Opinion
E033593.
11-21-2003
DAVID GOAD, Plaintiff and Appellant, v. SUE ERVIN et al., Defendants and Respondents.
David Goad, in pro. per., for Plaintiff and Appellant. Bill Lockyer, Attorney General, Andrea Lynn Hoch, Chief Assistant Attorney General Civil Division, James M. Schiavenza, Senior Assistant Attorney General, Kristin G. Hogue, Supervising Deputy Attorney General, and Michael P. Cayaban, Deputy Attorney General, for Defendants and Respondents.
Plaintiff, David Goad, a litigant in an ongoing family law proceeding, filed an action for defamation and the filing of a false document in a legal proceeding against Sue Ervin, a family court mediator and Jose Guillen, the former Riverside Superior Court Administrative Officer, as Ms. Ervins supervisor, in connection with Ms. Ervins service as a mediator. The trial court sustained defendants demurrer without leave to amend. We affirm.
FACTS AND PROCEDURAL HISTORY
On September 4, 2002, plaintiff filed a civil action against defendants based on a memo authored by Ms. Ervin after a court referral for mediation. The meeting between Ms. Ervin and plaintiff did not go well and resulted in the memo to Judge Webster concerning what occurred during the failed mediation on August 31, 2001:
"Your Honor:
"This morning, I was scheduled to do mediation with the above-mentioned parties. I was informed that Mr. Goad was insisting that he be allowed to bring in a support person, because it states on the intake form that a `support person shall be allowed in the session. He was very angry when he checked in, according to the staff at the window, and, during the video presentation, he continued to voice his anger about having to watch the video again.
"I made a decision to not forbid Mr. Goads support person from attending the mediation session, but chose to do separate sessions. I asked Ms. Dunlap to wait in the conference room while I spoke with Mr. Goad first.
"Mr. Goad asked me what information I had in the file, going back to a hearing in June. He wanted to make sure that I had received a report from Dr. DeGroot, which I had not, and he made a notation of information that should have been in the file. I asked him several times what it was he wanted to accomplish today, in this session, and that we were not going to go through the entire file. His anger continued to be at a high level and he pointed his finger at this mediator and said, `you people in this system were allowing his daughters to be abused and neglected and it is the fault of the courts and CPS. He stated that CPS has been called out numerous times to Ms. Dunlaps home and have done nothing. When I inquired as to why that would be, he stated that he is a `father in a court system and the implication was that nobody was listening to his concerns. His anger level never abated and I ended the session very abruptly and stated that it was not possible to do mediation and, since our deputy was outside of my door, I asked that he, Mr. Goad, be escorted out. I then spoke briefly to Ms. Dunlap and apologized for not being able to continue mediation today. Mr. Goads support person stated, as they were leaving, that he `would not have believed this if he had not seen it.
"Your Honor, I recommended an updated evaluation in October, 2000 as there is a need for additional information. If these two young girls are depressed to the point of being suicidal, there has to be a way to get help for them. The level of conflict has been so extreme, that it is certainly an additional factor in their behaviors."
In response to the complaint, defendants filed a demurrer raising four grounds. First, defendants noted that there had been no stated compliance with the Tort Claims Act. Second, defendants argued that there are insufficient facts to state a cause of action against defendant Guillen. Further, defendants argued that defendants are entitled to quasi-judicial immunity in that the suit stems from Ms. Ervins performance of duties in connection with a judicial proceeding. Finally, defendants argued that they were immune from civil suit because of the litigation privilege established under Civil Code section 47. The trial court sustained the demurrer without leave to amend based on all four grounds.
STANDARD OF REVIEW
"A demurrer tests the sufficiency of the plaintiffs complaint, i.e., whether it states facts sufficient to constitute a cause of action upon which relief may be based. [Citations.] In determining whether the complaint states facts sufficient to constitute a cause of action, the trial court may consider all material facts pleaded in the complaint and those arising by reasonable implication therefrom; it may not consider contentions, deductions or conclusions of fact or law. [Citations.] The trial court also may consider matters of which it may take judicial notice. [Citations.] A demurrer should not be sustained without leave to amend if the complaint, liberally construed, can state a cause of action under any theory or if there is a reasonable possibility the defect can be cured by amendment. [Citations.]
