Harris v. Luntumbuez CA2/7

Filed 5/16/25 Harris v. Luntumbuez CA2/7

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

KARIO HARRIS, B335247

Plaintiff and Appellant, (Los Angeles County

Super. Ct. No. 21STCV27294)

v.

PAUL LUNTUMBUEZ,

Defendant and Respondent.

APPEAL from an order of the Superior Court of Los

Angeles County, Gail Killefer, Judge. Affirmed.

Kario Harris, in pro. per., for Plaintiff and Appellant.

Paul Luntumbuez, in pro. per., for Defendant and

Respondent.

__________________________

Kario Harris challenges the dismissal of his suit against

Paul Luntumbuez following the trial court’s decision to sustain

Luntumbuez’s demurrer to Harris’s second amended complaint.1

Harris contends the court erred in concluding Luntumbuez’s

allegedly false statements—on which Harris’s causes of action

are based—were protected by an absolute privilege because they

were made during an official investigation. He also argues the

court wrongly ruled that his claims were time-barred. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

A. Harris’s Original and First Amended Complaint, and

Luntumbuez’s Demurrers

Harris, a civil servant employed by the United States

Army, alleges that, beginning in 2016, Luntumbuez, a human

resources specialist at the United States Department of Veterans

Affairs in Long Beach, California, falsely accused him of making

sexual advances and stalking Luntumbuez. Harris contends his

employer sought to terminate his employment in large part based

on Luntumbuez’s lies about him, and that Luntumbuez’s actions

1 The trial court’s signed order sustaining the demurrer

without leave to amend also stated “the case is dismissed with

prejudice.” No separate order or judgment of dismissal was

entered. “An order sustaining a demurrer without leave to

amend is not an appealable order, but an order dismissing a case

is an appealable order.” (Hudis v. Crawford (2005)

125 Cal.App.4th 1586, 1590, fn. 4; see Bullock v. City of Antioch

(2022) 78 Cal.App.5th 407, 411.) It is appropriate to construe the

court’s order dismissing the case as an appealable order. (See

Hudis, at p. 1590, fn. 4.)

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have interfered with his right to peaceful employment. Harris

has been self-represented throughout this case.

Harris filed his original complaint in July 2021, asserting

four causes of action: (1) defamation, (2) intentional infliction of

emotional distress, (3) intentional interference with prospective

economic advantage, and (4) declaratory relief. Harris alleged

that “[b]etween the period 2016 and continuing Defendant Paul

Luntumbuez communicated to third parties by knowingly false

sworn testimony and e-mails that Plaintiff, Harris had made

sexual advances toward him; that Harris had touched him on his

mid-thigh area during a lunch conversation; had been harassed

by Plaintiff Harris; had created a hostile working environment

and an unsafe working environment; and had assisted a potential

job applicant Hanna Kim with her resume which included some

exaggerated experience . . . ; [and] that Harris had bypassed the

Human Resources Division in the hiring process.” The complaint

stated the “slander/defamation occurred at the US Army

Garrison Yongsan Seoul South Korea, [and] US Army Reserve

Training, Garden Grove California.”

After Harris served Luntumbuez with the complaint in

November 2022, Luntumbuez demurred on the basis that

Harris’s claims were barred by the applicable statutes of

limitations (one year for defamation and two years for intentional

infliction of emotional distress and tortious interference).

Luntumbuez also contended that Harris’s complaint generally

failed to state sufficient facts for the causes of action alleged. The

superior court sustained Luntumbuez’s demurrer with leave to

amend.

In February 2023, Harris filed a first amended complaint,

reasserting the same causes of action, and adding allegations of

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additional false and malicious statements made by Luntumbuez

in November and December 2021 and October 2022. The court

sustained Luntumbuez’s demurrer in May 2023, again concluding

the allegations were time-barred and failed to plead allegations

sufficient to state any of the causes of action. The court once

more granted leave to amend.

