Case Number: BC522281 Hearing Date: April 21, 2014 Dept: 34

Moving Party: Defendants Dean C. Logan; LeRoy David Baca; and John A. Clarke

Resp. Party: Plaintiff Tomer Kogman [to the demurrer of Logan and Baca only]

The demurrers of defendants Logan and Baca and of defendant Clark to plaintiff’s first amended complaint are SUSTAINED WITHOUT LEAVE TO AMEND.

PRELIMINARY COMMENTS:

In a previous lawsuit, Briarcliffe Homeowners Association obtained a default judgment against Kogman. Kogman claims that service was defective, and he was unable to appear and contest the case. In this case, plaintiff Kogman is suing Briarcliffe (and others) for damages arising out of their attempt to foreclose on his home as a result of the previous default judgment.

In addition to suing Briarcliffe, Kogman has also sued three L.A. County officials – the Los Angeles Registrar-Recorder, the Los Angeles Sheriff, and the Los Angeles Superior Court Clerk – for their ministerial actions in accepting, recording and/or acting upon legal documents that had been filed in the underlying lawsuit.

The issue raised by the demurrers of these three officials does not go to the merits of Kogman’s underlying lawsuit against Briarcliffe. Rather the issue in these demurrers is whether County officials – acting solely in their ministerial and official capacities – can be sued for accepting, maintaining in their records, or acting upon these allegedly invalid documents – documents that are admittedly part of the Court’s file in the underlying case and which lead to a judgment that has not been vacated.

The answer is “no” and hence the demurrers are granted without leave to amend.

However, the granting of these demurrers does not affect Kogman’s underlying lawsuit. As Kogman himself notes in his opposition, “even if the demurrer is granted without leave to amend, this action will continue to proceed against the other defendants.” (Opp., p. 8:12-13.)

BACKGROUND:

Plaintiff commenced this action on 9/23/13. On 2/14/14, plaintiff filed a first amended complaint alleging causes of action for declaratory and injunctive relief, petition for writ of mandamus, and damages. The first cause of action for injunctive and declaratory relief is alleged against all of the moving defendants. The seventh, eighth, and ninth causes of action for writ of mandamus are against defendant Clark, Logan, and Baca, respectively.

Plaintiff alleges that defendant Briarcliffe filed a limited civil action (case number 11E06692) and performed substituted service on plaintiff’s mother on 7/27/11. (FAC ¶ 12.) Plaintiff alleges that this service was defective. (Id., ¶¶ 12-13.) Plaintiff alleges that he did not respond to the action because he lacked actual knowledge, and as a result Briarcliffe obtained a default judgment against him. (Id., ¶ 14.) Plaintiff alleges that Briarcliffe now intends to sell his home by sheriff’s sale. (Id., ¶ 16.) Plaintiff alleges he was illegally deprived of his right to appear in and defend against the underlying action. (Id., ¶ 21.)

Plaintiff alleges that defendant Clarke had a duty to scrutinize documents before allowing them to be filed with the Court, and that he illegally filed several documents in case number 11E06692 because the proof of service was invalid on its face. (FAC ¶¶ 82-85.) Plaintiff alleges that Logan had a duty to not to file or record instruments which are void ab initio, and that he illegally filed several documents relating to case number 11E06692. (Id., ¶¶ 94-98.) Plaintiff alleges Baca had a duty not to file or enforce upon any document that is invalid, and that he illegally filed several documents relating to 11E06692 and intends to sell plaintiff’s property based on those documents. (Id., ¶¶ 103-108.)

On 10/15/13, the Court, the Hon. James C. Chalfant presiding, granted plaintiff’s application for a preliminary injunction.

On 4/8/14, Briarcliffe filed a notice of related cases seeking to relate the instant action with 11E06692.

Defendants Logan and Baca have filed a joint demurrer. Defendant Clarke has filed his own demurrer. Plaintiff Kogman filed an opposition to the demurrer of Logan and Baca, but did not file an
opposition to Clarke’s demurrer.

