Judge: Mary H. Strobel, Case: 21STCP03264, Date: 2023-05-11 Tentative Ruling

Hon. Mary H. Strobel The clerk for Department 82 may be reached at (213) 893-0530.

Case Number: 21STCP03264    Hearing Date: May 11, 2023    Dept: 82

            Respondent Commission on Judicial Performance (“Respondent”) generally demurs to the petition for writ of mandate filed by Petitioner Brandon Leon Bibbs (“Petitioner”).

Relevant Procedural History

            On September 27, 2021, Petitioner, in pro per, filed a petition for writ of mandate against Respondent.  The petition alleges that Respondent abused its discretion by disregarding various allegations against the honorable judge Lillian Vega Jacobs and closing a complaint against Judge Jacobs on April 1, 2021.

            On March 16, 2023, Respondent filed and served the instant demurrer.  On April 11, 2023, the court continued the hearing on the demurrer to allow Respondent to give proper notice.  On April 11, 2023, Respondent filed and served a notice of continuance of the hearing on demurrer.  No opposition has been received.

Legal Standard – Demurrer

A demurrer tests the sufficiency of a pleading, and the grounds for demurrer must appear on the face of the pleading or from judicially noticeable matters.  (Blank v. Kirwan (1985) 39 Cal.3d 311, 318; Saltarelli & Steponovich v. Douglas (1995) 40 Cal.App.4^th 1, 5.)  “A demurrer tests the pleadings alone and not the evidence or other extrinsic matters.”  (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.) 

The allegations in the petition must be liberally construed in favor of Petitioner on demurrer.  (Mobil Oil Corp. v Exxon Corp. (1986) 177 Cal.App.3d 942, 947.)  A demurrer accepts as true “all material facts properly pleaded and matters subject to judicial notice, but not deductions, contentions, or conclusions of law or fact.” (Stonehouse Homes LLC v. City of Sierra Madre (2008) 167 Cal. App. 4th 531, 538.)  “A demurrer must dispose of an entire cause of action to be sustained.”  (Poizner v. Fremont General Corp. (2007) 148 Cal.App.4th 97, 119.)

Analysis

Notice

The proof of service for the demurrer states that Respondent served the demurrer on Petitioner by regular mail on March 16, 2023.  Petitioner is incarcerated and was served at High Desert State Prison, P.O. Box 3030 Susanville, CA 96127.  That is the mailing address listed on the motion to change venue filed by Petitioner on March 1, 2022, and his Request for a Process Server filed on July 22, 2022.

At the hearing on April 11, 2023, the court concluded that the demurer was not timely served pursuant to CCP section 1005 and continued the hearing for additional notice. 

On April 11, 2023, Respondent filed and served a notice of continuance of the hearing on demurrer.  Service of notice on this date complies with CCP section 1005.

However, the proof of service states that the notice of continuance was served on Petitioner at Centinela State Prison, P.O. Box 731 Imperial, CA 92251-0731.  The proof of service does not show additional service of the demurrer itself.  A notice of change of address for Petitioner has not been filed.  If Petitioner is now housed at a different prison, then it is unclear if he received the demurrer served at High Desert State Prison.

The court will discuss these issues with the parties at the hearing.  If Petitioner was not served with the demurrer, then the matter will need to be continued for additional notice.

Merits

Should the court find notice to be adequate, the court rules on the demurrer as follows.

Respondent contends that Petitioner has not alleged that Commission has “a clear, present, and ministerial duty to investigate [Judge Jacobs] or that any such duty inures to his benefit.”  (Dem. 6.)

There are two essential requirements to the issuance of an ordinary writ of mandate under Code of Civil Procedure section 1085: (1) a clear, present, and ministerial duty on the part of the respondent, and (2) a clear, present, and beneficial right on the part of the petitioner to the performance of that duty. (California Ass’n for Health Services at Home v. Department of Health Services (2007) 148 Cal.App.4th 696, 704.) “An action in ordinary mandamus is proper where … the claim is that an agency has failed to act as required by law.” (Id. at 705.)

