Webster Ave. Church of Christ v. Fire Prevention Services CA4/1

Filed 1/20/22 Webster Ave. Church of Christ v. Fire Prevention Services CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

WEBSTER AVENUE CHURCH OF D077678
CHRIST et al.,

Plaintiffs and Appellants,
(Super. Ct. No.
v. 37-2016-00010085-CU-BT-CTL)

FIRE PREVENTION SERVICES,
INCORPORATED et al.,

Defendants and Respondents.

APPEAL from a judgment of the Superior Court of San Diego County,
Richard S. Whitney, Judge. Reversed and remanded with directions.
Law Office of Nickolas A. Urick and Nick A. Urick for Plaintiffs and
Appellants.
Law Office of J. Carlos Fox and J. Carlos Fox for Defendant and
Respondent Fire Prevention Services, Inc.
Mara W. Elliott, City Attorney, George F. Schaefer, Assistant City
Attorney and Tyler L. Krentz, Deputy City Attorney for Defendant and
Respondent Marci Garcia.
 Plaintiff and appellant Webster Avenue Church of Christ (Webster)
and Otha Bill Brightmon appeal from a judgment entered in favor of
defendants and respondents Fire Prevention Services, Incorporated (FPS)
and Maria Garcia on their respective motions for judgment on the pleadings
(JOP) and demurrer to plaintiffs’ third amended complaint alleging causes of
action for fraud, slander of title and defamation in connection with City of
San Diego (City) weed abatement violation notices on Webster’s properties.
Plaintiffs alleged that Garcia, a City employee, had made false statements in
connection with the notices and that FPS, City’s contracted agent for weed
abatement, likewise falsely claimed to have provided weed abatement,
maliciously recorded liens, and sent a defamatory e-mail to an investigative
news reporter. The trial court sustained Garcia’s demurrer to plaintiffs’
fraud claim on grounds plaintiffs did not state a cause of action; it granted
FPS’s motion for judgment on the pleadings in part on grounds plaintiffs did
not exhaust their administrative remedies to challenge the notices and the
statute of limitations barred their claim for slander of title.
Plaintiffs contend the court erred by granting judgment on the
pleadings on exhaustion grounds assertedly raised by FPS for the first time
in its reply papers below. Plaintiffs further contend the court misinterpreted

the San Diego Municipal Code1 in making its rulings, erroneously holding it
required plaintiffs to appeal the abatement notices before they could object to
its cost. As for their slander of title claim, plaintiffs contend the court erred
by applying the doctrine of constructive notice to find that cause of action
time-barred. They argue that cause of action was timely because it related
back to their original complaint. As to Garcia, plaintiffs contend the court

1 Further references to the Municipal Code are to the San Diego
Municipal Code.
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erred by ruling plaintiffs did not allege Garcia knew the weed abatement
work orders she had created were false when she made them.
For the reasons discussed below, we conclude plaintiffs cannot allege a
cause of action for fraud against either FPS or Garcia. However, we hold
they should have been granted leave to amend to attempt to allege a timely
slander of title cause of action against both defendants. We further hold the
court should have denied judgment on the pleadings as to defamation against
FPS.
FACTUAL AND PROCEDURAL BACKGROUND
We state the facts from plaintiffs’ operative verified third amended
complaint. In so doing, we “accept the truth of material facts properly
pleaded, but not contentions, deductions, or conclusions of fact or law” and
consider matters properly subject to judicial notice. (State Dept. of State
Hospitals v. Superior Court (2015) 61 Cal.4th 339, 346 [demurrer]; Smiley v.
Citibank (1995) 11 Cal.4th 138, 146 [same rules of review apply to demurrers
and motions for judgment on the pleadings].)
The Underlying Dispute
Webster owns and operates several parcels of property in San Diego
County, including four parcels that abut Leghorn Avenue (the Leghorn
parcels) and three abutting 66th Street (the 66th Street parcels). The parcels
are inaccessible to vehicle traffic due to a locked chain link fence. Webster
compensates Brightmon to abate weeds on them. In June 2014, City, via
FPS, sent Webster four notices of violation regarding a need to abate weeds
on the Leghorn parcels. The notices state that “in order to comply, you are
required to do the following: Cut and remove all grass and weeds to
approximately two inches in height on flat parcels or parcels with a slope
gradient up to 25 [percent]. Remove all tumbleweeds, rubbish, litter and

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combustible debris from property.” The notices cite to California Uniform
Fire Code section 204.1.2, which states: “Weeds, grass, vines or other growth
that is capable of being ignited and endangering property, shall be cut down
and removed by the owner or occupant of the premises.” Webster gave the
notices to Brightmon to abate the weeds on the Leghorn parcels.
In early July 2014, Brightmon and his grandsons cut, raked, and
removed all of the weeds from the Leghorn parcels and hauled the debris to
the Miramar Landfill, paying $36 for the transaction. Brightmon then
sprayed weed killer on all four parcels.
In October 2014, FPS sent four abatement notice and orders via
certified mail for the Leghorn parcels. Those orders stated that “[a]
representative of [FPS] inspected the [Leghorn parcels] on 10/20/2014.” They
instructed the recipient to “remove all weeds, combustible waste and rubbish
from the surrounding yards and interior of the premises and clean the site
within 10 calendar days of 10/20/2014.” At the time, Brightmon was out of
town attending a funeral. Upon his return, Webster gave Brightmon the
abatement notices and orders to handle; but two Webster representatives
who had inspected the Leghorn parcels told him there were no weeds to be
abated.
Mistaking the notices to be for the 66th Street parcels, Brightmon in
early November 2014, contacted E.V., a fire department representative listed
on the notices, to request an extension. E.V. told Brightmon he would contact
FPS to see if there was a pending work order. In late November, Brightmon
and his grandsons cut weeds and removed tumbleweeds on the 66th Street
parcels, loading the debris into his truck. Afterwards, Brightmon informed
E.V. that he no longer needed the abatement extension. He paid $13 to the
Miramar Landfill to dump the debris.

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 About that time, FPS sent Webster four bills dated November 25, 2014,
for weed abatement on the Leghorn parcels. Webster gave the bills to
Brightmon, who then contacted E.V. as well as Garcia, who Brightmon had
dealt with in the past. On November 14, 2014, Garcia had executed four
work authorization forms stating that on November 18, 2014, a crew “hand
cut” the weeds on the Leghorn parcels. One of Garcia’s family members was
part of that crew, as Garcia had mentioned to Brightmon that a family
member cut weeds as part of City’s abatement program. On November 20,
2014, E.V. e-mailed an FPS representative, K.O., to say he had received a call
that day from Brightmon. The e-mail continues: “I’ve been working with Mr.
Brightmon for decades, and they’ve [sic] always complied. He is asking for an
extension until December 10th, 2014. . . . Mr. Brightmon . . . was out of town
for a family death in Texas . . . he actually called me before he left just to talk
. . . .” E.V. also e-mailed K.O. on December 5, 2014, asking for an inspection
history on the parcels, telling him that a Webster representative said the
parcels were fenced and locked. K.O. replied that day with a timeline of
FPS’s activities on the Leghorn parcels and the dates it sent abatement

notices and orders as well as bills.2

2 K.O. stated that all of the parcels were subject to the same timeline,
which he listed as:
4/24/2014 Annual weed abatement letter sent.
5/13/2014 Properties were inspected and found in violation.
6/16/2014 Notice of Violations were sent.
10/20/2014 Parcels were inspected, found in violation and posted.
10/20/2014 Abatement Notice and Orders were sent.
10/31/2014 Property was reinspected and found still in violation.
11/10/2014 received proof of service of Abatement Notice and Orders.
11/14/2014 City signed abatement authorizations.
11/18/2014 FPS[ ] crews abated properties.
11/20/2014 Received e-mail from you.
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 After receiving no response from City, Brightmon contacted an
investigative news reporter about the matter. The reporter interviewed
Garcia and FPS, as well as Brightmon.
On December 29, 2014, FPS recorded liens against the Leghorn

parcels.3 Plaintiffs allege FPS has a history of problems, including
overcharging for or not performing services and working as an unlicensed
contractor. They allege FPS’s contract with North County San Diego was
terminated in 2004 due to customer complaints.
In January 2015, K.O. sent the reporter an e-mail with the same
timeline of FPS’s activities on the Leghorn parcels, writing that FPS crews
had abated properties on November 18, 2014. K.O. stated he had no record of

11/21/2014 [D.K., another FPS representative] responded to your e-
mail.
11/25/2014 sent abatement bills. K.O. noted: “Each parcel was sent
individual notifications and there were 4 separate certified notices they
signed for. Then [sic] never contacted us through the entire process.”

