Opinion
B333857
10-24-2024
JEFFREY J. OLIN, Plaintiff and Appellant, v. DAVID WING, Defendant and Respondent.
Jeffrey J. Olin, in pro. per., for Plaintiff and Appellant. Law Offices of Torres & Brenner and Anita Susan Brenner for Defendant and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order and judgment of the Superior Court of Los Angeles County No. 22STCV08788 Gail Killefer, Judge. Affirmed in part and reversed in part.
Jeffrey J. Olin, in pro. per., for Plaintiff and Appellant.
Law Offices of Torres & Brenner and Anita Susan Brenner for Defendant and Respondent.
ROTHSCHILD, P. J.
Appellant Jeffrey J. Olin sued the Los Angeles County Sheriff's Department (LASD); respondent LASD Detective David Wing; the Los Angeles County Superior Court and two judicial officers thereof; his former wife, Kelly Olin; and Rombro &Manley, LLP, Roger Rombro, and Melinda A. Manley, the attorneys representing Kelly in family law proceedings against Jeffrey. Jeffrey's lawsuit asserts numerous causes of action, all relating to an alleged conspiracy among the defendants to alienate Jeffrey from his son. This alleged conspiracy involved Wing and LASD personnel detaining Jeffrey pursuant to Welfare and Institutions Code section 5150, which "allows temporary detention of mentally disordered individuals who pose a danger either to themselves or to others, for treatment and evaluation." (Jacobs v. Grossmont Hospital (2003) 108 Cal.App.4th 69, 71-72.)
Because Kelly Olin and Jeffrey Olin share the same surname, to avoid confusion, we refer to them by their first names. No disrespect is thereby intended.
Unless otherwise indicated, all further statutory references are to the Welfare and Institutions Code.
We shall refer to such a detention as a "section 5150 hold," consistent with the parties' briefing and common vernacular.
In decisions not before us on the instant appeal, the court sustained, without leave to amend, the demurrers of the judicial defendants, Kelly, LASD and Kelly's family law attorneys. The instant appeal challenges the court's ruling sustaining, with limited leave to amend, Wing's demurrer to all claims against him in the first amended complaint (FAC).
Jeffrey appealed from the judgments in favor of LASD and Kelly's attorneys, and we affirmed. (Olin v. Los Angeles County Sheriff's Department et al. (May 30, 2024, B324159) [nonpub. opn.].) Jeffrey also appealed from the judgments in favor of Kelly and the judicial defendants, and that appeal is still pending. (Olin v. Veasey et al. (No. B328419).)
We conclude that Jeffrey has failed to state any cause of action against Wing based on Wing's informing others that Jeffrey had been placed on a section 5150 hold, or on alleged efforts by other defendants to secure a custody order awarding Kelly full custody of Jeffrey and Kelly's son. Accordingly, we affirm the court's rulings sustaining Wing's demurrer as to the disclosure-based causes of action in the FAC and the cause of action for parental alienation, and affirm the judgment in Wing's favor as it applies to those causes of action as well.
Reading the FAC, as we must, in the light most favorable to Jeffrey, he has sufficiently alleged causes of action based on Wing causing Jeffrey to be detained in a mental health facility under section 5150. The FAC allegations permit a reasonable inference that Wing lacked probable cause to believe such detention was warranted. We stress that our holding in this regard is driven by the extremely favorable manner in which we must construe a plaintiff's allegations at the demurrer stage. Accordingly, we reverse the judgment and order to the extent they dismiss Jeffrey's causes of action against Wing premised on Jeffrey's allegedly wrongful detention-namely, his false imprisonment cause of action and derivative causes of action for intentional infliction of emotional distress and violation of his constitutional and civil rights.
Finally, we conclude that Jeffrey has not provided a basis on which we can or should order that further proceedings following remand take place before a different judicial officer.
BACKGROUND
A. Facts Alleged in the Complaint
In an appeal from a judgment of dismissal following the sustaining of a demurrer, our review is de novo, and we must "determine whether the complaint states facts sufficient to constitute a cause of action." (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) Because a demurrer tests only the legal sufficiency of the pleading, we accept as true all properly pleaded material facts, and are "not concerned with the 'plaintiff's ability to prove . . . allegations, or the possible difficulty in making such proof.'" (Align Technology, Inc. v. Tran (2009) 179 Cal.App.4th 949, 958, quoting Alcorn v. Anbro Engineering, Inc. (1970) 2 Cal.3d 493, 496.) We disregard, however, allegations constituting contentions, deductions, or conclusions of fact or law. (Blank, supra, at p. 318.) The following factual summary is thus based on properly pleaded factual allegations in the FAC, as well as the documents it attaches and incorporates by reference.