B. Allegations in the Second Amended Complaint

In June 2023, Harris filed a second amended complaint (the

complaint) alleging that Luntumbuez’s “statements against

Harris . . . caused an official investigation of Harris” that was

“conducted at the direction of the [United States] Army Reserve,”

Harris’s employer. Luntumbuez made all statements “under oath

during the course of an official investigation,” which made the

statements difficult for Harris to find.

The second amended complaint identifies four instances

where Luntumbuez allegedly made the defamatory statements:

October 2017: Luntumbuez made “defamatory written

statements” to an individual named Dr. Christine Altendorf that

Harris “exhibited homosexual sexual tendencies toward” him and

stalked and harassed him and his family at their California

residences. The statements “caused an official investigation” of

Harris, and “[t]he written untrue statements . . . were made

under oath during the course of an official investigation . . . and

[were] difficult for [Harris] to find.” Because senior officers

“withheld” the documents, Luntumbuez did not learn of them

until the officers presented him with the investigation results on

February 13, 2023.

September 2018: Luntumbuez “revised” the same

allegations that Harris engaged in improper sexual conduct

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towards him. These statements were “withheld” from

Luntumbuez until he received a “US postal mailing” on

October 27, 2019.

October 2018: Luntumbuez repeated the same allegations

to a “Fort Irwin Criminal Investigator.”

December 2021: Luntumbuez “resurfaced the knowingly

false and malicious statements of September 2018” to senior

Army Reserve individuals at Fort Bragg, North Carolina. He

reiterated that Harris “exhibited homosexual sexual tendencies

toward” him, sent him “sweet” text messages, and touched him on

his mid-thigh area. Luntumbuez added that Harris stalked and

harassed him and his family in Texas and suggested that Harris

traveled to Saudi Arabia and Long Beach to see him. These

statements were false because Harris had never visited

Luntumbuez’s or his family’s residences, schools, or workplaces.

Luntumbuez also asserted that Harris violated hiring practices

by helping a job applicant exaggerate her experiences on her

resume and that Harris used “unauthorized access to US

government Human Resources systems” to find Luntumbuez’s

home address. This was false because Luntumbuez knew Harris

only had access to records of the members of his own division.

Harris first learned of these statements when the investigation

results were reported to him on February 13, 2023.

October 2022: Luntumbuez reported to “third parties in

senior positions of the US Army Reserve” that Harris was again

stalking him and his family and was harassing him “in the form

of civil court summons.”

Harris sought economic damages of at least $2.125 million,

noneconomic damages of at least $3 million, and punitive

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damages of at least $6 million. Harris also sought a declaration

that Luntumbuez’s statements were defamatory and false.

C. The Demurrer Ruling and Case Dismissal

In October 2023, over Harris’s opposition, the superior

court sustained Luntumbuez’s demurrer without leave to amend

and dismissed the case with prejudice.

The court ruled that Harris’s first cause of action for

defamation, based on the 2017 and 2018 statements, was barred

by the statute of limitations. The court further concluded that all

the relevant statements were protected by the privilege under

Civil Code section 47. Harris’s second amended complaint

asserted the 2017 and 2021 statements “were made under oath

during the course of an official investigation;” the 2021 and 2022

statements were made “in sworn testimony and emails;” and the

2018 statement, which “revised” the 2018 statement, was

“provided to third party, Fort Irwin Criminal Investigator.”

The court also sustained Luntumbuez’s demurrer to

Harris’s second cause of action for intentional infliction of

emotional distress and third cause of action for intentional

interference with prospective economic advantage without leave

to amend, reasoning that both claims were based on the same

privileged statements. Because the court had dismissed Harris’s

substantive claims, it found no present controversy to support

declaratory relief and sustained the demurrer to that claim as

well. The court denied further leave to amend.2

2 Harris failed to designate Luntumbuez’s demurrer, his

previous complaints, or the trial court’s orders on the first two

demurrers as part of the appellate record. We requested these

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Harris timely appealed.

DISCUSSION

A. Applicable Law and Standard of Review

Code of Civil Procedure section 430.10, subdivision (e),

authorizes a demurrer on the ground that the complaint “ ‘does

not state facts sufficient to constitute a cause of action.’ ” (Roy

Allan Slurry Seal, Inc. v. American Asphalt South, Inc. (2017)

2 Cal.5th 505, 512.)

“ ‘[W]here the existence of a privilege is revealed on the face

of the complaint, it may be asserted in a demurrer.’ ” (Green v.

