Case Number: BC667349 Hearing Date: July 23, 2018 Dept: 37

CASE NAME: Patel v. Decarolis, et al.

CASE NO.: BC667349

HEARING DATE: 7/2318

DEPARTMENT: 37

CALENDAR NO.: 9

FILING DATE: 7/5/17

TRIAL DATE: None

NOTICE: OK

SUBJECT: Demurrer to the Second Amended Complaint

DEMURRING PARTY: Defendant the Honorable Randall Pacheco [1]

OPPOSING PARTY: Plaintiff Anthony A. Patel
COURT’S TENTATIVE RULING

The court SUSTAINS Defendant the Honorable Randall Pacheco’s demurrer to the Second Amended Complaint. At the hearing, Plaintiff should be prepared to discuss whether there is a reasonable possibility that the identified defect can be cured on amendment. Counsel for Defendant the Honorable Randall Pacheco to give notice.
STATEMENT OF THE CASE

Plaintiff Anthony A. Patel (“Patel”) and Defendant Sonya Bhatia (“Bhatia”) were married in October 2006. Patel filed for dissolution of the marriage in Los Angeles County in or about July 2013. The judge who presided over the divorce matter was the Honorable Randall Pacheco (“Pacheco”). This action arises out of allegations that Defendants engaged in a conspiracy to deprive Patel of equal custody and equal parenting time of Patel and Bhatia’s minor children.

Patel has sued Bhatia in California state court in a separate matter in June 2014. That civil action was settled in or about October 2015. Patel additionally sued Pacheco in federal court in or about September 2014, alleging violation of Patel’s civil rights and for discrimination. That federal court case was dismissed.

In the Second Amended Complaint (“SAC”), Plaintiff alleges six causes of action for: (1) violation of civil rights against Pacheco; (2) assault and battery against Bhatia; (3) intentional infliction of emotional distress (“IIED”) against all Defendants; (4) privacy violations against Bhatia; (5) custody & parent interference against Bhatia; (6) defamation against Bhatia. [2] On Plaintiff’s oral motion at the March 14, 2018 hearing, the court dismissed Defendants Patrick Decarolis and Kristina Royce from this action.

Defendant Pacheco now demurs to the SAC on multiple grounds including judicial immunity. Plaintiff opposes the demurrer.
DISCUSSION
I. Legal Standard

A demurrer is an objection to a pleading, the grounds for which are apparent from either the face of the complaint or a matter of which the court may take judicial notice. (Code Civ. Proc., § 430.30, subd. (a); see also Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) The purpose of a demurrer is to challenge the sufficiency of a pleading “by raising questions of law.” (Postley v. Harvey (1984) 153 Cal.App.3d 280, 286.) The court “treat[s] the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law….” (Berkley v. Dowds (2007) 152 Cal.App.4th 518, 525 (Berkley).) “In the construction of a pleading, for the purpose of determining its effect, its allegations must be liberally construed, with a view to substantial justice between the parties.” (Code Civ. Proc., § 452; see also Stevens v. Superior Court (1999) 75 Cal.App.4th 594, 601.) “When a court evaluates a complaint, the plaintiff is entitled to reasonable inferences from the facts pled.” (Duval v. Board of Trustees (2001) 93 Cal.App.4th 902, 906.)

The general rule is that the plaintiff need only allege ultimate facts, not evidentiary facts. (Doe v. City of Los Angeles (2007) 42 Cal.4th 531, 550 (Doe).) “All that is required of a plaintiff, as a matter of pleading, even as against a special demurrer, is that his complaint set forth the essential facts of the case with reasonable precision and with sufficient particularity to acquaint the defendant with the nature, source and extent of his cause of action.” (Rannard v. Lockheed Aircraft Corp. (1945) 26 Cal.2d 149, 156-157.) “Generally it is an abuse of discretion to sustain a demurrer without leave to amend if there is any reasonable possibility that the defect can be cured by amendment.” (Goodman v. Kennedy (1976) 18 Cal.3d 335, 349.)
II. Judicial Immunity

As an initial matter, Defendant Pacheco contends that Plaintiff’s claims against him are barred by judicial immunity.

Judicial officers are absolutely entitled to unqualified immunity from civil suits arising out of their judicial functions. (Mireles v. Waco (1991) 502 U.S. 9, 11 (Mireles).) Judicial immunity applies “even if the acts are in excess of the jurisdiction of the judge and are alleged to have been done maliciously and corruptly.” (Tagliavia v. County of Los Angeles (1980) 112 Cal.App.3d 759, 762 (Tagliavia).) Judicial immunity can only be overcome in two sets of circumstances. “First, a judge is not immune from liability for nonjudicial actions, i. e., actions not taken in the judge’s judicial capacity. [Citations.] Second, a judge is not immune for actions, though judicial in nature, taken in the complete absence of all jurisdiction. [Citations.]” (Mireles, supra, 502 U.S. at pp. 11-12.)

