Bowie vs. NuEyes Technologies, Inc.

Litigation privilege

The litigation privilege “is to be pleaded as affirmative matter of defense to an action for libel (Gilman v. McClatchy, 111 Cal. 606, 44 Pac. 241), yet where the complaint shows on its face that the publication was privileged, the point may be raised on general demurrer.” (Gosewisch v. Doran (1911) 161 Cal. 511, 516.)

Subject to express exceptions, a privileged publication or broadcast is one made in “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 Chapter 2 (commencing with Section 1084) of Title 1 of Part 3 of the Code of Civil Procedure.” (Civ. Code, § 47, subd. (b).) “The usual formulation is that the privilege applies to any communication (1) made in judicial or quasi-judicial proceedings; (2) by litigants or other participants authorized by law; (3) to achieve the objects of the litigation; and (4) that have some connection or logical relation to the action.” (Holland v. Jones (2012) 210 Cal.App.4th 378, 381, citing Jacob B. v. County of Shasta (2007) 40 Cal.4th 948, 955.)

The litigation privilege is an absolute privilege and it bars all tort causes of action except a claim of malicious prosecution. (Flatley v. Mauro (2006) 39 Cal.4th 299, 322.) “The litigation privilege has been applied in ‘numerous cases’ involving ‘fraudulent communication or perjured testimony.’” (Id., citing Silberg v. Anderson (1990) 50 Cal.3d 205, 218.) In addition, “communications made in connection with litigation do not necessarily fall outside the privilege simply because they are, or are alleged to be, fraudulent, perjurious, unethical, or even illegal.” (Kashian v. Harriman (2002) 98 Cal.App.4th 892, 920.)

“The primary purpose of this privilege is to ‘afford litigants and witnesses [citation] the utmost freedom of access to the courts without fear of being harassed subsequently by derivative tort actions.’” (Mancini & Associates v. Schwetz, 39 Cal.App.5th at 660-661.)

Greget’s allegations in the first and second causes of action does not show Bowie’s statements were privileged.

Common interest privilege

A privileged publication or broadcast is one made “[i]n a communication, without malice, to a person interested therein, (1) by one who is also interested, or (2) by one who stands in such a relation to the person interested as to afford a reasonable ground for supposing the motive for the communication to be innocent, or (3) who is

requested by the person interested to give the information.” (Civ. Code, § 47, subd. (c).)

“Civil Code section 47, subdivision (c) codifies the common law privilege of common interest, ‘which protected communications made in good faith on a subject in which the speaker and hearer shared an interest or duty. This privilege applied to a narrow range of private interests. The interest protected was private or pecuniary; the relationship between the parties was close, e.g., a family, business, or organizational interest; and the request for information must have been in the course of the relationship.’ (Brown v. Kelly Broadcasting Co. (1989) 48 Cal.3d 711, 727, 257 Cal.Rptr. 708, 771 P.2d 406; see also Lundquist v. Reusser, supra, 7 Cal.4th 1193, 31 Cal.Rptr.2d 776, 875 P.2d 1279.)” (Kashian v. Harriman (2002) 98 Cal.App.4th 892, 914.)

The common interest privilege is usually described as a qualified or conditional one. (Id., at 914.) If malice is shown, the privilege never arises in the first instance. (Id., at 915; see, Civ. Code, § 47, subd. (c).) Malice for purposes of the statute means a state of mind arising from hatred or ill will, evidencing a willingness to vex, annoy or injure another person. (Kashian v. Harriman, 98 Cal.App.4th at 915.)

“Application of the privilege involves a two-step analysis. The defendant has the initial burden of showing the allegedly defamatory statement was made on a privileged occasion, whereupon the burden shifts to the plaintiff to show the defendant made the statement with malice. (Lundquist v. Reusser, supra, 7 Cal.4th 1193, 31 Cal.Rptr.2d 776, 875 P.2d 1279.) The existence of the privilege is ordinarily a question of law for the court. (Institute of Athletic Motivation v. University of Illinois, supra, 114 Cal.App.3d at p. 13, fn. 5, 170 Cal.Rptr. 411.)” (Id.)

Greget’s allegations in support of the first two causes of action do not show the common interest privilege applies. In addition, even if the common interest privilege arose, Greget alleged sufficient facts to show malice. (Greget FACC, ¶¶ 45, 46, 48, 57, 58, and 60.)

Statute of limitations

“In order for the bar of the statute of limitations to be raised by demurrer, the defect must clearly and affirmatively appear on the face of the complaint; it is not enough that the complaint shows that the action may be barred.” (Marshall v. Gibson, Dunn & Crutcher (1995) 37 Cal.App.4th 1397, 1403.)

There is no dispute these causes of action are governed by the oneyear statute of limitations in CCP section 340, subdivision (c).) The statute of limitations is one year for an action for libel and slander. (Code Civ. Proc., § 340, subd. (c).)