ANALYSIS:

The defendants in these two demurrers are:

· John Clarke, the former Executive Officer/Clerk of the Los Angeles Superior Court. Clarke is being sued “to mandate him to expunged from his record certain documents from case No. 11E06692 which he filed and entered without the court in that case having acquired jurisdiction over Kogman.” (FAC, ¶7.)

· Dean Logan, the Los Angeles County Registrar-Recorder/County Clerk. Logan is being sued “to mandate him to expunge form his records certain instruments he recorded from Case 11E06692. Such recordings are illegal as the underlying documents were filed and entered by the clerk of the court in that case without the court having acquired jurisdiction over Kogman.” (FAC ¶ 8.)

· LeRoy Baca, the former sheriff of Los Angeles County. Baca is being sued “to mandate him to expunge from his records certain documents he filed in his records for Case No. 11E06692 . . . and mandating him to take no action to enforce, by sale of the subject property or otherwise, any default or judgment based upon the proof of service . . . in case No. 11E06692.” (FAC ¶ 9.)

All three of these defendants are sued solely in their official capacities. (See FAC ¶¶ 6-9.)

Defendants Logan and Baca demur to the FAC on the ground that plaintiff fails to allege sufficient facts because there are no facts which describe a duty or relationship that is legally imposed on the defendants. Defendant Clarke demurs to the FAC on the grounds that plaintiff fails to allege sufficient facts, the FAC is barred by res judicata and governmental/quasi-judicial immunity, and plaintiff improperly seeks relief by way of an order to expunge court records instead of properly seeking relief from default judgment.

Demurrer of Logan and Baca

Defendants Logan and Baca argue that plaintiff’s causes of action against them for declaratory, injunctive, and mandamus relief all fail because Logan and Baca did not have a duty to review the documents for legal sufficiency.

A recorder’s duties are prescribed by law. “The county recorder shall not refuse to record any instrument, paper, or notice that is authorized or required by statute, court order, or local ordinance that relates to the recordation of any instrument, paper, or notice that relates to real property to be recorded on the basis of its lack of legal sufficiency.” (Gov. Code, § 27201(a).) In Jackson v. County of Amador (2010) 186 Cal.App.4th 514, the plaintiff filed an action against the defendant county alleging that it improperly recorded fraudulent power of attorney and quit claim deeds. (Id. at pp. 517-518.) The trial court sustained demurrers to the pleadings and the plaintiff appealed. (Id. at p. 518.) The appellate court agreed with the trial court that Government Code section 27203, which imposes certain liability on recorders, did not impose a duty to review an instrument to determine if it was signed by the proper person. (Id. at p. 519.) The court pointed to section 27201(a), noting that it explicitly prohibited the recorder from refusing to record an instrument based on its lack of legal sufficiency. (Id. at p. 520.) The validity of the instruments bore on their legal sufficiency, and not upon their nature as instruments. (Id. at p. 521.) “ ‘[I]t has never been the duty of the county recorder to make determinations of that type of legal sufficiency; whether a document was sufficiently or correctly drafted to accomplish its purpose has always been a determination made by a court of law.’ [Citation.]” (Id. at pp. 521-522.) The court pointed out that there was no way for the recorder to know that the power of attorney was improperly executed and, as a practical matter, it could not function if each and every document had to be attested to in person by all parties named therein. (Id. at p. 522.)

The analysis in Jackson is applicable here. Whether the documents were properly served goes to the legal sufficiency of the proofs of service and related documents. The recorder cannot be expected to verify that service was proper in every action for which documents are recorded. This would require the recorder’s employees to effectively practice law and second-guess the rulings of a court. (See Jackson, 186 Cal.App.4th at p. 522.) Therefore, plaintiff has not established that defendant Logan had any duty to verify the documents recorded.

