Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from the Superior Court of Orange CountySuper.Ct.No. 05CC04827, Philip H. Hickok, Judge. (Judge of the L.A. Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed.
Rita Hurst, in pro. per., for Plaintiff and Appellant.
Madory, Zell and Pleiss and Larry T. Pleiss for Defendants and Respondents, Larry T. Pleiss, Julie Hernandez and St. Joseph Hospital of Orange.
Gaut, J.
Edmund G. Brown, Jr., Attorney General, David S. Chaney, Chief Assistant Attorney General, James M. Schiavenza, Senior Assistant Attorney General, Marsha S. Miller, Supervising Deputy Attorney General, and Mark A. Brown, Deputy Attorney General, for Defendant and Respondent, the Honorable Richard O. Frazee, Sr. Pivo, Halbreich, Martin, Wilson & Amo and Scott A. Martin for Defendants and Respondents Benjamin P. de Mayo, John Williams, Connie Draxler, Ken Johns, Esmeralda Marquez, Suzette Smith and Desiree Davis.
1. Introduction
Rita Hurst is the widow of Everett Hurst, who died on April 5, 2004, at the age of 95. The death certificate listed the cause of death as pneumonia and senile dementia. On April 5, 2005, plaintiff acting as her own attorney, filed a complaint for wrongful death, general negligence, and intentional tort against a host of defendants. Three sets of defendants attacked the complaint by filing a collection of demurrers, a motion to strike, and an anti-SLAPP motion. (Code Civ. Proc., § 425.16.) Plaintiff did not file timely opposition to any of these proceedings.
In April 2006, the trial court ruled in favor of defendants on all their motions, except the motion to strike, which was rendered moot. On April 27, the court received, without filing, plaintiff’s untimely affidavit. The court subsequently filed various orders dismissing the complaint as to these defendants.
Plaintiff appeals. Because the complaint lacks any merit and is incapable of amendment, we affirm the trial court’s rulings and judgment against plaintiff.
2. Factual and Procedural Background
a. The Complaint
In support of her claim of general negligence, plaintiff alleges defendants are liable for a plethora of wrongs: neglect, homicide, elder abuse, violation of resident’s rights, unfair business practices, false imprisonment, kidnapping, conspiracy, fraud, violation of decedent’s constitutional rights, harassment, stalking, breach of contract, discrimination, theft, legal malpractice, reckless misconduct, mental pain and physical suffering, loss of consortium, consortium in general, violation of his and her judicial rights, acts of lawlessness, joint liability, medical malpractice, mental cruelty husband and wife, mere right of property, misappropriation of social security checks, misrepresentation, perjury, falsifying medical records, pecuniary injuries, pecuniary loss of money and services, and what the deceased’s life was worth to wife.
For the sake of clarity, we have corrected the errors in spelling, punctuation, and expression in these two excerpts from the complaint.
In support of her claim of intentional tort, plaintiff alleges defendants “conspired and concealed the neglect[,] homicide[,] wrongful death of Everett Hurst” and “the false imprisonment of a disabled person which constituted to [sic] kidnapping.”
After three status conferences and plaintiff’s failure to serve the complaint on any defendants, the court set an order to show cause regarding dismissal for March 15, 2006. Plaintiff finally served some defendants in January and February 2006.
b. Demurrers and Motion to Strike by the Orange County Defendants
The first set of demurrers was filed by the Orange County Public Administrator/Public Guardian (PA/PG) defendants and defendant Benjamin de Mayo, County Counsel for Orange County (the Orange County defendants.) The general demurrer is based on the complaint’s failure to state a cause of action (Code Civ. Proc., § 430.010, subd. (e)) because of the absence of factual allegations and the complaint’s failure to address the privileges and immunities accorded public employee defendants.
The PA/PG defendants are John Williams, PA/PG; Connie Draxler, Chief PA/PG; Ken Johns, PA/PG Supervising Deputy; and Esmerelda Marquez, Suzette Smith, and Desiree Davis, PA/PG Deputies.
