Case Number: BC675836 Hearing Date: April 06, 2018 Dept: 74

MARIA MEZA,

Plaintiff,

vs.

JERRY BROWN, ET AL.,

Defendants

Case No.: BC675836

[TENTATIVE] ORDER SUSTAINING DEMURRERS WITHOUT LEAVE TO AMEND

TENTATIVE RULING:

Judicial Branch Defendants. Defendants Superior Court of California, County of Orange; Hon. Jacki C. Brown; Hon. Gerald G. Johnston; Hon. Ronald P. Kreber; Hon. Salvador Sarmiento; and Heather G. Potter’s demurrer to First Amended Complaint is SUSTAINED without leave to amend.

County Defendants. Defendants County of Orange, Robert Ervais, Lucille Lyon, and Kevin Smith’s demurrer to First Amended Complaint is SUSTAINED without leave to amend.

Request for Judicial Notice

The Judicial Branch Defendants request judicial notice of the August 29, 2017 Supreme Court of California Order assigning the Hon. Ronald P. Kreber, Retired Judge of the Superior Court of California, County of Orange to sit as a Judge of the Superior Court of California, County of Orange from September 1, 2017 to September 29, 2017. (RJN, Ex. A.) County Defendants join in the request. Defendants’ request is GRANTED. (Evid. Code § 452(d) and (h).)

Demurrers

The Judicial Branch Defendants and County Defendants (collectively “Defendants”) demur to the entire FAC. The demurrers share some grounds, and will be addressed together where appropriate.

Late Filed Oppositions

Plaintiff late-filed two oppositions on 4/2/2018. These oppositions were due on 3/23/2018, nine court days before the 4/6/2018 hearing. (CCP § 1005; CRC Rule 3.1300(a).) The court nevertheless has exercised its discretion to consider the opposition. (Id. Rule 3.1300(d).)

No Fifth Cause of Action

As a preliminary matter, the Court notes the caption of the First Amended Complaint (FAC) indicates Plaintiff is asserting five causes of action. However, the body of the FAC does not contain assertions as to the fifth cause of action for conspiracy against rights [42 USC § 1985(3)]. As such, the Court will construe the FAC as asserting only the first through fourth causes of action.

Status of the Individual Defendants as Public Employees

The allegations in the FAC are scarce as to the exact nature and extent of the participation of each defendant in the alleged fraud and conspiracy. The court cannot directly determine from the face of the pleadings and the judicially noticeable documents the precise employment capacity of certain defendants and their relationships to the issues presented. This potentially creates a problem with the demurrers, as they are all premised on the idea that the demurring parties are, in fact, court employees and subject to various immunities and privileges. In opposition, Plaintiff seems to embrace this inadequacy, and argues that it is “uncertain” that Judge Kreber, Lyon, Smith, and Ervais were public employees. (Opp. to Judicial Branch Defendants’ demurrer p. 2 ¶¶ 1-2; Opp. to County Defendants’ demurrer p. 2 ¶¶ 1-4.)

The definition of a public employee is generally the same as a common-law employee and is given the normal everyday meaning of employment, unless otherwise specified by statute in a particular context. (See generally Martinez v. Combs (2010) 49 Cal.4th 35, 65-67.) An employer includes an individual who exercises control over the wages, hours, or working conditions of a person, the employee. (Ibid.) For pleading purposes, employment may be established by general and conclusory allegations. (Accord Barsegian v. Kessler & Kessler (2013) 215 Cal.App.4th 446, 451; See Cal. Prac. Guide Civ. Pro. Before Trial Ch. 6-B ¶¶ 6:152-6:153.)