A cause of action accrues at the time when the cause of action is complete with all of its elements. (Fox v. Ethicon Endo-Surgery, Inc. (2005) 35 Cal.4th 797, 806.) An important exception to the general rule of accrual is the discovery rule, which postpones accrual of a cause of action until the plaintiff discovers, or has reason to discover, the cause of action. (Id., at 807.)

For defamation, a plaintiff must allege that: (i) defendant published the statement, (ii) the statement was about plaintiff, (iii) the statement was false, and (iv) the statement was defamatory (that is, it exposed the plaintiff to contempt or ridicule); and, if the statement it is not defamatory on its face, (v) plaintiff suffered special damages. (Wong v. Tai Jing (2010) 189 Cal.App.4th 1354, 1369; see also CACI 1700- 01.)

The general rule is that publication occurs when the defendant communicates the defamatory statement to a person other than the person being defamed.” (Shively v. Bozanich (2003) 31 Cal.4th 1230, 1247.) In addition, the general rule that each publication of a defamatory statement gives rise to a new cause of action for defamation applies when the original defamer repeats or recirculates his or her original remarks to a new audience. (Id., at 1243.)

Greget alleges Bowie made these false and defamatory statements to third parties beginning in or around October 2023. (Greget FACC, ¶¶ 39 and 50.) Greget did not bring these claims against Bowie until December 9, 2025, over two years later after the alleged first broadcast. However, Greget alleges Bowie continued to make these statements after the initial publication in October 2023. (Id.) Greget does not allege when the last statement was made. In addition, the statements were made to various audiences. (Id., ¶¶ 40, 41, 52, and 53.) The face of the Greget FACC does not clearly and affirmatively show the claims are time-barred.

Sufficiency of allegations

For defamation, a plaintiff must allege that: (i) defendant published the statement, (ii) the statement was about plaintiff, (iii) the statement was false, and (iv) the statement was defamatory (that is, it exposed

the plaintiff to contempt or ridicule); and, if the statement it is not defamatory on its face, (v) plaintiff suffered special damages. (Wong v. Tai Jing (2010) 189 Cal.App.4th 1354, 1369; see also CACI 1700- 01.)

As the California Supreme Court explained:

Defamation constitutes an injury to reputation; the injury may occur by means of libel or slander. (Civ.Code, § 44.) In general, leaving aside certain qualifications that are not relevant in this case, a written communication that is false, that is not protected by any privilege, and that exposes a person to contempt or ridicule or certain other reputational injuries, constitutes libel. (Civ.Code, § 45; Rest.2d Torts, § 568, subd. (1).) A false and unprivileged oral communication attributing to a person specific misdeeds or certain unfavorable characteristics or qualities, or uttering certain other derogatory statements regarding a person, constitutes slander. (Civ.Code, § 46; Rest.2d Torts, § 568, subd. (2).) (Shively v. Bozanich (2003) 31 Cal.4th 1230, 1242.)

Civil Code section 46 defines slander as “a false and unprivileged publication, orally uttered, and also communications by radio or any mechanical or other means which...Tends directly to injure him in respect to his office, profession, trade or business, either by imputing to him general disqualification in those respects which the office or other occupation peculiarly requires, or by imputing something with reference to his office, profession, trade, or business that has a natural tendency to lessen its profits...”

“Libel is a false and unprivileged publication by writing, printing, picture, effigy, or other fixed representation to the eye, which exposes any person to hatred, contempt, ridicule, or obloquy, or which causes him to be shunned or avoided, or which has a tendency to injure him in his occupation.” (Civ. Code, § 45; John Doe 2 v. Superior Court, 1 Cal.App.5th at 1312 [“Libel is a form of defamation effected in writing.”].)

The general rule is that the words constituting an alleged libel must be specifically identified, if not pleaded verbatim, in the complaint. (Medical Marijuana, Inc. v. ProjectCBD.com (2020) 46 Cal.App.5th 869, 893.)

“Where the statement is defamatory on its face, it is said to be libelous per se, and actionable without proof of special damage. But if it is defamation per quod, i.e., if the defamatory character

is not apparent on its face and requires an explanation of the surrounding circumstances (the ‘innuendo’) to make its meaning clear, it is not libelous per se, and is not actionable without pleading and proof of special damages” (5 Witkin, Summary 11th Torts § 638 (2020) 638.)

“A libel which is defamatory of the plaintiff without the necessity of explanatory matter, such as an inducement, innuendo or other extrinsic fact, is said to be a libel on its face. Defamatory language not libelous on its face is not actionable unless the plaintiff alleges and proves that he has suffered special damage as a proximate result thereof. Special damage is defined in Section 48a of this code.” (Civ. Code, § 45a.) “‘Special damages’ means all damages that plaintiff alleges and proves that he or she has suffered in respect to his or her property, business, trade, profession, or occupation, including the amounts of money the plaintiff alleges and proves he or she has expended as a result of the alleged libel, and no other.” (Civ. Code, § 48a, subd. (d)(2).)