3 The notices of abatement, which FPS asked the court to judicially
notice, state in passive language that a Municipal Code violation was
determined to exist and was ordered abated on November 14, 2014; FPS as
City representatives abated the violation on November 18, 2014; $1,395 was
each abatement’s charge; and until paid, an abatement obligation exists on
the property regardless of the owner. The notice continues: “This abatement
obligation shall attach to the property, not the owner, and after confirmation
by the City shall become a special assessment on the property tax bill. If not
paid pursuant to State Law and State Tax Lien Law, the property may be
sold to satisfy that obligation. The amount of such claim shall be $1,395[ ]
plus interest and other costs which may hereafter become due. This filing
does not preclude the filing of legal action for collection. Should such actions
be required or determined to be appropriate, reasonable legal fees will be
incurred and added to said obligation.” As plaintiffs point out, one of the
notices was recorded on December 23, 2014, the rest were recorded on
December 29, 2014.
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Webster or Brightmon contacting FPS’s office to discuss the bills or the work
it had done.
In February 2015, the reporter e-mailed Brightmon to tell him that
FPS and K.O. documented the weed cutting for each lot. He wrote: “If you
can prove you and your grandsons actually did the work, that would make a
great story.”
At some point, Brightmon presented the e-mails to the Webster
congregation. In August 2015, he obtained copies of the four liens recorded
by FPS.
Plaintiffs’ Lawsuit
Webster and Brightmon sued City and FPS in March 2016. They
thereafter amended their complaint in response to demurrers.
In April 2018, plaintiffs filed a third amended complaint alleging
causes of action for fraud and civil conspiracy against City, Garcia and FPS,
slander of title and defamation against FPS, and negligent hiring/supervision
against City. In part, Webster and Brightmon alleged that all of the
defendants committed fraud when they asserted that FPS had performed
abatement services; that FPS and Garcia created false work orders with
knowingly false statements, including that FPS had “hand cut” or “fine cut”
the weeds on the Leghorn parcels and left the debris in place in violation of
laws or ordinances concerning weed abatement. Plaintiffs alleged Garcia did
so “in direct response” to Brightmon telling E.V. in November 2014 that the
parcels were fenced and locked, and the alleged fine cutting had not been
performed by FPS before or after November 18, 2014. They alleged Garcia,
who was operating under City’s authority, conspired with FPS so as to
protect her family member and was “motivated by corruption or actual
malice” in making statements to the reporter and in taking other actions.

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They alleged FPS maliciously recorded the liens against the Leghorn parcels,
which clouded the title and injured them by hampering efforts to secure
financing and develop the parcels. They alleged FPS’s January 2015 e-mail
to the reporter was false and defamatory on its face, and that e-mail, as well
as the reporter’s February 2015 e-mail to Brightmon, injured Brightmon, who
“had a duty to re-publish” them to Webster and its congregation.
Garcia’s Demurrer
Garcia demurred to the third amended complaint on grounds plaintiffs
did not state a cause of action for fraud, the complaint was unintelligible, and
the complaint failed to plead facts showing the claim was outside applicable
public employee immunity. She argued the allegations did not establish she
knew the work order authorizations were false when she executed them and,
given plaintiffs’ prior unsuccessful attempts to amend, the demurrer should
be sustained without leave to amend.
In opposition, plaintiffs argued they showed Garcia knew the work
orders were false when she executed them by allegations, among others, that
she had a duty to review the scope of work for each work order before
executing it; she operated under City’s authority when she inspected the
parcels on November 14, 2014; she would have noticed the Leghorn parcels
did not require abatement on November 14, 2014; and she “executed the work
orders knowing that the statements made therein were false, and thus
motivated by corruption or actual malice, . . . in order to protect her alleged
family member, who likely claimed compensation for the alleged work
performed under the work orders.” (Some capitalization omitted.) Plaintiffs
argued Garcia was not immune to their conspiracy cause of action under
Klistoff v. Superior Court (2007) 157 Cal.App.4th 469, and they showed
Garcia actively participated in a conspiracy to commit fraud by specifically

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alleging, inter alia, that Garcia conspired with FPS to hide the fact it did not
perform the work by claiming FPS “hand cut” the weeds when confronted
with information that the parcels were locked and gated, and “invented” the
“fine cut” theory when plaintiffs asked for the disposal invoice. Plaintiffs
argued they fell within an exception to the rule requiring fraud be pleaded
with specificity when City and Garcia possessed the full information about
the relevant communications.
FPS’s Motion for Judgment on the Pleadings
FPS moved for judgment on the pleadings, arguing the operative
complaint did not state any cause of action and statutes of limitations barred
the causes of action for slander of title and defamation, depriving the trial
court of jurisdiction. It argued the complaint’s allegations showed plaintiffs
knew FPS’s bills were false because they knew the weeds had been abated,
and thus they could not allege they justifiably relied to their detriment on the
bills or the liens stemming from those bills. FPS argued the same points
defeated plaintiffs’ conspiracy allegations as the conspiracy was premised on
fraud. FPS argued the three-year statute of limitations barred plaintiffs’
slander of title claim, as plaintiffs had constructive notice of the recorded
December 2014 liens’ existence, or alternatively they knew or should have
known of the liens no later than January 13, 2015, when they obtained the e-
mail from FPS to the reporter. FPS further argued plaintiffs could not allege
they suffered any actual pecuniary loss relating to its filing of the liens; that
allegations that their bankers or other creditors were aware of the liens were
insufficient. As for the defamation cause of action, FPS argued that claim,
predicated on the January 13, 2015 e-mail directed to the reporter, was
barred by the one-year statute of limitations. Additionally, they argued
plaintiffs’ complaint did not state a cause of action because the statement

9
that FPS abated the properties was not defamatory and Brightmon failed to
plead special damages (damages to his property, business, trade, profession
or occupation) caused by the statement.
Plaintiffs in opposition asked the court to rule the motion untimely due
to FPS’s failure to comply with local format rules. They argued the motion
was procedurally defective for two additional reasons: because FPS had not
met and conferred before filing the motion, and because the sole issue raised
by FPS in prior similar motions as to fraud was the element of reliance,
preventing FPS from raising new issues in the present motion. They argued
multiple documents (the bills, work orders, and liens) comprised the fraud,
and their complaint alleged Brightmon justifiably directly relied (and via him
Webster indirectly relied) on E.V.’s representations that he would resolve or
investigate the matter. As for defamation, plaintiffs argued the cause of
action was timely under the discovery rule as they could plead that the
reporter e-mailed his defamatory statements to Brightmon’s ill wife, and then
sent a package with the defamatory statements via regular mail to
Brightmon, who then republished the statements to his congregation in April
2015. Plaintiffs argued the statements were defamatory as they implied that
FPS, not Brightmon, performed the weed abatement on the Leghorn parcels.
They argued the discovery rule likewise served to render their slander of title
claim timely, as on August 17, 2015, Brightmon first received notice of FPS’s
liens at the county recorder’s office, which liens were not properly served as
required by the Municipal Code. They argued they alleged damages by
stating that the liens had prevented them from developing the parcels and
they had incurred in excess of $30,000 in prosecuting the matter. Plaintiffs
requested the court take judicial notice of an October 20, 2014 abatement
notice and order as well as November and December 2014 e-mails from E.V.