The court can only determine with certainty, based on the FAC and RJN, that 1) OCSC and the County are public entities; 2) Judge Kreber is a judge of the OCSC (FAC Ex. B; RJN Ex. A); 3) Potter is a clerk of the OCSC (FAC Ex. B); and Ervais was a Deputy County Counsel (Ibid.). All the allegations of the FAC regard Judge Kreber’s participation in the Conservatorship of the Person of E.M., Orange County Superior Court No. 30-2011-00488602 (the “conservatorship action”). (FAC p. 4 ¶ 7.) There are no direct allegations that Judges Brown, Johnston, and Sarmiento are judges of OCSC. Further, there are no direct allegations that Lucille Lyon and Kevin Smith are employees of the County. However, given the nature of the allegations it may be reasonably inferred that each were public employees. (See e.g. FAC pp. 3-4 ¶¶ 5 [all defendants are the employees/agents of each other], 7 [“defendants delegated authority to Ronald Kreber”]; See also C & H Foods Co. v. Hartford Ins. Co. (1984) 163 Cal.App.3d 1055, 1062 [the court may make reasonable inferences from the allegations].) The FAC establishes that the defendants each acted together under the color of law, which indicates they were acting under state authority. (FAC p. 5 ¶ 8; See generally Naffe v. Frey (9th Cir. 2015) 789 F.3d 1030, 1036; See also McDade v. West (9th Cir. 2000) 223 F.3d 1135, 1140.) Additionally, in opposition Plaintiff argues that it is only uncertain whether Judge Kreber, Lyon, Smith, and Ervais were public employees. Plaintiff thus concedes that Judge Brown, Judge Johnston, and Judge Sarmiento are judges of OCSC and thus public employees. The Court concludes these individuals were public employees if, taking the allegations as true, they were the agents/employees of OCSC and the County, acting under the color of law, regarding the conservatorship action.

Absolute Judicial and Quasi-Judicial Immunity

The Judicial Branch Defendants contend the FAC is barred by absolute judicial immunity and quasi-judicial immunity. The Court agrees.

Judicial immunity provides judges with absolute immunity from tort liability in the performance of their judicial duties. (See Mireles v. Waco (1991) 502 U.S. 9, 11-12.) Judicial immunity may only be overcome if the underlying conduct was not performed in a judicial capacity or performed in the complete absence of all jurisdiction. (See id.) An act is considered judicial if the function is normally performed by a judge. (See id. at 12.) The doctrine of quasi-judicial immunity extends absolute judicial immunity to individuals who are acting in a judicial capacity. (See Bergeron v. Boyd (2014) 223 Cal.App.4th 877, 884-85.) Non-judicial individuals who fulfill quasi-judicial functions intimately related to the judicial process have been afforded absolute quasi-judicial immunity for damage claims arising from their performance of duties in connection with the judicial process. (See McClintock v. West (2013) 219 Cal.App.4th 540, 551.)

Plaintiff’s claim is based on Judicial Branch Defendants’ purported misconduct with respect to a conservatorship action in the Orange County Superior Court. (See e.g. FAC ¶¶ 7, 68, 75, 82.) Plaintiff alleges she has a right to full and equal rights and protection of laws and Defendants failed and refused to follow state and federal laws during court litigation. (e.g. FAC ¶ 77.) Plaintiff alleges Judicial Branch Defendants acted under color of law and violated her rights because of her ethnicity and religion. (e.g. FAC ¶ 8.) Based on the allegations, it appears Plaintiff attempts to hold Judicial Branch Defendants liable for decisions and actions they took in performing their duties with respect to the conservatorship action and general judicial process in conferring authority on Judge Kreber. As such, Plaintiff’s claim is barred under absolute judicial immunity and quasi-judicial immunity.

The Court notes Plaintiff’s assertions that Judge Kreber lacked the credentials to act as temporary judge are incorrect. Judge Kreber was appointed as a temporary judge by the Judicial Council. (See RJN, Ex. A.) Article 6, section 6 of the California Constitution specifically authorizes the Judicial Council to assign retired judges to any court. (See Cal. Const., art. 6, § 6(e) (“A retired judge who consents may be assigned to any court.”).) Plaintiff’s assertion that Judge Kreber is not a judge because he is retired is also incorrect. Thus, these assertions cannot show a complete absence of all jurisdiction to overcome judicial immunity. Additionally, the Court also notes that just because Judge Kreber is on inactive status does not mean he is not a licensed attorney. California State Bar rules allow licensed members to change their status to inactive when not practicing law. (See California State Bar Rules, rule 2.30.) State Bar Rule 2.30 specifically permits temporary judges to enroll as inactive members. (See id., rule 2.30(C).) Exhibit A of the FAC thus establishes that Judge Kreber is a licensed attorney.

Based on the foregoing, it is unlikely Plaintiff can successfully amend any cause of action against Judicial Branch Defendants. Accordingly, Judicial Branch Defendants’ demurrer to the entire FAC is SUSTAINED without leave to amend.

Civ. Code § 47 and Govt. Code Immunities and Privileges

The demurring Defendants all assert the First and Second causes of action are barred because each is immune from liability under Civ. Code §47(b).