The Orange County defendants also asserted a special demurrer based on the obvious facial deficiencies of the complaint as uncertain, ambiguous, and unintelligible. (Code Civ. Proc., § 430.010, subd. (f).) Furthermore, the Orange County defendants filed a motion to strike the punitive damages claims and the entire complaint because of its failure to allege plaintiff was entitled to bring a survival action.
c. Anti-SLAPP Motion by the Hospital Defendants
The Hospital defendants are St. Joseph Hospital of Orange, its legal counsel, Larry T. Pleiss, and its risk manager, Julie Hernandez. The decedent was a patient at the hospital in April and May 2001, three years before he died. The substance of plaintiff’s claims against the Hospital defendants is that they initiated contact with county counsel concerning a conservator being appointed for decedent. No allegations connect the Hospital defendants with defendant’s subsequent death.
The Hospital defendants filed an anti-SLAPP motion, arguing that the defendants’ preliminary involvement with the conservatorship was protected activity as an official proceeding authorized by law, and there was no probability of plaintiff prevailing. (Code Civ. Proc., § 425.16; Jarrow Formulas, Inc. v. LaMarche (2003) 31 Cal.4th 728, 733-735, 737.)
d. Judge Frazee’s Demurrer
Defendant Richard O. Frazee, Sr., a retired judge of the superior court, presided in the conservatorship case. He also filed a general and special demurrer based on the failure to state a cause of action and judicial immunity, the rule that a bench officer is immune from acts committed in the performance of his or her judicial duties. (Branson v. Martin (1997) 56 Cal.App.4th 300, 307.)
e. Plaintiff’s response
Plaintiff filed no opposition to any of the foregoing, despite having been expressly warned twice by the court to do so. Instead, plaintiff attempted belatedly to file a document entitled “Notice of Affidavit by Rita Hurst Plaintiff,” in which she declared her right to bring a survival action, described the purported factual circumstances of her husband’s death, and contended he died as a result of homicide or neglect. She attached as exhibits the death certificate and the autopsy report, some documents from the conservatorship proceeding, and some other miscellaneous documents. Her entire submission was 26 pages. She did not respond to any of the arguments made by defendants except the one about the right of survivorship.
f. The Court’s Rulings
The trial court ruled plaintiff had conceded the validity of all defendants’ arguments by not submitting opposition (Cal. Rules of Court, rule 3.1342) and granted defendants’ motions, including awarding attorney’s fees to the Hospital defendants under the anti-SLAPP statute.
3. The Appeal
At the outset, we observe plaintiff’s opening appellate brief violates California Rules of Court, rule 8.204 in multiple ways, notably the requirement that all statements of fact in briefs must be supported with citations to the record and that statements must be confined to matters in the record on appeal. (Pierotti v. Torian (2000) 81 Cal.App.4th 17, 29-31.) It is not our task to search the record for support for plaintiff’s statements: “[I]t is for the party to cite the court to those references. Upon the party’s failure to do so, the appellate court need not consider or may disregard the matter. [Citations.] The same is true with respect to appellant’s legal arguments that are not supported by citation to legal authority. [Citation.]” (Regents of University of California v. Sheily (2004) 122 Cal.App.4th 824, 826-827, fn. 1; People v. Stanley (1995) 10 Cal.4th 764, 703; Landry v. Berryessa Union School Dist. (1995) 39 Cal.App.4th 691, 699-700; Kim v. Sumitomo Bank (1993) 17 Cal.App.4th 974, 979.) To the extent we can make any sense of plaintiff’s positions, we will attempt to address them.
The first section of the opening brief pertains to the conservatorship proceedings that occurred in 2001 and 2002, and which already have been the subject of an appeal in 2003. (Conservatorship of Hurst (Jan. 30, 2003, G030452) [nonpub. opn.].) We disregard plaintiff’s effort to reassert those previously-decided claims.