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to FPS, and K.O. to E.V., regarding the timeline of FPS’s inspection history
and abatement.
In reply, FPS argued in part that Municipal Code sections 12.0501 and
12.0502 provide a property owner 10 days to appeal a notice of abatement
and seek an administrative hearing, but plaintiffs failed to do so and thus
waived their right to sue and a remedy.
The trial court sustained without leave to amend Garcia’s demurrer
and granted FPS’s motion for judgment on the pleadings. Finding the
premise of Garcia’s demurrer was that plaintiffs did not allege she knew the
work orders were false when she signed them on November 14, 2014, it ruled
the gist of plaintiffs’ claim was that Garcia fraudulently created the work
orders after Brightmon suggested that the bills arising out of those work
orders could not be accurate. The court found plaintiffs could not state a
cause of action for fraud against Garcia because they alleged Brightmon

made his assertion later, sometime after November 25, 2014.4 The court
denied leave to amend, rejecting plaintiffs’ assertion at oral argument that
Garcia had backdated the documents, which it ruled was speculation and

4 The trial court reasoned that the allegation Garcia knew on November
14, 2014, that the work orders were false “could not be accurate” given
plaintiffs’ additional contradictory allegation that Garcia created the work
orders “in direct response” to Brightmon telling E.V. that vehicles could not
enter the parcels. It found that since plaintiffs alleged Brightmon
communicated with E.V. in December 2014, after Garcia allegedly created the
work orders, plaintiffs could not state a cause of action for fraud against
Garcia. But plaintiffs’ theory also was that Garcia created false work orders
so as to protect her family member abatement worker who would receive
compensation from the abatement, and signed the work order authorizations
having inspected the parcels, which would have revealed they did not need
abatement. This theory, as we explain below, may support a slander of title
cause of action.

11
contrary to their allegations, and observing the sole ground plaintiffs gave to
seek leave to amend was their assertion that City was in possession of the
information.
The court granted FPS’s motion for judgment on the pleadings,

rejecting plaintiffs’ format and meet-and-confer challenges.5 Stating it had
permitted plaintiffs to file a surreply on the Municipal Code issues FPS
raised in reply but that plaintiffs had not done so, it ruled the fraud claim
was barred by plaintiffs’ failure to exhaust administrative remedies in time
to challenge the abatement notices and order. It ruled that while plaintiffs
included a claim for conspiracy to commit fraud, they failed to allege facts
indicating any party prevented them from appealing the abatement notices
and orders. On plaintiffs’ slander of title cause of action, the court ruled it
was barred by the three-year statute of limitations because plaintiffs had
constructive notice of the liens from their December 29, 2014 filing date, but
did not include such a cause of action until April 27, 2018, when they filed
their third amended complaint. The court granted plaintiffs leave to amend
their defamation cause of action.
Plaintiffs did not file a fourth amended complaint. The court
eventually entered a final judgment in the matter on December 4, 2019.
Plaintiffs filed this appeal in May 2020.
DISCUSSION
I. Standard of Review
This court applies the same de novo review to the trial court’s orders
sustaining the demurrer and granting judgment on the pleadings, as both
motions perform the same function. (People ex rel. Harris v. Pac Anchor
Transportation, Inc. (2014) 59 Cal.4th 772, 777; Martinez v. San Diego

5 Plaintiffs do not repeat these challenges on appeal.
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County Credit Union (2020) 50 Cal.App.5th 1048, 1058.) Giving the
complaint a reasonable interpretation, reading it as a whole and its parts in
context, we determine whether the complaint alleges facts sufficient to state
a cause of action. (Zelig v. County of Los Angeles (2002) 27 Cal.4th 1112,
1126.) We deem true all properly pleaded material facts, and disregard
contentions, deductions or conclusions of fact or law. (Harris, at p. 777; Zelig,
at p. 1126.) We consider facts of which a court may take judicial notice.
(Zelig, at p. 1126.) When the trial court denies leave to amend, “ ‘we decide
whether there is a reasonable possibility that the defect can be cured by
amendment: if it can be, the trial court has abused its discretion and we
reverse; if not, there has been no abuse of discretion and we affirm.
[Citations.] The burden of proving such reasonable possibility is squarely on
the plaintiff.’ ” (Zelig, at p. 1126; see also SLPR, L.L.C. v. San Diego Unified
Port District (2020) 49 Cal.App.5th 284, 317 [demurrer].)
“If the complaint states a cause of action under any theory, regardless
of the title under which the factual basis for relief is stated, that aspect of the
complaint is good against a demurrer [or judgment on the pleadings]. ‘[W]e
are not limited to plaintiffs’ theory of recovery . . . .’ ” (Quelimane Co. v.
Stewart Title Guaranty Co. (1998) 19 Cal.4th 26, 38.) “ ‘A judgment of
dismissal after a demurrer has been sustained without leave to amend will be
affirmed if proper on any grounds stated in the demurrer, whether or not the
court acted on that ground.’ ” (SLPR, L.L.C. v. San Diego Unified Port
District, supra, 49 Cal.App.5th at p. 317.)
II. Parties’ Requests for Judicial Notice
Plaintiffs and defendants both seek judicial notice of certain items in
connection with this appeal.

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A. Plaintiffs’ Request
Plaintiffs ask this court to take judicial notice of Municipal Code
sections 11.0201 to 11.0210 (Ex. 1), 11.0301 to 11.0303 (Ex. 2), 12.0601 to
12.0614 (Ex. 3), 13.0201 to 13.0204 (Ex. 4) and 12.1001 to 12.1009 (Ex. 5) as
official acts of the legislative department (Evid. Code, § 452 subd. (c)). They
argue exhibits 1 through 4 are relevant on the exhaustion issue; specifically
whether Municipal Code section 13.0302 required them to appeal under
Municipal Code section 12.0501 before an abatement cost hearing to preserve
their challenge. They argue Municipal Code section 13.0203 is relevant to
show their slander of title claim is not stale because it assertedly requires
recorded liens to be served on landowners by specified methods, which City
did not do. They argue Municipal Code sections 11.0201 through 11.0210 are
relevant because they define the phrases “may” and “shall.”
FPS has not opposed the request. We grant it. (See Evid. Code, §§ 452,
subd. (b) [judicial notice may be taken of “[r]egulations and legislative
enactments issued by or under the authority of . . . any public entity in the
United States”], 200 [a “ ‘[p]ublic entity’ ” includes a city].)
B. FPS and Garcia’s Request
FPS and Garcia jointly ask this court to take judicial notice of February
15, 2019 and May 22, 2019 docket entries (register of actions Nos. 269 and
277) reflecting judgment entered in their favor and against plaintiffs, and a
“Notice of Ruling” prepared by FPS’s attorney stating that the court had
entered judgment on February 15, 2019, as noted on the register of actions.
An accompanying declaration by Garcia’s counsel states that the documents
relate to the timing of this appeal, which Garcia challenges in her
respondent’s brief.

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 According to Garcia, the first docket entry (which she references as a
“text only docket entry”) constitutes a final judgment that resolved all claims
against her and FPS. She argues that because plaintiffs did not perfect an
appeal within 180 days of February 15, 2019, the appeal is untimely and
must be dismissed.
We deny the request. Though we may take judicial notice of the
register of actions itself pursuant to Evidence Code sections 452, subdivision
(d) and 459, subdivision (a) (RGC Gaslamp, LLC v. Ehmcke Sheet Metal Co.,
Inc. (2020) 56 Cal.App.5th 413, 418), the register having both docket entries
is already contained in the clerk’s transcript on appeal, rendering judicial
notice unnecessary. (Accord, ibid.) As for the May 2019 notice of ruling,
though it is a court record, it does not appear to have been before or
considered by the trial court when it entered a final judgment in the matter
on December 4, 2019. Even if that were not the case, Garcia’s request would
have us accept the truth of the assertions made in these items, which we are
unable to do. “ ‘Although the existence of a document may be judicially
noticeable, the truth of statements contained in the document and its proper
interpretation are not subject to judicial notice if those matters are
reasonably disputable.’ ” (Unruh-Hazton v. Regents of University of
California (2008) 162 Cal.App.4th 343, 364-365; accord, StorMedia Inc. v.
Superior Court (1999) 20 Cal.4th 449, 457, fn. 9; Midway Venture LLC v.
County of San Diego (2021) 60 Cal.App.5th 58, 83, fn. 4.) In its December 4,
2019 final judgment, the court observed that Garcia’s demurrer and FPS’s
motion for judgment on the pleadings had been ruled upon in August 2018,
but it did not refer to any judgment entered on those matters in February

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2019. On this record, whether the court in fact entered judgment in February

