NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

OPINION

THOMPSON, J.

Plaintiff and appellant Col. Arthur Coleman (plaintiff), in propria persona, appeals from a judgment entered after the court sustained without leave to amend the demurrer filed by defendant and respondent County of Orange (defendant) to plaintiff's second amended complaint (SAC). The court ruled the SAC was uncertain and failed to state a cause of action, and defendant was protected by immunity.

Although the allegations are unclearly labeled as business establishment discrimination, "respondent [sic] superior," emotional distress, gross negligence, res judicata, and collateral estoppel and are difficult to understand, the gravamen of the SAC is that defendant provided to the Los Angeles Police Department (LAPD) court records leading to a requirement he register as a sex offender in Los Angeles. Plaintiff alleges the Orange County criminal charges were dismissed and defendant breached a duty when it disclosed the records to the LAPD.

On appeal, plaintiff fails to discuss the SAC or its merits. Instead he focuses almost exclusively on claims defendant improperly served documents on him at an address that was neither his home nor his business, arguing the proofs of service, as well as other arguments, were perjured. As a result, we could consider his entire appeal forfeited.

Even reviewing it on the merits we concur with the trial court the SAC fails to state any valid claim against defendant and there is no showing plaintiff could amend to correct the deficiencies.

After plaintiff filed the reply brief, defendant filed a motion to strike portions of it. Defendant maintains plaintiff included new arguments in his reply brief, specifically a claim that he can plead new causes of action that are exceptions to the "`absolute immunity rule.'" The new contention in the reply brief is supported by an assertion defendant violated plaintiff's constitutional rights of due process and equal protection when it allegedly committed the acts alleged in the SAC. In the alternative, defendant requests that if we deny the motion, we allow it to file an opposition.

We deny the motion. The claims set out above were the extent of plaintiff's arguments and wholly inadequate to defeat the demurrer or provide a basis for leave to amend. We need no further briefing on the issue.

FACTS AND PROCEDURAL HISTORY

In 2014 plaintiff filed a confusing complaint against defendant,1 apparently based on a claim that in 2008 defendant's employees conducted a "false investigation" and improperly "presumed" plaintiff had been convicted of second degree rape and thereafter plaintiff was "improperly registered as a sex-offender" and "falsely indicted." Plaintiff alleged this resulted in him being "unknowingly false [sic] arrested, false charge [sic] and false [sic] indicted" but subsequently the criminal charges were dismissed.

The original complaint sought to plead causes of action for false reporting, perjury, conspiracy, unlawful acts, "res. superior," corruption, equal protection denial, and gross negligence. Plaintiff sought $300 million in general damages and $900 million in punitive damages. Defendant filed a demurrer based on uncertainty and failure to state a cause of action, including that the action was barred by immunity. Plaintiff filed an amended complaint and the hearing on the demurrer was taken off calendar.

The first amended complaint (FAC) was virtually identical to the original complaint. The primary difference was references to some different statutes and an increase in the damages sought: $900 million in general damages and $1.8 billion in punitives. The most significant addition was a citation to Government Code2 section 815.2, subdivision (a) in the first cause of action for false report. In theory this could be the basis for liability but plaintiff did not allege anything other than a reference to the statute, failing to include specific facts to satisfy it.

Defendant then filed a demurrer to the FAC based on the same grounds as its original demurrer: uncertainty, failure to state a cause of action, and immunity. Defendant also filed a motion to strike the FAC. Plaintiff filed an opposition to the motion but not the demurrer. The court sustained the demurrer with leave to amend and ruled the motion to strike moot. The court found the FAC was vague and uncertain and insufficiently clear or specific as to claims against a governmental entity, preventing it from determining the basis of any claims.

Thereafter, plaintiff filed the SAC, based on alleged causes of action for "business establishment discrimination," respondent [sic] superior," "emotional distress," "gross negligence," "res judicata," and "collateral estoppel." The underlying basis was that defendants had allegedly failed to "warn" and/or "protect" plaintiff as to a "dangerous condition" of "public" and "personal computerized legal document property records" by neglecting to notify the "LAPD" that plaintiff had previously been prosecuted for failing to register as a sex offender, which case had "conclusively [resulted] in a case dismissal judgment." Plaintiff now sought general damages of $456 trillion and punitive damages of $900 trillion.