The later portions of the brief offer slight recognition of the arguments raised by defendants in the wrongful death action by mentioning the issues of standing, the anti-SLAPP motion, immunity for the Orange County defendants, and punitive damages. All of these points are not cognizable on appeal because plaintiff did not raise them below: “As a general rule, ‘issues not raised in the trial court cannot be raised for the first time on appeal.’ (Estate of Westerman (1968) 68 Cal.2d 267, 279 and cases cited.)” (Sea & Sage Audubon Society, Inc. v. Planning Com. (1983) 34 Cal.3d 412, 417.) Nevertheless, we will comment briefly.
a. The Orange County Defendants’ Demurrer
As to the Orange County defendants, the court properly sustained their demurrer without leave to amend. If there is a reasonable possibility a defect can be cured by amendment, the standard of review is abuse of discretion. (Denham v. Superior Court of Los Angeles County (1970) 2 Cal.3d 557; Blank v. Kirwan (1985) 39 Cal.3d 311, 318; Cordonier v. Central Shopping Plaza Associates (1978) 82 Cal.App.3d 991, 998-999.) If there is no such possibility, the standard of review is de novo. (Desai v. Farmer’s Ins. Exchange (1996) 47 Cal.App.4th 1110, 1115.)
The Government Code provides immunity for the discretionary acts of public employees. (Gov. Code, § 820.2; Lipman v. Brisbane Elementary Sch. Dist. (1961) 55 Cal.2d 224.) Other express immunities exist for the execution or enforcement of any law; for acts in good faith, without malice and under apparent authority; for the acts or omissions of another person; for the adoption or failure to adopt an enactment or to enforce an enactment; for the failure to inspect or the negligent inspection of property; and for instituting or prosecuting any judicial or administrative proceeding. (Gov. Code, §§ 820.4, 820.6, 821, 821.4, and 821.6.) Additionally, Civil Code section 47 accords an absolute litigation privilege to the acts of government officials discharging their public duties, in this instance, the conservatorship proceedings involving decedent. (Civ. Code, § 47; Ingram v. Flippo (1999) 74 Cal.App.4th 1280, 1293-1294, citing Kilgore v. Younger (1982) 30 Cal.3d 770, 778-779.)
Plaintiff does not articulate any rebuttal of the defenses of governmental immunity and litigation privilege. Although she seems to be arguing there was some fraud, corruption or malice (Gov. Code, § 822.2) that would preclude immunity from operating, she cites no legal authority and proffers no facts to support this theory: “[I]n order to support a cause of action for fraud against the public employees, [plaintiff] must allege, in addition to the ordinary elements of common law deceit, motivation by corruption or actual malice. [Plaintiff’s] complaint did not allege any such corruption or actual malice . . . . The demurrer was properly sustained as to the individual defendants on the ground of immunity.” (Masters v. San Bernardino County Employees Retirement Assn. (1995) 32 Cal.App.4th 30, 42.)
For the same reasons, the record demonstrates no possibility plaintiff could amend her complaint to state a cause of action against the Orange County defendants, even if she had not waived her right to do so once as a matter of course: “It does not appear that under applicable substantive law there is any reasonable probability that the defects in the amended complaint can be cured by further amendment.” (Sackett v. Wyatt (1973) 32 Cal.App.3d 592, 603; Code Civ. Proc., § 472.)
Because we affirm the court’s ruling on the demurrer of the Orange County defendants, we decline to discuss the additional issues involving plaintiff’s right to bring a survival action and the motion to strike punitive damages. (Filipino Accountants’ Assn. v. State Bd. of Accountancy (1984) 155 Cal.App.3d 1023, 1029-1030.)
b. The Hospital Defendants’ Anti-Slapp Motion
In support of their anti-SLAPP motion, the Hospital defendants presented evidence that, when decedent was hospitalized at St. Joseph’s in April and May 2001, he was 93 years old and suffering from dementia and other maladies. Plaintiff was disruptive and antagonistic toward the hospital staff and interfered with defendant’s medical care. She had transferred decedent to five different facilities before St. Joseph’s. Because of their concern about decedent’s condition and plaintiff’s treatment of him, the Hospital defendants contacted Orange County’s County Counsel about appointing a conservator for decedent. In the meantime, plaintiff transferred decedent on May 4, 2001, to Park Regency, a skilled nursing facility. The Public Guardian, however, continued to pursue the conservator proceedings, which plaintiff opposed. The trial court found decedent did suffer from dementia and could not care for himself or give informed medical consent. The court appointed the public guardian as conservator. The appellate court affirmed that appointment in January 2003. (Conservatorship of Hurst (Jan. 30, 2003, G030452) [nonpub. opn.].) Everett Hurst died in April 2004 at Brea Community Hospital.