1. The Birth of the Alleged Conspiracy
Kelly and Jeffrey were divorced in 2011. On July 21, 2018, Jeffrey "became aware that he was a victim of parental alienation caused by Kelly." On August 3, 2018, Jeffrey sent Kelly a text message stating that he "inten[ded] to appear ex parte . . . to ask the court to appoint a therapist to evaluate [their son] for parental alienation." (Italics omitted.) Kelly "retaliated" by seeking a restraining order against Jeffrey in the pending family law proceedings between them. In November 2018, the family law court, through Commissioner Glenda Veasey (one of the judicial officer defendants below, but not a party to this appeal), granted Kelly's request for a domestic violence restraining order (DVRO) against Jeffrey for a period of five years. The restraining order required, inter alia, that Jeffrey "surrender any firearms in his possession." Around this same time-in the "latter half of 2018"-Kelly and Veasey began a conspiracy to "destroy [Jeffrey's] relationship with his only child," which would later expand to include the other defendants Jeffrey named in his lawsuit.
In March 2019, Jeffrey filed a declaration in the family court proceedings, over which Veasey was still presiding, stating that he had been" 'caused to sink into the deepest depths of suicidal depression.'" In another filing with the court in April 2019, Jeffrey stated that he had been" 'rendered suicidal by the malicious actions of [Kelly] in combination with the injustices that have been meted out by . . . Veasey,'" that he" 'hopes this ends soon, one way or the other,'" and that" '[t]he only reason [he] is still alive is that [he has] got a list of four people who need to precede him.'" Veasey experienced these statements, taken in the context of Jeffrey's "open hostility against [her]" in other ways, to be "frightening and credible death threats."
2. Wing Joins the Alleged Conspiracy by Agreeing to Detain Jeffrey on a Section 5150 Hold
On October 3, 2019, "Veasey and Kelly met, in private, outside the presence of the court reporter." (Boldface and capitalization omitted.) A minute order attached to the complaint reflects that Veasey considered on this date an "ex parte application" from Kelly to amend the existing DVRO and granted the application. Veasey "modified the existing restraining order . . . to specify that [Jeffrey] shall not possess any swords, knives, daggers, fixed blade knives or other stabbing weapons and that all stabbing weapons must be turned over to law enforcement." "The October 3rd order was not enforceable until it was served, and . . . Kelly did not serve it until weeks later."
Also on October 3, 2019, Veasey "became aware, for the first time, of [Jeffrey] having expressed in court filings several months before that he had experienced suicidal ideations and blamed Veasey and Kelly for his being in that condition." Kelly and Veasey then contacted "Wing, who provides security for the [Los Angeles County Superior Court] in his role at the LASD. Veasey, Kelly, and Wing decided that [Jeffrey] should be '5150'd' [i.e., placed on a section 5150 hold] to teach him a lesson." (Capitalization omitted.) Wing "agreed to go [to] [Jeffrey's] home with the intent to '5150' [Jeffrey,] at Veasey's request, because [Jeffrey] had expressed he was suicidal no less than [six] months before."4
It is helpful at this point to describe some of the statutorily prescribed procedures for initiating a section 5150 hold. Namely, "[w]hen a peace officer takes a person into custody under section 5150 and presents that person to a facility designated by the county for evaluation and treatment, the officer must provide a written application describing the circumstances that brought the person's condition to the officer's attention and stating the officer 'has probable cause to believe that the person is, as a result of a mental health disorder, a danger to others, or to himself or herself, or gravely disabled.' (§ 5150, subd. (e).) In determining whether there is probable cause, a person authorized to make that determination may consider 'available relevant information about the historical course of the person's mental disorder' (§ 5150.05, subd. (a)) and 'shall not be limited to consideration of the danger of imminent harm' (§ 5150, subd. (b)). [¶] Before admitting a person into a designated facility, 'the professional person in charge of the facility or his or her designee shall assess the individual in person to determine the appropriateness of the involuntary detention.' (§ 5151.) 'If, in the judgment of the professional person in charge of the facility designated by the county for evaluation and treatment [or other authorized individuals], the person cannot be properly served without being detained, the admitting facility shall require an application in writing stating the circumstances under which the person's condition was called to the [facility's] attention . . . and stating that [the facility] has probable cause [to detain the person].' (§ 5150, subd. (e).)" (Julian v. Mission Community Hospital (2017) 11 Cal.App.5th 360, 375-376 (Julian), fn. omitted.)
