Harris v. King

Opinion

GAUT, J.

1.

Basis for Appeal

Plaintiff Terry Lee Harris (Harris) appeals from an order sustaining without leave to amend a general demurrer to the first amended complaint and from the court’s order striking, Harris’s second amended complaint, filed after the demurrer.

Hairis complains that defendants John M. King, M.D., and John M. King, M.D., Inc. (King) prepared and submitted a medical report to the State Compensation Insurance Fund that defamed him and misrepresented his physical condition arising from an industrial accident. Because King’s report is a prelitigation communication privileged under Civil Code section 47, subdivision (b), we affirm the judgment.

[1187]

2.

Facts

Harris’s opening brief contains exhibits that are not a part of the clerk’s transcript and therefore have not been considered by this court. The brief also contains “facts” not a part of the complaint that was the subject of the demurrer and therefore have not been considered by this court.

(Doers

v.

Golden Gate Bridge etc. Dist.

(1979) 23 Cal.3d 180, 184 [151 Cal.Rptr. 837, 588 P.2d 1261].)

The first amended complaint asserts causes of action for general negligence, fraud, libel, and perjury and seeks damages, including exemplary damages, arising out of King’s preparation and submission of a medical report on Harris’s medical condition to State Compensation Insurance Fund. Harris alleges that the report was intentionally false, libelous, and negligent. He alleges resulting damages consisting of the termination of his temporary disability payments, rehabilitation benefits, and permanent partial disability benefits.

Harris contends that King was his treating physician and in that capacity owed him a fiduciary duty. Harris bases that assertion upon factual recitations in the brief not included in the first amended complaint and of which this court cannot take notice.