Wheeler v. Spane et al.

(20) Tentative Ruling

Re: Wheeler v. Spane et al. Superior Court Case No. 25CECG02378

Hearing Date: July 30, 2026 (Dept. 403)

Motion: Defendant Jeffrey Kertson’s Demurrer to Second Amended Complaint Tentative Ruling:

To sustain the demurrer to the third cause of action with leave to amend. To overrule the demurrer to the fourth cause of action with regards to the claim brought by Elisa Wheeler (“Elisa”), but sustain without leave to amend as to the claims brought by James Wheeler (“James”) and Skyla Wheeler (“Skyla”) against Jeffrey Kertson (“Kertson”) only. To overrule the demurrer to the fifth cause of action. To sustain the demurrer to the ninth cause of action without leave to amend as to Kertson only. (Code Civ. Proc., § 430.10, subd. (e).) Any amended complaint shall be filed within 10 days of service of the order by the clerk. All new allegations shall be in boldface type.

Explanation:

Third Cause of Action for Defamation

Defamation is a false, unprivileged and defamatory statement about an individual, published to a third person (not the plaintiff). (Shively v. Boznich (2003) 31 Cal.4th 1230, 1242; see also, Civ. Code, §§44-46.) To plead defamation, a plaintiff “must set forth ‘either the specific words or the substance of’ the allegedly defamatory statements.” (Comstock v. Aber (2012) 212 28 Cal.App.4th 931, 948, quoting Lipman v. Brisbane Elementary Sch. Dist. (1961) 55 Cal.2d 224, 234.)

Here, the court finds that the allegations that Kertson stated to plaintiffs' neighbors, including Caroline and Roger Peterson, Mike and Holly, and Felmus, “that Plaintiffs enabled Jim, or were otherwise complicit in his crime,” and that plaintiffs were “complicit in and enablers of child pornography,” is sufficient to allege false defamatory statements published to a third person. However, the demurrer is sustained because the Second Amended Complaint’s (“SAC”) references to statements made about “Plaintiffs” are still vague as to what was said with regards to each of the three individual plaintiffs.

Here we have three plaintiffs, two of whom were minors at the time of the alleged incidents, and there is no clarity about what Kertson said about each plaintiff. There was no “plaintiff” among the parties involved in these events at the time the alleged statements were made. What did Kertson say that specifically referenced Elisa Wheeler? What did Kertson say that specifically referenced James Wheeler? What did Kertson say that specifically referenced Skyla Wheeler? If Kertson spoke words to a third party to the effect that “James Wheeler is an enabler of and complicit in pedophilia,” for example, that would be enough.

The court will sustain the demurrer as to each plaintiff, and grant leave to amend one more time.

Fourth Cause of Action for Invasion of Privacy

California has recognized common law rights of privacy (see, e.g., Melvin v. Reid (1931) 112 Cal.App. 285), comprising four distinct torts: (1) intrusion upon the plaintiff’s seclusion or solitude or into his private affairs; (2) public disclosure of embarrassing private facts about the plaintiff; (3) publicity which places the plaintiff in a false light in the public eye; and (4) appropriate for the defendant’s advantage, of the plaintiff’s name or likeness. (KNB Enterprises v. Matthews (2000) 78 Cal.App. 362, 365, citing Eastwood v. Superior Court (1983) 149 Cal.App.3d 409, 416, citing Prosser, Law of Torts (3d ed. 1964) 829-851.) An expectation of privacy must be “objectively reasonable” in light of the circumstances (Hill v. National Collegiate Athletic Assn. (1994) 7 Cal.4th 1, 26-27, 37.)

Though the court stated in the ruling on the demurrer to the First Amended Complaint (“FAC”) that this cause of action alleged no invasion of privacy by Kertson as to plaintiffs James and Skyla, no amendment was made to state such a claim, if one was intended. Accordingly, Kertson’s demurrer is sustained without leave to amend as to James and Skyla (though their claims against other defendants remain as they are not at issue in this demurrer).

