Judge: Gail Killefer, Case: 22STCV08788, Date: 2023-06-22 Tentative Ruling
Case Number: 22STCV08788 Hearing Date: June 22, 2023 Dept: 37
HEARING DATE: June 22, 2023
CASE NUMBER: 22STCV08788
CASE NAME: Jeffrey J. Olin v. Commissioner Glenda Veasey, et al.
MOVING PARTY: Defendant, Deputy Wing
OPPOSING PARTY: Plaintiff, Jeffrey J. Olin
TRIAL
DATE: Not Set
PROOF OF SERVICE: OK
MOTION: Defendant’s Demurrer to the First
Amended Complaint
OPPOSITION: June 9, 2023
REPLY: June 12, 2023
TENTATIVE: Defendant Wing’s
demurrer is sustained, without leave to amend, except as to the first through
fifth causes of action. Plaintiff is granted 20 days leave to amend the first
five causes of action. Defendant Wing’s motion is moot. Defendant Wing 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 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 (“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 imprison-ment; (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 Wing now demurs to Plaintiff’s FAC, and moves to strike
portions of the FAC. Plaintiff opposes the motion.
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).)
On May 4, 2023, this court excused Defendant Wing’s counsel
from further meet and confer, finding that “the issues counsel intends to raise
in Deputy Wing’s Demurrer are those that have already come before the Court.”
(May 4, 2023, Order to Show Cause.) Therefore, the court finds sufficient meet
and confer has happened 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. Deputy Wing’s Immunity and Protections
against Claims
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.)
“Section 47 establishes a privilege that bars liability in tort for
the making of certain statements. Pursuant to section 47(b), the privilege
bars a civil action for damages for communications made ‘[i]n any (1)
legislative proceeding, (2) judicial proceeding, (3) in any other official
proceeding authorized by law, or (4) in the initiation or course of any other
proceeding authorized by law and reviewable pursuant to [statutes governing
writs of mandate],’ with certain statutory exceptions that do not apply to the
present case. The privilege established by this subdivision often is referred
to as an ‘absolute’ privilege, and it bars all tort causes of action except a
claim for malicious prosecution. (Hagberg, supra, 32 Cal.4th at 360.)
“In its application to communications made in a ‘judicial proceeding,’ section
47(b) is not limited to statements made in a courtroom. Many cases have
explained that section 47(b) encompasses not only testimony in court
and statements made in pleadings, but also statements made prior to the filing
of a lawsuit, whether in preparation for anticipated litigation or to
investigate the feasibility of filing a lawsuit. [] As we have said, ‘it is
late in the day to contend that communications with `some relation' to an anticipated lawsuit
are not within the privilege.’ [] Rather, the privilege applies to ‘any
publication required or permitted by law in the course of a judicial proceeding
to achieve the objects of the litigation, even though the publication is made
outside the courtroom [when] no function of the court or its officers is
involved.’” (Hagberg, supra, 32 Cal.4th at 361; citing
Here, Defendant Wing contends “Plaintiff relies on the Veasey
declaration for proof that Deputy Wing told the judicial officer about the 5150
hold.” (Dem., 5.) Defendant Wing further contends that his “alleged disclosure
to the bench officer was in furtherance of pending litigation, and therefore
protected under [section 47(b).]” (Dem., 5.) “Plaintiff admits that deputy Wing
worked in a unit that offered protection to judges. As such, he has collateral immunity
under Civil Code section 47(b)...” (Dem., 4.)
In contending Defendant Wing participated in the alleged conspiracy to
violate Plaintiff’s rights, the FAC continues to rely on the declarations of
judicial officer Veasey and Kelly. (FAC ¶¶19-31.) This court has already
previously found the absolute litigation privilege to extend to both
declarations. (Minute Orders, January 10 and 25, 2023.)
Defendant Wing further argues that any alleged disclosure of the 5150
Hold as the basis of any claims in the FAC are further permitted in sections
5278 and 5328 of the Welfare and Institutions Code. (Dem., 6-10.)
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 § 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)
Welfare Code § 5278
further states, in relevant part:
“Individuals
authorized under this part to detain a person for 72-hour treatment and
evaluation pursuant to Article 1 (commencing with Section 5150) or Article
2 (commencing with Section 5200), or to certify a person for intensive
treatment pursuant to Article 4 (commencing with Section 5250) or Article
4.5 (commencing with Section 5260) or Article 4.7 (commencing with
Section 5270.10) or to file a petition for post-certification treatment
for a person pursuant to Article 6 (commencing with Section 5300) shall
not be held either criminally or civilly liable for exercising this authority
in accordance with the law. (W&I C. § 5278.)
Thus, Defendant
Wing contends that due to the collateral immunity afforded to him under section
47(b)’s litigation privilege, as well as the Welfare Code’s permitted
exceptions for his actions, all claims against him in the FAC must fail. (Dem.,
6-10.)