2019 for Garcia and FPS is subject to reasonable dispute.6
III. FPS’s Motion for Judgment on the Pleadings
A. Plaintiffs’ Fraud Cause of Action
1. Exhaustion of Administrative Remedies
Plaintiffs challenge the court’s ruling concerning exhaustion of
administrative remedies both on procedural and substantive grounds. They
first contend the court erred by granting judgment on the pleadings on the
exhaustion grounds raised by FPS because FPS did not raise the argument in
its initial motion papers below, but “ambush[ed]” plaintiffs with that
argument in its reply papers. Plaintiffs acknowledge that the trial court
stated in its order that it had permitted them to file a surreply, but they
maintain they were never served with any such order and did not know why
the court had continued the hearing on the matter even after having
consulted with City and the court clerk, and examined the register of actions.
Substantively, they contend the court improperly inserted conditional
language into the relevant Municipal Code section, and ignored other

6 Given these conclusions, we reject Garcia’s argument about the
timeliness of plaintiffs’ appeal. Plaintiffs served notice of entry of the
December 4, 2019 judgment on February 27, 2020, triggering the 60-day
appeal period per California Rules of Court, rule 8.104(a)(1)(B). Because the
60-day deadline fell within a period covered by a Covid-19-related order
applying to deadlines occurring between April 19, 2020, to and including
May 18, 2020 (see April 15, 2020 Implementation Order for the Renewed
Order Pursuant to Rule 8.66 of the California Rules of Court at
), the deadline to file an appeal was extended until May 27,
2020. Plaintiffs timely filed their notice of appeal on May 27, 2020. We
accordingly informed the parties on September 28, 2020, that the appeal of
the December 4, 2019 judgment as to FPS and Garcia could proceed but
dismissed the appeal as to City as untimely.
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mandatory language giving them an opportunity to challenge the abatement
costs. They further contend the court ignored a provision stating that the
Municipal Codes were not the exclusive remedy to address a code violation,
and as a result it erred by concluding they had failed to exhaust
administrative remedies.
In response, FPS asserts plaintiffs’ opposition to its motion was filed
late. Even if a late filing justified disregarding the opposition papers, it
would not be dispositive of plaintiffs’ appeal. A trial court’s order sustaining
a demurrer without leave to amend is reviewable for abuse of discretion even
though no request to amend is made. (Code Civ. Proc., § 472c, subd. (a);
Smith v. BP Lubricants USA Inc. (2021) 64 Cal.App.5th 138, 144-145;
Mercury Ins. County. v. Pearson (2008) 169 Cal.App.4th 1064, 1072.) And a
plaintiff can make a showing how amendments would cure defects for the
first time on appeal. (Smith, at p. 145.) FPS’s other arguments relating to
exhaustion are made without required citation to any authority or reasoned

legal argument, entitling us to disregard them.7 (Cal. Rules of Court, rule
8.204(a)(l)(B); State Farm General Insurance Company v. Lara (2021) 71

7 FPS cites no authority for its arguments that failure to exhaust
administrative remedies divests the superior court of jurisdiction and that
plaintiffs failed to pursue any civil remedy for what amounts to a small
claims action within Municipal Code time limits, which FPS does not detail.
Many of FPS’s other responsive arguments are made without citation to
authority. These include FPS’s arguments that this court should strike
plaintiffs’ slander of title cause of action because Code of Civil Procedure
section 472 required plaintiffs to seek leave of court to add this cause of
action but they did not; plaintiffs’ failure to make an offer of proof as to when
Webster first received notice of the recorded liens requires us to infer that
they seek to mislead this court; and plaintiffs’ failure to file an amended
complaint within 10 days after the trial court granted leave to amend bars
them from bringing their now “moribund” defamation claim.
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Cal.App.5th 197, 225; In re Marriage of Falcone & Fyke (2012) 203
Cal.App.4th 964, 1004.)
On the procedural issue, we apply a presumption that the trial court or
court clerk “regularly performed” official duties, including by serving all
parties entitled to notice. (Evid. Code, § 664; Elena S. v. Kroutik (2016) 247
Cal.App.4th 570, 575 [Evid. Code, § 664 presumption applies to actions of
trial judges]; see In re Linda D. (1970) 3 Cal.App.3d 567, 571 [presumption
applies to court clerk’s duty to serve all persons entitled to notice].) The
presumption is rebuttable; “its effect is to impose upon the party against
whom it operates the burden of proof as to the nonexistence of the presumed
fact.” (Gee v. California State Personnel Bd. (1970) 5 Cal.App.3d 713, 718;
Evid. Code, § 606.) The presumption may be dispelled when the record
affirmatively shows a failure to apply the requisite standards. (In re Hare
(2010) 189 Cal.App.4th 1278, 1292 [presumption is rebutted when
irregularity is clearly shown].) Plaintiffs here point to the trial court’s
minute order continuing the motion hearing and permitting plaintiffs to file a
surreply by a certain date, and the absence of a proof of service of that order
appearing in the record. They point to their counsel’s argument at the
continued hearing on the matter in which he explained he neither learned of
the order granting the opportunity for a surreply even after contacting the
City as well as the clerk, who directed counsel to the register of actions, nor
did he see the substance of the order in the register of actions.
We cannot say that counsel’s unsworn argument and the absence of a
proof of service in the appellate record amount to “ ‘affirmative evidence[ ]
that official standards were in any respect not observed’ ” or permit “ ‘a
reasonable basis for an inference that the procedures were not properly
followed.’ ” (Delgado v. California Department of Motor Vehicles (2020) 50

18
Cal.App.5th 572, 577.) Notably, while counsel objected to the court’s
consideration of the exhaustion issue during oral argument on FPS’s motion,
he addressed the merits of the matter and did not seek a further continuance
to present additional argument. We conclude the trial court did not err by
addressing the exhaustion of remedies argument FPS raised for the first time
in reply. Nor does it appear plaintiffs were prejudiced by the court’s
consideration of the issue, which they have addressed on appeal.
We proceed to the exhaustion of remedies argument. The
administrative exhaustion doctrine bars a judicial remedy by a person to
whom administrative remedies were available but who failed to properly
invoke those remedies in the administrative process. (See Campbell v.
Regents of University of California (2005) 35 Cal.4th 311, 321.) If an
administrative remedy is provided by statute or ordinance, “ ‘ “relief must be
sought from the administrative body and this remedy exhausted before the
courts will act.” [Citation.] The rule is a jurisdictional prerequisite in the
sense that it “is not a matter of judicial discretion, but is a fundamental rule
of procedure laid down by courts . . . and binding upon all courts.” ’ ” (Clews
Land & Livestock, LLC v. City of San Diego (2017) 19 Cal.App.5th 161, 184.)
“For example, if the administrative proceeding includes a right to appeal an
allegedly improper action, a plaintiff must generally pursue that
administrative appeal in order to exhaust his or her administrative remedies.
‘ “If some reasonable administrative remedy, such as the right to appeal the
action of a planning commission, were afforded to challenge such improper
action the doctrine of administrative remedies would bar suit by litigants
who failed to employ it.” ’ ” (Ibid.) The purpose of the doctrine is to promote
judicial economy and afford due respect to the administrative process. (See
Campbell, at p. 322; Sierra Club v. San Joaquin Local Agency Formation

19
Com. (1999) 21 Cal.4th 489, 501; San Bernardino Valley Audubon Society,
Inc. v. County of San Bernardino (1984) 155 Cal.App.3d 738, 748.) “ ‘Even
when the administrative remedy may not resolve all issues or provide the
precise relief requested by a plaintiff, the exhaustion doctrine is still viewed
with favor “because it facilitates the development of a complete record that
draws on administrative expertise and promotes judicial efficiency.” ’ ”
(Sierra Club v. San Joaquin Local Agency Formation Com., at p. 501.)
Whether a party has exhausted administrative remedies in a given case
depends on the procedures applicable to the public agency in question.
(Tahoe Vista Concerned Citizens v. County of Placer (2000) 81 Cal.App.4th
577, 591; see Park Area Neighbors v. Town of Fairfax (1994) 29 Cal.App.4th
1442, 1450.) A party who fails to appeal an administrative action “in the
manner prescribed by the town code” has failed to exhaust administrative
remedies. (Park Area, at p. 1450; see Clews Land & Livestock, LLC v. City of
San Diego, supra, 19 Cal.App.5th at p. 187.)
Here, plaintiffs allege City served Webster by certified mail four
abatement notices and orders for the Leghorn parcels, which stated that the
parcels were inspected and needed abatement. City’s administrative process
permits a responsible person served with such a notice to appeal it in writing
within 10 calendar days after service. (Mun. Code, § 12.0501, subd. (a)(1).)
The appeal triggers appointment of an administrative enforcement hearing
officer and a hearing, which if the appellant fails to attend results in a waiver
of the appellant’s rights to a hearing and an adjudication of the notice or any
portion thereof. (Mun. Code, §§ 12.0501, subd. (c), 12.0503.) This appeal
process for plaintiffs was a “jurisdictional prerequisite” to resorting to the
superior court to challenge the abatement notices and orders. (Sierra Club v.
San Joaquin Local Agency Formation Com., supra, 21 Cal.4th at p. 501;