Cortez (1984) 151 Cal.App.3d 1068, 1072-1073; see generally

Estate of Moss (2012) 204 Cal.App.4th 521, 535 [“ ‘A demurrer

can be utilized where the complaint itself is incomplete or

discloses some defense that would bar recovery.’ ”].) Likewise,

the statute of limitations may be asserted by such a general

demurrer if the defect clearly and affirmatively appears on the

face of the complaint. (Committee for Green Foothills v. Santa

Clara County Bd. of Supervisors (2010) 48 Cal.4th 32, 42; see

Cavey v. Tualla (2021) 69 Cal.App.5th 310, 326.)

On appeal, we independently review the judgment of

dismissal and accept as true all material allegations in the

complaint, “but do not ‘assume the truth of contentions,

deductions or conclusions of law.’ ” (Roy Allan Slurry Seal, Inc. v.

American Asphalt South, Inc., supra, 2 Cal.5th at p. 512; see New

Livable California v. Association of Bay Area Governments (2020)

59 Cal.App.5th 709, 714.) We “determine de novo whether the

pleadings from the superior court and augment the record on our

own motion. (Cal. Rules of Court, rule 8.155(a)(1)(A).)

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complaint alleges facts sufficient to state a cause of action or

discloses a complete defense.” (Ivanoff v. Bank of America, N.A.

(2017) 9 Cal.App.5th 719, 725.)

We review a trial court’s failure to grant leave to amend for

abuse of discretion. (Moore v. Centrelake Medical Group, Inc.

(2022) 83 Cal.App.5th 515, 537.) In so doing, “we must decide

whether there is a reasonable possibility the plaintiff could cure

the defect with an amendment. [Citation.] If we find that an

amendment could cure the defect, we conclude that the trial court

abused its discretion and we reverse; if not, no abuse of discretion

has occurred. [Citation.] The plaintiff has the burden of proving

that an amendment would cure the defect.” (Schifando v. City of

Los Angeles (2003) 31 Cal.4th 1074, 1081; see Ivanoff v. Bank of

America, N.A., supra, 9 Cal.App.5th at p. 735.)

B. Harris’s Causes of Actions Are Based on Privileged

Statements

Harris contends the superior court erred in ruling

Luntumbuez’s “knowingly false and malicious statements were

privileged communications” under Civil Code section 47 (section

47).

As pertinent here and with some exceptions, section 47

provides that a “privileged publication or broadcast is one made

. . . [i]n the proper discharge of an official duty,” and “[i]n any . . .

official proceeding authorized by law” or “in the initiation or

course of any . . . proceeding authorized by law.” (Civ. Code § 47,

subds. (a), (b); see Howard Jarvis Taxpayers Assn. v. Powell

(2024) 105 Cal.App.5th 955, 971 [“[S]ection 47, subdivision (b)

provides absolute immunity for publications and statements

made in an ‘official proceeding authorized by law.’ ”].) The

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privilege bars all tort liability based on a qualifying statement,

except the tort of malicious prosecution. (Hagberg v. California

Federal Bank (2004) 32 Cal.4th 350, 360 (Hagberg); see Rusheen

v. Cohen (2006) 37 Cal.4th 1048, 1057.) The privilege applies to

“communications intended to instigate official investigation into

wrongdoing.” (Hansen v. California Department of Corrections &

Rehabilitation (2008) 171 Cal.App.4th 1537, 1546-1547 [where

allegedly false statements were communicated to CDCR officials

as part of an internal investigation, they were absolutely

privileged]; see Hagberg, at p. 362.)

The complaint contends Luntumbuez made the actionable

statements “under oath during the course of an official

investigation” that was “conducted at the direction of the US

Army Reserve.” Thus, the alleged statements fall within the

absolute privilege.