“Under section
5150, an officer may detain any person the officer determines, ‘as a result of
mental disorder, is a danger to others, or to himself or herself, or gravely
disabled.’ (Cal. Welf. Inst. Code § 5150.) If such a determination is made, the
officer may place the person at a county-designated facility for a ‘72-hour
treatment and evaluation.’ (Id.) The officer's determination
must be based on probable cause. (Id.) Probable cause exists
under section 5150 if facts are known to the officer ‘that would lead a person
of ordinary care and prudence to believe, or to entertain a strong suspicion,
that the person detained is mentally disordered and is a danger to himself or
herself.’” (Bias v. Moynihan, (2007) 508 F.3d 1212, 1220; citing People
v. Triplett, (1983)144 Cal.App.3d 283.) A person’s statements that they
would “kill themselves or hurt others are a basis to make the 5150 hold.”
(Dem., 8; citing Bias, supra.)
In opposition, Plaintiff again reiterates previous arguments regarding
the confidential nature of a 5150 Hold pursuant to section 5328(a) of the
Welfare Code. (Opp., 5-6.) “The disclosures to Veasey were unlawful and
were not made pursuant to Section 5328(a). As stated in Paragraph 127 of the
FAC, Wing is not a judicial officer and therefore cannot decide what is
necessary to the administration of justice. As I have previously argued, it is
a matter for a court to determine if Section 5328(a)(6) [which previously
existed as Section 5328(f)] applies.” (Id.) As this court has previously
explained, this court has used such authority to determine that section 5328(a)(6)
applies to this litigation, and provides broad immunity to the Defendants here,
for their conduct in the course of the underlying litigation and this matter as
well.
Plaintiff further contends “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 and no record was ever regarding authorizing the
disclosure Section 5328(a)(6) provides Defendants no coverage.” (Opp., 6.)
However, Plaintiff fails to point to any authority for supporting that a prior
“authorization” is needed before the immunity provided by subsection (a)(6) can
take effect. Plaintiff’s cited caselaw remains unavailing in these contentions.
For example, Plaintiff relies on People v. Gardner (1984) 151 Cal.App.3d
134, 141 (Gardner) to suggest that the “broad legislative provision for
confidentiality” should be given heightened priority over any concerns for the
“administration of justice.” (Opp., 5-6.) However, the Gardner court
specifically addressed the question of disclosure of the 5150 Hold to
administrative agencies. (Id.) Such circumstances do not exist here. As
this court has repeatedly explained, disclosure of the 5150 Hold was made
during underlying litigation, to the court itself and its judicial officers, as
part of the underlying dispute, where a plain reading of Section 5328(a)(6) can
be found to apply. Further, where that disclosure of the 5150 Hold was made by
a judicial officer, in a communicative method as part of their role in a
litigation, section 47(b)’s absolute litigation privilege has barred all such
claims against Defendants.
Plaintiff further contends generally
that Defendant Wing fails to provide any support that his acts, namely any
alleged disclosures, are protected. (Dem., 6-13.) In reply, Defendant Wing
contends section 5278 of the Welfare Code affords him protection from any
disclosures of the 5150 Hold, which serve as the basis of the claims against
him, as well as a barring of these claims through section 47(b)’s litigation
privilege. (Reply, 2-3.) Defendant further contends that his actions were
“pursuant to a court order” regarding any claims of false imprisonment and
therefore contends that the second through fifth causes of action are entirely
barred section 5278. (Reply, 3-4.) Lastly, Defendant Wing further contends that
the sixth through eighth causes of action’s conclusory claims regarding any
involvement by Defendant Wing further remain insufficient to plead claims
beyond what is statutorily protected. (Reply, 5-6.) The court agrees.
Liberally construing the allegations of the FAC in favor of Plaintiff, the
court agrees with Defendant Wing and finds the claims are insufficiently pled,
as Plaintiff alleges them against an individual, Defendant Wing. Plaintiff has
failed to point to any authority to show how Defendant Wing, in his role as an
officer working for the judiciary, acted in a non-immune manner, as explained
by Section 47(b)’s litigation privilege and sections 5278 and 5328(a)(6) of the
Welfare Code. Plaintiff attempts to cite caselaw to suggest that such
immunities should be narrow in their judicial interpretation, but fails to show
this court that the immunity afforded by the aforementioned sections should not
apply here, even under the requested narrower reading. Therefore, the court also
sustains Defendant Wing’s demurrer to the FAC.
Conclusion
Defendant Wing’s demurrer is sustained, without leave to
amend, except as to the first through fifth causes of action. Plaintiff is
granted 20 days leave to amend the first five causes of action. Defendant Wing is
to provide notice.
Motion
to Strike
Having sustained Defendant Wing’s demurrer to the entirety of the FAC,
Defendant’s motion to strike is now moot.