Opinion
E064738
01-10-2017
SAMUEL HERSHAL CLAUDER II, Plaintiff and Appellant, v. MICHAEL RAMOS, as District Attorney, etc., Defendant and Respondent.
Sanders & Associates and Steven C. Sanders for Plaintiff and Appellant. Jean-Rene Basle, County Counsel, Richard D. Luczak, Deputy County Counsel, for Defendant and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. CIVDS1418737) OPINION APPEAL from the Superior Court of San Bernardino County. David Cohn, Judge. Affirmed. Sanders & Associates and Steven C. Sanders for Plaintiff and Appellant. Jean-Rene Basle, County Counsel, Richard D. Luczak, Deputy County Counsel, for Defendant and Respondent.
Plaintiff and appellant Samuel Hershel Clauder II (Clauder) sued defendant and respondent San Bernardino County District Attorney Michael Ramos (Ramos) in Ramos's individual and official capacities. Clauder brought three causes of action concerning an alleged deprivation of rights (42 U.S.C. § 1983 [section 1983]): (1) First Amendment retaliation; (2) malicious prosecution in violation of the Fourth and Fourteenth Amendments; and (3) placing Clauder in danger, which violated Clauder's civil rights. The trial court sustained Ramos's demurrer.
Clauder raises three issues on appeal. First, Clauder asserts the trial court erred by concluding Eleventh Amendment immunity barred his lawsuit. (U.S.C.A. Const. Amend. XI.) Second, Clauder contends the trial court erred by concluding prosecutorial immunity barred his lawsuit. (Gov. Code, § 821.6.) Third, Clauder asserts the law providing for prosecutorial immunity (Gov. Code, § 821.6) violates due process. We affirm the judgment.
FACTUAL AND PROCEDURAL HISTORY
A. COMPLAINT
The facts in this subsection are taken from Clauder's complaint. Voters were presented with the issue of whether the former El Toro Marine Base in Orange County should become an airport or a park. Clauder supported the former base becoming a park. This position placed Clauder at odds with David Ellis (Ellis), who is a contractor, who stood to earn a profit of $200,000,000 if the base became an airport. Clauder and Ellis "had several extremely contentious personal conflicts . . . involving statements to the press and to the voters." Ellis served as the campaign manager for Ramos's reelection campaign.
Clauder is an investigative journalist. In 2006 and 2007, "Clauder uncovered falsified evidence created by the [San Bernardino County] Sheriff's Department sergeant in charge of the Aaron Plante rape investigation to cover up the location of the crime. When the charges were dismissed, plaintiff Clauder wrote reports and criticized the Sheriff's handling of the case to local, state and federal authorities, resulting in an investigation into the Sheriff's Department and extensive negative publicity."
Clauder lodged a misconduct complaint with the San Bernardino County Sheriff's Department against the sergeant. The sheriff's department sustained the complaint, demoted the sergeant, and transferred the sergeant to another assignment. Clauder's reporting angered deputies at the Twin Peaks Sheriff's Station.
On April 16, 2008, Clauder was arrested on domestic violence charges; he was removed from his home. The charges were later dismissed. Clauder moved out of his family home due to a restraining order that was issued in his divorce case. The divorce case was contentious.
On February 24, 2009, Clauder was arrested, in San Bernardino County, on charges related to child pornography. The child pornography had been found on a laptop computer in the family home, in which Clauder no longer resided. The laptop computer had multiple users. The child pornography had been downloaded under Clauder's son's laptop username, after Clauder had been arrested on the domestic violence charges and removed from the home. Clauder's wife and son claimed no one had used the computer after Clauder moved out of the house, but Clauder's wife and son failed polygraph examinations. In 2009, Ellis told people, "'We finally have Clauder where we want him.'" Clauder remained jailed for 50 days as a result of the child pornography charges.
Approximately three and a half years later, on September 20, 2012, Clauder's son confessed to the crime. The charges against Clauder were dismissed on September 28, 2012. On December 7, the trial court found Clauder to be factually innocent. (Pen. Code, § 851.8.) A copy of Clauder's son's confession was provided to Clauder in late December.
Clauder asserts Ramos filed, and also directed prosecutors to file, charges against Clauder for child pornography crimes, despite a lack of evidence, due to "a political vendetta involving his campaign manager Ellis, as well as his knowledge of the existing issues Clauder had with the Twin Peaks Sheriff's Station[, and] because of [Clauder's] effective and proactive participation in county politics." Clauder asserts the charges against him violated his civil rights, made him the subject of a national scandal, caused him to lose his job, ruined his reputation, placed him in physical danger, and caused him emotional and mental distress.
