Judge: Gail Killefer, Case: 22STCV08788, Date: 2023-01-25 Tentative Ruling
Case Number: 22STCV08788 Hearing Date: January 25, 2023 Dept: 37
HEARING DATE: January 25, 2023
CASE NUMBER: 22STCV08788
CASE NAME: Jeffrey J. Olin v. Commissioner Glenda Veasey, et al.
MOVING PARTY: Defendant, Kelly Rene Olin
OPPOSING PARTY: Plaintiff, Jeffrey J. Olin
TRIAL
DATE: Not Set
PROOF OF SERVICE: OK
MOTION: Defendant’s Demurrer to the First
Amended Complaint;
OPPOSITION: January 12, 2023
REPLY: January 18,
2023
TENTATIVE: Defendant Kelly’s
demurrer is sustained, without leave to amend, except as to first through sixth
causes of action. Plaintiff is granted 20 days leave to amend the first six
causes of action. Defendant is to provide notice.
Background
This action arises out of an
alleged conspiracy to violate the rights of Jeffrey J. Olin (“Plaintiff”), who
is an alleged victim of parental alienation. Plaintiff claims that a conspiracy
began three and a half years ago to commit Violations of HIS constitutional and
statutory rights. Plaintiff names as Defendants Commissioner Glenda
Veasey, Judge Lawrence Riff, the Superior Court of California County of Los
Angeles, Deputy David Wing, Detective David Wing, Los Angeles County Sheriff’s
Department [“LASD”], Kelly Rene Olin (“Kelly”) [Plaintiff’s ex-wife], Rombro
& Manley, LLP (a law firm), Roger Rombro, Melinda A Manley, and Does 1-50.
Plaintiff’s complaint
alleges the conspiracy began shortly after Plaintiff sent ex parte notice to
Kelley via text message of the parental alienation on July 21, 2018. Plaintiff
further alleges the conspiracy grew to include LASD detectives and judicial
officers. On October 3, 2019, a restraining order was filed against Plaintiff.
Plaintiff alleges the conspirators plotted to have Plaintiff involuntarily
committed (“5150 Hold”). On October 4, 2019, Plaintiff was put under a 72-hour
5150 Hold, and his property was allegedly seized and converted.
Plaintiff’s Complaint includes the
following causes of action: (1) publication of private facts concerning
the 5150 hold, (2) intrusion into private matters, (3) false imprisonment, (4)
intentional infliction of emotional distress, (5) intentional interference with
parent-child relationship (Civ. Code § 49), (6) denial of due process, (7)
violation of civil rights (42 USC § 1983), (8) interference with exercise of
civil rights (Civ. Code § 52.1), and (9) Monell liability. The caption lists
the 8th cause of action for interference with exercise of civil rights (Civ.
Code § 52.1), as the 7th cause of action, and lists the 7th cause of action for
violation of civil rights (42 USC § 1983), as the 8th cause of action.
On September 29,
2022, RM Defendants’ demurrer to the entirety of the Complaint was sustained,
and the court granted RM Defendants’ Special Motion to Strike as well.
(“September 29 Order”). The court also awarded RM Defendants attorney fees in
part.
On October 4, 2022,
Plaintiff filed the operative First Amended Complaint (“FAC”) including the
following causes of action: (1) unlawful disclosure concerning the 5150 hold;
(2) publication of private facts concerning the 5150 hold; (3) intrusion into
private matters; (4) false imprisonment; (5) intentional infliction of
emotional distress; (6) intentional interference with parent-child relationship
(Civ. Code § 49); (7) denial of due process; (8) violation of civil rights (42 USC § 1983); and (9) Monell liability.
On January 10, 2023,
the court granted Defendants
Hon. Judge Lawrence P. Riff, Commissioner Glenda Veaseyy and the
Superior Court of California, County of Los Angeles (the “Judicial
Defendants”)’ Special Motion to Strike.
Defendant Kelly now demurs to Plaintiff’s FAC. Plaintiff opposes
the motion.
Request
for Judicial Notice
Defendant
Kelly requests judicial notice of the following in support of their motion:
Defendant’s request
is granted. The existence and legal significance of
these documents is a proper matter for judicial notice. (Evid. Code § 452(h).)