A sheriff’s duties are also prescribed by law. “A sheriff or other ministerial officer is justified in the execution of, and shall execute, all process and orders regular on their face and issued by competent authority, whatever may be the defect in the proceedings upon which they were issued.” (Code Civ. Proc., § 262.1.) In George v. County of San Luis Obispo (2000) 78 Cal.App.4th 1048, the plaintiffs filed for bankruptcy and the bankruptcy court issued a writ of possession that did not name the plaintiffs. (Id. at p. 1050.) The writ was sent to the sheriff for execution, and the sheriff served the writ and evicted the plaintiffs. (Ibid.) The plaintiffs then filed a complaint against the sheriff alleging causes of action for wrongful eviction, inverse condemnation, and violation of section 1983. (Id. at p. 1051.) On appeal, the court considered the issue of the sheriff’s liability to execute the writ of possession issued by the bankruptcy court. (Ibid.) The court looked to section 262.1, noting that a process is regular on its face if it appears valid to an ordinarily intelligent and informed layman. (Ibid.) “[T]he Sheriff is not liable for defects in the bankruptcy case, and is not responsible for deciding the ‘legal niceties’ of bankruptcy law.” (Ibid.)

The analysis in George is also applicable here. Nothing in the FAC establishes that the subject documents (i.e., the notice of levy aka writ of sale and the notice of sheriff’s sale) were not regular on their face. (See FAC ¶ 104.) There is no indication that an ordinarily intelligent and informed deputy would have known that service on plaintiff in the underlying action was improper and thus that the documents were invalid. The sheriff is not liable for any defects in the underlying action, and is not responsible for determining whether the court’s orders therein where proper. (See George, 78 Cal.App.4th at p. 1051.) Therefore, plaintiff has not established that defendant Baca had a duty to verify the validity of these documents.

The Court rejects plaintiff’s arguments in his opposition that the Court has a duty to determine the validity of the service of process. (See Opp., pp. 3-4.) This argument has no bearing on whether the recorder or sheriff had such a duty. Plaintiff’s argument that he would have no remedy to remove the allegedly improper documents is not well taken. Plaintiff could seek, and indeed is seeking, a Court order that the documents related to the underlying action are invalid, and could then record such an order.

Plaintiff also relies on 42 U.S.C. § 1983, which provides, in relevant part:

[e]very person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities securities by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress . . .

(42 U.S.C. § 1983.) The United States Supreme Court has held that cities, counties, and local officers sued in their official capacity are “persons” within the meaning of 42 U.S.C. § 1983. (McMillan v. Monroe County (1997) 520 U.S. 781, 784-785. See also Pitts v. County of Kern (1998) 17 Cal.4th 340, 348.)

Section 1983 “merely provides a mechanism for enforcing individual rights ‘secured’ elsewhere, i.e., rights independently ‘secured by the Constitution and law’ of the United States. ‘[O]ne cannot go into court and claim a “violation of § 1983″—for § 1983 by itself does not protect anyone against anything.’ [Citation.]” (Gonzaga University v. Doe (2002) 536 U.S. 273, 285.) Therefore, in order to seek relief under section 1983, plaintiff must establish an underlying claim against defendants. As discussed above, plaintiff fails to establish such a claim because there is no showing that Logan or Baca had a duty to verify the validity of the documents they recorded, filed, or executed.

It matters not that plaintiff is seeking injunctive and declaratory relief instead of damages. Declaratory relief is not an independent cause of action, but a form of equitable relief. (See Batt v. City and County of San Francisco (2007) 155 Cal.App.4th 65, 82.) “Injunctive relief is a remedy and not, in itself, a cause of action, and a cause of action must exist before injunctive relief may be granted.” (Shell Oil Co. v. Richter (1942) 52 Cal.App.2d 164, 168.) Therefore, plaintiff must allege an actual dispute in order to obtain declaratory or injunctive relief. Plaintiff cannot allege an actual dispute because he fails to establish that Logan or Baca had a duty to review the documents.

The demurrer of Logan and Baca is SUSTAINED WITHOUT LEAVE TO AMEND.

Demurrer of Clarke

The Court rejects Clarke’s argument that this action is barred by res judicata. (See Clarke Dem., p. 7.) A demurrer is proper when the facts alleged in the complaint or matters judicially establish that the plaintiff is seeking relief from the same defendant on the same cause of action as in a prior action, or is asserting an issue decided against the plaintiff in the prior action. (Boeken v. Philip Morris USA, Inc. (2010) 48 Cal.4th 788, 792-793.) “The doctrine of res judicata gives certain conclusive effect to a former judgment in subsequent litigation involving the same controversy.” (Id. at p. 797 [internal citations and quotations omitted].)