Clauder's complaint was filed on December 5, 2014. Clauder's complaint lists three causes of action. All three causes of action cite to section 1983, which concerns a deprivation of rights by a government official. In the first cause of action, Clauder asserted Ramos retaliated against Clauder due to Clauder's reporting about the Aaron Plante rape case, as well as Clauder's political advocacy related to the former El Toro Marine Base. Clauder asserted Ramos's actions deprived Clauder of his First Amendment right of free speech because Ramos punished Clauder due to Clauder's journalism activities.
In the second cause of action, Clauder alleged malicious prosecution, in that Ramos caused Clauder to be prosecuted for child pornography despite a lack of evidence. Clauder asserted Ramos acted maliciously in prosecuting Clauder due to (1) Ramos's own personal vendetta; and/or (2) political pressure exerted by the Twin Peaks Sheriff's Deputies, and/or Ellis. Clauder alleged his Fourth and Fourteenth Amendment rights were violated by the malicious prosecution.
In the third cause of action, Clauder alleged Ramos retaliated against Clauder and acted recklessly to the likelihood of Clauder being wrongly convicted and placed in "constant danger of physical harm" due to being labeled as sexually interested in children. Clauder asserted Ramos violated Clauder's civil rights.
Clauder sought (1) a declaration that Ramos had violated Clauder's constitutional rights; (2) an injunction prohibiting Ramos from abusing his office to retaliate against Clauder; (3) attorney's fees and costs; (4) a jury trial; and (5) other appropriate relief.
B. DEMURRER
Ramos demurred to the complaint. Ramos raised four arguments. First, Ramos asserted there was no ongoing controversy that would allow for declaratory and injunctive relief, because the alleged problems ended in 2012 when the charges against Clauder were dismissed. Second, Ramos asserted the complaint was untimely because it was filed in December 2014, and the charges were dismissed in September 2012, thus missing the two-year statute of limitations. Third, Ramos argued he had Eleventh Amendment immunity. (U.S.C.A. Const. Amend. XI.) Fourth, Ramos contended he had prosecutorial immunity. (Gov. Code, § 821.6.)
C. OPPOSITION
Clauder opposed the demurrer. First, Clauder contended there was an ongoing controversy because Clauder was seeking to prevent Ramos from abusing his power. Clauder also asserted he was always at risk of harm due to being labeled a victimizer of children. Second, Clauder argued his complaint was timely filed because the statute of limitations began running when the trial court declared Clauder to be factually innocent on December 7, 2012. Third, Clauder contended Ramos did not have Eleventh Amendment immunity. Fourth, Clauder asserted Ramos did not have prosecutorial immunity because Ramos was abusing his authority—an act outside the scope of the prosecutor's duties.
D. HEARING
The trial court held a hearing on the demurrer on September 21, 2015. The trial court stated that its tentative ruling was to sustain the demurrer without leave to amend on the grounds of Eleventh Amendment immunity and prosecutorial immunity. The court explained that the complaint was not truly seeking declaratory relief, so it was not persuaded by Ramos's argument concerning the lack of an ongoing controversy. Further, the court was not persuaded by Ramos's statute of limitations argument because neither party had provided authority for the relevant triggering date being (1) when charges are dismissed, or (2) when a finding of factual innocence is made.
Clauder argued that immunity did not apply in this case because Ramos's actions were outside of a prosecutor's duties, in that Ramos was misusing his authority. Clauder asserted Ramos's actions were "beyond malicious." Ramos argued that even malicious acts were protected by prosecutorial immunity (Gov. Code, § 321.6) and the Eleventh Amendment.
The trial court made its tentative ruling its final ruling. The court sustained the demurrer without leave to amend on the basis of Eleventh Amendment immunity and prosecutorial immunity.
DISCUSSION
A. ELEVENTH AMENDMENT IMMUNITY
1. CONTENTION
Clauder contends the trial court erred by sustaining the demurrer based upon Eleventh Amendment immunity. (U.S.C.A. Const. Amend. XI.)
2. STANDARD OF REVIEW
"On review from an order sustaining a demurrer, 'we examine the complaint de novo to determine whether it alleges facts sufficient to state a cause of action under any legal theory, such facts being assumed true for this purpose.'" (Committee for Green Foothills v. Santa Clara County Bd. of Supervisors (2010) 48 Cal.4th 32, 42.) "'A demurrer based on an affirmative defense will be sustained only where the face of the complaint discloses that the action is necessarily barred by the defense.'" (McKenney v. Purepac Pharmaceutical Co. (2008) 167 Cal.App.4th 72, 79; see generally Hata v. Los Angeles County Harbor/UCLA Medical Center (1995) 31 Cal.App.4th 1791, 1801-1804 [discussing immunity and affirmative defenses].)
