2017-00222718-CU-FR

Monique Clarida vs. Trevor Dante Tapscott

Nature of Proceeding: Hearing on Demurrer

Filed By: Nagle, Sharon M.

Defendant the Honorable Barbara Hinton, judge of the Superior Court of California, County of Contra Costa (“Defendant”) demurrer is SUSTAINED in part with leave to amend and OVERRULED in part.

Defendant has indicated the incorrect address in its notice of motion. The correct address for Department 54 of the Sacramento County Superior Court is 813 6th Street, Sacramento, California 95814. Defendant shall notify Plaintiff immediately.

Plaintiff in pro per Monique Y. Clarida (“Plaintiff”) filed her complaint on November 27, 2017, against Defendant and two other defendants alleging fraud, wrongful eviction, and defamation. Plaintiff alleges she entered into an agreement with defendant Trevor Tapscott, apparently the father of her youngest child, to live together and have him pay child support. On or about February 21, 2012, Plaintiff alleges she advised Judge Hinton of Mr. Tapscott’s notarized agreement to pay certain amounts for child support, which Plaintiff contends Judge Hinton should have considered when determining the amount of child support Mr. Tapscott must pay.

Defendant now demurs to each cause of action on the grounds Plaintiff failed to comply with the California Government Claims Act (Gov’t Code §§ 900 et seq.). Defendant further contends even if Plaintiff could allege such compliance, any cause of action is barred by the doctrine of judicial immunity and/or the applicable statute of limitations. Defendant further contends Plaintiff cannot state a cause of action for fraud or defamation as public employee liability is strictly by statute.

Pursuant to the Government Claims Act, a claimant must present a civil complaint for money damages to the court executive officer of that court before filing a lawsuit against a public entity or public employee, including a judicial officer. (Gov’t Code §§ 810.2, 811.2, 811.4, 911.2, 915(c)(1), 945.4, and 950.2.) A claim relating to a cause of action for death or injury to a person or to personal property or growing crops must be presented to the public entity no later than six months after the accrual of the cause of action, and a claim relating to any other cause of action must be presented no later than one year after the accrual of the cause of action. (Govt. Code §911.2(a).) Failure to allege compliance with the presentation requirements of the Act and that the claim has been rejected is fatal to a cause of action. (State v. Superior Court (2004) 32 Cal.4th 1234, 1240-1241.)

Defendant contends the Complaint fails to plead facts demonstrating compliance with the Act and that Plaintiff is time-barred from presenting a claim because her injuries arise from action taken by Defendant in 2012, almost six years ago. Indeed, the complaint does not allege compliance with the Act. Accordingly, the demurrer on this ground is SUSTAINED, but with leave to amend as this is the first challenge to the pleading.

Defendants also demur on the ground that Judge Hinton is entitled to absolute immunity from civil liability for acts performed in her judicial capacity. (City of Santa

Clara v. County of Santa Clara (1969) 1 Cal.App.3d 493, 498.) A judge will not be deprived of immunity even if the action taken was in error, was done maliciously, or was in excess of his authority; rather, he will be subject to liability only when he has acted in the “clear absence of all jurisdiction.” (Stump v. Sparkman (1978) 435 U.S. 349, 356-57.) Here, Plaintiff alleges Judge Hinton was advised about the agreement with Mr. Tapscott, and Judge Hinton should have considered it in making her ruling. Judge Hinton’s action was taken in her official capacity as a judicial officer of the Court, for which she is entitled to absolute immunity. Plaintiff has not set forth any arguments in opposition as to why judicial immunity should not apply to her allegations against Judge Hinton. Accordingly, the demurrer on this ground is SUSTAINED, but with leave to amend as this is the first challenge to the pleading.

Defendant further demurs on the ground that Plaintiff’s complaint is time-barred. The statute of limitations for fraud is three years. (Code Civ. Proc. § 338.) A cause of action for defamation must be filed within one year. (Code Civ. Proc. § 340(c).) A cause of action for wrongful eviction must be filed within either one or three years, depending upon the circumstances. (Code Civ. Proc. §§ 340(a), 338(a).)

Plaintiff alleges Judge Hinton wrongfully ruled on her family law matter in 2012. Plaintiff filed her complaint six years later in November 2017. Therefore, Plaintiff’s complaint against Judge Hinton is barred by the applicable statutes of limitations and the demurrer on this ground is also SUSTAINED, but with leave to amend as this is the first challenge to the pleading.

Lastly, Defendant demurs on the ground that as a public employee Plaintiff must allege a statutory basis for liability. Public entities are not liable for injuries except as otherwise provided by statute. (Gov’t. Code §815(a).) However, employees of public entities are liable to the same extent as a private person, except where immunity is provided by statute. (Gov’t. Code § 820.) Although Defendant contends she is entitled to the same statutory immunity as a public entity, as a public employee, Judge Hinton is liable to the same extent as a private person, unless a specific statutory immunity applies. Accordingly, the demurrer on this ground is OVERRULED.

Although Plaintiff has not argued in opposition that she can cure any of the foregoing defects through amendment, because this is the first challenge to the pleadings, leave to amend is granted.

Plaintiff may file and serve an amended complaint no later than March 26, 2018. Although not required by statute or court rule, Plaintiff is directed to present the clerk a copy of this ruling at the time of filing the amended complaint. Defendant to respond within 30 days; 35 days if the amended complaint is served by mail.