However, the court may not take judicial notice of the truth of the contents of
the documents. (Herrera v. Deutsche Bank National Trust Co. (2011)
196 Cal.App.4th 1366, 1375.) Documents are only judicially noticeable to
show their existence and what orders were made. The truth of the facts
and findings within the documents are not judicially noticeable. (Lockley
v. Law Office of Cantrell, Green, Pekich, Cruz & McCort (2001) 91
Cal.App.4th 875, 885.)
Discussion
I.
Meet and Confer Efforts
CCP § 430.41 provides that a Defendant, prior to filing a
demurrer, “shall meet and confer in person or by telephone” with Plaintiff to
determine whether an agreement can be reached regarding the objections to be
raised in the demurrer. (CCP § 430.41(a).) Further, as part of the meet
and confer process, the demurring Defendant “shall identify all of the specific
causes of action that it believes are subject to the demurrer and identify with
legal support the basis of the deficiencies.” (CCP § 430.41(a)(1).) The
Plaintiff is then to respond by providing “legal support for its position that
the pleading is legally sufficient,” or, alternatively, “how the complaint …could
be amended.” (Id.) This meet and confer shall occur “at least five days
before the date the responsive pleading is due.” (CCP § 430.41(a)(2).) Finally,
the demurring Defendant is to file and serve a declaration with the demurrer
stating either:
“(A) The means by which the
demurring party met and conferred with the party who filed the pleading subject
to demurrer, and that the parties did not reach an agreement resolving the
objections raised in the demurrer.
(B) That the party who filed the
pleading subject to the demurrer failed to respond to the meet and confer
request of the demurring party or otherwise failed to meet and confer in good
faith.”
(CCP § 430.41(a)(3)(A)-(B).)
Defendant Kelly submits the declaration of Counsel Stephen
B. Goldberg (“Goldberg”) to demonstrate that they have fulfilled their
statutory meet and confer obligations pursuant to CCP § 430.41 prior to filing
the instant demurrer. Goldberg attests that they met and conferred by telephoning
Plaintiff on October 20, 2022 and leaving a voicemail, and the parties
corresponded through email about the issues raised. (Goldberg Decl. ¶¶3-3.) Goldberg
attests the parties did not reach an agreement regarding the issues raised in
this demurrer. (Id.)
The Goldberg Declaration is sufficient for purposes of CCP §
430.41.
II.
Legal Authority
A demurrer is an objection to a pleading, the grounds for which are
apparent from either the face of the complaint or a matter of which the court
may take judicial notice. (CCP § 430.30(a); see also Blank v. Kirwan
(1985) 39 Cal.3d 311, 318.) The purpose of a demurrer is to challenge the
sufficiency of a pleading “by raising questions of law.” (Postley v.
Harvey (1984) 153 Cal.App.3d 280, 286.) The court “treat[s] the
demurrer as admitting all material facts properly pleaded, but not contentions,
deductions or conclusions of fact or law. . . .” (Berkley v. Dowds
(2007) 152 Cal.App.4th 518, 525 (Berkley).) “In the construction
of a pleading, for the purpose of determining its effect, its allegations must
be liberally construed, with a view to substantial justice between the
parties.” (CCP § 452; see also Stevens v. Sup. Ct. (1999) 75
Cal.App.4th 594, 601.) “When a court evaluates a complaint, the plaintiff
is entitled to reasonable inferences from the facts pled.” (Duval v.
Board of Trustees (2001) 93 Cal.App.4th 902, 906.)
The general rule is that the plaintiff need only allege ultimate facts,
not evidentiary facts. (Doe v. City of Los Angeles (2007) 42
Cal.4th 531, 550.) “All that is required of a plaintiff, as a matter of
pleading, even as against a special demurrer, is that his complaint set forth
the essential facts of the case with reasonable precision and with sufficient
particularity to acquaint the defendant with the nature, source and extent of
his cause of action.” (Rannard v. Lockheed Aircraft Corp. (1945)
26 Cal.2d 149, 156-157.) “[D]emurrers for uncertainty are disfavored and
are granted only if the pleading is so incomprehensible that a defendant cannot
reasonably respond.” (Mahan v. Charles W. Chan Ins. Agency, Inc. (2017)
14 Cal.App.5th 841, 848, fn. 3 (Mahan), citing Lickiss v. Fin. Indus.
Regulatory Auth. (2012) 208 Cal.App.4th 1125, 1135.) In addition,
even where a complaint is in some respects uncertain, courts strictly construe
a demurrer for uncertainty “because ambiguities can be clarified under modern
discovery procedures.” (Khoury v. Maly’s of California, Inc.
