Filed 7/14/20 Calhoon v. Mejia CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION THREE

ERNEST CALHOON,

Plaintiff and Appellant,

v.

MIA MEJIA et al.,

Defendants and Respondents.

G055915

(Super. Ct. No. 30-2015-00790365)

O P I N I O N

Appeal from a judgment of the Superior Court of Los Angeles County, Howard L. Halm, Judge. (Judge of the L.A. Sup. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed.

Ernest Calhoon, in pro. per., for Plaintiff and Appellant.

Koeller, Nebeker, Carlson & Haluck, Zachary M. Schwartz and William L. Haluck for Defendants and Respondents County of Orange, Michael Wagner, and Ryan Gish.

Benton, Orr, Duval & Buckingham and Kevin M. McCormick for Defendants and Respondents Judge Lon F. Hurwitz, Judge Donald F. Gaffney, and Mia Mejia.

* * *

Plaintiff Ernest Calhoon appeals from a judgment in favor of defendants Orange County Superior Court Judge Lon Hurwitz, Orange County Superior Court Judge Donald Gaffney, and Mia Mejia (the Judicial Branch Defendants) as well as the County of Orange (the County), Michael Wagner, and Ryan Gish (the County Defendants). He contends the court erred by sustaining defendants’ demurrers to his complaint without leave to amend.

According to plaintiff’s operative complaint, a juvenile court clerk refused to file documents plaintiff attempted to file on behalf of his client. The clerk then allegedly claimed to the courthouse bailiffs that plaintiff threatened to kill her with a gun. The complaint alleged this statement was defamatory and published among courthouse personnel. As a result, plaintiff claimed his reputation was damaged. He filed suit for defamation and violation of civil rights under Title 42 United States Code section 1983, among other causes of action.

The court sustained defendants’ demurrers to the complaint without leave to amend. According to the court, the claims against the Judicial Branch Defendants were barred by absolute judicial immunity and quasi-judicial immunity. The court also held the claims against the County Defendants were not supported by sufficient facts and were barred by Government Code section 815, subdivision (a). For the reasons below, we agree with the court’s reasoning and affirm the judgment.

FACTS

The Second Amended Complaint

In October 2016, plaintiff filed the operative second amended complaint (SAC) against the Judicial Branch Defendants and the County Defendants. The SAC alleged plaintiff, who is an attorney, attempted to file documents on behalf of his client at the juvenile dependency court in May 2014. After Mejia, a juvenile court clerk, refused to file the documents, plaintiff requested the documents be “filed on demand.” Mejia allegedly denied plaintiff’s request and falsely claimed to the courthouse bailiffs that plaintiff threatened to kill her with a gun. Plaintiff believed Mejia pressed a panic alarm to notify the bailiffs. According to the SAC, Mejia’s false statement about plaintiff and her act of pressing the panic alarm were defamatory.

The SAC further alleged plaintiff learned about two years later that Mejia’s defamatory statement was “published through word of mouth among the other employees of the Courthouse, including, but not limited to the Honorable Lon Hurwitz [and] the Honorable Donald Gaffney . . . .” As a result of the “ex parte” dissemination of Mejia’s statement to judicial officers, the SAC alleged plaintiff’s reputation was damaged, and he was subject to biased opinions at the court. The SAC claimed the County was implicated as well: “[T]he training and procedures utilized by the [County Defendants] facilitate and encourage said violations of civil rights in violation of equal protection and due process in blocking the right to even file papers or to be heard in a United States Courtroom . . . and for having impermissible ex-parte communications with Superior Court Judges creating ‘star chamber’ proceedings . . . .” Finally, without any additional details, the SAC alleged Gish, an Orange County Sheriff’s Deputy, “physically battered [p]laintiff on or about January 5, 2015.”

Based on the above allegations, the SAC alleged causes of action for: (1) slander, (2) libel, (3) intrusion, (4) intentional infliction of emotional distress, (5) assault, battery, and false imprisonment, and (6) violation of civil rights under Title 42 United States Code section 1983 (the Section 1983 claim). The claims were alleged against all of the defendants except the fifth cause of action for assault, battery, and false imprisonment, which was alleged only against Gish.

Defendants’ Demurrers and Plaintiff’s Proposed Amendment

In the following months, the Judicial Branch and County Defendants filed their demurrers to the SAC. Among other things, the Judicial Branch Defendants argued the claims against Judge Hurwitz and Judge Gaffney were barred by absolute judicial immunity while the claims against Mejia were barred by quasi-judicial immunity. They also argued the claims were barred because the conduct at issue was privileged pursuant to Civil Code section 47, subdivision (b) and Government Code section 821.6. The County Defendants argued the County was immune from liability pursuant to Government Code section 815. They also argued plaintiff failed to plead sufficient facts to support his causes of action.