3. LAW
The Eleventh Amendment provides, "The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State." (U.S.C.A. Const. Amend. XI.)
Section 1983 provides, "Every 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 secured 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, except that in any action brought against a judicial officer for an act or omission taken in such officer's judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable."
"Section 1983 provides a federal forum to remedy many deprivations of civil liberties, but it does not provide a federal forum for litigants who seek a remedy against a State for alleged deprivations of civil liberties. The Eleventh Amendment bars such suits unless the State has waived its immunity, [citation], or unless Congress has exercised its undoubted power under § 5 of the Fourteenth Amendment to override that immunity. . . . Given that a principal purpose behind the enactment of § 1983 was to provide a federal forum for civil rights claims, and that Congress did not provide such a federal forum for civil rights claims against States [it cannot be concluded] that Congress intended nevertheless to create a cause of action against States to be brought in state courts, which are precisely the courts Congress sought to allow civil rights claimants to avoid through § 1983." (Will v. Michigan Dept. of State Police (1989) 491 U.S. 58, 66.)
District attorneys are agents of the state, and thus immune from liability under section 1983 "for conduct that is 'intimately associated with the judicial phase of the criminal process.' [Citation.] Such conduct includes initiating a prosecution and presenting the state's case [citation], and participating in a probable cause hearing." (Pitts v. Kern County (1998) 17 Cal.4th 340, 350 (Pitts); see also County of Los Angeles v. Superior Court (2009) 181 Cal.App.4th 218, 234.)
4. ANALYSIS
In Clauder's complaint, he alleges Ramos was the San Bernardino County District Attorney; at all times Ramos was "acting under color of authority of state law"; and Ramos filed child pornography charges against Clauder in San Bernardino County Superior Court. The acts Clauder alleges are associated with criminal prosecution, and therefore reflect Ramos was acting in his official capacity, as an agent of the State. (Pitts v. Kern, supra, 17 Cal.4th at p. 350.)
Clauder's first cause of action cites section 1983 and alleges "First Amendment Retaliation." Clauder's second cause of action cites section 1983 and alleges the malicious prosecution violated his Fourth and Fourteenth Amendment rights. Clauder's third cause of action cites section 1983 and alleges the State created a danger that violated Clauder's civil rights. Because all three of Clauder's causes of action are based upon section 1983, and Clauder is suing Ramos for Ramos's official acts, Clauder's causes of actions are barred by the Eleventh Amendment. Therefore, the trial court did not err by sustaining the demurrer on the basis of the Eleventh Amendment.
Clauder asserts the complaint sets forth criminal acts by Ramos, such as presenting false testimony, and those acts are not protected by the Eleventh Amendment because they are not official acts. Clauder cites no law to support his theory that wrongful acts associated with a criminal prosecution are unofficial acts exempt from the Eleventh Amendment. The law we have found reflects prosecutors have "absolute immunity" from section 1983 suits that result from the prosecution of criminal cases. (Pitts, supra, 17 Cal.4th at p. 350.) Because our Supreme Court has deemed the Eleventh Amendment immunity to be "absolute," and Clauder cites no law to support his theory, we conclude there is not a "wrongful act" exception to the Eleventh Amendment immunity.
In some instances, prosecutors have only qualified immunity under the Eleventh Amendment. The instances occur when a prosecutor's "conduct [is] not 'intimately associated with the judicial phase of the criminal process,' including giving legal advice to police, or conducting investigations regarding an individual before there is probable cause to have that individual arrested." (Pitts, supra, 17 Cal.4th at p. 351.) Clauder's complaint describes charges being filed by Ramos after child pornography was found on a laptop computer Clauder had used. Clauder asserts Ramos knew the case hinged on the testimony of Clauder's wife. Clauder's complaint describes the prosecution of a criminal case, e.g. the filing of charges and the testimony of a witness, which is "conduct that is 'intimately associated with the judicial phase of the criminal process.'" (Pitts, supra, 17 Cal.4th at p. 350.) As a result, the complaint falls into the "absolute" immunity category, rather than the "qualified" immunity category.
5. AMENDMENT
When a demurrer is sustained without leave to amend, "'we decide whether there is a reasonable possibility that the defect can be cured by amendment: if it can be, the trial court has abused its discretion and we reverse.'" (McKenney v. Purepac Pharmaceutical Co., supra, 167 Cal.App.4th at p. 78.) "The burden of demonstrating a reasonable possibility that the defect can be cured by amendment 'is squarely on the plaintiff.'" (Ibid.)
