Filed 5/28/20 Bator v. Masunaga CA3

NOT TO BE PUBLISHED

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Siskiyou)

—-

ELLEN BATOR et al.,

Plaintiffs and Appellants,

v.

LAURA MASUNAGA et al.,

Defendants and Respondents.

C084483

(Super. Ct. No. SCCVCVPO20161009)

In 2011 R.B, a minor, was removed from her home following guardianship proceedings. Plaintiffs Ellen Bator, R.B.’s mother, Anthony Bator, R.B’s uncle and “acting father,” and Irene Bator, R.B.’s grandmother filed suit against the defendants alleging R.B. was kidnapped. The trial court sustained the defendants’ demurrer without leave to amend. Proceeding in pro. per., plaintiffs appeal. We shall affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

In 2011, following guardianship proceedings, R.B. was removed from her home and placed under the guardianship of defendants Christine and Courtney Winte. Plaintiffs filed their complaint on August 31, 2016. The complaint spaned over 500 pages and contained 653 counts.

In their complaint plaintiffs alleged R.B. was “kidnapped” and removed from their home in August 2011. According to plaintiffs, the Wintes illegally removed R.B. and Siskiyou County, its agencies, and employees were complicit in the removal. The complaint also named as defendants Judge Laura Masunaga, Commissioner JoAnn Bicego, and probate investigator Virginia Rea (the Judicial Defendants) and Siskiyou County Health and Human Services and county employees Judy Carter, Suzanne Hogue, and Alix Byrd (the County Defendants).

On August 9, 2011, Commissioner Bicego signed documents awarding guardianship of R.B. to Christine Winte. Plaintiffs alleged Judy Carter submitted a report that R.B. was an emotionally abused child on September 1, 2011, while “pretending to be acting within the scope of her employment.” On September 18, 2011, plaintiff Anthony Bator filed for a grievance hearing. Plaintiffs also alleged that in July 2013, Alix Byrd called Anthony Bator and asked if he was still seeking an administrative hearing.

Plaintiffs argued that Child Protective Services (CPS) failed to meet the requirement to hold a grievance hearing within 10 days of Anthony Bator’s request for a hearing. The also claimed CPS also failed to undertake the required six-month followup on R.B. or renew R.B.’s placement five times through 2013.

In addition, plaintiffs claimed that R.B., aided by Christine Winte and therapist Kathy Cullison, invented allegations of sexual abuse by Anthony Bator. Anthony Bator was subsequently arrested in March 2015.

The County Defendants filed a demurrer on January 6, 2017. The demurrer set forth seven grounds for dismissing the complaint: (1) the complaint was barred by the two-year statute of limitations under Code of Civil Procedure section 335.1; (2) the complaint failed to plead compliance with the Government Claims Act; (3) the complaint alleged counts against public entities and employees not based on statute; (4) the complaint failed to allege a private right of action for the statutory counts alleged against the county; (5) the complaint failed to allege any facts to support the 653 counts; (6) the conduct the complaint alleged is absolutely privileged under Civil Code section 47, subdivision (b); and (7) plaintiffs Anthony and Irene Bator are not R.B.’s parents or legal guardians and lacked standing to bring the action.

The Judicial Defendants also filed a demurrer on December 16, 2016.

Plaintiffs filed an opposition, arguing they had standing, were not required to comply with the Government Claims Act, and the defendants did not have immunity. In their opposition, plaintiffs set forth facts for the first time that had not been included in their complaint.

In their reply, the County Defendants responded to plaintiffs’ assertions and pointed out the opposition was not filed in a timely manner, exceeded the maximum page limits, and failed to address all of the arguments set forth in the moving papers.

Following a hearing on the motion, the trial court sustained the County Defendants’ demurrer without leave to amend. The court found plaintiffs filed their complaint in August 2016, three years beyond the applicable two-year statute of limitations under Code of Civil Procedure section 335.1, and did not comply with the mandatory provisions of the Government Claims Act under Government Code sections 810 to 996.6. Plaintiffs failed to comply with the six-month deadline under Government Code section 911.2 and would be unable to amend their complaint to conform with the Government Claims Act.