3. Wing and LASD Personnel Detain Jeffrey on a Section 5150 Hold
Wing and LASD personnel "went to [Jeffrey's] home on the evening of October 4, 2019 with the primary intent of instituting a [section] 5150 72-hour hold." More specifically, Wing and other LASD deputies went to Jeffrey's home "on October 4, 2019 to '5150' [Jeffrey] on false pretenses" in that "[n]o emergency prompted" this visit, nor was the amended DVRO a valid basis, as it had not been served. Wing "participated in implementing [a section] 5150 hold of [Jeffrey]" but he "was not with the first wave of LASD officers to go to [Jeffrey's] home on . . . October 4[, 2019]. Instead, the first to arrive were several deputies from the Carson station" who did not mention the amended DVRO, but instead were solely "concerned with . . . whether [Jeffrey] was feeling suicidal." (Capitalization omitted.) Jeffrey "made it clear that while he could not deny being depressed, he had absolutely no suicidal intent." "Wing showed up at some point during that conversation and he stood in the background, saying nothing. The deputies . . . indicated they were satisfied and were going to leave," but Jeffrey's dogs ran out of the home, and Jeffrey went out of the home to retrieve them. "Wing nodded to the deputy to block [Jeffrey] from being able to go back inside" and "[t]hat is when [Jeffrey] and Wing began speaking." "The subject of the [amended DVRO] did not arise until" Jeffrey raised it, at which point "Wing offered to obtain a copy," then did so. After Jeffrey had read it, Jeffrey "offered to go inside, obtain the sharp objects, and give them to the deputies outside his home," but Wing "would not allow [Jeffrey] to go back into his home at that time." Jeffrey ultimately "acceded to allowing [LASD deputies] into his home to seize his personal property" because "[h]e felt he had no alternative."
"LASD detained [Jeffrey] in his bathroom as they searched through his home for sharp objects. They obtained multiple items." LASD did not document the property they took in this process, and later denied having records of the property. Jeffrey was "put . . . in handcuffs" and "informed he was being [section] 5150'd. He was transported to College Hospital of Cerritos and placed on a 72-hour hold." At the time, Jeffrey believed he was being detained "as a suicide risk," but he later learned, based on records from the evaluating psychologist, that he was being "held for threatening 'to kill a judge.'" Jeffrey was also informed in early 2020 that the reason for his section 5150 hold reflected in the" 'medical records from College Hospital in Cerritos'" and" 'the Advisement for 5150'" it contained was as follows:" 'Carson sheriff's station requested MET team to respond and evaluate client, who has made a threat to kill himself and others in a letter and has exhibited the same behavior in the past[.] . . . Client is alert, coherent, and articulate. Client is depressed, frustrated, and angry towards his estranged wife, stating he is a victim, that he feels strapped down and helpless, and that he selfmedicates with alcohol to sleep, and he feels anxious and depressed, and he has been having panic attacks.' . . . The client has a history of making threats to harm his ex-wife, ex-boyfriend, and judge who ruled against him." (Capitalization omitted.)
On the recommendation of the psychologist who evaluated Jeffrey, Jeffrey was released early-after approximately 56 hours-from the section 5150 hold. As a result of the time Jeffrey spent in detention pursuant to the section 5150 hold and the conspiracy against him, he suffers from posttraumatic stress disorder and major depressive disorder.
4. Jeffrey Learns Wing Told Kelly and Veasey About His Section 5150 Hold
In early 2021, Jeffrey filed a motion in the family law proceedings seeking a forensic psychologist evaluation of his son to assess the parental alienation that had been concerning him since 2018. To support her opposition to the motion, Kelly filed a declaration. In it, she declares that Jeffrey "was taken into [LASD] custody on or about the evening of October 4, 2019, under . . . section 5150, presumably due to his menacing and unstable behavior. At that time, [LASD personnel] contacted [her] advising [her] to 'get out of town for the weekend because they weren't sure how long he would be held.' As a safety precaution, [she was] escorted by [LASD deputies] both into and out of the courtroom, on multiple occasions." A copy of this declaration is attached to the FAC.
Also attached to the FAC is a copy of a declaration by Veasey. The Veasey declaration states that "[o]n information and belief, on or about October 4, 2019, representatives went to [Jeffrey's] residence to take possession of [the] weapons [prohibited by the amended DVRO], and during such contact, [Jeffrey] was placed on a . . . section 5150 psychiatric hold." Neither Kelly's declaration nor Veasey's declaration contains any further details regarding Jeffrey's section 5150 hold, mental health, or mental health treatment.
Veasey filed this declaration in July 2021 in connection with subsequent efforts to obtain her own protective order against Jeffrey after he allegedly threatened her and her family.
Based on these declarations, the FAC alleges that Wing and "LASD personnel kept [Kelly and Veasey] apprised of the status of [Jeffrey's] constitutionally and statutorily-confidential medical information throughout" his section 5150 hold. More specifically as to Wing, the FAC alleges Wing "unlawfully conveyed" his "knowledge of the 5150 [hold]" "to Veasey and to Kelly, . . . information . . . which was obtained in the course of making the 5150 hold." (Capitalization omitted.) Neither the FAC, nor any documents attached thereto, however, state that Wing or any LASD personnel shared with either woman any information related to or obtained in connection with the hold, other than the fact of Jeffrey having been place on such a hold.
5. Wing Executes a Search Warrant of Jeffrey's Email
Later in 2021, Wing executed a search warrant to investigate claims by Veasey that Jeffrey had sent Veasey threatening emails in June 2021. Jeffrey "posited that he had been hacked and that someone else sent some or all of the emails to Veasey." Wing, as opposed to another LASD detective, investigated these claims because a different detective would not "conceal[ ] [LASD] wrongdoing." Wing "demonstrably failed to follow the law with regard to that search warrant" by never providing Jeffrey with a copy. "Wing's acts regarding the search warrant were all in furtherance of the conspiracy." (Capitalization omitted.)