Clauder contends that if he were permitted to conduct discovery, then he could "show the extent of Ramos' involvement" in the alleged malicious prosecution. (All caps. omitted.) Clauder's contention is not persuasive because (1) he does not explain how he might rely on laws other than section 1983; and (2) he does not cite any law to support his theory that there is a "wrongful official acts" exception to the Eleventh Amendment immunity. Thus, it appears Clauder might amend his complaint to add more facts, but would ultimately circle back to the same legal problem of section 1983 claims against state agents being barred in state court.
To the extent Clauder is asserting he would sue Ramos only in Ramos's personal capacity, rather than his official capacity, so as to bypass Eleventh Amendment immunity (see Venegas v. County of Los Angeles (2004) 32 Cal.4th 820, 829 [state officers are protected by the Eleventh Amendment]), Clauder does not provide law explaining how the filing of a complaint in a criminal proceeding would be personal conduct, rather than official conduct under the Eleventh Amendment. Clauder's complaint alleges Ramos filed charges against Clauder. Clauder does not argue that he would remove that allegation from the complaint. Thus, Clauder would need to explain (1) how the filing of a criminal complaint is a personal act; and/or (2) how there is an exception for "wrongful official acts" in the Eleventh Amendment. Clauder has not offered either explanation. Because Clauder has not met his burden of showing how he could amend his complaint to cure the defects, we conclude the trial court did not err by denying Clauder leave to amend.
B. PROSECUTORIAL IMMUNITY
Clauder contends the trial court erred by sustaining the demurrer on prosecutorial immunity grounds. (Gov. Code, § 821.6.) We have concluded ante that the demurrer was properly sustained based upon Eleventh Amendment immunity. Therefore, the issue of prosecutorial immunity is moot because we cannot provide Clauder with any effective relief in regard to this issue. (Vernon v State (2004) 116 Cal.App.4th 114, 120 [an issue is moot when no effective relief can be granted].)
C. DUE PROCESS
Clauder contends Government Code section 821.6 violates due process because "[i]t gives prosecutors open and free reign to act in an intentionally unlawful manner without threat of civil redress."
Government Code section 821.6 provides, "A public employee is not liable for injury caused by his instituting or prosecuting any judicial or administrative proceeding within the scope of his employment, even if he acts maliciously and without probable cause."
"In the case of a substantive due process claim . . . 'deprivation of a right is supportable only if the conduct from which the deprivation flows is prescribed by reasonable legislation that is reasonably applied; that is, the law must have a reasonable and substantial relation to the object sought to be attained.'" (People v. Kilborn (1996) 41 Cal.App.4th 1325, 1328.)
The same issue was raised in Blackburn v. County of Los Angeles (1974) 42 Cal.App.3d 175, 178 (Blackburn). In Blackburn, the appellants asserted "'[Government Code] section 821.6 denies them due process of law, because the 'legislation has completely abridged the right of a citizen to appear in a court of justice to seek redress . . . .'"
The appellate court rejected the argument, finding the statute did not violate due process. The appellate court explained that similar immunity statutes, which were found to be constitutional, limited rather than eliminated an aggrieved person's remedies. (Blackburn, supra, 42 Cal.App.3d at p. 178.) Government Code section 821.6 has an exception (allowing suit) for acts that are outside the scope of the defendant's job duties. Therefore, Government Code section 821.6 limits, but does not eliminate, an aggrieved person's right to sue—a plaintiff may sue for acts that are beyond the scope of the defendant's official duties. (See Richardson-Tunnell v. School Ins. Program for Employees (SIPE) (2007) 157 Cal.App.4th 1056, 1062 [explaining "scope of employment"].)
Blackburn also cited the Supreme Court's reasoning for upholding immunity for public officials: "'When the duty to investigate crime and to institute criminal proceedings is lodged with any public officer, it is for the best interests of the community as a whole that he be protected from harassment in the performance of that duty. The efficient functioning of our system of law enforcement is dependent largely upon the investigation of crime and the accusation of offenders by properly trained officers. A breakdown of this system at the investigative or accusatory level would wreak untold harm.'" (Blackburn, supra, 42 Cal.App.3d at pp. 178-179, citing White v. Towers (1951) 37 Cal.2d 727, 729-730.)
Government Code section 821.6 is procedurally fair, in that it allows for lawsuits that concern conduct beyond the scope of a defendant's employment—Government Code section 821.6 does not create an absolute bar to lawsuits. Government Code section 821.6 immunity is related to the proper legislative goal of protecting officials who prosecute crimes from repeatedly having to delve into prior investigations to justify their work for the sake of civil lawsuits. Because the prosecutorial immunity set forth in Government Code section 821.6 is procedurally fair and reasonably related to a proper legislative goal, we conclude it does not violate due process.
DISPOSITION
The judgment is affirmed. The parties are to bear their own costs on appeal.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER
J. We concur: RAMIREZ
P. J. McKINSTER
J.