In May 2017, plaintiff filed a proposed amendment to the SAC based in part on Wagner’s deposition testimony. The proposed amendment included allegations that Wagner, a lieutenant at the Orange County Sheriff’s Department who was responsible for court security, admitted he had spoken to a judge about plaintiff and wrote a letter to another judge about plaintiff. The proposed amendment also alleged “[t]he defamation . . . was admittedly spread, among other ways, in a repeated fashion over a significant period of time through 6:30 AM and 8:00 AM Daily ‘briefings’ which included 50 or 60 Deputies.” The proposed amendment further alleged Frank [Barbaro], a “Democratic Party operative in Orange County,” informed plaintiff that Judge Hurwitz told him at a private party plaintiff was dangerous and causing problems at the court. Finally, the proposed amendment alleged Gish and two other deputies attempted to corner plaintiff “into the little space between the courtroom and the hall . . . and did for a minute or so before [plaintiff] asked whether [he] was under arrest and they said no so [he] said [he] was leaving and did . . . .” Plaintiff ultimately was able to leave, but “Gish [allegedly] threw his should[er] into [plaintiff] as [he] was trying to move away from them.”

The Court’s Order and Judgment

In October 2017, the court sustained defendants’ demurrers without leave to amend. With respect to the Judicial Branch Defendants, the court held plaintiff’s claims against Judge Hurwitz and Judge Gaffney were barred by absolute judicial immunity because the SAC alleged they were serving as judges at the time of the incident. The court similarly found quasi-judicial immunity barred the claims against Mejia because her alleged reporting of a death threat was an act closely related to courthouse security, which was an integral part of the judicial process. The court additionally held the claims against Mejia were barred by Government Code section 820.2 because her reporting of a death threat was a discretionary act.

With respect to the County Defendants, the court found the SAC failed to allege any specific factual allegations regarding the County or Wagner. The court also held Government Code section 815, subdivision (a) barred the tort claims against the County. As to the Section 1983 claim, the court found plaintiff failed to identify any official county policy or custom that caused a constitutional deprivation. Finally, the court found plaintiff’s opposition brief implied he was only asserting a Section 1983 claim and a claim for assault, battery, and false imprisonment against Gish. But the court held those claims were not supported by sufficient facts.

With respect to plaintiff’s proposed amendment, the court held “[p]laintiff . . . presented no reasonable possibility of curing the SAC’s defects” regarding the Judicial Branch Defendants. As to the County Defendants, the court held plaintiff could not “overcome [the] County’s immunity from the tort claims” and did not “propose additional facts beyond conclusions to establish a claim under [section] 1983.” The court also found plaintiff’s additional proposed allegations that Wagner spoke to a judge about plaintiff and wrote a letter to another judge about plaintiff were insufficient to state a defamation claim. Moreover, the court found these communications were privileged under Civil Code section 47. The court accordingly sustained the demurrers without leave to amend and entered judgment in January and February 2018.

DISCUSSION

Calhoon contends the court erred by sustaining defendants’ demurrers without leave to amend. He generally claims absolute judicial immunity and quasi-judicial immunity do not apply to bar his claims against the Judicial Branch Defendants. He also argues the SAC adequately alleges a Section 1983 claim against the County for negligently training its officers. He further contends the SAC alleges a conspiracy under section 1983 against Wagner and Mejia. For the reasons below, we disagree with each of plaintiff’s contentions.

Standard of Review

“On appeal from a judgment after an order sustaining a demurrer, we review the order de novo, exercising our independent judgment on whether the complaint states a cause of action as a matter of law. [Citation.] We give the complaint a reasonable interpretation, reading it as a whole and viewing its parts in context. [Citation.] We deem all properly pleaded material facts as true. [Citation.] We must also accept as true those facts that may be implied or inferred from those expressly alleged.” (McMahon v. Craig (2009) 176 Cal.App.4th 1502, 1508-1509.)