(1993) 14 Cal.App.4th 612, 616.)
Demurrers do not lie as to only parts of causes of action where some
valid claim is alleged but “must dispose of an entire cause of action to be
sustained.” (Poizner v. Fremont General Corp. (2007) 148
Cal.App.4th 97, 119.) “Generally it is an abuse of discretion to sustain
a demurrer without leave to amend if there is any reasonable possibility that
the defect can be cured by amendment.” (Goodman v. Kennedy (1976)
18 Cal.3d 335, 349.)
III.
Analysis
A. First Cause of Action: Unlawful Disclosure
Defendant Kelly contends Plaintiff’s first cause of action for violation
of Welfare & Institutions Code §5330 “for Kelly’s alleged willful
and knowing release of confidential information in violation of” [section 5328]
is insufficiently pled since “Plaintiff alleges no specific facts or instances
where Kelly has told someone, other than her attorneys.” (Dem., 7-8.) This
court has previously found Kelly’s sharing of such information with her own
attorneys to not be a violation of section 5328. (September 29 Order.)
The FAC alleges: “[e]very single time
Kelly has told someone about the 5150 Hold, she has committed this violation.”
(FAC ¶ 134.) However, this court has repeatedly found subsection (a)(6) to
afford a broad exception to the language of section 5328. (See also
Order, January 10, 2023.)
In opposition, Plaintiff first contends this court cannot decide this
demurrer as Plaintiff has appealed a prior ruling. (Opposition, 2-3.) However,
the prior ruling specifically related to the RM Defendants’ prior motion, and
does not involve Plaintiff’s claims against Kelly. Therefore, the court
continues with this analysis.
Plaintiff again cites Swanson v. County of Riverside
(2019) 36 Cal.App.5th, 361, 372 (“Swanson”) to contend that a court must
“order” for a disclosure of 5150 information, and any disclosure otherwise is a
violation of section 5326. (Opposition, 3-5.)
“Because
proceedings under the LPS Act [Welfare & Institutions Code 5000, et seq.]
are not presumptively public in nature, speech in connection with it is not the
type of speech the anti-SLAPP statute is designed to protect.” (Swanson,
supra, 36 Cal.App.5th at 372 .)
Plaintiff thereafter contends “there is no record of any
LASC bench officer employing 5328(a)(6). Therefore, it never happened and
cannot be asserted as a fact. ... the only time the strict
confidentiality of a 5150 can be divulged to a court is when the court orders
it to occur as necessary to the administration of justice. No court has ever
done so. Section 5328(a)(6) provides Defendants no coverage.” (Opp., 4-5.) However, the
Plaintiff’s assertion that an officer of the court must “employ” subsection
(a)(6) is untrue, as several Defendants have moved for a legal determination of
subsection (a)(6)’s applicability here, which this court has the authority to
decide. Thus, the court need not “order” such disclosure when the subsection
specifically provides for the disclosure of such information to the judicial
system “as necessary to the administration of the justice.”
Chapter 2 of the Lanterman-Petris-Short
Act (“LPS”) (W.& I. Code, § 5000, et seq.), specifically section
5328, limits disclosure of mental health care information and records obtained in the
course of providing services under the listed Welfare and Institutions
Code statutes to certain enumerated cases, including to the courts (Welf. &
Inst. Code, § 5328(a)(6)). Welfare Code section 5328(a) states, in relevant part:
“All information and records
obtained in the course of providing services under Division 4
(commencing with Section 4000), Division 4.1 (commencing with Section 4400),
Division 4.5 (commencing with Section 4500), Division 5 (commencing with
Section 5000), Division 6 (commencing with Section 6000), or Division 7
(commencing with Section 7100), to either voluntary or involuntary recipients
of services are confidential. Information and records obtained in the course of
providing similar services to either voluntary or involuntary recipients before
1969 are also confidential. Information and records shall be disclosed only in
any of the following cases:
...
