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Cassidy v. Gaiser5/3/2005
NOT TO BE PUBLISHED
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.
Plaintiffs Patrick and Bonita Cassidy appeal from a judgment in favor of Patrick's sister, defendant Sharon Cassidy Gaiser, after the trial court granted Sharon's motion for summary judgment. Plaintiffs contend the trial court erred in granting summary judgment on the basis of the litigation privilege because the privilege did not apply to Sharon. They further contend the trial court erred in denying their motion for leave to amend the complaint to add a cause of action for wrongful death. We find no error and affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Harry Cassidy died on January 19, 2000. Harry was the father of four children: Patrick, Sharon, Timothy, and James. The bulk of Harry's estate was held by a living trust. The trust provided that Harry's residence at 35 West El Campo in Stockton would be distributed to his daughter Sharon.
The aftermath of Harry's death was marked by considerable litigation between and among his children. This case is the eighth appeal to this court. The possession of the West El Campo property has been a considerable source of friction and is the subject of this appeal.
In December 2000, plaintiffs Patrick and Bonita Cassidy filed a lawsuit against Timothy, James, Sharon and various attorneys and law firms for wrongful eviction, malicious prosecution, abuse of process, trespass, and various other torts.
One of the attorneys, Richard W. Konig, and his law firm demurred to the original complaint. The demurrer was sustained and a judgment of dismissal entered. This court affirmed the judgment of dismissal in Cassidy v. Konig (March 12, 2003, C038893) [nonpub. opn.] (the Konig appeal).
Sharon also demurred to this complaint. Before her demurrer could be heard, plaintiffs filed a first amended complaint. This amended complaint alleged that plaintiffs had the exclusive right to possess the West El Campo property based on an occupancy agreement with Sharon. This alleged occupancy agreement was a note signed by Sharon and dated January 25, 2000. The note read: "I, Sharon Cassidy Gaiser, give permission to Patrick and Bunny [Bonita] Cassidy to stay at my house at 35 W. El Campo. Anyone entering without their permission is subject to arrest for trespassing."
The first amended complaint alleged that Timothy had twice caused the wrongful eviction of plaintiffs. Plaintiffs had regained possession of the property after each eviction. The second time, the eviction ended after Timothy lost his unlawful detainer case when the court ruled he had no standing. The amended complaint further alleged that in August 2000, James commenced a surprise self-help eviction, breaking into the premises, removing plaintiffs' personal property, and changing the locks. This wrongful eviction was continuing.
The first amended complaint set forth various causes of action for wrongful evictions, abuse of process, trespass, trespass to chattel, and violations of Civil Code section 789.3. Only the sixth cause of action named Sharon as a defendant. This cause of action was for conspiracy to invade privacy, interfere with contractual relations, inflict emotional distress, abuse the legal process, trespass, and wrongfully evict. It alleged that Timothy, James, and Sharon conspired "to humiliate the plaintiffs by trampling upon their contractual, privacy and human rights an
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