“While the decision to sustain . . . a demurrer is a legal ruling subject to de novo review on appeal, the granting of leave to amend involves an exercise of the trial court’s discretion.” (McMahon v. Craig, supra, 176 Cal.App.4th at p. 1509.) “The plaintiff bears the burden of proving there is a reasonable possibility of amendment. [Citation.] The plaintiff may make this showing for the first time on appeal. [Citations.] [¶] To satisfy that burden on appeal, a plaintiff ‘must show in what manner he can amend his complaint and how that amendment will change the legal effect of his pleading.’ [Citation.] The assertion of an abstract right to amend does not satisfy this burden. [Citation.] The plaintiff must clearly and specifically set forth the ‘applicable substantive law’ [citation] and the legal basis for amendment, i.e., the elements of the cause of action and authority for it. Further, the plaintiff must set forth factual allegations that sufficiently state all required elements of that cause of action. [Citations.] Allegations must be factual and specific, not vague or conclusionary.” (Rakestraw v. California Physicians’ Service (2000) 81 Cal.App.4th 39, 43-44.) If the plaintiff fails to meet his or her burden, “there is no basis for finding the trial court abused its discretion . . . .” (Id. at p. 44.)

Plaintiff’s Claims against the Judicial Branch Defendants are Barred

“The concept of judicial immunity is long-standing and absolute, with its roots in English common law. It bars civil actions against judges for acts performed in the exercise of their judicial functions and it applies to all judicial determinations, including those rendered in excess of the judge’s jurisdiction, no matter how erroneous or even malicious or corrupt they may be. [Citations.] The judge is immune unless ‘he has acted in the clear absence of all jurisdiction.’ [Citation.] Beyond doubt, the doctrine of ‘civil immunity of the judiciary in the performance of judicial functions is deeply rooted in California law.’” (Howard v. Drapkin (1990) 222 Cal.App.3d 843, 851-852, fn. omitted.)

Judicial immunity generally “‘“exists for ‘judicial’ actions; those relating to a function normally performed by a judge and where the parties understood they were dealing with the judge in his official capacity. [Citations.]” [Citation.] Thus, the line is drawn “between truly judicial acts, for which immunity is appropriate, and acts that simply happen to have been done by judges. Here, as in other contexts, immunity is justified and defined by the functions it protects and serves, not by the person to whom it attaches.”’” (Regan v. Price (2005) 131 Cal.App.4th 1491, 1495-1496.)

Here, plaintiff alleges Judge Hurwitz and Judge Gaffney were involved in publishing the defamatory statement regarding plaintiff’s alleged death threat through word of mouth at the courthouse. As the court correctly held, “Plaintiff’s claims . . . arise from their duties as superior court judges and involve matters for which they had jurisdiction and power to maintain orderly proceedings and control the conduct of the people coming before them.” (Code Civ. Proc., § 128, subds. (a)(3), (a)(5) [providing courts with the power to provide for the orderly conduct of proceedings and to control the conduct of people connected with a judicial proceeding].) It also is well established that “[a] trial court has broad power to maintain courtroom security and orderly proceedings.” (People v. Hayes (1999) 21 Cal.4th 1211, 1269.) Because plaintiff’s allegations arise from acts taken by Judge Hurwitz and Judge Gaffney in their function as Superior Court judges, plaintiff’s claims against them are barred by absolute judicial immunity.

On appeal, plaintiff does not raise any specific arguments regarding Judge Gaffney. Instead, plaintiff points to an allegation in his proposed amendment alleging Judge Hurwitz told Barbaro that plaintiff was a physical danger and was causing trouble at the courthouse. Because the statement was made outside the courthouse and “had nothing to do with any case before the judge,” plaintiff claims it was nonjudicial conduct and not subject to any immunity. But other than the alleged location of this conversation—a private party—plaintiff’s proposed amendment provides no facts suggesting the conduct did not occur in Judge Hurwitz’s judicial capacity. Nor does plaintiff’s proposed amendment even allege the statement was false, much less that it was unprivileged. (See Sanders v. Walsh (2013) 219 Cal.App.4th 855, 862 [“‘The elements of a defamation claim are (1) a publication that is (2) false, (3) defamatory, (4) unprivileged, and (5) has a natural tendency to injure or causes special damage’” (italics added)].)

Plaintiff thus fails to meet his burden of “clearly and specifically [setting] forth the ‘applicable substantive law’ [citation] and the legal basis for amendment, i.e., the elements of the [defamation] cause of action and authority for it.” (Rakestraw v. California Physicians’ Service, supra, 81 Cal.App.4th at 43-44.)