B. Jeffrey's Causes of Action Against Wing in the FAC
Based on these allegations, the FAC pleads causes of action against Wing for: unlawful disclosure under section 5328, "publication of private facts" (boldface &capitalization omitted) and "intrusion into private matters" (boldface &capitalization omitted), all based on Wing's disclosure to Veasey and Kelly of Jeffrey's "statutorily-confidential information"-namely, the fact that (1) Jeffrey was placed on a section 5150 hold; (2) false imprisonment; (3) intentional interference with parent-child relationship; (4) denial of due process under the California and federal Constitutions; (5) violation of Jeffrey's federal civil rights under section 1983 of title 42 of the United States Code; and (6) intentional infliction of emotional distress.
C. The Court's Demurrer Ruling and Judgment in Wing's Favor
On June 21, 2023, the trial court issued its tentative ruling sustaining Wing's demurrer as to all claims. The next day, Jeffrey sought to disqualify the judicial officer who issued this ruling, on the basis that her tentative ruling had "pre-judged" Wing's actions to be lawful, and the officer was therefore bias. The court denied this request.
The court ultimately adopted its tentative ruling and sustained Wing's demurrer with leave to amend only the three disclosure-based claims, the false imprisonment claim, and intentional infliction of emotional distress claim. Jeffrey did not file an amended complaint within the required time frame. Accordingly, Wing successfully moved the court, pursuant to Code of Civil Procedure section 581, subdivision (f)(2), to dismiss the claims for which Jeffrey had been granted leave to amend. The court entered judgment in Wing's favor on all claims against him on July 24, 2023.
Jeffrey filed a timely notice of appeal from a "judgment of dismissal after an order sustaining a demurrer." (Capitalization omitted.)
DISCUSSION
On appeal, Jeffrey challenges the court's rulings sustaining Wing's demurrer as to all causes of action, but does not argue he should have been granted leave to amend. He also argues that the matter should be transferred, following remand, to a different judicial officer.
A. The Court Correctly Sustained Wing's Demurrer to the Causes of Action Based on Disclosure of Information
The first three causes of action in the FAC are premised on allegations that Wing told Veasey and Kelly that Jeffrey had been placed on a section 5150 hold. The first of these causes of action is for unlawful disclosure under section 5328. Section 5328 is part of the Lanterman-Petris-Short Act (LPSA) and requires that "[a]ll information and records obtained in the course of providing services under[, inter alia] . . . Division 5 (commencing with Section 5000) . . . to either voluntary or involuntary recipients of services are confidential," subject to statutorily enumerated exceptions. (§ 5328, subd. (a); see State Dept. of Public Health v. Superior Court (2015) 60 Cal.4th 940, 964 [describing section 5328 as "prohibit[ing] . . . the release of any information obtained in the course of providing treatment to mentally ill and developmentally disabled individuals through the statutorily enumerated programs"].) Because section 5150 is within Division 5, "all information, records, and services provided pursuant to section 5150 involuntary psychiatric holds are confidential." (In re M.L. (2012) 210 Cal.App.4th 1457, 1469.) The LPSA further creates a private right of action to protect these confidentiality requirements. (See § 5330, subd. (a).) Specifically, section 5330 permits "[a]ny person [to] bring an action against an individual who has willfully and knowingly released confidential information or records concerning him or her in violation of [section 5328]." (§ 5330, subd. (a).)
Jeffrey argues that the fact of his section 5150 hold constitutes confidential medical information protected from disclosure under section 5328. We are aware of no case, and Jeffrey cites none, holding that section 5328 prohibits disclosure of the fact of an individual being detained under section 5150. Such an interpretation would be contrary to the plain language of the statute, which refers to "information and records obtained in the course of providing services" pursuant to, as applicable here, section 5150. (§ 5328, subd. (a), italics added.) (See Bonnell v. Medical Board (2003) 31 Cal.4th 1255, 1261 (Bonnell) [where" 'the language of the statute is not ambiguous, the plain meaning controls' "].) That law enforcement has detained an individual for the purpose of being evaluated and/or treated under section 5150 is not information law enforcement obtained "in the course of" such evaluation and treatment. (§ 5328, subd. (a).)
Because" 'the language of the statute is not ambiguous, the plain meaning controls and [to] resort to extrinsic sources to determine the Legislature's intent is unnecessary.'" (Bonnell, supra, 31 Cal.4th at p. 1261.) It is thus not a basis for reaching a different conclusion that, as Jeffrey argues, interpreting the plain language of section 5328 to cover more than what it unambiguously says it covers would be consistent with certain policy goals of the LPSA. Many requirements or prohibitions might be consistent with, or even serve, the policy goals of the LPSA. But in the absence of ambiguity in a statute's language requiring us to determine its meaning,"' "we presume the Legislature meant what it said." '" (Bonnell, supra, at p. 1261, quoting Diamond Multimedia Systems, Inc. v. Superior Court (1999) 19 Cal.4th 1036, 1047.)