As to Elisa, the SAC alleges, that “Kertson and Spane [] obtained access to Elisa's private medical and financial information, which was kept on her private computers, and which Kertson and Spane shared with at least Mike and Holly. Specifically, Elisa kept information about her disability and disability income on her private computer which was confiscated by the Fresno County Sheriffs when conducting a search pursuant to Jim's arrest. This invasion and disclosure of private information was wrong and highly hurtful to Elisa.” (SAC ¶ 68.) “A reasonable person would be offended by ... sharing of private information discovered during a police search which was outside the scope of the search warrant and was not used in relation to another investigation, but was shared with private citizens for the sole purpose of pestering and harassing Plaintiffs.” (SAC ¶ 69.)

Earlier in the SAC, plaintiffs allege,

Mike also relayed details of Elisa's private medical information and sources of her fixed income and threatened to report Elisa for insurance fraud. Specifically, Mike stated he knows Elisa is on disability and how much fun "they" were going to have watching Elisa go down for disability fraud. Mike stated he knows when Elisa's grandchildren come and go from her home, and that they are transported in a white Mercedes, insinuating that Mike believed Elisa was getting paid to take care of her grandchildren.

Mike also stated that he knew Elisa had multiple sources of disability income, not a publicly known fact. Elisa's medical and financial information is not widely available but was safeguarded on Elisa's computer. Plaintiffs allege that Mike obtained this information from Kertson and/or Spane as they had access to that information in light of the criminal investigation. Specifically, Kertson has already indicated he had access to information about the case not known to the public, which includes the information copied, obtained from, and/or reviewed by the Fresno County Sheriff's office during the execution of the search warrant on Plaintiffs' property.

This resulted in a search of Elisa's computer, which contained medical records, vocational 4 expert reports, communications with Elisa's disability attorney, communications with Elisa's previous employer, the nature of her disability, the Social Security Disability Income Adjudicator's findings, and Elisa's filings with her Long Time Disability carrier. Further, during Elisa's initial interview with the officers who arrested Jim, she relayed to them that she had a disability, however, she did not relay that she had multiple sources of disability income, indicating that Kertson and/or Spane obtained this information or otherwise spoke to the officers who reviewed this information and then relayed it to Mike as no one but Elisa's family, her disability income providers, and the Fresno County Sheriff's had this information. (SAC ¶ 37.)

The demurrer is based primarily on the contention that plaintiffs are speculating that Mike got the information from Kertson, who got the information from police investigating Jim. (See Marsh v. Anesthesia Services Medical Group, Inc. (2011) 200 Cal.App.4th 480, 491 [the court "treat[s] the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law”].) However, the complaint must be “liberally construed, with a view to substantial justice between the parties.” (Code Civ.

Proc., § 452; see Perez v. Golden Empire Transit Dist. (2012) 209 Cal.App.4th 1228, 1238 [where allegations are subject to different reasonable interpretations, court must draw “inferences favorable to the plaintiff, not the defendant”].) Here, the inferences plaintiffs draw are reasonable in light of Kertson’s position as a law enforcement officer, and his law enforcement connections and knowledge of the investigation. (See SAC ¶ 19.) The question of a plaintiff’s ability to prove even unlikely allegations, or possible difficulties in making such proof, is of no concern in ruling on a demurrer. (Committee on Children's Television, Inc. v.

General Foods Corp. (1983) 35 Cal.3d 197, 213-214.)

The SAC pleads the substance and nature of the information disclosed such that an expectation of privacy existed. The demurrer to this cause of action is as to Elisa.

