Filed 6/23/26 Barstol v. County of Orange CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
STEPHEN BARSTOL et al.,
Plaintiffs and Appellants, G063997
v. (Super. Ct. No. 30-2022-
01239759)
COUNTY OF ORANGE et al.,
OPINION
Defendants and Respondents.
Appeal from a judgment of the Superior Court of Orange County,
William D. Claster, Judge. Affirmed. Request for judicial notice denied.
Law Office of Richard P. Herman and Richard P. Herman for
Plaintiffs and Appellants.
Lynberg & Watkins, S. Frank Harrell, and Jesse K. Cox for
Defendants and Respondents.
Plaintiffs1 appeal from a judgment entered after the trial court
sustained a demurrer without leave to amend. Plaintiffs contend their
proposed third amended complaint sufficiently alleges Bane Act violations,
the continuing violations doctrine rendered their claims timely, and the trial
judge should have been disqualified.
We hold the Bane Act does not support their claims, the
continuing violations doctrine does not excuse their inadequate government
claims notice, and the court properly rejected their disqualification efforts,
which in any event are unappealable. We affirm.
FACTS
Plaintiffs sued the County and others2 for “violations of the
California Constitution and Laws” during their incarceration. The initial
complaint alleges class and individual claims but lists no causes of action in
the caption, instead including various headings in the body: habeas corpus for
some plaintiffs, mandamus, violation of the Bane Act (Civ. Code, § 52.1), and
other rights violations. Plaintiffs alleged they “live[d] in constant fear of
brutality and physical and mental abuse an[d] threats of physical abuse”;
they were denied phone calls; calls with their attorneys were improperly
monitored and recorded; and they were denied “necessities of life,” such as
1 Plaintiffs are Mark Moon, Robert Ruiz, Gary Figueroa,
Jonathan Tieu, Johnny Martinez, Julio Dorantes, Korrell Cole, Walter Cole,
Ronald McGregor, Stephen Barstol, “and others similarly situated.” They
allege they are “prisoners in the Orange County jails, attorneys and friends,
and family members.”
2 Defendants are now the County of Orange, Sheriff Don Barnes,
and Deputy T. Carrillo. A separate judgment was previously entered for
another defendant, Global Tel*Link Corporation. No appeal was taken.
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“food, including religious and medical diets,” “dayroom, visits, exercise,
meaningful law library access, fair grievance and disciplinary procedures,
mental health, [and] medical and dental care,” including treatment for corona
virus.
Defendants demurred, plaintiffs responded with a first amended
complaint (FAC), and the court sustained a demurrer to the FAC with leave
to amend. The order noted this was plaintiffs’ “seventh complaint across two
actions,”3 yet plaintiffs “have repeatedly shown they are either unwilling or
unable to correct pleading deficiencies.”
Plaintiffs filed a second amended complaint (SAC). Like the FAC,
the SAC listed no causes of action in the caption and the headings and claims
were substantially similar to the FAC.
The court sustained a demurrer without leave to amend on all
claims except one. In a thorough 27-page order, the court addressed every
allegation and purported cause of action, explaining why each was
insufficiently pled. The trial court found defendants were immune from Bane
Act claims that accrued prior to 2022 statutory amendments. Only four
potential Bane Act violations occurred after those amendments but plaintiffs
failed to give proper government claims notice and could not use the
continuing violations doctrine to show proper notice.
Plaintiffs filed a motion for reconsideration then tried twice to
disqualify the trial judge. First, they filed a peremptory challenge (see Code
Civ. Proc., § 170.6) that was immediately denied as untimely. Next, they filed
an “objection” asserting the judge was actually biased. (Code Civ. Proc.,
3 Plaintiffs brought similar claims in a prior federal action that
was dismissed without leave to amend. (See Moon v. County of Orange (9th
Cir. Oct. 22, 2021, No. 20-56076) 2021 WL 4936945 [affirming dismissal].)
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§§ 170.1 & 170.3.) The court struck the objection, finding it stated no legal
grounds for disqualification. The court then heard and denied the
reconsideration motion.
Finally, plaintiffs applied ex parte for permission to file a third
amended complaint (TAC), which was denied. Plaintiffs dismissed the sole
remaining claim and judgment was entered for defendants.
DISCUSSION
I.
THE COURT CORRECTLY SUSTAINED THE DEMURRER
WITHOUT LEAVE TO AMEND
Plaintiffs do not attempt to defend each cause of action one-by-
one or undermine each of the trial court’s many reasons for sustaining the
demurrer. (See L.O. v. Kilrain (2023) 96 Cal.App.5th 616, 620 [points
unsupported by reasoned argument are forfeited]; Allen v. City of Sacramento
(2015) 234 Cal.App.4th 41, 52 [we “are not required to examine undeveloped
claims or to supply arguments for the litigants”].) They do not explain how
the proposed TAC would remedy the SAC’s defects. (See Cal. Rules of Court,
rule 3.1324(a)(2), (3) [plaintiff must highlight changes in amended
complaint].) Plaintiffs do not cite either pleading—they do not cite the record
at all. (See Wentworth v. Regents of University of California (2024) 105
Cal.App.5th 580, 596 [we may “‘disregard contentions unsupported by proper
page cites to the record’”].) 4
4 The County timely submitted a preargument letter (see Cal.
Rules of Court, rule 8.254) directing us to a recent case making the same
point. (Cardenas v. Los Angeles Unified School Dist. (2026) 120 Cal.App.5th
554.)
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The opening brief mainly addresses the Bane Act. Plaintiffs
detail the 2022 amendment that eliminated several governmental
immunities and note the change “[b]roaden[s] protections beyond federal civil
rights law” and limits “the res judicata impact of related federal proceedings.”