In addition, the court determined the complaint improperly alleged counts against defendant public entities and employees that were not based on statutory liability, violating Government Code section 815. Plaintiffs failed to allege they have a private right of action to bring their statutory claims against defendant public entities and employees or an exception to any legislative determination that a private right of action should not exist. The complaint failed to allege any factual allegations to support any of the 653 counts in violation of Code of Civil Procedure section 430.010. The allegations stemed from conduct that occurred during or in relation to judicial proceedings and is absolutely privileged under Civil Code section 47, subdivision (b). Finally, the court noted plaintiffs Anthony and Irene Bator are not R.B.’s parents or legal guardians and therefore lacked standing.

Subsequently, the trial court sustained the Judicial Defendants’ demurrer without leave to amend. The court took judicial notice of the court’s minutes related to the guardianship proceedings of R.B. The court also noted that plaintiffs were untimely in attempting to file a first amended complaint and therefore the court ruled on the demurrer to plaintiffs’ initial complaint.

In sustaining the Judicial Defendants’ demurrer, the trial court found plaintiffs failed to plead any private right of action based upon the alleged statutory violations. Plaintiffs’ causes of action accrued in August 2011 and the two-year statute of limitations expired in August 2013. Since plaintiffs were seeking monetary damages from a public entity, they were required to comply with the claims presentation procedure under the Government Claims Act. Plaintiffs’ causes of action alleged in the complaint accrued in August 2011 and therefore plaintiffs were required to present a claim within six months. (Gov. Code, §§ 945.4, 911.2.) Moreover, any cause of action related to Judge Ervin’s ruling of September 2, 2015, must have been filed within six months after the ruling. Plaintiffs failed to do so.

In addition, the court found plaintiffs failed to state facts sufficient to state a claim under Code of Civil Procedure section 430.10, and failed to allege an exception to the immunity conferred by Government Code section 815. Anthony and Irene Bator lacked standing to bring the claims alleged.

Finally, the court found Judge Masunaga’s and Commissioner Bicego’s actions in the underlying matter were protected by the doctrine of judicial immunity. After reviewing the minutes of the guardianship proceeding, the court determined there was no absence of jurisdiction. The actions of Virginia Rea were protected by the doctrine of quasi-judicial immunity.

Following entry of judgment, plaintiffs filed a notice of appeal.

DISCUSSION

Standard of Review

The function of a demurrer is to test the sufficiency of the complaint by raising questions of law. We give the complaint a reasonable interpretation and read it as a whole with all parts considered in their context. A general demurrer admits the truth of all material factual allegations. We are not concerned with the plaintiff’s ability to prove the allegations or with any possible difficulties in making such proof. We are not bound by the construction placed by the trial court on the pleadings; instead, we make our own independent judgment. (Herman v. Los Angeles County Metropolitan Transportation Authority (1999) 71 Cal.App.4th 819, 824.)

Where the trial court sustains the demurrer without leave to amend, we must decide whether there is a reasonable possibility the plaintiff can cure the defect with an amendment. If we find that an amendment could cure the defect, we must find the court abused its discretion and reverse. If not, the court has not abused its discretion. The plaintiff bears the burden of proving an amendment would cure the defect. (Gomes v. Countrywide Home Loans, Inc. (2011) 192 Cal.App.4th 1149, 1153.)

On appeal, a party challenging an order has the burden to show error by providing an adequate record and making coherent legal arguments, supported by authority, or the claims will be deemed forfeited. (See People v. Freeman (1994) 8 Cal.4th 450, 482, fn. 2; Ballard v. Uribe (1986) 41 Cal.3d 564, 574-575; In re S.C. (2006) 138 Cal.App.4th 396, 408.) The rules of appellate procedure apply to plaintiffs even though they are representing themselves on appeal. (Leslie v. Board of Medical Quality Assurance (1991) 234 Cal.App.3d 117, 121.) A party may choose to act as his or her own attorney. We treat such a party like any other party, and he or she “ ‘is entitled to the same, but no greater consideration than other litigants and attorneys. [Citation.]’ ” (Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1247.)

Statute of Limitations

According to plaintiffs they were informed of the actions alleged against them in conjunction with R.B.’s removal on August 9, 2011. Plaintiffs, in their complaint, listed a myriad of torts arising from the alleged failure of the County Defendants and the Judicial Defendants to comply with statutes and regulations governing guardianship and placement of a minor causing plaintiffs’ injury.