The SAC alleges that Defendant Pacheco improperly issued an order against Patel in or about July 2016 that was unlawful and issued only to punish Patel for suing Pacheco in federal court. (SAC ¶ 26.) According to the SAC, Defendant Pacheco’s ruling was made after Defendant Pacheco was transferred to a different department of the court in a different city and was no longer presiding over the divorce action as of 2015 and even though a different judicial officer had taken over the case. (Id. at ¶¶ 25-27.) The Order in question was issued on July 5, 2016 in case number BD585163, in the matter of: In re the Marriage of Anthony Aanand Patel and Sonya Bhadtia Patel. [3] Defendant Pacheco issued this Order in connection with a request for orders that was filed with the court on December 20, 2013 and which came to hearing on January 24, 2014. (7/5/16 Order, BD585163.)

Plaintiff contends that judicial immunity does not apply to Pacheco because he was allegedly engaged in conduct outside of his actual job as a judicial officer when he issued the July 2016 Order. (Opp. 9, citing Stump v. Sparkman (1978) 435 U.S. 349 (Stump).) Plaintiff’s cited legal authority does not support his argument.

Stump involved circumstances in which the defendant, Judge Stump, was alleged to have engaged in a conspiracy with private defendants to bring about an allegedly unconstitutional act—by approving a petition to have tubal ligation performed upon an allegedly mentally handicapped minor. (Id. at pp. 351-354.) The district court granted Defendant Stump’s motion to dismiss on the grounds that he was entitled to judicial immunity. (Id. at pp. 354-355.) The Court of Appeal for the Seventh Circuit disagreed and held that Judge Stump had forfeited his immunity because he had not acted within his jurisdiction due to his “failure to comply with elementary principles of procedural due process.” (Id. at p. 355.) The Supreme Court granted certiorari to consider the Court of Appeal’s ruling and reversed, finding that there was not a “clear absence of all jurisdiction” in the state court for Judge Stump to have considered the petition. (Id. at pp. 356-357 [“Because ‘some of the most difficult and embarrassing questions which a judicial officer is called upon to consider and determine relate to his jurisdiction…,’ [citation], the scope of the judge’s jurisdiction must be construed broadly where the issue is the immunity of the judge. A judge will not be deprived of immunity because the action he took was in error, was done maliciously, or was in excess of his authority; rather, he will be subject to liability only when he has acted in the ‘clear absence of all jurisdiction.’ ”].) Stump does not support Plaintiff’s argument that Defendant Pacheco was acting outside of his job as a judicial officer when he issued the July 5, 2016 Order.

It is undisputed that Pacheco was acting in the role of a judicial officer of the Los Angeles Superior Court when he entered the July 2016 Order. Furthermore, the Order was on a hearing for which Defendant Pacheco was the presiding judge and which occurred while the matter was assigned to his court. (7/5/16 Order, BD585163.) Plaintiff does not provide any legal authority for the proposition that Defendant Pacheco’s entry of the July 2016 Order was in “clear absence of all jurisdiction” because a different judge had subsequently been assigned to the matter. Accordingly, Plaintiff’s argument fails. (See, e.g., Stump, 435 U.S. at pp. 356-357.)

For these reasons, the court SUSTAINS Defendant Pacheco’s demurrer to the SAC. Having sustained the demurrer on this basis, the court need not address the parties’ remaining arguments. At the hearing, Plaintiff should be prepared to discuss whether a reasonable possibility exists that the identified defect can be cured on amendment.

[1] Defendant Pacheco submits the Declaration of Christopher A. McIntire (“McIntire”) in support of the subject demurrer. McIntire attests to attempting to meet and confer with Plaintiff’s counsel regarding the subject demurrer. (McIntire Decl. ¶¶ 2-3.) According to McIntire, Plaintiff failed to agree upon a time to meet and confer, despite McIntire’s repeated attempts. (Ibid.) This declaration is sufficient to meet the statutory requirement. (See Code Civ. Proc., § 430.41, subd. (a)(3)(B).)

[2] Defendant Pacheco filed a demurrer to Plaintiff’s First Amended Complaint (“FAC”) on November 30, 2017. This demurrer was not heard as Plaintiff filed the SAC after the court sustained Defendant Bhatia’s demurrer to the third and fifth causes of action of the FAC on March 14, 2018, with leave to amend. The court overruled Defendant Bhatia’s demurrer to the second, fourth and sixth causes of action.

[3] The court may take judicial notice of its own orders, even where the orders are issued by other Departments in other cases. (Evid. Code, § 452, subd. (c).)