Fifth Cause of Action for IIED

To state a cause of action for intentional infliction of emotional distress (“IIED”), plaintiffs must allege: “‘(1) outrageous conduct by the defendant, (2) intention to cause or reckless disregard of the probability of causing emotional distress, (3) severe emotional suffering and (4) actual and proximate causation of the emotional distress.’” (Agarwal v. Johnson (1979) 25 Cal.3d 932, 946.) “Outrageous conduct” denotes conduct which is so extreme as to exceed all bounds of decency and which is to be regarded as “atrocious and utterly intolerable in a civilized community.” (Bartling v. Glendale Adventist Medical Center (1986) 184 Cal.App.3d 961, 969.)

Here, the cause of action is based on defendants’ “harassing, demeaning, disparaging, and distressing behavior” ... “with the express intent of causing Plaintiffs so much distress that they are forced to move out of the neighborhood.” (SAC ¶¶ 73, 74.)

The fifth cause of action incorporates by reference all prior allegations of the SAC, including Kertson’s use of his position with the Fresno County Sherriff’s office to access Elisa’s private medical and financial information and disclose that information to 5 plaintiffs’ neighbors with the intention of causing plaintiffs’ so much emotional distress they would have no choice but to leave the neighborhood. (SAC, ¶¶ 19, 37, 67-68.) The cause of action is also supported by the following allegations: SAC ¶¶ 19 [Kertson “threatened to collaborate with Plaintiffs’ other neighbors to induce Plaintiffs to move out of the neighborhood....”]; 20 [Kertson “used his position and connections with the Fresno County Sheriff’s to gather information about Jim’s investigation, and then relayed that information to Spane, and then later to Plaintiff’s neighbors.”]; 21 [“Making good on their threat, Plaintiffs have been informed by other neighbors—like Caroline and Roger Peterson—that [Defendant] and Spane approached them and encouraged them to stop associating with Plaintiffs, and assist in efforts to convince Plaintiffs to move out of the neighborhood.”]; 23 [In accordance with Kertson’s “threats from April 2024, the two have collaborated with and encouraged Plaintiff’s other neighbors to engage in harassing, threatening, defamatory, and demeaning behavior, and did so by telling Mike, Holly, Felmus, the Petersons, and other neighbors that Plaintiffs were not innocent and played a role in Jim’s crimes.”]; 73 [defendants have “yelled at Plaintiffs and their guests that Plaintiffs are pedophiles, enablers and complicit in child pornography, and are perverts.

Defendants have taken steps to alienate Plaintiffs from their neighborhood by ... lobbying Plaintiffs’ neighbors to engage in harassing behavior, following Plaintiffs to their places of work and leisure, and telling community members and neighbors that Plaintiffs are associated with child pornography.”

While liability for IIED “does not extend to mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities” (Agarwal v. Johnson (1979) 25 Cal.3d 932, 946), the court agrees with plaintiffs that the SAC alleges sufficient facts to state a cause of action for IIED. Accordingly the demurrer is overruled.

Ninth Cause of Action – Tom Bane Civil Rights Act

Civil Code section 52.1, known as the Tom Bane Civil Rights Act, provides in pertinent part,

(b) If a person or persons, whether or not acting under color of law, interferes by threat, intimidation, or coercion, or attempts to interfere by threat, intimidation, or coercion, with the exercise or enjoyment by any individual or individuals of rights secured by the Constitution or laws of the United States, or of the rights secured by the Constitution or laws of this state, the Attorney General, or any district attorney or city attorney may bring a civil action for injunctive and other appropriate equitable relief in the name of the people of the State of California, in order to protect the peaceable exercise or enjoyment of the right or rights secured. ...

(c) Any individual whose exercise or enjoyment of rights secured by the Constitution or laws of the United States, or of rights secured by the Constitution or laws of this state, has been interfered with, or attempted to be interfered with, as described in subdivision (b), may institute and prosecute in their own name and on their own behalf a civil action for damages, including, but not limited to, damages under Section 52, injunctive relief, and other appropriate equitable relief to protect the peaceable exercise or enjoyment of the right or rights secured, including 6 appropriate equitable and declaratory relief to eliminate a pattern or practice of conduct as described in subdivision (b).