Code of Civil Procedure section 335.1 sets forth the applicable statute of limitations: “Within two years: An action for assault, battery, or injury to, or for the death of, an individual caused by the wrongful act or neglect of another.” As the trial court found, plaintiffs filed their complaint in August 2016, three years after the two-year statute of limitations.

Plaintiffs contend the statute of limitations was tolled by the defendants’ delays regarding their grievance hearing and the defendants’ bad faith conduct. According to plaintiffs: “The actions of defendants tolled these proceedings. Bad faith delays, delays before Child Protective Services, the delay review in Superior Court and the arrest of Anthony Bator all toll these proceedings.” Plaintiffs repeatedly refer to the arrest and conviction of Anthony Bator as proof of the County Defendant’s bad faith: “The bad faith of defendants tolled the statute of limitations . . . The defendants alleged horrific crimes committed by Anthony Bator and they had Mr. Bator incarcerated and unable to qualify for bail, before the statutes of limitations expired as well before the court rendered its decision in [the guardianship proceeding]. For a crime that never happened. This is the epitome of bad faith.”

In effect, plaintiffs seek to estop the defendants from asserting the statute of limitations because of their alleged actions in bad faith. In order for plaintiffs to establish that the defendants are estopped from asserting the statute of limitations, they must show: (1) the defendants were apprised of the facts; (2) the defendants intended for their conduct to be acted upon; (3) plaintiffs were ignorant of the true state of the facts; and (4) plaintiffs relied on the conduct to their injury. (Estill v. County of Shasta (2018) 25 Cal.App.5th 702, 710.)

Plaintiffs contend the defendants delayed the administrative hearing for two years: “When the administrative appeal was filed in Superior Court, the judicial defendants and other unknown officials delay [sic] the judicial proceedings for another 1 ½ years.” In their opposition to the demurrer, plaintiffs argued that CPS delayed the requested administrative hearing for two years. In addition, they contended they were entitled to a grievance hearing within 10 days of the guardianship proceedings. According to plaintiffs, they were required to exhaust these administrative remedies before they could file suit.

However, plaintiffs fail to allege any facts to support the allegations supporting their tolling argument. They provide no information as to the identity of any defendant involved in the alleged conduct, when the conduct took place, or the intent of the defendant.

Nor can plaintiffs establish that they were required to exhaust their administrative remedies before filing their complaint. In the wake of the guardianship hearing, plaintiffs requested a grievance hearing and then filed a petition for a writ. Plaintiffs’ complaint for damages sought compensation for the alleged negligence of the defendants, a separate injury. Plaintiffs present no authority for their claim that they were “prejudiced by delays because they could not seek resolution in Superior Court until all administrative remedies were exhausted.”

Plaintiffs also cite two statutes in support of their estoppel claim: Government Code section 911.4, subdivision (c)(2)(B) and Welfare and Institutions Code section 366. We find neither section applicable.

Government Code section 911.4, subdivision (c)(2)(B) provides that an action is tolled for the “period of the delay caused by the failure to make a timely report” when a public entity is “required by statute or other law to make a report of injury, abuse or neglect to either the juvenile court or the minor’s attorney, and that entity or its agency fails to make this report within the time required by the statute or other enactment.” Plaintiffs simply argue “None of the defendants, herein, performed the duties as required by the Welfare Institutions Code. The statutes of limitations are tolled.” However, this section applies to minors either detained or adjudged to be a dependent of the juvenile court. (Gov. Code, § 911.4.) R.B. petitioned the probate court regarding guardianship. R.B. was not a dependent of the juvenile court. Plaintiffs argue “The Probate Court operated without jurisdiction.” In addition, plaintiffs assert “From In re Guardianship of Christian G (2011) 195 Cal.App.4th 581, it is clearly established law that the removal of a child must be done in Juvenile Court, and that any proceedings initiated in Probate Court that court pursuant to Probate Code 1513(c) must refer the dependency issue to Child Protective Services who must proceed with any dependency proceedings in Juvenile Court.” In In re Guardianship of Christian G. an at-risk minor remained in his father’s custody until relatives were appointed as temporary guardians. (In re Guardianship of Christian G., supra, 195 Cal.App.4th at pp. 588-589 (Christian G.).) There was a probate court investigation, but the case was not referred to CPS despite the father’s insistence that only it could take his child. The father objected to the guardianship and litigated the matter. (Id. at pp. 590, 593-595.)