The Civ. Code § 47(b) “litigation privilege” provides absolute immunity for “publications” or “broadcasts” made in the course of a “judicial (or quasi-judicial) proceeding.” Civ. Code § 47(b)(2) bars any state law claim for relief regarding acts arising from the discharge of an official duty relating to judicial proceedings. (See Tom Jones Enterprises, Ltd. v. County of Los Angeles (2013) 212 Cal.App.4th 1283.) The privilege is broadly worded and doubts are resolved in its favor. (Hawran v. Hixson (2012) 209 Cal.App.4th 256, 283.) Even fraudulent, perjurious and malicious publications and broadcasts are absolutely privileged so long as they are (1) required or permitted by law, (2) made in a judicial or quasi-judicial proceeding (not necessarily in the courthouse), (3) by litigants or other participants authorized by law, (4) to achieve the objects of the litigation and (5) have some connection or logical relation to the action. (Silberg v. Anderson (1990) 50 Cal.3d 205, 212.) Publications “permitted by law” include any category of publication permitted by law, even though the specific publication is not permitted by law. (See Jacob B. v. County of Shasta (2007) 40 Cal.4th 948, 958-959.)

The Judicial Branch Defendants additionally assert they are immune under Govt. Code §§ 820.2, 821.6, and 822.2. Similarly, the County Defendants assert that they are immune under Govt. Code §§ 818.8 and 821.6. These statutes generally apply immunity to public employees and employers from torts committed by public employees acting in the scope of his or her employment, even if acting fraudulently, maliciously, or without probable cause. Additionally, the County argues that it is immune from liability as a public entity, absent the existence of an authorizing statute. (Govt. Code § 815; See Chochran v. Herzog Engraving Co. (1984) 155 Cal.App.3d 405, 409.)

As to the Civ. Code § 47 privilege, Plaintiff’s claim is based on Defendants’ purported misconduct and misrepresentations with respect to a conservatorship action in the Orange County Superior Court. (See e.g. FAC ¶¶ 7, 68.) The generally alleged misrepresentations were made regarding Judge Kreber’s status as a judge/licensed attorney. (FAC ¶¶ 8, 69.) Necessarily, any misrepresentations regarding Judge Kreber’s status as a judge was made in connection with the judicial proceeding to achieve the objects of the litigation—the resolution of the conservatorship. Therefore, the state law claims are barred by the litigation privilege.

As to the Govt. Code immunities, OCSC and the County are public entities. (Govt. Code, § 900.3 [judicial branch]; 900.4 [local public entity].) As discussed above, the individual defendants were all at least public employees of OCSC and/or the County. Just as with the litigation privilege, the allegations establish that the individual defendants were acting in their capacity as public employees. (FAC ¶¶ 7, 68.) Thus, the state law claims are further barred by Govt. Code §§ 820.2, 821.6, and 822.2. Additionally, any claim against the County would need to have an authorizing statute allowing for tort liability. (Govt. Code § 815.) The FAC cites none and there is no opposition.

Based on the foregoing, it is unlikely Plaintiff can successfully amend the First or Second cause of action against Defendants. Accordingly, Defendants’ demurrers to the First and Second causes of action are SUSTAINED without leave.

Government Claims Act

The demurring Defendants all assert the First and Second causes of action are barred because Plaintiff has failed to demonstrate compliance with the Government Claims Act. (Gov. Code §§ 810-996.6.)

“[N]o suit for money or damages may be brought against a public entity on a cause of action for which a claim is required to be presented . . . until a written claim therefor has been presented to the public entity and has been acted upon by the board, or has been deemed to have been rejected by the board . . . .” (Govt. Code, § 945.4.) A failure to timely present a claim for money or damages to a public entity bars a plaintiff from filing a lawsuit against that entity. (City of Stockton v. Superior Court (2007) 42 Cal.4th 730, 738.) The requirement that a claim must be presented to the public entity before commencing an action also applies to actions against public employees acting within the scope of their employment, unless the plaintiff can plead and prove that he did not know or have reason to know that a public employee was the cause of his injury and damages. (See Williams v. Braslow (1986) 179 Cal.App.3d 762, 772-73 (citing Government Code sections 950, 950.2, and 950.4).) A plaintiff is limited to the matters set forth in the claim for which relief was denied. (Nelson v. State of Calif. (1982) 139 Cal.App.3d 72, 75-76.) A complaint is subject to attack by demurrer if the plaintiff fails to include allegations that the plaintiff complied with the claims presentation requirement or that a recognized exception or excuse for noncompliance exists. (See Nasrawi v. Buck Consultants LLC (2014) 231 Cal.App.4th 328, 338.)