(6) To
the courts, as necessary to the administration of justice.” (W&I C. §5328(a)(6).) (emphasis added)
Further, the court
recognizes the Swanson
court specifically dealt with the question of whether a 5150 proceeding was
itself an “official proceeding,” therefore included in CCP § 425.16(e)(1) and
(2). (Swanson, supra, 36 Cal.App.5th at 364-5.) This court is not faced
with the same question.
The
alleged activities which form the bases of Plaintiff’s claims against Kelly
involve disclosures and/or statements made by Defendant Kelly in response to
petitions, during family law hearings, in declarations, and correspondences
with judicial officers. (FAC ¶¶ 17-20, 127-200, Exh. 1.) Therefore, the court
finds Swanson to not be binding precedent over these circumstances.
Statements regarding Plaintiff’s 5150 were made either in or regarding judicial
proceedings, and this court is now again faced with determining whether the
statements regarding Plaintiff’s 5150, and not the 5150 itself, are protected
activities.
Further, this court also finds Plaintiff has shown no
“information and records obtained in the course of providing services” subject to
Welfare & Institutions Code Divisions 4, 4.1, 4.5, 5, 6, or 7 which were
disclosed here; in the alternative, this court further finds section 5328(a)(6)’s
“as necessary to the administration of justice” to provide broad powers of
disclosure during the underlying family law matter which forms the heart of
this present litigation.
Plaintiff also contends Kelly’s
conversations with “her lawyers about the 5150 Hold,” were unlawful
disclosures. (Opp., 8.) The court here notes, the first cause of action does
not allege any specific facts or instances of such alleged violations.
In reply, Kelly contends:
“Kelly did not violate
§5328, and even if the statement in Kelly's declaration came within the purview
of §5328, the exception for disclosure to the courts, as necessary for the
administration of justice, unquestionably applies. Furthermore, such a
violation does not create a private cause of action.” (Reply, 3-4; citing Julian
v. Mission Community Hospital (2017) 11 Cal.App. 5th 360).
Liberally construing the allegations of the Complaint in favor of
Plaintiff, the court agrees with Defendant Kelly and finds the first cause of
action to be insufficiently pled. Thus, the court sustains Defendant’s demurrer
to the first cause of action.
B. The Kelly Declaration & Litigation
Privilege
Defendant Kelly contends Plaintiff’s second cause of action, among
others, bases liability on the declaration Defendant Kelly filed in early June
2021. (Dem., 7-9.) Kelly contends that this declaration “is absolutely
privileged under Civil Code section 47, subdivisions (b)(1) and (c).” (Dem.,
8.) Kelly contends the litigation privilege covers the declaration entirely as
it is “a legally privileged communication in furtherance of the ongoing marital
dissolution action which was provided without malice, and out of necessity, to
the courts.” (Dem., 10.)
Civil Code § 47(b) provides an absolute privilege
for communications made in any legislative proceeding, in any judicial
proceeding, in any other official proceeding authorized by law, or in the
initiation or course of any other proceeding authorized by law. (See Civ. Code,
§ 47(b); Hagberg v. California Federal Bank FSB (2004) 32
Cal.4th 350, 360 (Hagberg).) Section 47(b) bars all tort causes of
action except malicious prosecution. (Hagberg, supra, 32 Cal.4th at
360.) Section 47(b) only applies to communicative acts, not tortious conduct. (Buchanan
v. Maxfield Enterprises, Inc. (2005) 130 Cal.App.4th 418,
423.) “The threshold issue in determining whether the litigation privilege
applies is whether the defendant’s conduct was communicative or
noncommunicative.” (Id.)
The FAC points to the Kelly
Declaration as a violation for the second, third, fourth, fifth, and sixth
causes of action. (FAC ¶¶ 146, 156, 165, 179, 190, 209.)
In opposition, Plaintiff again contends: “[n]o reasonable person
could dispute that Sections 5328 and 5330 are far more specific than Civil Code
47(b).” (Opposition, 7-8.) As this
court has found Plaintiff has failed to show how any of Kelly’s alleged
disclosures have been violations of sections 5328 and 5330, the court also
finds Plaintiff’s arguments unpersuasive.
In reply, Kelly contends:
“communications in
family law proceedings are absolutely protected by the litigation privilege and
the litigation privilege bars all causes of action for invasion of privacy
regardless of whether the cause of action is based on common law, statute or
the Constitution.” (Reply, 4-5; citing
Jacob B. v. County of Shasta (2007) 40 Cal.4th 948, 962).