For similar reasons, we are unpersuaded by Jeffrey's citation to In re S.W. (1978) 79 Cal.App.3d 719 (S.W.) for the proposition that it would be consistent with the LPSA policy goals to interpret section 5328 as protecting from disclosure the fact that an individual received services covered by the LPSA. S.W. is distinguishable as well. It involved the admissibility in dependency proceedings of records regarding a mother's outpatient mental health treatment. (S.W., supra, at p. 721.) The Court of Appeal held that the statutorily enumerated exceptions to section 5328 confidentiality did not "override" and create exceptions to the psychotherapist-patient privilege codified in the Evidence Code. (See In re S.W., supra, at p. 721 ["section 5328 does not override the privilege . . . the trial court erred in refusing to consider whether the records were privileged under the Evidence Code"].) In this context, the court compared the scope of the protections afforded by section 5328 and the psychotherapist-patient privilege, commenting: "The confidentiality imposed by this act goes beyond matter which is protected by any of the privileges established in the Evidence Code. For example, a record showing only that a person had entered a facility for treatment or evaluation under the [LPSA] would probably not contain privileged matter, but its disclosure could bring embarrassment or more serious consequences to the individual involved. One of the purposes of section 5328 is to avoid that kind of undesired publicity." (S.W., supra, at p. 721, citing County of Riverside v. Superior Court (1974) 42 Cal.App.3d 478, 481 (Riverside).)
It bears mentioning that the case S.W. cites for this proposition, Riverside, supra, 42 Cal.App.3d 478 , does not directly support it. Riverside involved a professional licensing board's subpoena for records regarding a professional's voluntary treatment for alcoholism. (Id. at p. 480.) The Court of Appeal held that the exception in section 5328 permitting disclosure of otherwise confidential medical information as necessary for the administration of justice requires that there be pending judicial proceedings. (Riverside, supra, at p. 481.) In this context, the Court of Appeal noted that "one of the legislative purposes in providing for confidentiality was undoubtedly to encourage persons with mental or alcoholic problems to seek treatment on a voluntary basis." (Ibid.; see ibid. ["[t]o construe the limited exception contained in subdivision (f) of section 5328 as permitting disclosure to any person or agency whenever a court determined it was 'necessary to the administration of justice' would tend to nullify the broad legislative provision for confidentiality and would tend to stultify the legislative purpose"].)
We are also unpersuaded by Jeffrey's citation to Sorenson v. Superior Court (2013) 219 Cal.App.4th 409 for the proposition-stated in dicta and while analyzing issues unrelated to the one presented here-that section 5328 "may" protect from disclosure the fact that an individual received mental health services. (Sorenson, supra, at p. 446.) In Sorenson, the Court of Appeal interpreted another section in the LPSA, section 5118, and "conclude[d] that LPS[A] proceedings, including jury trials, are presumptively nonpublic under section 5118." (Sorenson, supra, at p. 438.) The court reached this conclusion in part because it was "consistent with the confidentiality of patient records as mandated under the LPS[A] itself [via section 5328]" and "also comports with the broader context of a patient's constitutional right of privacy, and the protections afforded to patients under the psychotherapist-patient privilege." (Sorenson, supra, at pp. 443-444.) The court then had occasion to comment that "section 5328 may afford broader protection than the psychotherapist-patient privilege" and noted as an illustrative example, citing S.W., that "the mere fact of the patient's entry into a facility for treatment may be subject to the confidentiality provisions of section 5328, but it may not be protected under [the] Evidence Code." (Sorenson, supra, at p. 446.) Thus, the portion of the decision on which Jeffrey relies expresses a possibility, in dicta, of what section 5328 "may" cover.
The dicta and general policy goals noted in these cases are not a basis for reading beyond the plain meaning of section 5328 statutory language and concluding it protects disclosure of a section 5150 hold, rather than "information and records obtained in the course of providing services" under section 5150. (§ 5328, subd. (a).) We may not and do not so interpret section 5328. Therefore, the court correctly concluded that Wing's alleged disclosure of the fact of Jeffrey's section 5150 detention does not support a colorable cause of action for unlawful disclosure of information. The causes of action for publication of private facts and intrusion into private matters are derivative of the claimed section 5328 violation and thus also fail to state a claim. Accordingly, the court correctly sustained Wing's demurrer to the three disclosure-based claims alleged in the complaint.