20
Clews Land & Livestock, LLC v. City of San Diego, supra, 19 Cal.App.5th at
p. 184.)
But plaintiffs’ fraud claim is not limited to the notices of abatement.
Plaintiffs allege that FPS, which assertedly had a documented history of
charging for work it did not perform, committed fraud by issuing false work
orders and bills claiming it performed the abatement, in conjunction with
Garcia, who was alleged to be acting in the interest of her abatement-worker
family member. They allege that FPS recorded liens against the Leghorn
parcels based on the false documents, causing them injury. The Municipal
Code contains separate provisions addressing procedures for City’s recovery
of costs of abatement. (Mun. Code, §§ 13.0301 [Procedures for Recovering
Costs of Abatement], 13.0302 [Confirmation of Costs Hearing].) They operate
after the City has abated a public nuisance or has incurred abatement costs
before a responsible person voluntarily abates a nuisance. In that event, a
“confirmation of costs” hearing is mandatory unless waived in writing by the
responsible person: “[T]he Director shall request the City Manager to
schedule a confirmation of costs hearing in accordance with the
administrative enforcement hearing procedures set forth in Division 4,
Article 2 of Chapter 1.” (Mun. Code, §§ 13.0302, subd. (a), 12.0608, subd. (e)
[“The Director shall request the City Manager to schedule a confirmation of
costs hearing pursuant to Section 13.0302 of this Chapter, unless waived in
writing by all Responsible Persons”], italics added.) The responsible person
“shall” be served with a notice of the hearing as well as a copy of a “report
describing the work performed and an itemized account of the total
abatement costs prepared pursuant to Section 12.0606 of this Chapter . . . .”
(Mun. Code., § 13.0302, subds. (b), (c).) Scope of review is limited to the
Director’s report describing the work performed and itemized account,

21
“together with any objections to its accuracy” and the hearing officer “may
make such revisions, corrections or modifications in the report or the account
as may be just and reasonable.” (Mun. Code, § 13.0302, subd. (d).) Further,
“[a]t the confirmation of costs hearing, the Enforcement Hearing Officer shall
not consider evidence regarding the merits of the previous abatement hearing
or review the decision ordering the administrative or summary abatement.”
(Mun. Code, § 13.0302, subd. (f).) The officer’s decision confirming or
modifying the amount of costs is final. (Mun. Code, § 13.0302, subd. (g).)
We see nothing in the pertinent code provisions requiring a responsible
person to first challenge a notice of abatement and order to preserve a
separate challenge to City’s claimed costs of abatement. Though plaintiffs’
complaint alleges facts showing they did not exhaust administrative remedies
with regard to the notices of abatement, there are no allegations that they
were served with notice of a confirmation of costs hearing and report from
which they could challenge the scope of the abatement work and its itemized
account of costs. Absent an indication City complied with its administrative
process to confirm or verify its costs before FPS recorded the nuisance
abatement liens, plaintiffs could have alleged they were excused from any
exhaustion requirement as to the scope and costs of abatement that they
maintain underlies the alleged fraud. (Accord, KCSFV I, LLC v. Florin
County Water Dist. (2021) 64 Cal.App.5th 1015, 1038 [plaintiffs were excused
from exhausting administrative remedies where agency did not comply with
procedural requirements, including notice, in the applicable procedure].)
2. Plaintiffs Cannot State a Fraud Cause of Action In Any Event
We must nevertheless examine the operative complaint and decide
independently whether plaintiffs’ allegations state a cause of action for fraud.
(Committee for Green Foothills v. Santa Clara County Bd. of Supervisors

22
(2010) 48 Cal.4th 32, 42.) We accept as true all facts that may be implied or
inferred from those expressly alleged. (Schmidt v. City and County of San
Francisco (2021) 60 Cal.App.5th 470, 481.)
“California law generally recognizes four forms of deceit: intentional
misrepresentation, negligent misrepresentation, concealment, and failure to
perform a promise.” (Finch Aerospace Corp. v. City of San Diego (2017) 8
Cal.App.5th 1248, 1252.) “ ‘ “ ‘The elements of fraud, which gives rise to the
tort action for deceit, are (a) misrepresentation (false representation,
concealment, or nondisclosure); (b) knowledge of falsity (or “scienter”); (c)
intent to defraud, i.e., to induce reliance; (d) justifiable reliance; and (e)
resulting damage.’ ” ’ ” (Borman v. Brown (2021) 59 Cal.App.5th 1048, 1060-
1061, quoting Small v. Fritz Companies, Inc. (2003) 30 Cal.4th 167, 173;

Engalla v. Permanente Medical Group, Inc. (1997) 15 Cal.4th 951, 974.)8
Fraud must be pleaded with specificity; general and conclusory allegations do
not suffice. (Lazar v. Superior Court (1996) 12 Cal.4th 631, 645.)
In its motion for judgment on the pleadings, FPS argued that plaintiffs
could not state the element of justifiable reliance on the assertedly false bills
or liens because they had alleged they knew the bills and ensuing liens were
false. “In a fraud case, justifiable reliance is the same as causation, thus
‘[a]ctual reliance occurs when a misrepresentation is “ ‘an immediate cause of
[plaintiffs’] conduct, which alters his legal relations,’ ” and when, absent such
representation, the plaintiff[s] ‘ “ ‘would not, in all reasonable probability,

8 The elements of negligent misrepresentation are “(1) representation as
to a material fact, (2) representation is untrue, (3) regardless of actual belief,
the defendant made the representation without a reasonable ground for
believing it true, (4) intent to induce reliance, (5) justifiable reliance by
plaintiff who does not know the representation is false, and (6) damage.”
(Masters v. San Bernardino County Employees Retirement Assn. (1995) 32
Cal.App.4th 30, 40, fn. 6.)
23
have entered into the contract or other transaction.’ ” ’ ” (Hall v. Time Inc.
(2008) 158 Cal.App.4th 847, 855, fn. 2, quoting Engalla v. Permanente
Medical Group, Inc., supra, 15 Cal.4th at p. 976; Buckland v. Threshold
Enterprises, Ltd. (2007) 155 Cal.App.4th 798, 807, disapproved on other
grounds in Kwikset Corp. v. Superior Court (2011) 51 Cal.4th 310, 337.)
Here, plaintiffs allege Brightmon cut the weeds on the Leghorn parcels
and photographed his truck taking the weeds to the dump, such that the
“photographic evidence of the Leghorn Parcels does not support [FPS’s false
statement that it fine cut the weeds].” They allege Brightmon told the City
representative, E.V., “that FPS could not have abated the weeds on the
parcels because there is a chain-link fence and locked gate that would
prevent vehicles from entering the parcels.” (Some capitalization omitted.)
Though plaintiffs allege Webster justifiably relied on Brightmon and
Brightmon justifiably relied on E.V. to resolve issues regarding the bills and
work orders, the alleged fraud is not a statement from either Brightmon or
E.V. Under the circumstances and plaintiffs’ own knowledge of the alleged
falsity of FPS’s work orders and bills, we agree plaintiffs cannot state
reliance upon any representation by FPS. (Accord, Buckland v. Threshold
Enterprises, Ltd., supra, 155 Cal.App.4th at pp. 808-809 [where plaintiff
conceded she suspected packaging and marketing was false or misleading but
purchased the product anyway solely to pursue litigation, she “lacked the
requisite confidence in the truth and material completeness of their
representations, and cannot establish actual reliance for the purpose of her
fraud claims”]; Carter v. Seaboard Finance Co. (1949) 33 Cal.2d 564, 570
[where plaintiff did not rely upon a defendant’s statements of fact but instead
made an independent examination that satisfies him, there can be no