With respect to Mejia, plaintiff contends Mejia was not engaged in any judicial or discretionary function when she reported plaintiff’s alleged death threat to bailiffs, so her conduct was not protected by any immunity. Contrary to plaintiff’s assertions, the allegations arise from Mejia’s capacity as a court clerk. Her alleged reporting of a violent statement made by plaintiff in the courthouse is closely related to an integral part of the judicial process—courthouse security. “The privilege of judicial immunity applies not only to judges, but to all persons who act in a judicial capacity . . . .” (Regan v. Price, supra, 131 Cal.App.4th at p. 1495.) Thus, the doctrine of quasi-judicial immunity covers “‘nonjudicial persons who fulfill quasi-judicial functions intimately related to the judicial process.’” (Howard v. Drapkin, supra, 222 Cal.App.3d at p. 857.) This includes court clerks like Mejia. (In re Castillo (9th Cir. 2002) 297 F.3d 940, 952.)

The trial court also concluded that Mejia has the additional protection under the statutory immunity provided by Government Code section 820.2, which states: “Except as otherwise provided by statute, a public employee is not liable for an injury resulting from his act or omission where the act or omission was the result of the exercise of the discretion vested in him, whether or not such discretion be abused.” Plaintiff responds by arguing Mejia’s failure to file plaintiff’s documents “on demand” is a “purely ministerial act” and thus not protected by Government Code section 820.2.

In determining whether the SAC states facts constituting a cause of action, we note that Mejia’s failure to file plaintiff’s documents is not the gravamen of the SAC. The gravamen of each of plaintiff’s purported causes of action (except possibly the Section 1983 claim) are the alleged “Defamatory Statements” which plaintiff defines in the SAC as Mejia’s report to courthouse bailiffs that plaintiff had threatened her with a gun, and the related act of pressing a panic button to accomplish the report. Mejia’s alleged failure to file plaintiff’s documents “on demand” is not alleged to be a cause of damage in the SAC’s causes of action for slander, libel, intrusion, and intentional infliction of emotional distress. Mejia’s conduct in refusing to file plaintiff’s documents is simply not germane to the alleged causes of action for slander, libel, intrusion, and intentional infliction of emotional distress. The alleged conduct is merely background information, not the alleged cause of damage. And the alleged act of notifying the bailiffs of a perceived threat is surely discretionary, not ministerial, and thus immune under both Government Code section 820.2 and under the doctrine of quasi-judicial immunity.

The cases plaintiff cites in his effort to overcome quasi-judicial immunity are inapposite. In Rojas v. Cutsforth (1998) 67 Cal.App.4th 774, a statute of limitations case, the court noted the clerk had “no discretion to reject a complaint that substantially conforms to the local rules.” (Id. at p. 777.) Rojas did not address quasi-judicial immunity, and, as explained ante¸ the gravamen of plaintiff’s claims is Mejia’s alleged report of the threat, not her failure to file the documents. In Duvall v. County of Kitsap (9th Cir. 2001) 260 F.3d 1124, the court found there was a genuine issue of material fact as to whether a court administrator was exercising a quasi-judicial function when she refused to provide a videotext display to a hearing-impaired individual. (Id. at p. 1134.) The court emphasized there was deposition testimony “strongly suggest[ing] that her decision . . . was administrative in nature.” (Ibid.) Similar facts do not exist here. Mejia’s report of the alleged threat was not “administrative” or “ministerial.” It was a discretionary act in furtherance of courthouse security. In Snyder v. Nolen (7th Cir. 2004) 380 F.3d 279, the court found the clerk’s act of “extracting from the files . . . a previously filed case and returning it to the litigant without any judicial action” was not subject to any immunity. (Id. at p. 288.) Again, similar facts do not exist here. Mejia was sued for her act of reporting the perceived threat, not for her act of rejecting the filing of documents.

Finally, plaintiff attempts to support his Section 1983 claim by asserting that Mejia conspired with Wagner to deny him access to the courts. But the actual allegations in the SAC are entirely conclusory in that regard. The SAC fails to allege an agreement between Mejia and Wagner to deny plaintiff access to the courts and fails to allege that plaintiff was in fact denied access to the courts. Court clerks are normally required to reject papers not complying with the rules of court. (See fn. 3, ante.) Plaintiff does not allege that any perceived defect in his papers could not be easily cured, as is the case with most rejected filings. It would be a rare instance indeed if the failure to comply with court rules resulted in a denial of access to the courts, and plaintiff does not allege, or explain, in what manner his access was denied.

