Case Name: Susan Bassi v. Nat E. Hales

Case No: 18CV336848

I. Background

Plaintiff Susan Bassi (“Plaintiff”) brings this action against defendant Nat E. Hales (“Defendant”) for damages associated with his service as a court-appointed referee in Plaintiff’s marital dissolution case.

According to the allegations of the first amended complaint (“FAC”), Defendant did not disclose that he had a conflict of interest, specifically that he had a history of “prior private judging relationships” with the attorney representing Plaintiff’s husband. (Id. at 7:14-17.) The FAC alleges that this fact was intentionally concealed from Plaintiff, though Defendant had a duty to disclose it. (Id. at 7: 17-21.)

The FAC also alleges that Defendant wrongfully billed and collected fees for his work from the marital community. (FAC, at p. 11.) According to the FAC, the State Bar notified Plaintiff of Defendant’s failure to comply with the Rules of Professional Conduct. (Id. at p. 12.)

In the FAC, Plaintiff seeks return of the funds paid to Defendant and alleges the following causes of action: (1) fraudulent concealment; (2) unconscionable fee; (3) unjust enrichment; and (4) fraudulent business practice under Business and Professions Code section 17200.

Before the Court is Defendant’s demurrer.

II. Request for Judicial Notice

In support of her opposition, Plaintiff requests judicial notice of two court records: (1) a ruling on a demurrer in Santa Clara County case number 17CV320164 from September 21, 2018; and (2) the FAC in the present action.

As the first item is a court record, the court grants Plaintiff’s request for judicial notice. (Ev. Code, § 452, subd. (d).)

It is, however, unnecessary for the court to take judicial notice of the FAC because it is the pleading under review, and as such, must necessarily be considered by the court. Accordingly, the request for judicial notice of the FAC is denied. (See Paul v. Patton (2015) 235 Cal.App.4th 1088, 1091, fn. 1.)

III. Demurrer

Defendant demurs to all four causes of action on the ground of failure to state sufficient facts to constitute a cause of action. (Code Civ. Proc., 430.10, subd. (e).)

In reply, Plaintiff concedes that the second and third causes of action be sustained without leave to amend. She also concedes as the fourth cause of action, but requests it be sustained with leave to amend.

Accordingly, the Court will review the demurrer as to the first and fourth cause of action.

A. Legal Standard

A demurrer tests the legal sufficiency of a pleading, but not the truth of a plaintiff’s allegations or the accuracy with which he or she describes the defendant’s conduct. (Align Technology, Inc. v. Tran (2009) 179 Cal.App.4th 949, 958; citing Committee on Children’s Television Inc. v. General Foods Corp. (1983) 35 Cal.3d 197, 213.) A demurrer reaches only to the contents of the pleading and such matters subject to judicial notice. (Code Civ. Proc. § 430.10, subd. (a); South Shore Land Co. v. Petersen (1964) 226 Cal.App.2d 725, 732, citations omitted.) It is not the ordinary function of a demurrer to test the truth of the plaintiff’s allegations, or the accuracy with which she describes Defendant’s conduct, and the facts alleged are deemed to be true, however improbable. (See Align Technology, Inc. v. Tran, supra, 179 Cal.App.4th 949, 958.)

B. Quasi-Judicial Immunity

Defendant further demurs to the first and fourth causes of action on the basis of quasi-judicial immunity, arguing that while acting as a referee, he was entitled to immunity from civil suit.

“Judges are granted immunity from civil suit in the exercise of their judicial functions.” (Regan v. Price (2005) 131 Cal.App.4th 1491, 1495, citations omitted.) The immunity applies even where the judge’s acts are alleged to be “malicious or corrupt.” (Ibid.) “The privilege of judicial immunity applies not only to judges, but to all persons who act in a judicial capacity, such as…court-appointed referees.” (Ibid.) The immunity applies to “judicial actions” but not to acts that happen to “be done by judges.” (Ibid.)

The facts here allege that Defendant was appointed by the family court judge to act as a referee in Plaintiff’s marital dissolution case. As pleaded, Defendant has judicial immunity from civil suits to the extent that his behavior as alleged was “judicial,” even if allegedly “corrupt.” The FAC alleges Defendant had a conflict of interest which he did not disclose as required under judicial canons and state bar rules. Thus, the basis for the allegations was his allegedly unethical behavior in the exercise of judicial functions as a court-appointed referee. Accordingly, Plaintiff’s causes of action are barred by principles of judicial immunity, and the demurrer must be sustained.

C. Leave to Amend

Plaintiff fails to substantiate her request for leave to amend. (See Hendy v. Losse (1991) 54 Cal.3d 723, 742 [the burden is on plaintiff to demonstrate the manner in which the complaint might be amended].) She merely requests leave to amend, only stating that she “believes that a cause of action” under the Unfair Practices Act and a cause of action under the unfair competition law can be alleged. This conclusory assertion is not sufficient to demonstrate the ability to cure the defects, particularly when they arise from quasi-judicial behavior immune from suit, and it is not apparent how the complaint could be cured. Accordingly, leave to amend will not be granted.

IV. Conclusion

The demurrer to the first cause of action is SUSTAINED on the basis of judicial immunity, without leave to amend.

The demurrer to the second cause of action is SUSTAINED without leave to amend, as conceded by Plaintiff.

The demurrer to the third cause of action is SUSTAINED without leave to amend, as conceded by Plaintiff.

The demurrer to the fourth cause of action is SUSTAINED on the basis of judicial immunity, without leave to amend.