At the time, Probate Code section 1513, subdivision (c) provided: “If the investigation finds that any party to the proposed guardianship alleges the minor’s parent is unfit, as defined by Section 300 of the Welfare and Institutions Code, the case shall be referred to the county agency designated to investigate potential dependencies. Guardianship proceedings shall not be completed until the investigation required by Sections 328 and 329 of the Welfare and Institutions Code is completed and a report is provided to the court in which the guardianship proceeding is pending.” The Christian G. court noted that Probate Code section 1513, subdivision (c) was phrased in mandatory terms and the legislative history supported the conclusion that the referral was mandatory. However, the court also observed the provision was honored “more in the breach than in the observance” and that, while claims of parental unfitness were common in probate guardianships, referrals were rarely made. (Christian G., supra, 195 Cal.App.4th at pp. 603-604.)

Christian G. held that “the probate court, having received information constituting an allegation of unfitness, whether from the investigator’s report or from the pleadings themselves, is directly obligated to order the case referred” to the appropriate child welfare agency. (Christian G., supra, 195 Cal.App.4th at p. 604.) The court reversed the guardianship appointment finding that, under the facts of that case, failure to make the mandatory referral to the child welfare agency was prejudicial to the father. (Id. at pp. 607-611.)

Here, in contrast, the order appointing the guardian was final in 2011 and plaintiffs failed to appeal within the statute of limitations. The guardianship orders cannot be challenged as void since the court had jurisdiction over the parties and the subject matter. (Adoption of Myah M. (2011) 201 Cal.App.4th 1518, 1531.) The failure to refer the case to the department might have been an act in excess of jurisdiction which is valid until set aside and the parties may be precluded from doing so by the passage of time. (People v. Ruiz (1990) 217 Cal.App.3d 574, 584.) We do not find the court deprived plaintiffs of due process.

Welfare and Institutions Code section 366, subdivision (a)(1) states: “The status of every dependent child in foster care shall be reviewed periodically as determined by the court but no less frequently than once every six months, as calculated from the date of the original dispositional hearing, until the hearing described in Section 366.26 is completed.” Plaintiffs contend “No hearing [was] ever held. No rehearing as required in 6 month intervals ever occurred. This tolls the action against the defendants.” Here, R.B. was subject to a guardianship proceeding, not a dependent child in foster care. The statute does not apply.

As the trial court found, plaintiffs failed to comply with the statute of limitations governing their lawsuit. Nor have plaintiffs asserted any successful argument in support of tolling the limitations period. Plaintiffs filed their complaint three years late and provide no basis for amending their complaint to overcome imposition of the limitations period. The trial court did not abuse its discretion in granting the defendants’ demurrers without leave to amend.

Government Claims Act

The trial court found plaintiffs failed to comply with the Government Claims Act pertaining to their causes of action against the County and Judicial Defendants.

Regarding the Judicial Defendants, the court stated: “Plaintiffs seek monetary damages from a public entity and therefore are required to comply with the claims presentation procedure of the Government Claims Act [citation]. Plaintiffs’ causes of action as alleged in the complaint accrued in August 2011 and therefore they were required to present a claim 6 months thereafter. (Cal. Govt. Code § 911.2.) Additionally, if Plaintiffs wanted to pursue causes of action related to Judge Ervin’s ruling on September 2, 2015, they were required to present a claim no later than 6 months after that ruling. Plaintiffs did not present any claims and are now time barred from doing so. Therefore, the demurrer is sustained without leave to amend on this basis.”

The trial court found as to the County Defendants, plaintiffs failed to plead that they complied with the mandatory provisions of the Government Claims Act. They did not comply with the six-month deadline and were unable to amend their complaint to allege compliance with the act.

No suit for money or damages may be brought against a public entity until a written claim has been presented to the entity and has been acted upon. (Gov. Code, § 945.4.) A plaintiff must allege facts either demonstrating or excusing compliance with the claim presentation requirement. Failure to do so renders the complaint subject to a general demurrer for failure to state facts sufficient to constitute a cause of action. (State of California v. Superior Court (2004) 32 Cal.4th 1234, 1243.) With some exceptions not applicable in the present case, these claims procedures also apply to claims related to acts committed by public employees in the scope of their employment. (Rogers v. Centrone (1968) 261 Cal.App.2d 361, 365.)