B. Parental Alienation Claim
"[T]he unlawful taking or withholding of a minor child from the custody of the parent or guardian entitled to such custody constitutes an actionable tort." (Surina v. Lucey (1985) 168 Cal.App.3d 539, 542.) The FAC alleges that Kelly and Veasey committed this tort through "Veasey's sua sponte act of stripping [Jeffrey] of legal custody of his son" (italics omitted), which occurred on October 2, 2018. Jeffrey argues Wing may be held liable for this tort as well, because the FAC alleges it was "an aim of the conspiracy" to "engage in this tort" (capitalization omitted) and Wing is alleged to be a participant in the conspiracy. But the FAC does not contain allegations explaining how actions Wing took beginning in October 2019 could have helped achieve a tort that had already occurred a year earlier, nor does it allege that Wing intended his actions to have this retroactive effect. (See Kidron v. Movie Acquisition Corp. (1995) 40 Cal.App.4th 1571, 1582 [" '[T]he basis of a civil conspiracy is the formation of a group of two or more persons who have agreed to a common plan or design to commit a tortious act.' [Citations.] The conspiring defendants must also have actual knowledge that a tort is planned and concur in the tortious scheme with knowledge of its unlawful purpose"].) Accordingly, the FAC does not sufficiently allege Wing committed the tort of parental alienation.
C. Causes of Action Based on Wing's Implementation of a Section 5150 Hold
The FAC asserts several causes of action that rely on allegations not that Wing disclosed Jeffrey's section 5150 hold, but that Wing assisted in wrongly detaining Jeffrey under section 5150.
1. Section 5278 Immunity
The court concluded that Wing was immune from liability based on his alleged role in detaining Jeffrey under section 5278, which provides that "[i]ndividuals authorized under this part to detain a person for 72-hour treatment and evaluation pursuant to Article 1 (commencing with Section 5150) . . . shall not be held either criminally or civilly liable for exercising this authority in accordance with the law." (§ 5278.) Jeffrey correctly points out that this section does not provide immunity for all officials involved in a section 5150 hold under all circumstances, but rather only for those who acted "in accordance with the law" during such involvement. (§ 5278.) An officer detains someone under section 5150 "in accordance with the law" (§ 5278) when he or she has "probable cause" for the detention. (People v. Triplett (1983) 144 Cal.App.3d 283, 287 (Triplett).) "To constitute probable cause to detain a person pursuant to section 5150, a state of facts must be known to the peace officer . . . that would lead a person of ordinary care and prudence to believe, or to entertain a strong suspicion, that the person detained is mentally disordered and is a danger to himself or herself or is gravely disabled. In justifying the particular intrusion, the officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant his or her belief or suspicion. [Citations.] Each case must be decided on the facts and circumstances presented to the officer at the time of the detention [citation], and the officer is justified in taking into account the past conduct, character, and reputation of the detainee." (Triplett, supra, at pp. 287-288.) "It is sufficient if the officer, as a lay person, can articulate behavioral symptoms of mental disorder, either temporary or prolonged. An all-encompassing lay definition of mental disorder is difficult if not impossible to formulate. But, generally, a mental disorder might be exhibited if a person's thought processes, as evidenced by words or actions or emotional affect, are bizarre or inappropriate for the circumstances." (Id. at p. 288.)
Wing argues that Jeffrey's suicidal and threatening statements in March 2019 and April 2019 court filings provide probable cause for his detention under section 5150. But the FAC alleges absolutely no additional circumstances or behavior, based on which, on October 4, 2019, Wing could have reasonably suspected that Jeffrey would act on these statements. To the contrary, at least six months had passed since those statements, during which time-at least according to the FAC-Jeffrey had neither done nor said anything to suggest he would act thereon. Wing also points to the FAC's allegations that hospital records describe Jeffrey's section 5150 hold as generally based on Jeffrey having written a letter that, in some unspecified way and at an unspecified time, threatened a judge and threatened Kelly. But those undated general allegations also do not necessarily support that Jeffrey wrote this letter or otherwise threatened anyone at any time close to October 4, 2019. Indeed, the FAC does not even allege whether these threats occurred before or after the March and April 2021 statements. Accepting these allegations as necessarily establishing probable cause implies an interpretation of section 5150 that requires so little to justify detention, it risks that authorities could turn to section 5150 as a perceived shortcut to arrest, instead of charging a person with criminal conduct.
Cases finding probable cause for a section 5150 hold based on suicidal ideation involve evidence of recent suicidal thoughts or efforts, or some other additional basis for being concerned the detainee may harm himself at the time of the detention. (See, e.g., Triplett, supra, 144 Cal.App.3d at p. 288 [probable cause justified section 5150 detention where detainee found standing alone "intoxicat[ed] and weeping . . . with obvious physical signs of a recent suicide attempt"]; Julian, supra, 11 Cal.App.5th at p. 388 [detainee had "told a close friend she was going to slit her wrists," had six to eight marks on her wrists the officer reasonably believed may have evidenced previous suicide attempts, and" 'went out of control'" when the school police approached her to obtain a statement for a criminal investigation]; see also Bias v. Moynihan (9th Cir. 2007) 508 F.3d 1212, 1221 [probable cause existed where the detainee alluded to suicide and paranoid thoughts, and later "became combative" and grabbed an officer while appearing "visibly angry" and "agitated"].) According to the FAC, the most recent information suggesting Jeffrey was a suicide risk or had threatened others was approximately six months old by the time of his section 5150 hold.