"On appeal, we review the trial courts sustaining of a demurrer without leave to amend de novo, exercising our independent judgment as to whether a cause of action has been stated as a matter of law and applying the abuse of discretion standard in reviewing the trial courts denial of leave to amend. [Citations.] Plaintiff bears the burden of proving the trial court erred in sustaining the demurrer or abused its discretion in denying leave to amend. [Citations.]" (Kong v. City of Hawaiian Gardens Redevelopment Agency (2002) 108 Cal.App.4th 1028, 1037-1038.)
We begin our review by noting the trial court rested its decision on four separate grounds. In the interest of judicial economy, we focus our analysis on the validity of the defense of quasi-judicial immunity.
A COURT MEDIATOR ENJOYS QUASI-JUDICIAL IMMUNITY
In Howard v. Drapkin (1990) 222 Cal.App.3d 843, our colleagues explained the concept of quasi-judicial immunity. "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. Thus, court commissioners `acting either as a temporary judge or performing subordinate judicial duties ordered by the appointing court have been granted quasi-judicial immunity. [Citation.] So also, quasi-judicial immunity from civil suits for acts performed in the exercise of their duties has been given to grand jurors (Turpen v. Booth[ (1880)] 56 Cal. [65,] 69); administrative law hearing officers (Taylor v. Mitzel (1978) 82 Cal.App.3d 665, 670-671 . . . ); arbitrators (Baar v. Tigerman (1983) 140 Cal.App.3d 979, 985 . . . ; Coopers & Lybrand v. Superior Court (1989) 212 Cal.App.3d 524, 534 . . . ); organizations sponsoring an arbitrator (Olney v. Sacramento County Bar Assn.[ (1989)] 212 Cal.App.3d [807,] 814-815); and prosecutors (Pearson v. Reed (1935) 6 Cal.App.2d 277, 286-288 . . .). Additionally, the State Bar and the Committee of Bar Examiners, as arms of the Supreme Court, and their officials, as officers of the Supreme Court, have been afforded quasi-judicial immunity from civil suits for acts performed in the exercise of their duties. [Citation.] As with the reason for granting judicial immunity, quasi-judicial immunity is given to promote uninhibited and independent decisionmaking. [Citation.]
"As noted above, courts look at the nature of the challenged act which a judge has performed to determine if it is truly judicial and therefore deserving of judicial immunity. So also, in determining whether a person is acting in a quasi-judicial fashion, the courts look at `the nature of the duty performed [to determine] whether it is a judicial act—not the name or classification of the officer who performs it, and many who are properly classified as executive officers are invested with limited judicial powers. [Citation.]" (Howard v. Drapkin, supra, 222 Cal.App.3d 843, 852-853, fn. omitted.)
Turning to the facts of the instant case, it is clear from the complaint and exhibits that Ms. Ervins memo to the judge was part of her work as a family law mediator. The observations that constituted the written remarks were made while attempting to conduct a family law mediation, a quasi-judicial function. Since judicial immunity is absolute and not qualified, all that need be shown is that the actions complained occurred within the scope of immunity. (Falls v. Superior Court (1996) 42 Cal.App.4th 1031, 1037.) Since the complained of conduct occurred within the scope of her employment as a court mediator, the immunity is absolute. As to defendant Jose Guillen, we also conclude plaintiff has utterly failed to show any act on his part, aside from being Ms. Ms. Ervins supervisor, that would subject him to liability. Thus, we conclude that plaintiff has failed to carry his burden of demonstrating that the trial court erred or abused its discretion in denying leave to amend the complaint.
The judgment is affirmed. Defendants are to recover their costs on appeal.
We concur: RAMIREZ, P. J., McKINSTER, J. --------------- Notes: Government Code section 820.8 provides: "Except as otherwise provided by statute, a public employee is not liable for an injury caused by the act or omission of another person. Nothing in this section exonerates a public employee from liability for injury proximately caused by his own negligent or wrongful act or omission." In addition, since the traditional rule of respondeat superior does not apply under this section and there is no allegation of direct complicity, plaintiff may not recover under his theory of vicarious liability as to Mr. Guillen. (Michel v. Smith (1922) 188 Cal. 199, 201.)