Defendant filed a demurrer to the SAC, again on the grounds of uncertainty, failure to state a cause of action, and absolute immunity.

Plaintiff's opposition failed to address any of the defects in the SAC. He did not point to any allegations that remedied the defects. He merely cited to section 830 as support for the allegation that defendant is liable because it failed to protect plaintiff from a dangerous condition of public property. He did not show how his "`personal property legal documents that are filed court record[s]'" are "`real or personal property owned or controlled'" by defendant or how that property constitutes a "`dangerous condition'" within the meaning of section 830.

In its reply defendant argued that, given the state of the SAC and the opposition to the demurrer, there are no conceivable facts plaintiff could allege that would justify allowing leave to amend.

The court ruled the SAC was uncertain and failed to state a cause of action and sustained the demurrer without leave to amend. The SAC did not meet the requirements that a complaint against a governmental entity must specifically allege the statutory basis for alleged liability and must allege every fact supporting such liability. The court was unable to determine "what plaintiff [was] alleging, or against which defendant, or the claimed statutory or legal basis of any claim."

DISCUSSION

1. Standard of Review

An order sustaining a demurrer without leave to amend is reviewed de novo. (Del Cerro Mobile Estates v. City of Placentia (2011) 197 Cal.App.4th 173, 178.) "`[W]e treat the demurrer as admitting all material facts properly pleaded, but do not assume the truth of contentions, deductions or conclusions of law'" (National Union Fire Ins. Co. of Pittsburgh, PA v. Cambridge Integrated Services Group, Inc. (2009) 171 Cal.App.4th 35, 43) or speculative allegations (Rotolo v. San Jose Sports & Entertainment, LLC (2007) 151 Cal.App.4th 307, 318, disapproved on another ground in Verdugo v. Target Corp. (2014) 59 Cal.4th 312, 333, 334, fn. 15). If the demurrer can be sustained on any ground raised, we must affirm. (Schifando v. City of Los Angeles (2003) 31 Cal.4th 1074, 1081.)

2. Failure to State a Cause of Action

One of the grounds on which the court sustained the demurrer was failure to state a cause of action. A claim against a governmental entity must be based upon a statute. (§ 815, subd. (a); Guzman v. County of Monterey (2009) 46 Cal.4th 887, 897.) To properly state a cause of action a plaintiff must specifically allege the applicable statute or regulation (Lehto v. City of Oxnard (1985) 171 Cal.App.3d 285, 292) and plead with particularity "`"every fact material to the existence of [the entity's] statutory liability"'" (Sipple v. City of Hayward (2014) 225 Cal.App.4th 349, 362). The SAC fails to meet these basic pleading requirements.

The gist of the SAC is that an employee of defendant allegedly provided to the LAPD "legal documents and court filed records" from two criminal cases filed against plaintiff in Orange County leading to plaintiff's alleged improper arrest and charges he failed to register as a sex offender in Los Angeles. Plaintiff pleads that because the charges in Orange County had been dismissed, defendant had a duty to protect him from disclosing those records. Plaintiff characterizes this as a "dangerous condition" of "public and personal property" and somehow connected to res judicata and collateral estoppel. Plaintiff also complains these acts violated the "public trust and personal civil rights."

Plaintiff cites to at least 30 statutes and sections of the California Constitution, and one federal code section, that run the gamut from sections 830, which defines dangerous conditions of property, 815, subdivision (a), dealing with public entities' immunity, Code of Civil Procedure sections 2032.310 (requirements for notice of motion for physical and mental exams and 2032.320 (standard of proof for same), Evidence Code sections 803 (expert & opinion testimony), 787 (specific instances of conduct regarding credibility of witnesses) 452 and 453 (judicial notice) to Business and Professions Code section 125.6 (refusal to perform licensed activity). Certain of the cited sections do not exist (e.g., Code Civ. Proc., §§ 680.00,1095, 1708, & 6294.) And 42 U.S.C. 12101 deals with equal opportunities for persons with disabilities.