Nor are there allegations in the FAC to support an inference that Wing had any other reason to suspect that Jeffrey had more recently threatened anyone or threatened to harm himself. There is nothing in Jeffrey's behavior as alleged in the FAC that was "bizarre or inappropriate [under] the circumstances," such that it would support such a reasonable suspicion. (Triplett, supra, 144 Cal.App.3d at p. 288.) Thus, although it may be sufficient for probable cause supporting a section 5150 hold that "the officer, as a lay person, can articulate behavioral symptoms of mental disorder, either temporary or prolonged," the FAC contains no allegations supporting such symptoms. (Triplett, supra, at p. 288.)
The allegations about the amended DVRO also do not support that Wing had probable cause to detain Jeffrey. Jeffrey disputes that Wing was, indeed, ordered to Jeffrey's home to collect the sharp objects referenced in the amended DVRO on the night in question and further disputes the validity of the amended DVRO for the purposes of a demurrer analysis. But even if Wing did go to Jeffrey's home intending to collect potentially dangerous items identified in a valid October 3, 2019 amended DVRO, this would not alone, or in connection with months-old suicidal and homicidal ideation, compel the conclusion that Wing had probable cause to suspect Jeffrey was so mentally disordered that he posed a danger warranting section 5150 detention. And at least based on the allegations in the FAC and attached documents, the order made no further findings regarding Jeffrey's mental health or immediate dangerousness.
On September 10, 2024, Jeffrey moved this court to augment the record on appeal with excerpts from a transcript of a September 21, 2023 hearing before the California State Bar in disciplinary proceedings against him, which he argues are relevant to the instant appeal in that they show "Wing testified under oath that he has never been given an order by Commissioner Veasey." We hereby deny the motion. "Evidence of a postjudgment inquiry . . . is not a proper subject of augmentation or judicial notice." (In re Kenneth D. (2024) 16 Cal.5th 1087, 1106.) Augmentation" 'does not function to supplement the record with materials not before the trial court' when it made its order. [Citations.] . . . 'The augmentation procedure cannot be used to bring up matters occurring during the pendency of the appeal because those matters are outside the superior court record.' [Citation.]" (Ibid.) In any event, as noted above, the information Jeffrey identifies in these transcripts would not change our analysis of the issues on appeal.
The FAC simply does not allege "specific and articulable facts which, taken together with rational inferences from those facts," would allow a reasonable person to suspect Jeffrey was "mentally disordered" to such an extent that, on October 4, 2019, he posed either a danger to others or to himself. (Triplett, supra, 144 Cal.App.3d at p. 288; see § 5150, subd. (a).)
We recognize that the FAC presents Jeffrey's description of his behavior, and that others may offer additional or different recollections or viewpoints. We also recognize that, as the master of his complaint, Jeffrey is free to omit from the FAC additional details and information that, had they been included, might have changed our analysis. We do not intend to suggest that, with further factual development, Wing cannot show that he acted in accordance with the law. But at this stage, the facts as alleged in the FAC and reflected in the documents attached to the FAC, when viewed in the light most favorable to Jeffrey, do not necessarily establish that Wing had probable cause to detain Jeffrey. Yet this is what they must do at the demurrer stage in order for us to conclude that Wing had probable cause to detain Jeffrey. Accordingly, we disagree with the court that section 5278 provides Wing immunity from liability based on his implementation of the section 5150 hold.
2. Sufficiency of the Allegations to Establish the Detention-Based Causes of Action a. False imprisonment
False imprisonment is the" 'unlawful violation of the personal liberty of another,'" via a restraint that "may be effectuated by means of physical force [citation], threat of force . . . [citation], confinement by physical barriers [citation], or by means of any other form of unreasonable duress." (Fermino v. Fedco, Inc. (1994) 7 Cal.4th 701, 715.) Fundamental to the tort is thus that the restriction of liberty was unlawful. Here, because the FAC alleges facts that could support a reasonable inference that Wing detained Jeffrey under section 5150 without having probable cause to do so, the detention, as alleged, could support a false imprisonment claim.
Wing argues that the FAC does not actually allege Wing was involved in detaining Jeffrey on the evening in question, but rather that "LASD personnel" did so. Reading the FAC in the light most favorable to Jeffrey, we conclude that numerous allegations specific to Wing support that he participated in physically detaining Jeffrey on October 4, 2019.