“Generally, mandamus is available to compel a public agency's performance or to correct an agency's abuse of discretion when the action being compelled or corrected is ministerial.”  (AIDS Healthcare Foundation v. Los Angeles County Dept. of Public Health (2011) 197 Cal.App.4th 693, 700.)  “‘While, of course, it is the general rule that mandamus will not lie to control the discretion of a court or officer, meaning by that that it will not lie to force the exercise of discretion in a particular manner ... [it] will lie to correct abuses of discretion, and will lie to force a particular action by the inferior tribunal or officer, when the law clearly establishes the petitioner's right to such action.’”  (Flores v. Dept. of Corrections & Rehabilitation (2014) 224 Cal.App.4th 199, 208.) 

Petitioner Has Not Alleged a Legal Duty that May be Enforced by Mandate

Respondent contends that the petition does not state a cause of action because “mandamus cannot be applied to control discretion as to a matter lawfully entrusted to the public agency” and because “controlling statutes and rules specifically vest the Commission with the sole authority to determine whether to commence an investigation against a judge or to dismiss a complaint.”  (Dem. 12.)  Respondent’s arguments are persuasive.

Petitioner alleges he filed a complaint with Respondent about Judge Jacobs “committing a crime of perjury; offering false evidence; obstruction of justice; preparing a false document; causing a false document to be filed; and also violating the code of judicial ethics, canons concerning bias, prejudice, unfair, non-efficient, and arbitrary matters.”  (Pet ¶ 3.)  Petitioner alleges that Respondent abused its discretion by “disregarding” the allegations against Judge Jacobs; by closing the complaint; and by failing to “adequately investigate the whole complaint and seek any sanctions” against Judge Jacobs.  (Id. ¶¶ 3, 6.)  Petitioner seeks a writ of mandate directing Respondent “to revoke the decision to close the complaint.”  (Pet. p. 3, Prayer.) 

Respondent is an independent body within the judicial branch created by article VI, section 8 of the California Constitution.  The Constitution vests Respondent with authority to retire, remove, censure, or admonish a judge, and to disqualify a judge during the pendency of formal proceedings, subject to the review of the California Supreme Court. (Cal. Const., art. VI, §§ 8, 18(b)-(d).)

Respondent has authority to make rules for its investigation and commencement of formal proceedings against judges.  (Id. § 18(i).)  Pursuant to such authority, Respondent has promulgated the Rules of the Commission on Judicial Performance.  As relevant to this case, Rule 109 describes Respondent’s procedures, in pertinent part, as follows:

(a) Receipt of written statement Upon receiving a written statement alleging facts indicating that a judge is guilty of willful misconduct in office, persistent failure or inability to perform the duties of office, habitual intemperance in the use of intoxicants or drugs, or conduct prejudicial to the administration of justice that brings the judicial office into disrepute, or that the judge has a disability that seriously interferes with the performance of the duties of office and is or is likely to become permanent, or that the judge has engaged in an improper action or a dereliction of duty, the commission may:

(1) In an appropriate case, determine that the statement is obviously unfounded or frivolous and dismiss the proceeding;

(2) If the statement is not obviously unfounded or frivolous, make a staff inquiry to determine whether sufficient facts exist to warrant a preliminary investigation; or

(3) If sufficient facts are determined in the course of a staff inquiry or otherwise, make a preliminary investigation to determine whether formal proceedings should be instituted and a hearing held.

The California Constitution and the Rules of the Commission on Judicial Performance (“Rules”), including Rule 109, do not create a mandatory duty for Respondent to investigate and discipline a judge any time a complaint is filed.  Rather, Respondent has discretion, within the procedures set forth in the Rules, to determine the appropriate action in response to a complaint. 

Petitioner seeks a writ directing Respondent to exercise its enforcement discretion under the Rules in a particular manner, specifically, to reopen the complaint against Judge Jacobs.  Mandamus is not available for this purpose. (Flores, supra, 224 Cal.App.4th at 208.) 

Furthermore, “an agency's decision not to prosecute or enforce, whether through civil or criminal process, is a decision generally committed to an agency's absolute discretion…. This recognition of the existence of discretion is attributable in no small part to the general unsuitability for judicial review of agency decisions to refuse enforcement.”  (Heckler v. Chaney (1985) 470 U.S. 821, 831.)   