Plaintiffs argue they are excused from compliance based on the defendants’ bad faith. Once again, in effect, plaintiffs seek to estop the Judicial Defendants and County Defendants from asserting the statute of limitations because of their alleged actions in bad faith. A plaintiff must specifically plead facts to establish the elements of estoppel. (Chalmers v. County of Los Angeles (1985) 175 Cal.App.3d 461, 467.) Plaintiffs merely argue “Plaintiffs have demonstrated adequate facts to justify tolling of the statutes of limitations. Further the plaintiffs demonstrated the bad faith of the defendants [sic] actions.”

Plaintiffs allege no specific facts to demonstrate any bad faith on the part of the defendants which prevented them from presenting a claim within the limitations period. “A complaint which fails to allege facts demonstrating either that a claim was timely presented or that compliance with the claims statute is excused is subject to a general demurrer for failure to state facts sufficient to constitute a cause of action.” (K.J. v. Arcadia Unified School Dist. (2009) 172 Cal.App.4th 1229, 1238.) We find no tolling of the statute of limitations.

Plaintiffs also contend the Judicial Defendants failed to comply with the requirements of Government Code section 53051, which requires public entities to register with the California Secretary of State. Failure to register excuses compliance with the claims presentation requirements. (Gov. Code, § 946.4.) However, as the Judicial Defendants point out, the Siskiyou Superior Court is listed on the Secretary of State’s Roster of Public Officials.

Claims Against Public Entities

A public entity or public employee can only be liable for an injury if liability is provided by statute. (Gov. Code, § 815, subd. (a).) The trial court found plaintiffs’ complaint improperly contains counts against defendant public entities and employees that are not based on statutory liability in violation of Government Code section 815. Plaintiffs also failed to allege they have a private right of action to bring their statutory claims against defendant public entities and public employees. We agree.

Plaintiffs merely argue generic defendants failed to comply with their statutory duties. They state: “There is no basis for the actions of the defendants. In fact the law requires them to perform very specific duties to protect the rights of people in the taking of a child. These defendants failed to do as the law required. Their actions are ultra vires.” However, “direct tort liability of public entities must be based on a specific statute declaring them to be liable, or at least creating some specific duty of care, and not on the general tort provisions . . . .” (Eastburn v. Regional Fire Protection Authority (2003) 31 Cal.4th 1175, 1183.) Plaintiffs cite no such statutes in any of their 653 counts.

Judicial Immunity

Plaintiffs also argue the Judicial Defendants cannot claim immunity because the alleged acts were taken without jurisdiction. According to plaintiffs, the probate court lacked jurisdiction over the guardianship of R.B.

Plaintiffs alleged causes of action based upon actions by Judge Masunaga and Commissioner Bicego in performance of their judicial functions while presiding over the guardianship hearings of R.B. Guardianship is a function of the probate court. (Prob. Code, § 1510 et seq.) Therefore, judicial immunity applies to the actions of both during the guardianship proceedings.

In addition, plaintiffs allege various claims against Investigator Rea based upon her actions during the guardianship proceedings of R.B. The doctrine of judicial immunity has been extended to persons connected with the judicial process and who serve functions integral to the judicial process. (Howard v. Drapkin (1990) 222 Cal.App.3d 843, 854-856.) Such quasi-judicial immunity extends to probate court investigators. (Fisher v. Pickens (1990) 225 Cal.App.3d 708, 712-713.) The allegations against Investigator Rea stem from her duties as an investigator for the court, therefore quasi-judicial immunity bars the claims.

Finally, plaintiffs failed to plead facts supporting their causes of action against the Judicial Defendants. Instead, plaintiffs’ causes of action contain only allegations unsupported by citations to the record. The complaint, devoid of factual allegations, fails to meet Code of Civil Procedure section 425.10, subdivision (a)’s minimal fact pleading requirement.

DISPOSITION

The judgment is affirmed. Respondents shall recover costs on appeal. (Cal. Rules of Court, rule 8.278(a)(1) & (2).)

/s/

RAYE, P. J.

We concur:

/s/

ROBIE, J.

/s/

MAURO, J.