24
actionable fraud].) In short, the trial court did not err by granting judgment
on the pleadings on plaintiffs’ fraud cause of action.
Our conclusion means the court properly entered judgment on the
pleadings on plaintiffs’ conspiracy to commit fraud theory. “Conspiracy is not
a cause of action, but a legal doctrine that imposes liability on persons who,
although not actually committing a tort themselves, share with the
immediate tortfeasors a common plan or design in its perpetration.” (Applied
Equipment Corp. v. Litton Saudi Arabia Ltd. (1994) 7 Cal.4th 503, 510-511;
see also Klistoff v. Superior Court, supra, 157 Cal.App.4th at p. 479.) “The
act done and resulting damage to the plaintiff, not the conspiracy to act, is
the essence of civil conspiracy.” (Klistoff, at p. 479.) “ ‘[I]n order to state a
cause of action based upon a conspiracy theory the plaintiff must allege the
formation and operation of the conspiracy, the wrongful act or acts done
pursuant to it, and the damage resulting from such acts. [Citation.] In
making such allegations bare legal conclusions, inferences, generalities,
presumptions, and conclusions are insufficient.’ ” (State of California ex rel.
Metz v. CCC Information Services, Inc. (2007) 149 Cal.App.4th 402, 419.)
Because plaintiffs are unable to state a cause of action for fraud, they
necessarily cannot state a claim based on a conspiracy to commit fraud.
(McMartin v. Children’s Institute International (1989) 212 Cal.App.3d 1393,
1406 [conspiracy “cannot be alleged as a tort separate from the underlying
wrong it is organized to achieve”]; Applied Equipment Corp., supra, 7 Cal.4th
503, 510-511 [civil conspiracy does not give rise to a cause of action unless a
civil wrong has been committed resulting in damage].)
B. Slander of Title
Slander of title is not a form of deceit, but a form of the separate
common law tort of disparagement, sometimes referred to as injurious

25
falsehood. (Finch Aerospace Corp. v. City of San Diego, supra, 8 Cal.App.5th
at p. 1253.) Consequently, the immunities in Government Code sections
818.8 and 822.2 do not apply to it. (Ibid.) To state a claim for slander of title,
a plaintiff must allege “ ‘(1) a publication, (2) which is without privilege or
justification,’ (3) which is false, and (4) which ‘causes direct and immediate
pecuniary loss.’ ” (Schep v. Capital One, N.A. (2017) 12 Cal.App.5th 1331,
1336; Manhattan Loft, LLC v. Mercury Liquors, Inc. (2009) 173 Cal.App.4th
1040, 1051.) The statute of limitations for slander of title is three years.
(Code Civ. Proc., § 338, subd. (g).)
The record reflects, and plaintiffs by their relation-back arguments
concede, they first included their slander of title cause of action in the third
amended complaint, which was filed more three years from the recording of
FPS’s December 2014 liens, but within three years from the August 2015
date that Brightmon alleged he obtained copies of the liens. This court has
held that the doctrine of constructive notice does not apply to slander of title,
and the equitable discovery rule will toll the statute of limitations for such a
claim. (Arthur v. Davis (1981) 126 Cal.App.3d 684, 691, fn. 6 [constructive
notice is designed to inform prospective purchasers and mortgagees
regarding the status of title; a rule otherwise would require property owners
to periodically check official records to insure the statute of limitations on
slander of title had not run], 692 [“Given the close relationship between
defamation actions and an action for slander of title [citation] and the
eminently practical policy underlying the [equitable] discovery rule [citation],
we see no reason why it should not apply to slander of title actions as well”].)
But when a cause of action would be barred by the statute of limitations
without the discovery rule, plaintiffs “ ‘must specifically plead facts to show
(1) the time and manner of discovery and (2) the inability to have made

26
earlier discovery despite reasonable diligence.’ ” (Fox v. Ethicon Endo-
Surgery, Inc. (2005) 35 Cal.4th 797, 808.) Plaintiffs bear the burden of
showing diligence; conclusory allegations will not survive a demurrer. (Ibid.)
Plaintiffs contend there is no statute of limitations issue because FPS
did not properly serve the liens on them and thus did not provide actual
notice of those recorded documents. Relying on Arthur v. Davis, supra, 126
Cal.App.3d 684, they argue the applicable rule is not whether the recording
imparted constructive notice, but whether they could reasonably be expected
to discover the liens and the existence of their slander of title cause of action.
Plaintiffs further contend their slander of title cause of action relates back to
at least their second amended complaint filed in November 2017, as the cause
of action relies on the same facts as those alleged in their fraud cause of
action. Thus, plaintiffs maintain, the new cause of action is not subject to the
statute of limitations.
1. Relation-back
“An amended complaint is considered a new action for purposes of the
statute of limitations only if the claims do not ‘relate back’ to an earlier,
timely-filed complaint. Under the relation back doctrine, claims of an
amended complaint will relate back to the original complaint for purposes of
the statute of limitations where, inter alia, they rest on the same set of
general facts, involve the same injury, and refer to the same instrumentality.
[Citations.] An amended complaint relates back to an earlier complaint if it
is based on the same general set of facts, even if the plaintiff alleges a
different legal theory or new cause of action. [Citations.] However, the
doctrine will not apply if the ‘. . . plaintiff seeks by amendment to recover
upon a set of facts entirely unrelated to those pleaded in the original
complaint.’ ” (Pointe San Diego Residential Community L.P. v. Procopio,

27
Cory, Hargreaves & Savitch, LLP (2011) 195 Cal.App.4th 265, 276-277
(Pointe); see San Diego Gas & Elec. Co. v. Superior Court (2007) 146
Cal.App.4th 1545, 1549-1550.)
“In determining whether the amended complaint alleges facts that are
sufficiently similar to those alleged in the original complaint, the critical
inquiry is whether the defendant had adequate notice of the claim based on
the original pleading. ‘The policy behind statutes of limitations is to put
defendants on notice of the need to defend against a claim in time to prepare
a fair defense on the merits. This policy is satisfied when recovery under an
amended complaint is sought on the same basic set of facts as the original
pleading.’ ” (Pointe, supra, 195 Cal.App.4th at p. 277.) “Additionally, in
applying the relation-back analysis, courts should consider the ‘strong policy
in this state that cases should be decided on their merits.’ ” (Ibid.)
The record in this case does not contain plaintiffs’ original, first, or
second amended complaints, preventing us from fully comparing the factual
allegations in the original and amended complaints. (Scholes v. Lambirth
Trucking Co. (2017) 10 Cal.App.5th 590, 598 [relation-back doctrine requires
appellate court to compare factual allegations in the original and amended
complaints].) Plaintiffs point to their recitation of several paragraphs of their
original complaint in opposition to FPS’s motion to strike, which is contained
in the appellate record. In those paragraphs, plaintiffs allege FPS made
knowingly false statements that they cut weeds on Webster’s parcels,
Webster justifiably relied on the statements when it gave FPS’s November
2014 bills to Brightmon to remedy, Brightmon relied on FPS and City to
correct the mistake, but plaintiffs were harmed when FPS and City refused
to do so and recorded liens on the parcels. Plaintiffs further point to the trial
court’s tentative ruling sustaining FPS’s demurrer to plaintiffs’ second

28
amended complaint, which states: “Plaintiffs also allege in the [second
amended complaint] that FPS made a false statement when it recorded liens
against the Leghorn Parcels.” Defendants do not challenge the existence of
these allegations or the accuracy of the court’s ruling.
Under the foregoing principles, and particularly the strong policy that
cases should be decided on the merits, we conclude the slander of title cause
of action rests on the same basic set of facts as the original pleading, that is,
FPS’s assertedly false claims that it abated Webster’s properties and its
issuance of bills, resulting in the later recording of liens on the properties.
The new legal theory—that these false liens or notices clouded the properties’
title—does not change the essential facts in the pleadings. Under these
circumstances, defendants had adequate notice of the nature of the claim
based on the original and later amended pleadings. (Pointe, supra, 195
Cal.App.4th at p. 277; Scholes v. Lambirth Truck Co., supra, 10 Cal.App.5th
at p. 599.)
2. Leave to Amend
Given our conclusion above we need not decide whether the statute of
limitations bars plaintiffs’ slander of title cause of action. Were we to address
it however, we would conclude plaintiffs should have been allowed leave to
amend their cause of action to include allegations that might render that
claim timely.
Plaintiffs’ third amended complaint alleges that FPS sent Webster bills
dated November 24, 2014, for weed abatement, and Webster gave the bills to
Brightmon who contacted City. They allege FPS recorded liens based on
those bills the following month in December 2014, but Brightmon did not
obtain copies of those liens until August 2015. Plaintiffs do not include
allegations as to the manner of Brightmon’s discovery or why his discovery of