To apply the doctrine of res judicata to an entire cause of action or to one or more causes of action or issues, three factors must be present: ” ‘ “(1) A claim or issue raised in the present action is identical to a claim or issue litigated in a prior proceeding; (2) the prior proceeding resulted in a final judgment on the merits; and (3) the party against whom the doctrine is being asserted was a party or in privity with a party to the prior proceeding. [Citations.]” ‘ [Citation.]” (Boeken, 48 Cal.4th at p. 797.) In determining whether two actions have the same claims or issues, courts look to the harm suffered and not to the particular theory asserted. (Id. at p. 798 [“cause of action is the right to obtain redress for a harm suffered, regardless of the specific remedy sought or the legal theory (common law or statutory) advanced”].) Res judicata also bars claims that could have been brought in the prior action. (Planning and Conservation League v. Castaic Lake Water Agency (2009) 180 Cal.App.4th 210, 226.)

There is no showing that the claims in the instant action, i.e., that the default judgment and related documents in the previous action are invalid because plaintiff was not properly served, were litigated in the prior proceeding. Though there are allegations suggesting that plaintiff raised this issue in the underlying action, there is no showing that it was actually litigated or that it could have been litigated. (See FAC ¶¶ 64-71, 77.) The mere fact that plaintiff is challenging the judgment does not necessarily mean that plaintiff’s claims are barred by res judicata.

Clarke argues that plaintiff’s claims are barred by quasi-judicial immunity. The doctrine of judicial immunity “bars civil actions against judges for acts performed in the exercise of their judicial functions” and “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.” (Howard v. Drapkin (1990) 222 Cal.App.3d 843, 852.) “Under the concept of ‘quasi-judicial immunity,’ California courts have extended absolute judicial immunity to persons other than judges if those persons act in a judicial or quasi-judicial capacity.” (Id. at p. 852-853.)

This immunity has been extended to “court clerks and other non-judicial officers for purely administrative acts — acts which taken out of context would appear ministerial, but when viewed in context are actually part of the judicial function.” (In re Castillo (9th Cir. 2002) 297 F.3d. 940, 952.) “The principle of judicial immunity from liability extends to a clerk of a court in the performance of judicial or quasi-judicial functions, as distinguished from the clerk’s nondiscretionary ministerial functions for which immunity does not apply.” (15A Am. Jur. 2d Clerks of Court § 58 [footnotes omitted].) “Court clerks have absolute quasi-judicial immunity from damages for performing tasks that are an integral part of the judicial process. [Citation.] As long as the challenged tasks are an integral part of the judicial process, and not in clear absence of all jurisdiction, the clerk enjoys absolute quasi-judicial immunity.” (Harris v. Wandruff (N.D. Cal. 1996) 1996 WL 266136, *1.)

Plaintiff is seeking relief against Clarke due to his filing of the following items: the proof of service filed 8/10/11; the request for entry of default filed 9/20/11; the default judgment entered against plaintiff on 7/3/12; the writ of execution and sale filed and issued on 2/28/13; and the abstract of judgment issued on 8/17/13. (FAC ¶ 83.) “The filing of documents is ‘a basic and integral part of the judicial process’ for which court clerks enjoy quasi-judicial immunity unless they acted in ‘the clear absence of all jurisdiction.’ [Citation.]” (Armstrong v. Scribner (S.D. Cal. 2008) 2008 WL 268974, *19.)

The situation of Clarke, the Clerk of the Los Angeles Superior Court, is analogous to that of Logan, the Los Angeles County Registrar-Recorder and Baca, the Los Angeles County Sheriff. A court clerk’s duties with respect to a request for entry of default are purely ministerial, and therefore the clerk may not seek to determine the accuracy of the plaintiff’s declarations, legal sufficiency of the claimed service upon the defendant, or the sufficiency of an answer or other responsive pleading filed. (See Standard Microsystems Corp. v. Winbond Electronics Corp. (2009) 179 Cal.App.4th 868, 899.)

The demurrer of Clarke is SUSTAINED WITHOUT LEAVE TO AMEND.