“The essence of a Bane Act claim is that the defendant, by the specified improper means (i.e., ‘threats, intimidation or coercion’), tried to or did prevent the plaintiff from doing something he or she had the right to do under the law or to force the plaintiff to do something that he or she was not required to do under the law. (Jones [v. Kmart Corp. (1998)] 17 Cal.4th [329,] 334 [70 Cal.Rptr.2d 844, 949 P.2d 941] [Jones].)” (Austin B. v. Escondido Union School Dist. (2007) 149 Cal.App.4th 860, 883, 57 Cal.Rptr.3d 454.)

The legislative history of section 52.1, enacted in 1987, makes clear that the crucial motivation behind passage of section 52.1 was to address the increasing incidence of hate crimes in California. (Stats.1987, ch. 1277, § 3, p. 4544; see (A.B.63). See Jones, supra, at p. 338, 70 Cal.Rptr.2d 844, 949 P.2d 941.) However, the statutory language does not limit its application to hate crimes. Notably, the statute does not require a plaintiff to allege the defendant acted with discriminatory animus or intent based upon the plaintiff's membership in a protected class of persons. (Cf. § 51.7; Venegas v.

County of Los Angeles (2004) 32 Cal.4th 820, 841–843, 11 Cal.Rptr.3d 692, 87 P.3d 1 (Venegas II).) A defendant is liable if he or she interfered with or attempted to interfere with the plaintiff's constitutional rights by the requisite threats, intimidation, or coercion. (Venegas II, supra, at p. 843, 11 Cal.Rptr.3d 692, 87 P.3d 1.) (Shoyoye v. County of Los Angeles (2012) 203 Cal.App.4th 947, 955–956.)

The demurrer is premised on the provision that “[s]peech alone is not sufficient to support an action brought pursuant to subdivision (b) or (c), except upon a showing that the speech itself threatens violence against a specific person or group of persons; and the person or group of persons against whom the threat is directed reasonably fears that, because of the speech, violence will be committed against them or their property and that the person threatening violence had the apparent ability to carry out the threat.” (Civ.

Code, § 52.1, subd. (k), emphasis added.) “The plaintiff must show ‘the defendant interfered with or attempted to interfere with the plaintiff's legal right by threatening or committing violent acts.’” (Julian v. Mission Community Hospital (2017) 11 Cal.App.5th 360, 395.) “Speech is insufficient to establish the requisite threat unless it includes threat of violence.” (Ibid.)

The SAC does not allege that Kertson engaged in any act of violence. The action is based on statements made by Kertson to other neighbors, none of which were accompanied by violence or threat of violence. Plaintiffs argue that Kertson’s threat to “take it to level two” and “make [Plaintiffs’] lives miserable in the neighborhood” (SAC ¶ 19) is inherently threatening, especially when made by a law enforcement officer with demonstrated access to and knowledge of sealed investigative details involving child pornography.

However, the fact remains none of the allegations referenced by plaintiffs actually constitute a threat of violence. A remark that one has access to investigative details and is willing to disclose them is not a threat of violence; it is a threat of speech, which the 7 Bane Act makes clear is not actionable. (Civ. Code, § 52.1, subd. (k). This cause of action is simply too big a stretch to apply to the facts of this case. Though plaintiffs request leave to amend, they make no showing of what facts they could add tot eh pleading that would constitute violence or threat of violence. Accordingly, the demurrer to the ninth cause of action is sustained without leave to amend.

Pursuant to California Rules of Court, rule 3.1312(a), and Code of Civil Procedure section 1019.5, subdivision (a), no further written order is necessary. The minute order adopting this tentative ruling will serve as the order of the court and service by the clerk will constitute notice of the order.

Tentative Ruling

Issued By: SMC on 7/29/26. (Judge’s initials) (Date)

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