b. Intentional infliction of emotional distress
"A cause of action for intentional infliction of emotional distress exists when there is '"' "(1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress; (2) the plaintiff's suffering severe or extreme emotional distress; and (3) actual and proximate causation of the emotional distress by the defendant's outrageous conduct." '"' [Citations.] A defendant's conduct is 'outrageous' when it is so '" 'extreme as to exceed all bounds of that usually tolerated in a civilized community.'"' [Citation.] And the defendant's conduct must be '" 'intended to inflict injury or engaged in with the realization that injury will result.'" '" (Hughes v. Pair (2009) 46 Cal.4th 1035, 1050-1051.) We conclude Jeffrey has sufficiently alleged that Wing assisted in placing Jeffrey on a section 5150 hold, and that Wing did so based, at most, on suicidal ideation and threats Jeffrey expressed months prior and an October 3, 2019 amended DVRO order determining Jeffrey should not possess sharp objects. As discussed above, this is a patently inadequate basis for suspecting that Jeffrey was so mentally disturbed as to pose a danger to himself or others-the showing necessary to justify render lawful the temporary confinement in a mental health facility under section 5150. A reasonable trier of fact might conclude that subjecting someone to unnecessary confinement in a mental health facility-even for a short period-is sufficiently extreme or outrageous to support an emotional distress claim, and Wing does not argue otherwise. Jeffrey has also alleged damages he suffered as a result of his detention. Finally, Jeffrey has alleged that Wing went to Jeffrey's home to detain Jeffrey under section 5150, and ultimately did so, in an effort to assist Veasey and Kelly in their plot against Jeffrey. If true, these allegations reflect that Wing intentionally inflicted upon Jeffrey the emotional distress occasioned by Jeffrey's unnecessary detention in a mental health facility. Accordingly, he has sufficiently alleged a derivative cause of action of intentional infliction of emotional distress.
c. Constitutional and civil rights causes of action
The FAC also alleges a substantive due process claim and a federal civil rights claim, both derivative of his false imprisonment claim. A substantive due process claim requires the plaintiff to prove" 'a government deprivation of life, liberty, or property'" (Chan v. Judicial Council of California (2011) 199 Cal.App.4th 194, 201) "in such a way that 'shocks the conscience' or 'interferes with rights implicit in the concept of ordered liberty.'" (Nunez v. City of Los Angeles (9th Cir.1998) 147 F.3d 867, 871.) A federal civil rights cause of action under section 1983 of title 42 of the United States Code requires the plaintiff to prove (1) "that some person has deprived him of a federal right" and (2) "that the person who has deprived him of that right acted under color of state or territorial law." (Catsouras v. Department of California Highway Patrol (2010) 181 Cal.App.4th 856, 890.)
Jeffrey has sufficiently alleged the elements of both of these causes of action for the same reasons he has sufficiently alleged a claim for false imprisonment based on his section 5150 detention.
Wing's argument that the federal civil rights claim fails because it must be based on vicarious liability is mooted by our conclusion that the FAC sufficiently alleges Wing was personally involved in Jeffrey's section 5150 detention.
D. Motion to Disqualify Bench Officer
Jeffrey also challenges the court's denial of a motion to disqualify the bench officer who issued the challenged order and judgment. "An order denying a motion to disqualify a judge is 'not an appealable order and may be reviewed only by a writ of mandate from the appropriate Court of Appeal sought only by the parties to the proceeding. The petition for the writ shall be filed and served within 10 days after service of written notice of entry of the court's order determining the question of disqualification.' (Code Civ. Proc., § 170.3, subd. (d).) . . . [T]he statute 'means what it says . . . [and] provides the exclusive means for seeking review of a ruling on a challenge to a judge, whether the challenge is for cause or peremptory.' Since [Jeffrey] failed to file a petition for a writ of mandate, he has forfeited his claim on appeal." (People v. Peoples (2016) 62 Cal.4th 718, 786-787.)
Further, we note that the stated basis for a motion- that the substance of the court's tentative ruling reflects the bench officer having "pre-judged" the matter-would in any event not be a cognizable basis for disqualification. (See Code Civ. Proc., 170.2, subd. (b) ["[i]t shall not be grounds for disqualification that the judge . . . [¶] . . . [¶] . . . [h]as in any capacity expressed a view on a legal or factual issue presented in the proceeding, except as provided in paragraph (2) of subdivision (a) of, or subdivision (b) or (c) of, Section 170.1"].) To the extent Jeffrey's arguments are a request under Code of Civil Procedure section 170.1, subdivision (c), that proceedings on remand be heard before a different bench officer, we conclude that nothing in the record supports that doing so would be in the interests of justice, and decline the request. (See Code Civ. Proc., § 170.1, subd. (c) ["[a]t the request of a party . . . an appellate court shall consider whether in the interests of justice it should direct that further proceedings be heard before a trial judge other than the judge whose judgment or order was reviewed by the appellate court"].)
DISPOSITION
Accordingly, we reverse the judgment in Wing's favor and the order sustaining Wing's demurrer to the FAC to the extent they apply to the following causes of action against Wing: false imprisonment (fourth cause of action), intentional infliction of emotional distress (fifth cause of action), "denial of due process" (seventh cause of action), and "violation of [federal] civil rights" (eighth cause of action). In all other respects, we affirm.
The parties shall bear their own costs on appeal.
We concur: WEINGART, J., KLINE, J. [*]
[*] Retired Presiding Justice of the Court of Appeal, First Appellate District, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.