cited by plaintiff, the Supreme Court
subsequently explained its comment in Silberg: “This reference to ‘extrinsic fraud’
apparently relates to the narrow doctrine permitting a collateral attack on a judgment
. . . .” (Moore v. Conliffe (1994) 7 Cal.4th 634, 643, fn. 5, italics added.)

       Medeiros’s remaining authority for an exception to the litigation privilege is
equally inapposite. Edwards v. Centex Real Estate Corp. (1997) 53 Cal.App.4th 15
concluded the prelitigation communications at issue were not subject to the privilege (id.
at p. 40); it then rejected a claim that extrinsic fraud is not privileged without any analysis
of the premise, simply finding that extrinsic fraud was not present (id. at p. 41). That is a
far cry from an affirmative holding that a derivative tort action may proceed on the basis


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of extrinsic fraud. Our decision in Home Ins. Co. v. Zurich Ins. Co. (2002)
96 Cal.App.4th 17 asserted that the litigation privilege does not preclude an equitable
action to set aside a settlement agreement. (Id. at p. 26.) Not only did we conclude
extrinsic fraud was not present, we noted the normal remedy for extrinsic fraud was
equitable relief from the tainted judgment, not an action in tort. (Ibid.) Similarly,
Navarro v. IHOP Properties, Inc. (2005) 134 Cal.App.4th 834 found extrinsic fraud was
not present, and “even when extrinsic fraud can be demonstrated, the aggrieved party
may seek to set aside the judgment, but none of the [cited] cases . . . support the
contention that a separate action for damages may be pursued” (thus the litigation
privilege applied). (Id. at p. 844.)4

       Consequently, even if George Hills’s conduct amounted to extrinsic fraud (an
issue we do not need to resolve), it is still subject to the litigation privilege as
communications in reasonable anticipation of litigation (an issue Medeiros does not
dispute on appeal). We thus reject his argument.

2.0 The Litigation Privilege Is Not Unconstitutional

       Medeiros asserts that the litigation privilege, codified since 1872, violates his right
to petition under the California Constitution and therefore is unconstitutional. He does
not cite any authority supporting this bold proposition.

       He attempts to analogize to Voit v. Superior Court (2011) 201 Cal.App.4th 1285.
The parallel eludes us. There, the superior court clerk refused to file the motion of a pro
se incarcerated defendant for appointment of counsel because it did not cite precedent in
support; the Court of Appeal issued a peremptory writ finding that the clerk’s office had



4 Medeiros’s remaining case, Kimes v. Stone (9th Cir. 1996) 84 F.3d 1121, is not
controlling (People v. Linton (2013) 56 Cal.4th 1146, 1182, fn. 8) and involves the
inapposite context of applying the supremacy clause to California’s litigation privilege.


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exceeded the limits of its ministerial duties, resulting in the deprivation of the right of
access to the courts. (Id. at pp. 1287-1288.) Nowhere is there any suggestion that a
privilege can be unconstitutional because it insulates conduct from legal liability. As
Medeiros otherwise does not develop this argument (which ignores the legislative
prerogative over the creation of substantive rights), we will not pursue it further.

3.0 The Government Claims Act Is Not an Exception to the Privilege

       As noted in Action Apartment Assn., Inc. v. City of Santa Monica (2007)
41 Cal.4th 1232, 1247, there can be “exceptions to the litigation privilege based on
irreconcilable conflicts between the privilege and other coequal state laws.” (Accord,
Komarova v. National Credit Acceptance, Inc. (2009) 175 Cal.App.4th 324, 338-340
[privilege must yield to more specific statutes, and cannot shield actions Legislature
sought to prohibit].)

       Medeiros contends the privilege cannot nullify the protections for claimants that
are created in section 911.3. Yet again, Medeiros is admixing his ability to pursue a
claim against the City with his desire to recover damages from George Hills. The failure
to comply with section 911.3 would have precluded the City from raising the timeliness
of a claim presented to it within the applicable limitations period. (See County of
Alameda v. Superior Court (1987) 195 Cal.App.3d 1283, 1287 [noting that the statute
forfeits the issue of the timeliness of a claim, not the limitations period].) The litigation
privilege does not have any effect on that remedy. It simply precludes Medeiros’s ability
to recover derivative damages from the City’s agent. Since a conflict does not exist, let
alone an irreconcilable conflict, no exception to the privilege exists under section 911.3.




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                                      DISPOSITION

       The judgment is affirmed. Respondent George Hills Company, Inc., shall recover
its costs on appeal. (Cal. Rules of Court, rule 8.278(a)(1), (2).)




                                                         BUTZ           , J.



We concur:



      BLEASE                , Acting P. J.



      HOCH                  , J.




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