As discussed above, Defendants are alleged to be either public entities, public employees, or reasonably inferred to be public employees. (See Govt. Code, § 900.3 [judicial branch]; 900.4 [local public entity]; See also FAC, p. 4 ¶ 7; Ex. B.) Plaintiff’s state tort claims are thus subject to the § 945.4 claims presentation requirement.

The FAC does allege that Plaintiff submitted a claim form pursuant to Gov. Code § 910 and was denied. However, this allegation is conclusory given the specified requirements of Gov. Code § 910, and the requirement that the civil suit is limited only to the matters set forth in the claim for which relief was denied. (See Nelson, supra, 139 Cal.App.3d at 75-76.) Without allegations establishing the nature of the claims presented, the FAC fails to allege compliance with the Government Claims Act. Accordingly, Defendants’ demurrers are SUSTAINED on these grounds.

First Cause of Action – Fraud/Negligent Misrepresentation

The County Defendants demur to the First cause of action for failure to state fraud with the requisite particularity.

Fraud actions are subject to strict requirements of particularity in pleading. (Committee on Children’s Television, Inc. v. General Foods Corp. (1983) 35 Cal.3d 197, 216.) Fraud must be pleaded with specificity rather than with general and conclusory allegations. (Small v. Fritz Companies, Inc. (2003) 30 Cal.4th 167, 184.) The specificity requirement means a plaintiff must allege facts showing how, when, where, to whom, and by what means the representations were made, and, in the case of a corporate defendant, the plaintiff must allege the names of the persons who made the representations, their authority to speak on behalf of the corporation, to whom they spoke, what they said or wrote, and when the representation was made. (Lazar v. Superior Court (1996) 12 Cal.4th 631, 645.)

The elements of a claim for fraud are (1) misrepresentation of a material fact; (2) knowledge of falsity or lack of a reasonable ground for belief in the truth of the representation; (3) intent to induce reliance; (4) actual and justifiable reliance by the plaintiff; and (5) resulting damage. (Orient Handel v. United States Fid. & Guar. Co. (1987) 192 Cal.App.3d 684, 693.) To state a claim for negligent misrepresentation, Plaintiff must allege all of the following: (1) that Defendants represented to Plaintiff that a fact was true; (2) that Defendants’ representation was not true; (3) that although Defendants may have honestly believed that the representation was true, Defendants had no reasonable grounds for believing the representation was true when they made it; (4) that Defendants intended that Plaintiff rely on this representation; (5) that Plaintiff reasonably relied on Defendants’ representation; (6) that Plaintiff was harmed; and (7) that Plaintiff’s reliance on Defendants’ representation was a substantial factor in causing his harm. (Charnay v. Cobert (2006) 145 Cal.App.4th 170, 184-185; CACI 1903.)

Generally, the FAC alleges that misrepresentations were made regarding Judge Kreber’s status as a judge/licensed attorney. (FAC ¶¶ 8, 69.) As the Court previously noted, Judge Kreber was a licensed attorney, and he was permitted to serve as a judge. (See FAC Ex. A; RJN Ex. A.) The FAC does not allege any facts relating to the individual defendants Ervais, Lyon or Smith. The FAC does not state the basis for the claim against the County. There are no facts alleged as to what, how, when, where, to whom, and by what means any misrepresentation was made. There are no allegations regarding Plaintiff’s reliance or how she was damaged. Accordingly, County Defendants’ demurrer is SUSTAINED.

Second Cause of Action – Abuse of Process

The County Defendants demur to the second cause of action for failure to state the use of a process with an ulterior motive against them.

For an abuse of process claim, a plaintiff must allege 1) an ulterior purpose in commencing a process; and 2) willful act in an unauthorized use of the process. (Rusheen v. Cohen (2006) 37 Cal.4th 1048, 1057.) “The common law tort of abuse of process arises when one uses the court’s process for a purpose other than that for which the process was designed. [Citations.] It has been ‘interpreted broadly to encompass the entire range of ‘procedures’ incident to litigation.’ [Citation.]” (Ibid.)