Plainly most of these statutes have no relevance at all to plaintiff's claim. Because he alleges a dangerous condition of public property, section 830 is related. But that underlying claim makes no sense given the apparent factual basis of the SAC. And plaintiff fails to allege any facts supporting the other statutory references.

Even giving the complaint its most liberal interpretation as required (California School Bds. Assn. v. State Bd. of Education (2010) 186 Cal.App.4th 1298, 1324), we cannot find enough factual allegations to fulfill the requirement plaintiff plead a claim with sufficient particularity.

Moreover, based on what facts were alleged it is plain defendant is protected by absolute immunity. Pursuant to section 815, subdivision (b), "The liability of a public entity established by this part . . . is subject to any immunity of the public entity provided by statute, including this part, and is subject to any defenses that would be available to the public entity if it were a private person." "`[U]nder subdivision (b) of [section 815], the immunity provisions will as a general rule prevail over all sections imposing liability.'" (Thompson v. City of Lake Elsinore (1993) 18 Cal.App.4th 49, 63, italics omitted.)

Section 821.6 provides that public employees are immune from liability for harm "caused by . . . instituting or prosecuting any judicial or administrative proceeding within the scope of his [or her] employment, even if he [or she] acts maliciously and without probable cause." This immunity extends to acts in preparation for institution of proceedings. (Amylou R. v. County of Riverside (1994) 28 Cal.App.4th 1205, 1209-1210.) Immunity applies even if the public employees "acted negligently, maliciously or without probable cause in carrying out their duties." (Baughman v. State of California (1995) 38 Cal.App.4th 182, 192.)

Further, "Except as otherwise provided by statute, a public employee is not liable for an injury resulting from his [of her] act or omission where the act or omission was the result of the exercise of the discretion vested in him [or her], whether or not such discretion be abused." (§ 820.2) And, because any employee of defendant is immune, that immunity extends to defendant. (§ 815.2, subd. (b).)

Applying these statutes to the claim defendant and its employees were negligent when they reported to the LAPD plaintiff was required to register as a sex offender, even though the underlying charges had been dismissed, the immunity applies. These were discretionary acts taken by defendant's employees during an investigation.

Penal Code section 290.45, subdivision (a)(1) is another basis for immunity. The statute authorizes law enforcement agencies to release information to the public about someone required to register as a sex offender. (Ibid.) Penal Code section 290.45, subdivision (d)(1) provides "[a] designated law enforcement entity and its employees shall be immune from liability for good faith conduct under this section." Plaintiff failed to argue in his brief defendant acted intentionally. Rather the SAC alleges defendant "neglected to properly do [its] required duties."

In sum, the SAC fails to state a cause of action. Plaintiff failed to allege either the statutory basis for any claim against defendant and pleaded no viable causes of action. Moreover, even if he had, defendant is immune from liability.

In addition, in his brief, plaintiff failed to discuss how the SAC was sufficient. Failure to make reasoned legal argument supported by applicable law forfeits an issue on appeal. (Cal. Rules of Court, rule 8.204(a)(1)(B); Benach v. County of Los Angeles (2007) 149 Cal.App.4th 836, 852.) The court did not abuse its discretion in sustaining the demurrer.

3. Service of Documents

The primary if not virtually the only argument plaintiff makes on appeal has to do with his claim certain documents3 were not properly served on him in the trial court proceedings. The only potentially relevant document is defendant's reply to plaintiff's opposition to the demurrer to the SAC. He contends the documents were not properly served because they were sent to his mailing address, not his physical address, causing an improper result and depriving him of a fair trial. This argument fails for several reasons.

First, plaintiff never raised it below. He neither objected to this form of service nor did he argue he had not received the documents. Failure to preserve an issue in the trial court forfeits it on appeal. (Environmental Law Foundation v. Beech-Nut Nutrition Corp. (2015) 235 Cal.App.4th 307, 325.)

Second, Code of Civil Procedure section 1013, subdivision (a)4 allows service by mail to a residence or office address of the party's most recent document filed and served. Defendant properly served plaintiff at that address.

