Judge Curtis A. Kin, Case Number: 23STCP02949, Date: 2024-04-09 Tentative Ruling

Judge: Curtis A. Kin, Case: 23STCP02949, Date: 2024-04-09 Tentative Ruling

Case Number: 23STCP02949 Hearing Date: April 9, 2024 Dept: 86

DEMURRER

Date: 2/13/24 (1:30 PM)

Case: Korie Schmidt v. Elihu M. Berle (23STCP02949)

TENTATIVE RULING:

Respondent Honorable Elihu M. Berle, Judge of the Superior Court of California, County of Los Angeles’ UNOPPOSED Demurrer to “Writ Mandamus Motion for Injunction and Sanctions” is SUSTAINED WITHOUT LEAVE TO AMEND.

Respondent’s request to take judicial notice of the docket report for Korie Schmidt v. Los Angeles County Sheriff's Department, Los Angeles Superior Court Case No. BC696370 (the “Underlying Action”) is GRANTED, pursuant to Evidence Code § 452(d).

Respondent demurs to the “Writ Mandamus Motion for Injunction and Sanctions” (hereinafter, “Petition”) on the three grounds: (1) the claims against Judge Berle are barred by absolute judicial immunity; (2) the claims for declaratory or injunctive relief are barred, as a superior court cannot reverse the rulings of a different superior court judge; and (3) petitioner Korie Schmidt cannot seek monetary sanctions against Judge Berle because petitioner did not allege compliance with claim presentation requirements of the Government Claims Act.

With respect to the first ground, it appears that petitioner is suing Judge Berle for actions he took in his judicial capacity in the Underlying Action. After having “upheld” demurrers to prior complaints, Judge Berle sustained a demurrer to petitioner’s Sixth Amended Complaint “with prejudice.” (Petition at 1:7-2:17.) Judge Berle also denied petitioner’s motion to seal and a motion for declaratory relief. (Petition at 2:3-4, 2:7.) Petitioner seeks a writ of mandate to “strike” the demurrer to and reinstate the Sixth Amended Complaint, as well as an injunction against “further blockage.” (Pet. at 5:2-5, 5:12-14.)

“It is well established judges are granted immunity from civil suit in the exercise of their judicial functions.” (Frost v. Geernaert (1988) 200 Cal.App.3d 1104, 1107; see also Tagliavia v. County of Los Angeles (1980) 112 Cal.App.3d 759, 761; Mireles v. Waco (1991) 502 U.S. 9, 9-10.) The Petition is barred by judicial immunity.

With respect to the second ground, petitioner seeks a writ of mandate and an injunction against Judge Berle. (Petition at 5:2-6, 5:12-14.) Petitioner moves to “[s]trike the demurrer upheld on 12/16/19” and “[f]orce the trial court to accept” petitioner’s Sixth Amended Complaint. (Pet. 5:2-5.) Petitioner also moves to enjoin Judge Berle from “further blockage,” as Judge Berle had allegedly “block[ed]” petitioner from proceeding with the Underlying Action. (Pet. 4:19-20, 4:25, 5:12-14.) Both this Court and Judge Berle are judicial officers of the Superior Court of California. A judge may not overrule a judge having equal jurisdiction. (Alvarez v. Superior Court (2010) 183 Cal.App.4th 969, 982-83.) In other words, this Court may not issue orders to Judge Berle regarding how to conduct the Underlying Action. Accordingly, petitioner cannot obtain the writ of mandate or injunction against Judge Berle he seeks.

With respect to the third ground, “until a written claim therefor has been presented to the public entity and … acted upon by the board, or … deemed to have been rejected by the board…,” the Government Claims Act provides that “no suit for money or damages may be brought against [the] public entity on [that] cause of action….” (Gov. Code § 945.4.) Further, if an action against a public entity is barred by the claims presentation requirement, an action against a current or former employee acting within the scope of their employment will also be barred. (See Gov. Code § 950.2.) The timely presentation of a claim is an essential element of a cause of action. (State of California v. Superior Court (2004) 32 Cal.4th 1234, 1240.)

Petitioner is suing Judge Berle, a state employee, and seeking monetary sanctions for actions Judge Berle made within the scope of his employment as a judge. (Cal. Const., art. VI, § 1; Petition at 5:8-11.) Accordingly, petitioner must allege that he presented a written claim to the proper state agency within one year after accrual of the cause of action and that the claim was acted upon or deemed to have been rejected. (Gov. Code §§ 911.2(a), 945.4.) Petitioner does not do so. The Petition is time-barred under the Government Claims Act as alleged.

Lastly, by failing to file an opposition, petitioner does not demonstrate how he could amend the complaint to reasonably cure the deficiencies discussed above. (Silva v. Block (1996) 49 Cal.App.4th 345, 349, citing Kennedy v. Baxter Healthcare Corp. (1996) 43 Cal. App. 4th 799, 808 [“When a demurrer is sustained without leave to amend, the burden of proving a reasonable possibility that the defect can be cured by amendment is on the plaintiff”].) For this Court to grant petitioner leave to amend his petition, petitioner must show how or in what manner he could amend his petition and how that amendment would change the legal effect of the pleading. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 348-49.)

Respondent’s demurrer is SUSTAINED without leave to amend. Respondent is ordered to lodge a proposed judgment of dismissal within 5 days of this ruling.