29
the December 2014 liens was delayed, much less why the delay was
reasonable. They include no allegations concerning discovery or knowledge of
the liens by the properties’ owner, Webster. They do not allege why they
were unable, despite reasonable diligence, to discover the liens earlier. (Fox
v. Ethicon Endo–Surgery, Inc., supra, 35 Cal.4th at p. 808.) The specific
pleading requirement is important where the alleged slander is contained in
a publicly recorded document. Plaintiffs would not meet their burden absent
such details.
We are still obligated to decide whether there is a possibility of an
amendment that will overcome the statute of limitations. Normally, it is
plaintiffs’ burden to show in what manner they can amend their complaint
and how that amendment will change the legal effect of their pleading. (See
HFH, Ltd. v. Superior Court (1975) 15 Cal.3d 508, 513, fn. 3.) And such a
showing may be made for the first time on appeal. (Smith v. BP Lubricants
USA Inc., supra, 64 Cal.App.5th at pp. 144-145.) As stated, plaintiffs first
asserted this claim in their third amended complaint, as to which the court
granted judgment on the pleadings without leave to amend. Because the
court did not give plaintiffs an opportunity to amend this cause of action, the
question becomes whether the complaint shows on its face that it is incapable
of amendment. (City of Stockton v. Superior Court (2007) 42 Cal.4th 730, 747
[“[L]eave to amend is properly granted where resolution of . . . legal issues
does not foreclose the possibility that the plaintiff may supply necessary
factual allegations”].) In such instances, “leave to amend is liberally allowed
as a matter of fairness . . . .” (Ibid.; JPMorgan Chase Bank, N.A. v. Ward
(2019) 33 Cal.App.5th 678, 684.) “ ‘Denial of leave to amend is appropriate
only when it conclusively appears that there is no possibility of alleging facts

30
under which recovery can be obtained.’ ” (Eghtesad v. State Farm General
Insurance Company (2020) 51 Cal.App.5th 406, 411, 412.)
Plaintiffs argue that while FPS recorded the liens, it did not actually
give plaintiffs notice of them before recordation or serve a copy of the
recorded notices as required by Municipal Code sections 13.0203,

subdivisions (b) and (f).9 They argue Brightmon discovered the liens on
August 17, 2015, when he obtained them from the San Diego County
Recorder. These circumstances do not foreclose the possibility of alleging
facts showing plaintiffs reasonably could not have discovered the recorded
liens until August 2015. They should be given an opportunity to amend to
attempt to state a timely claim under the discovery rule.

9 Municipal Code section 13.0203, subdivision (b), which is within
Division 2 concerning Code Enforcement Liens, provides: “Before
recordation, the Director shall provide to the Responsible Person a written
notice informing him or her that a Code Enforcement Lien will be recorded
unless the City receives full payment for the outstanding amount of civil
penalties, costs and fees within the time period prescribed in the notice.
Payment shall be due a minimum of ten (10) calendar days from the date of
the mailing.” Subdivision (f) of the same section provides: “A copy of the
recorded Code Enforcement Lien shall be served upon the Responsible Person
by one of the methods of service set forth in Section 11.0301 of this Code.”
Municipal Code section 11.0301 permits several different methods
of service when notice is given under the code for enforcement purposes.
(Mun. Code, § 11.0301, subd. (a).) Notice “shall be served by any of the
following methods unless different provisions are otherwise specifically
stated to apply: “(1) Personal service; or [¶] (2) Certified mail, postage
prepaid, return receipt requested. Simultaneously, the same notice may be
sent by regular mail. If a notice that is sent by certified mail is returned
unsigned, then service shall be deemed effective pursuant to regular mail,
provided the notice that was sent by regular mail is not returned. [¶] (3)
Posting the notice conspicuously on or in front of the property. The form
of the posted notice shall be approved by the City Manager.” (Muni. Code,
§ 11.0301, subd. (a).) The Municipal Code defines “shall” to mean
“mandatory.” (Muni. Code, § 11.0209, subd. (b).)
31
C. Defamation Cause of Action
“Libel is a false and unprivileged publication by writing, . . . 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; Live Oak Publishing Co. v. Cohagan (1991) 234
Cal.App.3d 1277, 1283.) A libelous statement is not actionable until it has
been published to a third person, generally by the defendant. (Tilkey v.
Allstate Insurance Company (2020) 56 Cal.App.5th 521, 541; Live Oak, at p.
1284.) A plaintiff cannot manufacture a defamation claim by publishing the
statements himself to another person. (Live Oak, at p. 1284.) “There is an
exception ‘when it [is] foreseeable that the defendant’s act would result in [a
plaintiff’s] publication to a third person.’ [Citation.] For the exception to
apply, the defamed party must operate under a strong compulsion to
republish the defamatory statement, and the circumstances creating the
compulsion must be known to the originator of the statement at the time he
or she makes it to the defamed individual.” (Tilkey, at pp. 541-542.) “The
originator of the statement is liable for the foreseeable repetition because of
the causal link between the originator and the presumed damage to the
plaintiff’s reputation [citation], but the publication must be foreseeable.” (Id.
at p. 542.) The exception applies in a narrow class of cases, such as where
derogatory statements are made in a personnel file, which compels the
employee to explain the statement to subsequent employers, or made in a
worker’s certificate that is required by regulation to be presented to
prospective employers, or made in a credit report of a person who is required
to explain the statement to obtain credit. (Live Oak, at p. 1285.) In these
kinds of cases, a plaintiff usually republishes the statements “in aid of
disproving them.” (Ibid.)

32
 The one-year statute of limitations applicable to actions for libel runs
from the utterance or publication of the defamatory matter. (Code Civ. Proc.,
§§ 335, 340; Bernson v. Browning-Ferris Industries (1994) 7 Cal.4th 926, 932;
Roger v. County of Riverside (2020) 44 Cal.App.5th 510, 523.) “ ‘[P]ublication
occurs when the defendant communicates the defamatory statement to a
person other than the person being defamed.’ [Citation.] However, in
circumstances where a reasonably diligent plaintiff could not have been
expected to know about the publication (for example, because it was
contained in a personnel file), the accrual date tolls until the plaintiff
discovers or reasonably should have discovered the publication.” (Roger v.
County of Riverside, at pp. 523-524.)
FPS’s motion for judgment on the pleadings argued that plaintiffs’
defamation cause of action was barred by the one-year statute of limitations,
and failed to state a claim both because the statement that FPS crews abated
the properties was not defamatory, and Brightmon failed to plead damage to
his property, business, trade, profession or occupation stemming from the
statement, which was allegedly communicated by FPS’s representative K.O.
only to the news reporter.
On appeal, plaintiffs contend they adequately alleged (or can
adequately allege) facts showing Brightmon did not receive the e-mails,
which were sent electronically to his wife, until the reporter mailed them to

33
him, rendering the claim timely under the discovery rule.10 They contend
Brightmon had a strong compulsion to republish the January 2015
defamatory e-mail to Webster, which paid Brightmon to abate its properties.
Pointing to allegations in a proposed fourth amended complaint, they contend
they can allege Brightmon sat on a budget/finance committee at Webster and
after the reporter sent him the package with the statement, he republished it
at the next April 2015 committee meeting. They also contend Brightmon had
a duty to republish as well because Webster paid him for services that FPS
said he did not perform.
Plaintiffs’ operative complaint alleges that Brightmon received
compensation from Webster to abate the parcels, and that the fire
department representative E.V. suggested this to FPS’s representative K.O.
in November 2014 when he mentioned via e-mail that Brightmon “takes care
of the Webster Ave. Church of Christ vacant lots . . . .” Plaintiffs allege that
in January 2015, K.O. e-mailed the reporter, who had interviewed Garcia and