On appeal, Harris contends that the privilege does not

apply because Luntumbuez made deliberately false and

defamatory statements. However, subject to one relatively recent

exception that is not applicable here, the privilege applies

“without respect to the good faith or malice of the person who

made the statement.” (Hagberg, supra, 32 Cal.4th at p. 361; see

Kilgore v. Younger (1982) 30 Cal.3d 770, 778; Hansen v.

California Department of Corrections & Rehabilitation, supra,

171 Cal.App.4th at p. 1546.)

The recent exception to section 47 was created by a 2020

amendment to section 47. (§ 47, subd. (b)(5), Stats. 2020, ch. 327,

§ 2, eff. Jan. 1., 2021.) It provides that false reports to “a law

enforcement agency” that another person “has committed . . . a

criminal act or is engaged in an activity requiring law

enforcement intervention” are not privileged if the speaker makes

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the report knowing it is false, or with reckless disregard for the

truth or falsity of the report. (Ibid.)

One set of the defamatory statements alleged by Harris —

vaguely described only as statements to a “Fort Irwin Criminal

Investigator” — potentially could fall within this exception to the

absolute privilege. But those statements allegedly were made in

October 2018, and the amendment was not effective until 2021.

There is no indication the Legislature intended the amendment

to apply retroactively. (See Quarry v. Doe I (2012) 53 Cal.4th

945, 955 [“statutes ordinarily are interpreted as operating

prospectively in the absence of a clear indication of a contrary

legislative intent.”].) Thus, the amendment would not apply to

the statements made to the criminal investigator. And under the

pre-2021 version of the statute applicable to Luntumbuez’s 2018

statements, even knowingly false statements to a law

enforcement agency are subject to the absolute privilege.

(Hagberg, supra, 32 Cal.4th at p. 364 [applying pre-2021 law and

finding communications made to “law enforcement personnel to

report suspected criminal activity and to instigate law

enforcement personnel to respond” enjoyed “an unqualified

privilege” under section 47].)3

3 Even if Luntumbuez’s October 2018 statements to a

criminal investigator could fall within the law enforcement

exception under section 47, subdivision (b)(5), and even if the

Legislature’s amendment applied retroactively to exempt the

statement from the privilege, all of Harris’s causes of action

based on this statement would be time-barred. The statute of

limitations is one year for defamation (Code Civ. Proc., § 340,

subd. (c)) and two years for both intentional infliction of

emotional distress and intentional interference with prospective

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Thus, all of Luntumbuez’s alleged statements were

absolutely privileged, barring each of Harris’s causes of action.

Regarding leave to amend, “ ‘the burden is on plaintiff to

show in what manner plaintiff can amend the complaint, and how

that amendment will change the legal effect of the pleading[.’]

Although ‘such showing may be made in the first instance to the

appellate court,’ the . . . appellant ‘must still offer details on how

the amendment would cure the defects.’ ” (Moore v. Centrelake

Medical Group, Inc., supra, 83 Cal.App.5th at p. 537; accord,

Shaeffer v. Califia Farms, LLC (2020) 44 Cal.App.5th 1125,

1145.) “Where the appellant offers no allegations to support the

possibility of amendment . . . , there is no basis for finding the

trial court abused its discretion when it sustained the demurrer

without leave to amend.” (Rakestraw v. California Physicians’

Service (2000) 81 Cal.App.4th 39, 44.) Harris has made no

showing of how he could amend his complaint to cure its defects.

The superior court did not err in sustaining Luntumbuez’s

demurrer without leave to amend.

///

economic advantage (Code Civ. Proc., § 335.1; Wassmann v.

South Orange County Community College Dist. (2018)

24 Cal.App.5th 825, 852-853). Unlike for most of Luntumbuez’s

statements, Harris does not allege that his discovery of the

October 2018 statements was delayed. Harris filed his original

complaint in July 2021, outside of the relevant statute of

limitations periods.

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DISPOSITION

The order of dismissal is affirmed. Luntumbuez is entitled

to recover his costs on appeal.

STONE, J.

We concur:

FEUER, Acting P. J.

PULOS, J.*



Judge of the San Diego County Superior Court, assigned

by the Chief Justice pursuant to article VI, section 6 of the

California Constitution.

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