Greget alleged sufficient facts with the required specificity to state the first cause of action for defamation per se based on Bowie’s allegedly false accusation of drug use. (Greget FACC, ¶¶ 39-47.)

Accordingly, the demurrer to the first cause of action for defamation is overruled.

Greget alleged sufficient facts with the required specificity to state the second cause of action for defamation per se based on Bowie’s allegedly false accusation of embezzlement/misappropriation. (Greget FACC, ¶¶ 49-59.)

Accordingly, the demurrer to the second cause of action for defamation is overruled.

Third cause of action for intentional infliction of emotional distress

The elements to plead a cause of action for intentional infliction of emotional distress are: (1) outrageous conduct by the defendant; (2) the defendant’s intention of causing or reckless disregard of the probability of causing emotional distress; (3) the plaintiff’s suffering severe or extreme emotional distress; and (4) actual and proximate causation of the emotional distress by the defendant’s outrageous conduct. (Vasquez v. Franklin Management Real Estate Fund, Inc. (2013) 222 Cal.App.4th 819, 832.)

“‘Behavior may be considered outrageous if a defendant (1) abuses a relation or position that gives him power to damage the plaintiff’s interests; (2) knows the plaintiff is susceptible to injuries through mental distress; or (3) acts intentionally or unreasonably with the recognition that the acts are likely to result in illness through mental distress. . . .’” (Molko v. Holy Spirit Ass’n (1988) 46 Cal. 3d 1092, 1122 (superseded by statute on other grounds).)

“The law intervenes only where the distress inflicted is so severe that no reasonable man could be expected to endure it. The intensity and duration of the distress are factors to be considered in determining the severity.” (Fletcher v. Western Life Insurance Co. (1970) 10 Cal.App.3d 376, 397.) “Conduct to be outrageous must be so extreme as to exceed all bounds of that usually tolerated in a civilized community.” (Davidson v. City of Westminster (1982) 32 Cal.3d 197, 209.)

“Discomfort, worry, anxiety, upset stomach, concern, and agitation” as the result of defendant’s conduct do not constitute emotional distress of “such substantial quality or enduring quality that no reasonable [person] in civilized society should be expected to endure it.” (Hughes v. Pair (2009) 46 Cal.4th 1035, 105.) “[O]rdinary defendants are not liable for mere insult, indignity, annoyance, or even threats, where the case is lacking in other circumstances of aggravation. The reasons are not far to seek.

Our manners, and with them our law, have not yet progressed to the point where we are able to afford a remedy in the form of tort damages for all intended mental disturbance. Liabilities of course cannot be extended to every trivial indignity.... Accordingly, it is generally held that there can be no recovery for mere profanity, obscenity, or abuse, without circumstances of aggravation, or for insults, indignities or threats which are considered to amount to nothing more than mere annoyances. The plaintiff cannot recover merely because of hurt feelings.” (Yurick v.

Superior Court (1989) 209 Cal.App.3d 1116, 1128.)

Greget did not allege sufficient facts to state this cause of action. Demurrer is sustained with 15 days leave to amend.

Fourth cause of action for negligent infliction of emotional distress

The cause of action for negligent infliction of emotional distress is not an independent tort. (Christensen v. Superior Court (1991) 54 Cal.3d 868.) “The tort of negligent infliction of emotional distress is a variation of the tort of negligence. The traditional elements of duty,

breach of duty, causation and damages apply.” (Slaughter vs. Legal Process & Courier Serv. (1984) 162 Cal.App.3d 1236, 1249.)

“The California Supreme Court has allowed plaintiffs to recover damages as ‘direct victims’ in only three types of factual situations: (1) the negligent mishandling of corpses (Christensen v. Superior Court (1991) 54 Cal.3d 868, 879 [2 Cal.Rptr.2d 79, 820 P.2d 181]); (2) the negligent misdiagnosis of a disease that could potentially harm another (Molien, supra, 27 Cal.3d at p. 923); and (3) the negligent breach of a duty arising out of a preexisting relationship (Burgess v. Superior Court (1992) 2 Cal.4th 1064, 1076 [9 Cal.Rptr.2d 615, 831 P.2d 1197]).” (Judicial Council Of California Civil Jury Instruction 1620.)

Greget did not allege sufficient facts to state this cause of action. More specifically, there is a failure to allege with sufficiency facts to show that a duty arose out of an existing relationship. Demurrer is sustained with 15 days leave to amend.

Prayer Plaintiffs also take issue with Greget’s prayer for declaratory relief and injunction; however, that is not a proper matter for demurrer. The Court declines to consider whether Greget’s prayer for declaratory relief and injunction is proper.

Plaintiffs shall give notice.

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