This principle applies in both civil and criminal matters in which an agency or public officer has enforcement discretion.  Thus, the Court of Appeal has summarized examples in which mandamus is not available, as follows: “The discretion to file criminal charges is conferred upon a public prosecutor. A court has no authority to compel the prosecutor to file charges, regardless of the strength of the evidence. [Citation.] Likewise, ‘[t]he decision of the Attorney General whether to participate in a lawsuit, where the State has no financial interest at stake nor possible liability, is a decision purely discretionary and, like decisions regarding the prosecution and conduct of criminal trials, exclusively within the province of the Attorney General's office and not subject to judicial coercion.’”  (People v. Karriker (2007) 149 Cal.App.4th 763, 786; accord People v. Cimarusti (1978) 81 Cal.App.3d 314, 322-323; Dix v. Sup.Ct. (1991) 53 Cal.3d 442, 451; Gananian v. Wagstaffe (2011) 199 Cal.App.4th 1532, 1545-1546.) 

Respondent’s constitutional authority to investigate and discipline a judge falls squarely within the scope of this case law.  The court cannot compel Respondent to exercise its enforcement discretion in a particular manner.  Accordingly, the demurrer is sustained.

Petitioner Has Not Alleged a Beneficial Interest

Respondent contends that Petitioner “does not have a direct beneficial interest in the Commission’s performance of its constitutional duties” and therefore has not pleaded standing to sue.   (Dem. 14.)  The court agrees.

 To have standing to seek a writ of mandate, a party must be “beneficially interested.”  (CCP § 1086.) “A petitioner is beneficially interested if he or she has some special interest to be served or some particular right to be preserved or protected over and above the interest held in common with the public at large.”  (Rialto Citizens for Responsible Growth v. City of Rialto (2012) 208 Cal. App. 4th 899, 913; accord Carsten v. Psychology Examining Com. (1980) 27 Cal.3d 793, 796-97.) “This standard … is equivalent to the federal ‘injury in fact’ test, which requires a party to prove by a preponderance of the evidence that it has suffered ‘an invasion of a legally protected interest that is '(a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical.'’”  (Associated Builders and Contractors, Inc. v. San Francisco (1999) 21 Cal.4th 352, 361-362.)  “One who is in fact adversely affected by governmental action should have standing to challenge that action if it is judicially reviewable.”  (Save the Plastic Bag Coalition v. City of Manhattan Beach (2011) 52 Cal.4th 155, 165.) 

Here, Petitioner alleges that he is beneficially interested in the requested writ because “he is the complainant” against Judge Jacobs.  (Pet. ¶ 4.)  However, Petitioner does not allege that he has any legally protected interest in how Respondent exercises its enforcement discretion or that he has some special interest in the enforcement of Respondent’s duties “over and above the interest held in common with the public at large.”  (Rialto Citizens, supra, 208 Cal.App.4th at 913.)   To the extent Petitioner implies that Judge Jacobs committed judicial error or other wrongdoing in a case in which he is a party, there is a presumption that Petitioner has an adequate remedy in an appeal from that ruling.  (See Phelan v. Sup. Ct. (1950) 35 Cal.2d 363, 370.)  Petitioner pleads no facts overcoming that presumption. 

Petitioner has not alleged a beneficial interest in the requested writ.  Accordingly, for this additional reason, the demurrer is sustained.

Leave to Amend

A demurrer may be sustained without leave to amend when there is no reasonable possibility that the defect can be cured by amendment.  (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)  Courts generally allow at least one time to amend a complaint after sustaining a demurrer.  (McDonald v. Superior Court (1986) 180 Cal.App.3d 297, 303.)  In assessing whether leave to amend should be granted, the burden is on the complainant to show the court that a pleading can be amended successfully.  (Goodman v.  Kennedy (1976) 18 Cal.3d 335, 348-349.) 

This is the court’s first ruling on demurrer, which generally weighs for granting leave to amend.  At the hearing, the court will discuss with the parties whether leave to amend should be granted. 

Conclusion

The demurrer is sustained.  The court will discuss with the parties at the hearing whether leave to amend should be granted.