For the above reasons, the court did not err by sustaining the Judicial Branch Defendants’ demurrer without leave to amend on the grounds of absolute judicial immunity, quasi-judicial immunity, Government Code section 820.2, and plaintiff’s failure to state facts sufficient to support his Section 1983 claim.

Plaintiff’s Claims against the County Defendants are Barred

On appeal, plaintiff raises only one substantive argument regarding the County. He claims the SAC adequately alleges a Section 1983 claim for municipal liability against the County because the County negligently trained its officers. But the County can only be liable if plaintiff’s constitutional rights were violated as a result of an official policy or custom, and the SAC fails to identify any official policy or custom that deprived plaintiff of any constitutional right. (Monell v. Dept. of Soc. Serv. of City of N.Y. (1978) 436 U.S. 658, 690-694.) Plaintiff’s assertion that the County negligently trained its officers is entirely conclusory. The only mention of training in the SAC is the bare allegation that “the training and procedures utilized by the Defendants facilitate and encourage . . . violations of civil rights in violation of equal protection and due process . . . .” That simply does not suffice to adequately allege an official policy or custom.

With respect to the defamation claim, a heading in plaintiff’s opening brief states, “Adequate facts have been alleged to constitute state claims of defamation against . . . the County of Orange.” Other than this conclusory statement, plaintiff raises no substantive arguments as to the County. Regardless, as the court correctly held, the County is immune from liability for any defamation claim. Government Code Section 815, subdivision (a), states: “Except as otherwise provided by statute: (a) A public entity is not liable for an injury, whether such injury arises out of an act or omission of the public entity or a public employee or any other person.” Here, the SAC fails to plead any specific statute providing for the County’s liability.

With respect to Wagner, plaintiff claims Wagner and Mejia were involved in a conspiracy to deny plaintiff access to the courts and due process, which he asserts supports the Section 1983 claim. He also appears to suggest they were involved in a conspiracy “by lying or concealing evidence.” But he points to no allegation in the SAC suggesting an agreement or meeting of the minds between Wagner and Mejia. (Choate v. County of Orange (2000) 86 Cal.App.4th 312, 334 [To prove a conspiracy under section 1983, the plaintiff must show a “meeting of the minds” to violate constitutional rights].) His contention accordingly is entirely conclusory. Likewise, plaintiff’s argument that he “has good reason to believe that Wagner is lying about not hearing about these lies about the gun, and lying about not repeating these lies” is entirely unsupported by the SAC’s factual allegations.

Finally, plaintiff does not raise any arguments regarding Gish on appeal. He simply summarizes that he asserted a claim for assault, battery, and false imprisonment against Gish and notes that he was physically confronted by Gish on one occasion. Other than these factual recitations, he does not include any supporting argument. Any claims against Gish accordingly are waived and we need not address them. (McComber v. Wells (1999) 72 Cal.App.4th 512, 522.)

For the above reasons, the court did not err by sustaining the County Defendants’ demurrer without leave to amend.

Plaintiff has Waived his Claims of Additional Purported Errors

At the end of his opening brief, plaintiff presents a series of confusing and incoherent arguments regarding additional errors allegedly committed by the court. He claims these errors included: (1) “[p]rospectively ordering that no CCP 170 may be filed against [the court]”; (2) “[f]ailing to [a]ddress CCP 170 challenge(s) within 10 days[, which] is a waiver and consent to disqualification”; (3) “[f]ailing to order the case transferred from Orange County to Los Angeles”; (4) “failing to grant a continuance necessary to attempt to obtain all records from the court file to give the court the documents it needed to consider”; (5) “[f]ailing to file and consider [p]laintiff’s filings relevant to pending demurrers”; (6) “[t]he improper assignment of the case to Dept. 93 in Los Angeles, and then the trial judge taking the case with him to Dept. 53 contrary to standard courthouse procedure where the judge in Dept. 93 should have kept the case”; and (7) “[m]aking discovery orders and for monetary sanctions under this cloud despite that jurisdictional time limits were missed by defendants to bring motions to compel at all.” Although plaintiff makes some citations to the record, his arguments are not cognizable or supported by legal authority. This case is about a sustained demurrer—that is all. “We may and do ‘disregard conclusory arguments that are not supported by pertinent legal authority . . . .’” (United Grand Corp. v. Malibu Hillbillies, LLC (2019) 36 Cal.App.5th 142, 153.)

DISPOSITION

The judgment is affirmed. The Judicial Branch Defendants and County Defendants shall recover their costs incurred on appeal.

IKOLA, J.

WE CONCUR:

O’LEARY, P. J.

MOORE, J.