Judge: Gail Killefer, Case: 22STCV08788, Date: 2023-02-17 Tentative Ruling
Case Number: 22STCV08788 Hearing Date: February 17, 2023 Dept: 37
HEARING DATE: February 17, 2023
CASE NUMBER: 22STCV08788
CASE NAME: Jeffrey J. Olin v. Commissioner Glenda Veasey, et al.
MOVING PARTIES: Defendants, Hon. Judge
Lawrence P. Riff; Commissioner Glenda Veasey; and the Superior Court of
California, County of Los Angeles (the “Judicial Defendants”)
OPPOSING PARTY: Plaintiff, Jeffrey J. Olin
TRIAL
DATE: Not Set
PROOF OF SERVICE: OK
MOTION: Judicial Defendant’s Demurrer to the First
Amended Complaint;
OPPOSITION: January 19, 2023
REPLY: January 25,
2023
TENTATIVE: Judicial
Defendants’ demurrer is sustained, without leave to amend. Judicial Defendants
are 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 these violations of Plaintiff’s
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 an 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 with regards to the first, second,
third, and fifth causes of action. (“January 10 Order”)
Judicial Defendants now demur to Plaintiff’s FAC. Plaintiff
opposes the motion.
As this court has already granted the motion striking the first,
second, third, and fifth causes of action, the court now addresses the
remaining fourth, sixth, seventh, eighth, and ninth causes of action of the
FAC.
Request
for Judicial Notice
Judicial
Defendants request judicial notice of the following in support of their motion:
Judicial Defendants’ 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).)
Judicial Defendants submit the declaration of Counsel Sarah
L. Overton (“Overton”) to demonstrate that they have fulfilled their statutory
meet and confer obligations pursuant to CCP § 430.41 prior to filing the
instant demurrer. Overton attests that they met and conferred by first sending
an email correspondence on October 26, 2022, then telephoning Plaintiff on
October 27, 2022, and the parties then corresponded through email about the
issues raised. (Overton Decl. ¶¶3-8.) Overton attests the parties did not reach
an agreement regarding the issues raised in this demurrer. (Id.)
The Overton 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. Judicial Immunity
“‘A judge is not deprived of
immunity because the action he took was in error, was done maliciously, or was
in excess of his authority; rather, a judge will be subject to liability only
when [she or] he has acted in the clear absence of all jurisdiction.’” (Jamgotchian
v. Slender (2009) 170 Cal. App. 4th 1384, 1400.) “The concept of judicial
immunity is long-standing and absolute,
with its roots in English common law. It bars civil actions against judges for
acts performed in the exercise of their judicial functions and it applies to
all judicial determinations, including those rendered in excess of the judge's
jurisdiction, no matter how erroneous or even malicious or corrupt they may
be.” (Howard v. Drapkin (1990) 222 Cal. App. 3d 843, 851.)
Common law makes judicial immunity available for
judges when the act in question is a ‘judicial’ one, “i.e.,¿whether it
is a function normally performed by a judge, and to the expectations of the
parties,¿i.e.,¿whether they dealt with the judge in his judicial capacity.”
(Mireles v. Waco (1991) 502 U.S. 9, 11-12 (per curiam) (internal
quotations and citation omitted).) Judicial immunity may also arise in the
context of arbitration. (Morgan Phillips, Inc. v. JAMS/Endispute, L.L.C.¿(2006)
140 Cal.App.4th 795, 801 [“generally speaking, arbitral immunity shields all
functions which are integrally related to the arbitral process”] (internal
quotations and citation omitted).)
Judges have immunity from civil suit in the exercise
of their judicial functions, even when their acts are alleged to have been done
maliciously and corruptly. (Frost v. Geernaert (1988) 200 Cal.App.3d
1104, 1107.) “Judicial immunity is a principle of common law which is necessary
for the welfare of the state and the peace and happiness of society.
[Citation.]” (Id. at 1107–1108.) Immunity is extended to the employees
of the Superior Court when they are acting within the course and scope of their
employment that includes an integral part of the judicial process or is
intimately associated with it (quasi-immunity). (Falls v. Superior Court
(1996) 42 Cal.App.4th 1031, 1043–1044.) Civil Code § 47 is a codification
of the litigation privilege that protects communications related to judicial
proceedings. These communications are “absolutely immune from tort liability.”