The court agrees.
Further, with regards to the sixth cause of action, Kelly also adds,
“Plaintiff attempted
to litigate the Sixth Cause of Action for Intentional Interference with Parent
Child Relationship under Civil Code §49 in a previous lawsuit against Kelly and
it failed (Los Angeles Superior Court Case No. 19STCV25223). Plaintiff is
attempting to reallege the tort this time based on information contained in
filings in the 2021 declarations filed by Kelly and Veasey. Having alleged in
the prior case that Kelly alienated his son's affections in 2018, he cannot now
claim that the alienation occurred after June 2021 in order to get a second
bite at the same apple.” (Dem., 12-13; FAC ¶209.)
The court further agrees.
Liberally construing the allegations of the Complaint in favor of
Plaintiff, the court agrees with Defendant Kelly and finds the litigation
privilege to bar these causes of action. The second, third, fourth, fifth, and
sixth causes of action are therefore insufficiently pled. As such, the court
sustains Defendant’s demurrer to these causes of action.
C. Seventh & Eighth Causes of Action:
Denial of Due Process & Violation of Civil Rights
Defendant Kelly contends Plaintiff’s seventh cause of action is
insufficiently pled “because of a violation of due process claim cannot be made
against an individual.” (Dem., 13-14.) Similarly, Kelly contends the eighth
cause of action is insufficiently pled because:
“[t]he FAC does not
allege that Kelly was acting under color of state law, which means to act
beyond the bound of lawful authority, but in such a manner that the unlawful
acts were done while the official was purporting or pretending to act in the
performance of his official duties. Kelly was not acting and cannot act, in any
official power.” (Dem., 14.)
In opposition, Plaintiff contends Kelly’s liability
is based on her participation in the conspiracy as alleged in the FAC. (Opp.,
14-15.) Plaintiff further contends “Plaintiff has no burden at this
stage to prove that the Conspiracy has existed,” and has “alleged facts and
even put forth evidence that shows there was a concerted effort to engage in
wrongdoing which evidences the Conspiracy.” (Id.) However, this court
does not accept legal conclusions in the pleadings as true at the demurrer
stage. A “demurrer does not, however, admit contentions, deductions or
conclusions of fact or law alleged in the pleading, or the construction of
instruments pleaded, or facts impossible in law.” (S. Shore Land Co. v.
Petersen (1964) 226 Cal.App.2d 725, 732 [internal citations omitted].)
Kelly’s
demurrer also correctly explains there is no cause of action for civil
conspiracy in the FAC. (Dem., 15-16.) Further, Kelly contends all of the
alleged activities “are privileged as they were related to or conducted within
pending litigation. Kelly's awareness or knowledge of any of the activities of
any of the alleged co-conspirator Defendants does not constitute a conspiracy.”
(Dem., 15-16.)
In reply, Kelly further correctly contends:
“[n]one of Kelly's
alleged co-conspirators can be held liable for denial of due process because
this cause of action cannot be made against an individual. Furthermore, all of
the acts of Kelly's alleged co-conspirators have been determined to be
privileged or not actionable. Kelly cannot be held liable as a co-conspirator
for Violation of Civil Rights because the only coconspirator capable of acting
under color of state law could potentially be the [LASD] but they have been
dismissed because the court agreed they were not a suable entity for a lawsuit
if this nature. Furthermore, all of Kelly's activities are privileged as they
were related to or conducted within pending litigation.” (Reply, 7.)
The court agrees. Plaintiff fails to point to any authority for the
contention that an individual can be held liable for the seventh and eighth
causes of action when, as Defendant Kelly here, defendant does not act in an
official capacity for the state.
Liberally construing the allegations of the Complaint in favor of
Plaintiff, the court agrees with Defendant Kelly and finds the seventh and eighth
causes of action are insufficiently pled, as Plaintiff alleges them against an
individual, Defendant Kelly. Therefore, the court also sustains Defendant’s
demurrer to these causes of action.
Conclusion
Defendant Kelly’s demurrer is sustained, without leave to
amend, except as to the first through sixth causes of action. Plaintiff is
granted 20 days leave to amend the first six causes of action. Defendant is to
provide notice.