It is manifest from the undisputed facts that the Hospital defendants had nothing to do with the death of decedent three years after his brief residency at St. Joseph’s. Plaintiff obviously bases her claims on defendants’ involvement in April and May 2001 in the commencement of conservatorship proceedings.
In asserting an anti-SLAPP motion, defendants have the initial burden of making a prima facie showing that the plaintiff’s claims are subject to Code of Civil Procedure section 425.16. The burden then shifts to the plaintiff to establish a probability of prevailing, by making a prima facie showing of facts which would, if proved, support a judgment in the plaintiff’s favor. Whether Code of Civil Procedure section 425.16 applies and whether the plaintiff has shown a probability of prevailing are both reviewed independently on appeal. (ComputerXpress, Inc. v. Jackson (2001) 93 Cal.App.4th 993, 999.)
The Hospital defendants made a credible argument below that their conduct in contacting county counsel about initiating legal conservatorship proceedings qualified as protected activity under the anti-SLAPP statute. (Dove Audio v. Rosenfeld, Meyer & Susman (1996) 47 Cal.App.4th 777, 784.) Like a malicious prosecution action, the present action involving the conservatorship proceedings “‘arises from an underlying lawsuit, or petition to the judicial branch. By definition, a malicious prosecution suit alleges that the defendant committed a tort by filing a lawsuit. [Citation.]’” (HMS Capital, Inc. v. Lawyers Title Co. (2004) 118 Cal.App.4th 204, 213, citing Jarrow Formulas, Inc. v. LaMarche, supra, 31 Cal.4th at pp. 734-735.) The same analysis applies here.
Plaintiff did not file opposition below. On appeal, she contends there was a probability she would prevail. The record is devoid of any evidence or legal authority supporting her contention. If the opposing party fails to make the requisite showing, the anti-SLAPP motion must be granted. (Conroy v. Spitzer (1999) 70 Cal.App.4th 1446, 1450.)
Plaintiff was not entitled to amend to circumvent the anti-SLAPP motion. (Simmons v. Allstate Ins. Co. (2001) 92 Cal.App.4th 1068, 1073; Wilcox v. Superior Court (1994) 27 Cal.App.4th 809, 823.) Nor was it an abuse of discretion to deny plaintiff leave to amend in a case that is entirely meritless: “‘In deciding the question of potential merit, the trial court considers the pleadings and evidentiary submissions of both the plaintiff and the defendant (§ 425.16, subd. (b)(2)); though the court does not weigh the credibility or comparative probative strength of competing evidence, it should grant the motion if, as a matter of law, the defendant’s evidence supporting the motion defeats the plaintiff’s attempt to establish evidentiary support for the claim. (Paul for Council v. Hanyecz (2001) 85 Cal.App.4th 1356, 1365.)’ (Wilson v. Parker, Covert & Chidester (2002) 28 Cal.4th 811, 821.)” (Premier Medical Management Systems, Inc. v. California Ins. Guarantee Assn. (2006) 136 Cal.App.4th 464, 476-477.)
c. Judge Frazee’s Demurrer
Judge Frazee was sued because he presided over the conservatorship proceedings. No other facts are alleged against him. He is protected absolutely by judicial immunity. (Branson v. Martin, supra, 56 Cal.App.4th at p. 307; Howard v. Drapkin (1990) 222 Cal.App.3d 843, 851-852; Greene v. Zank (1984) 158 Cal.App.3d 497, 507; Paddleford v. Biscay (1971) 22 Cal.App.3d 139, 143.) The complaint cannot be amended to implicate Judge Frazee. His demurrer was properly sustained without leave to amend.
4. Disposition
We affirm the judgment. As the prevailing parties, defendants shall recover their costs on appeal from plaintiff.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
We concur: Richli, Acting P. J., Miller, J.