(Tom Jones Enterprises, Ltd. V. County of Los Angeles (2013) 212
Cal.App.4th 1283, 1294.)
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.)
Judicial Defendants here contend the remaining causes of action “solely
concern the orders issued by Commissioner Veasey and/or Judge Riff in the
family law case,” and therefore fail as a matter of law pursuant to judicial
immunity. (Dem., 7-8.) Defendants further contend that “as Judge Riff and
Commissioner Veasey are immune from liability pursuant to absolute judicial
immunity, so too is the Superior Court immune from liability pursuant to Gov. Code
§ 815.2(b).” (Id.) Section 815.2(b) states in relevant part:
“(b) Except as otherwise
provided by statute, a public entity is not liable for an injury resulting from
an act or omission of an employee of the public entity where the employee is
immune from liability.” (Cal. Gov. Code § 815.2(b))
In opposition, Plaintiff contends “[n]one of Veasey’s wrongdoing
for which Plaintiff is seeking that she be held liable was done in the
performance of a judicial act. The wrongdoing of Riff was done in the clear
absence of jurisdiction. (Opposition, 6-7.)
“There is no record of
Veasey making her disclosures when she was the assigned commissioner –
therefore, they were not made in her judicial capacity. When Veasey sought the
Workplace Violence Restraining Order, she did so as an employee of the LASC,
and was not the assigned judicial officer. Veasey has specifically denied
participating in effecting of Plaintiff’s 5150 Hold, so she can’t claim to have
been acting in any official capacity when doing what she claims she didn’t do.
(See FAC ¶174.) All of Veasey’s wrongful disclosures are outside the protection
of Quasi-Judicial Immunity.
When Riff engaged in his wrongdoing, he unquestionably did so after
he was disqualified, meaning his acts, though potentially judicial in nature,
were done without jurisdiction.” (Opp., 6-7.)
In reply, Judicial Defendants correctly contend:
“Plaintiff states
that absolute judicial immunity does not apply to Commissioner Veasey because
the only relevant facts alleged against her in the FAC pertain to the
disclosure of the 5150. Plaintiff’s contention is belied by the allegations set
forth in the FAC which complain about Commissioner Veasey’s judicial acts.
Moreover, the causes of action left in the FAC after the Court’s ruling on the
anti-SLAPP motion, the Fourth Cause of Action for False Imprisonment, the Sixth
Cause of Action for Intentional Interference with Parent-Child Relationship,
the Seventh Cause of Action for Denial of Due Process, and the Eighth Cause of
Action Violation of Civil Rights, all concern the actions taken by Commissioner
Veasey in her judicial capacity while presiding over the family law case. None
of these causes of action concern Commissioner Veasey disclosing the 5150.
Therefore, absolute judicial immunity bars these causes of action against
Commissioner Veasey. (Reply, 6-7).
Judicial Defendants further correctly contend that even if “Judge Riff
should have been disqualified from presiding over plaintiff’s family law case,
that would not preclude the application of absolute judicial immunity to the
claims against Judge Riff.” (Reply, 7.)
“A judge will not be
deprived of immunity because the action he took was in error, was done
maliciously, or was in excess of his authority….” (Reply, 7; citing Stump v.
Sparkman (1978) 435 U.S.C 349, 356-357; Franceschi v. Schwartz (9th
Cir. 1995) 57 F.3d 828, 830 [“[A]cts performed in ‘excess’ of judicial
authority do not deprive the judge of immunity.”].)
The court agrees. Plaintiff fails to explain how the alleged conduct
underpinning his claims against Judicial Defendants do not arise from the
exercise of their judicial functions, and in the alternative, how any of the
remaining conduct does not arise from communications made “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.”
Therefore, liberally construing the allegations of the FAC in favor of
Plaintiff, the court agrees with Judicial Defendants that judicial immunity and
section 47(b) provide an absolute
immunity which bars the remaining claims against Judicial Defendants.
For these reasons, Judicial Defendants’ demurrer to the remaining causes
of action of the FAC is sustained.
As the sustaining
of the demurrer on this issue addresses the entirety of the remaining claims,
the court does not address the parties’ further arguments.
Conclusion
Judicial Defendants’ demurrer is sustained, without leave to
amend. Judicial Defendants are to provide notice.