10 As to the statute of limitations, FPS says the defamatory statements
occurred on January 13, 2015, and “Brightmon, in his deposition, stated in a
sworn response to an interrogatory that he first learned of the statements on
February 25, 2015.” The record citation for this proposition however, is an e-
mail from FPS’s counsel to plaintiffs’ counsel purporting to recite Brightmon’s
response to an interrogatory (“February 25, 2015[,] when [the reporter]
published the [K.O.] (FPS) e[-]mails to Brightmon and Brightmon per his
duty re-published with Webster Ave.”) Plaintiffs’ counsel’s e-mail reply
explained, “That was the date of the e[-]mail itself, but not the date received
and opened and thus no knowledge as of that date. [¶] The e[-]mail was sent
to Mrs. Brightmon, not [plaintiff’], who has no e[-]mail account.” Counsel
stated Brightmon’s wife was very ill at the time and not checking e[-]mail.
He stated he would send supporting medical evidence of that fact. FPS does
not address plaintiffs’ ability to allege a timely claim under the discovery
issue, and we conclude they demonstrated they can allege facts showing
Brightmon did not learn of the defamatory statements until within one year
of March 2016, when plaintiffs filed their original complaint.
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FPS, in response to his investigation of FPS concerning the Leghorn parcels.
K.O.’s allegedly defamatory e-mail stated that FPS had abated the
properties, suggesting Brightmon had not done so. A statement that implies
a false assertion of fact tending to injure a plaintiff’s reputation can be
actionable defamation. (See Balla v. Hall (2021) 59 Cal.App.5th 652, 677-
678.) Under the circumstances, it is reasonable to infer FPS knew when its
representative e-mailed the reporter with the statement, that Brightmon
would be compelled to republish it to Webster “in aid of disproving” the
statement so as to protect his reputation with Webster and its congregation.
(Live Oak Publishing Co. v. Cohagan, supra, 234 Cal.App.3d at p. 1285;
Burdette v. Carrier Corp. (2008) 158 Cal.App.4th 1668, 1685 [“Defamation is
an injury to reputation”], citing Shively v. Bozanich (2003) 31 Cal.4th 1230,
1242.) In sum, we conclude the court erred by granting judgment on the
pleadings on plaintiffs’ defamation claim.
IV. Garcia’s Demurrer to the Fraud Cause of Action
Plaintiffs allege that Garcia is a City employee and also related to a
weed abatement worker. A public employee such as Garcia who acts within
the scope of her employment is not liable for an injury caused by a negligent
or intentional misrepresentation “unless [she] is guilty of actual fraud,
corruption or actual malice.” (Gov. Code, § 822.2.) Courts have assumed
Government Code section 822.2 immunity applies to all four forms of deceit.
(Finch Aerospace Corp. v. City of San Diego, supra, 8 Cal.App.5th at p. 1253.)
“ ‘ “[T]he immunity afforded by Government Code section 822.2 applies
unless, in addition to the essentials of common law deceit, a public employee
is motivated by corruption or actual malice, i.e., a conscious intent to deceive,
vex, annoy or harm the injured party[ ]’ [citation] with respect to [his or] her
financial dealings.’ ” [¶] “. . . [C]onclusory allegations of corruption or malice

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[are not] sufficient to bring a fraud action within the exception of
Government Code section 822.2. In addition to facts establishing the
ordinary elements of common law deceit, the pleader also must allege facts
showing that the fraud was motivated by corruption or actual malice.”
(Curcini v. County of Alameda (2008) 164 Cal.App.4th 629, 649 [allegations
that “representations, false promises and concealments were done ‘for corrupt
purposes and/or with malice towards plaintiffs and their interests’ and that
defendants’ conduct ‘was intended . . . to cause injury to plaintiffs or
constituted despicable conduct which was carried on by defendants, and each
of them, with a willful and conscious disregard of the rights of plaintiffs’ ”
were insufficient to survive a demurrer].)
In their operative complaint, plaintiffs allege Garcia inspected the
properties and executed the work orders on November 14, 2019, knowing the
statements within them were false “in order to protect her alleged family
member, who likely claimed compensation for the alleged work performed
under the work orders.” (Some capitalization, fn. omitted.) They allege that
she was “in concert with FPS, and thus motivated by corruption or actual
malice, in violation of [Government Code section] 822.2, as upon an
inspection of the Leghorn Parcels on November 14, 2014, she would have
noticed that the Leghorn Parcels did not require abatement” and on review of
the scope of work she “would have known that FPS’[s] alleged fine cutting
was in violation of the notices, statutes, ordinances, and contract.” They
allege Garcia was acting in concert with FPS and similarly motivated when
she made statements to the news reporter that FPS (a) entered the Leghorn
parcels by foot; (b) abated the parcels by hand tools; and (c) fine cut the
debris and left it on the parcels “in known violation of the notices, statutes,
and ordinances concerning weed abatement.” Plaintiffs allege that as a

36
direct result, they suffered damages in that FPS recorded liens against the
Leghorn parcels on December 29, 2014, and they had to hire an attorney to
represent their interests.
Many of plaintiffs’ allegations, including that Garcia was “motivated by
corruption or actual malice,” are legal conclusions and argument, and we
disregard those. (Curcini v. County of Alameda, supra, 164 Cal.App.4th at p.
649.) But accepting the foregoing factual allegations and liberally construing
them on our de novo review, we conclude they sufficiently allege a purposeful
and corrupt motivation on Garcia’s part to falsify documents to benefit her
family member at plaintiffs’ expense. These are allegations amounting to a
“conscious intent to deceive, vex, annoy or harm” (ibid) plaintiffs and their
financial interests for purposes of overcoming Government Code section 822.2
immunity. (Accord, Masters v. San Bernardino County Employees Retirement
Assn., supra, 32 Cal.App.4th at p. 42 & fn. 9 [allegations that county plan
administrator withheld medical reports to prevent plaintiff’s eligibility for
disability pension may state exception to Government Code section 822.2
immunity]; Golden West Baseball Company v. Talley (1991) 232 Cal.App.3d
1294, 1304 [“actual fraud” requires intent to deceive], disapproved on other
grounds by Reid v. Google, Inc. (2010) 50 Cal.4th 512, 526-527.)
Our conclusion that plaintiffs alleged Garcia was motivated by
corruption is not enough to survive the demurrer, because plaintiffs must
also allege fraud. (Accord, Curcini v. County of Alameda, supra, 164
Cal.App.4th at p. 649 [public employee must be motivated by corruption or
actual malice “in addition to the essentials of common law deceit”].) As we
have explained in connection with FPS’s motion for judgment on the
pleadings, plaintiffs cannot allege reliance on any false representation by
Garcia as to FPS’s abatement work because the allegations indicate plaintiffs

37
knew that FPS’s statements were untrue, and thus could not have justifiably
relied upon them. The same conclusion applies to Garcia’s assertedly false
work orders representing that FPS hand cut or fine cut the parcels.
We still must decide whether plaintiffs can state a valid cause of action
under any theory supported by the allegations. They allege they were
damaged by the placement of liens on their properties arising from the false
work orders and bills, clouding their title and hampering their efforts to
secure financing and develop the parcels. Such allegations, taken as true,
could state a cause of action for slander of title against Garcia, which is not
subject to Government Code section 822.2 immunity (Finch Aerospace Corp.
v. City of San Diego, supra, 8 Cal.App.5th at p. 1253), or conspiracy to commit
slander of title. Plaintiffs should be granted an opportunity to amend their
complaint to attempt to state such causes of action.

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 DISPOSITION
The order granting FPS’s motion for judgment on the pleadings and
sustaining Garcia’s demurrer without leave to amend is reversed. The trial
court is directed to issue a new order (1) granting FPS’s motion as to fraud,
denying the motion as to plaintiffs’ defamation claim, but granting plaintiffs
leave to amend their cause of action for slander of title and (2) sustaining
Garcia’s demurrer to the fraud cause of action, but granting leave to amend
to attempt to state a cause of action for slander of title/conspiracy to commit
slander of title. The parties shall bear their own costs on appeal.

O’ROURKE, J.

WE CONCUR:

HALLER, Acting P. J.

GUERRERO, J.

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