Third, plaintiff either appeared at all court hearings or filed oppositions or both, showing he received the documents. This waived any alleged defects in service. (Carlton v. Quint (2000) 77 Cal.App.4th 690, 697, 698.)

4. Alleged Perjury

In a related argument, plaintiff contends reversal is required because defense counsel committed perjury. Specifically he claims that proofs of service signed under penalty of perjury were perjurious because not served "in compliance with mandated law provisions civil mail service proof." As discussed above, any statements as to the proofs of service were correct.

Plaintiff complains defense counsel stated it would accept service of the FAC on behalf of defendant but at a hearing then stated "counsel had not been served." Not only does this not satisfy the elements of perjury, it is completely irrelevant to the appeal as to the demurrer to the SAC.

The same is true as to defense counsel's statement in its reply regarding the SAC that it had not received an opposition, although one had been filed. Further, the court never stated it would not consider plaintiff's opposition and there is nothing in the record to show failure to serve had anything to do with the grant of the demurrer.

There has been no showing of perjury or that any of the arguments raised in this section have any bearing on the court's ruling to sustain the demurrer without leave to amend.

5. Leave to Amend

Consistent with failing to address the merits of the SAC, plaintiff does not seek or discuss leave to amend his SAC in the opening brief. For the first time in the reply brief plaintiff touches on the subject in a few paragraphs. First, he paraphrases an allegation from the SAC as follows: "[Defendant] disregard `failure in omission' to take appropriate measure necessary to[], and like to provide a [sic] alert regarding known conclusive judgment being recorded and criminal case dismissal having finalized favorable appellant." [Sic.] (Capitalization omitted.)

Plaintiff argues the court "should have seen that there are still many legal authorities . . . on which [plaintiff] amending can state action claims against [defendant], who is liable as a matter of law." He lists six theories of liability he claims supersede defendant's absolute immunity: denial of due process and equal protection, negligence, factual innocence, slander, and false broadcasting.

He bases these potential new causes of action on the same facts, that defendant had a duty to "make such factually known being knowled[e]gable thereof and in not doing such breached that public duty, and also infringe [sic] appellant due `process' and `equal protection' civil rights, both procedural and substantial."

This is the extent of the leave to amend argument and it is not enough. First, we are not required to consider an argument raised for the first time in the reply brief. (Mansur v. Ford Motor Co. (2011) 197 Cal.App.4th 1365, 1387-1388.)

But even considering it on the merits the claim fails. Other than the statement noted above, plaintiff does not refer to any facts to support these potential causes of action. This is an abbreviated version of the facts pleaded in the SAC, and as discussed above, they are not sufficient. Additionally, plaintiff has not shown how defendant's alleged acts violate either of these constitutional rights.

Moreover, denial of equal protection and false reporting were included in his original complaint as was the denial of equal protection, which is also in the SAC.

To be granted leave to amend, a plaintiff must demonstrate how the complaint could be pleaded to state a valid cause of action. (Schifando v. City of Los Angeles, supra, 31 Cal.4th at p. 1081.) "`To satisfy that burden on appeal, a plaintiff "must show in what manner he can amend his complaint and how that amendment will change the legal effect of his pleading." [Citation.] . . . The plaintiff must clearly and specifically set forth the "applicable substantive law" [citation] and the legal basis for amendment, i.e., the elements of the cause of action and authority for it. Further, the plaintiff must set forth factual allegations that sufficiently state all required elements of that cause of action. [Citations.] Allegations must be factual and specific, not vague or conclusionary. [Citations]'" (Rossberg v. Bank of America, N.A. (2013) 219 Cal.App.4th 1481, 1491.) Merely listing potential causes of action without any factual underpinnings or explanation is not sufficient.

Plaintiff has not shown that he can validly amend the SAC to state any viable claim. He has had three opportunities to plead a sufficient complaint and has been unable to do so. He has not shown to our satisfaction he would be successful given another try.

DISPOSITION

The judgment is affirmed. The motion to strike is denied. Defendant is entitled to costs on appeal.

BEDSWORTH, ACTING P. J. and MOORE, J., concurs.