Like the fraud claim, the FAC does not allege any facts relating to the individual defendants Ervais, Lyon or Smith or the basis of the claim against the County. The FAC does not allege that any of the County Defendants utilized a process, and an ulterior motive in using that process. Accordingly, County Defendants’ demurrer is SUSTAINED.

Third Cause of Action – Violation of Civil Rights [42 USC § 1983]

County Defendants contend that the FAC fails to allege any participation by the individual defendants regarding any alleged civil rights violation.

To allege a violation of civil rights under 42 U.S.C. 1983, a plaintiff must plead: 1) plaintiff possessed a constitutional right which was deprived; 2) a municipality policy which amounted to deliberate indifference to the plaintiff’s constitutional right; and 3) the action pursuant to that policy caused a violation of that constitutional right. (Tichinin v. City of Morgan Hill (2009) 177 Cal.App.4th 1049, 1062.) Governmental liability under Section 1983 is confined to deliberate actions done pursuant to official municipal policies causing deprivations of federally protected rights of life, liberty or property. (City and County of San Francisco v. Ballard (2006) 136 Cal.App.4th 381, 406-407.) “A plaintiff seeking recovery under section 1983 must plead more than constitutional “buzzwords” to survive demurrer; allegations must include specific and nonconclusory facts showing defendant’s acts deprived him of a right, privilege or immunity secured by the federal Constitution or federal laws.” (Breneric Assocs. v. City of Del Mar (1998) 69 Cal.App.4th 166, 180; see also Bach v. County of Butte (1983) 147 Cal.App.3d 554, 564 [particularized facts are required to sustain a cause of action]; see CACI 3000, et seq.)

Here, the FAC only generally alleges each defendant failed to disclose that Judge Kreber was a licensed attorney, and this somehow violated her equal protection rights to due process. (FAC ¶¶ 75-78.) The Court again notes that Judge Kreber was a licensed attorney, and that he was permitted to serve as a judge. (See FAC Ex. A; RJN Ex. A.) In any event, the FAC fails to allege any particularized facts as to how either the individual defendants deprived Plaintiff of a right, or what policy of the County deprived Plaintiff’s rights. Accordingly, County Defendants’ demurrer is SUSTAINED.

Fourth Cause of Action – Conspiracy to Participate in Racketeering; Violation of RICO Act under 18 USC § 1962[d]

The demurring Defendants all demur to the Civil RICO claim on the grounds that the FAC fails to establish any pattern of racketeering activity.

The elements of a RICO claim require the plaintiff to plead that the defendant caused injury to the plaintiff’s business or property by engaging in a pattern of racketeering activity in connection with an enterprise that affects interstate commerce. (18 U.S.C. §1962(b) & (c); Gervase v. Superior Court (1995) 31 Cal.App.4th 1218, 1232.) For an act or omission to qualify as racketeering activity, it must be included in the list of activities set forth in title 18 U.S.C. §1961(1). While that list is lengthy, it does not include every criminal or civil wrong a person or entity might commit. (McMartin v. Children’s Institute International (1989) 212 Cal.App.3d 1393, 1406-1407.) In addition, a common element of all actions included in the list is a requirement that the action be criminal in nature, that is, that it be chargeable, indictable, or punishable as a crime. (Gervase, supra, at p. 1232; See also City of Atascadero v. Merrill Lynch, Pierce, Fenner & Smith, Inc. (1998) 68 Cal.App.4th 445, 485 (“Among other things, ‘racketeering activity’ is defined to include any act involving fraud in the sale of securities, or indictable under federal laws prohibiting mail fraud, wire fraud, or interstate transportation of stolen property.”].) To support a claim under RICO, it is not enough that the defendant engaged in a racketeering activity; rather, the plaintiff must also establish a pattern of racketeering activity involving two or more acts. (18 U.S.C. § 1961(5).)

Here, the FAC has failed to state sufficient facts to state this cause of action against Defendants. Plaintiff’s allegations that Defendants violated section 1962(d) by conspiring to conduct or participate in the affairs of an enterprise through a pattern of racketeering are conclusory. There are no facts showing what racketeering activity pursuant to 18 U.S.C. section 1961(1) Defendants engaged in, let alone that Defendants engaged in at least two acts of racketeering activity. There are also no allegations demonstrating Defendants conspired to violate section 1962(a), (b), or (c).

Based on the allegations in the FAC, the Court finds it is unlikely Plaintiff can successfully amend to state this cause of action against Defendants. Therefore, Defendants’ demurrer to the fourth cause of action is SUSTAINED.