Plaintiffs imply but do not articulate how the amendment would make the
TAC allegations viable. We agree with the trial court that Bane Act violations
before 2022 are barred by statutory immunity. (See Gov. Code, § 844.6
[immunity]; see also Civ. Code, § 52.1, subd. (n) [2022 amendment abrogating
immunity].) We further agree the claims for Bane Act violations after the
2022 amendments are barred due to plaintiffs’ failure to give proper
government claims notice. (See Gov. Code, §§ 910–915.4, 945–949.)
Written notice of a claim must be given prior to filing a lawsuit
against a governmental entity or actor. (Gov. Code, § 911.2.) A lawsuit based
on that claim may be barred where the complaint’s allegations significantly
differ from those in the claim. (Stockett v. Association of Cal. Water Agencies
Joint Powers Ins. Authority (2004) 34 Cal.4th 441, 447.) The four remaining
postamendment Bane Act violations in the SAC involve three plaintiffs, all of
whom filed claim forms from 2018–2021. Postamendment acts cannot have
been identified in preamendment claim forms. The defendants therefore did
not receive proper statutory notice.
Plaintiffs assert the continuing violations doctrine saves their
improperly noticed claims for the first time in their reply brief. We need not
consider this issue. (See American Indian Model Schools v. Oakland Unified
School Dist. (2014) 227 Cal.App.4th 258, 276 [“Fairness militates against
allowing an appellant to raise an issue for the first time in a reply brief”].)
In any event, the trial court correctly found the doctrine does not
revive plaintiffs’ claims. The continuing violations doctrine holds defendants
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accountable for actions outside a limitations period “if these actions are
sufficiently linked to unlawful conduct within the limitations period.”
(Richards v. CH2M, Hill, Inc. (2001) 26 Cal.4th 798, 812.) It generally allows
a plaintiff to reach back and add prior bad conduct to the conduct which
happened within the limitations period. (Ibid.) Here, plaintiffs instead assert
their 2018–2021 government claim notices reach forward in time to include
conduct from 2022 and beyond. This doctrine cannot be used for that purpose;
doing so would run in direct contradiction to the Government Code’s notice
requirements.
Plaintiffs’ cited legal authority does not support their position.
Their purported quotation from Aryeh v. Canon Business Solutions, Inc.
(2013) 55 Cal.4th 1185, 1197–1199—“‘No bright-line rule determines when
the doctrine applies; instead, the doctrine requires a fact-specific inquiry’”—
does not appear in that case. Their federal district court case also does not
include the cited proposition and does not discuss the doctrine of continuing
violations at all. (Gibson v. County of Orange (C.D. Cal. Mar. 8, 2021, No.
8:20-cv-01232-JWH-DFMx) 2021 WL 860000 .) Finally, their eminent domain
case involves the failure to exhaust administrative remedies, not government
claims notice. (Howard v. County of San Diego (2010) 184 Cal.App.4th 1422.)
The cited pinpoint page of 1438 does not exist.
The only specific claims that plaintiffs directly address in their
briefing concern plaintiff Johnny Martinez. The SAC alleges in retaliation for
his participation in a prisoner strike, Martinez was denied visits from his
mother, and a letter sent to him was returned with an incorrect notation that
Martinez was dead.5 The SAC further alleges Martinez was held in
5 We deny plaintiffs’ request to take judicial notice of this letter, a
news article, and an ACLU report about the Orange County jails. “‘The
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disciplinary isolation for too long, was deprived of sleep, and that
accommodations were unsanitary. The only act alleged to have happened
after Bane Act immunity was withdrawn in 2022 is the denial of visits from
his mother. And this claim fails because he did not include it in his claims
notices from 2019 and 2021.
While plaintiffs assert they should have been granted leave to
amend, merely “[a]sking for leave is hardly enough, as the law imposes on
plaintiffs the burden of showing a reasonable possibility that the defect in the
pleading can be cured by amendment.” (Fox Paine & Co., LLC v. Liberty
Mutual Ins. Co. (2024) 104 Cal.App.5th 1034, 1060.) Here, plaintiffs filed the
initial complaint and the FAC, followed by the trial court giving them
another chance to amend by filing the SAC. Plaintiff has not explained how
the SAC cured the longstanding pleading defects.
In any event, despite plaintiffs’ limited briefing, we have
compared the proposed TAC to the SAC and find no significant differences
suggesting plaintiffs can properly state their claims. The few new allegations,
mostly related to plaintiff Martinez, are still unsupported by an allegation of
proper government claims notice.
II.
PLAINTIFFS’ DISQUALIFICATION CHALLENGES
ARE BASELESS AND UNAPPEALABLE
In their opening brief, plaintiffs raise the issue: “Did the trial
judge’s failure to refer the affidavit of prejudice for independent review
hearing on demurrer may not be turned into a contested evidentiary hearing
through the guise of having the court take judicial notice of documents whose
truthfulness or proper interpretation are disputable.’” (Fremont Indemnity
Co. v. Fremont General Corp. (2007) 148 Cal.App.4th 97, 114.)
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constitute[s] reversible error.” Plaintiffs assert: “The trial judge consistently
ruled in favor of the defendants at every stage of the proceedings. Notably,
after an affidavit of actual prejudice was filed, the judge unilaterally
determined that he was not prejudiced and therefore did not refer the matter
for independent review, as required. Instead, he denied the affidavit and
continued ruling against the plaintiffs. This pattern underscores the very
prejudice the plaintiffs alleged, and the judge’s actions only further
demonstrated bias by repeatedly ruling against the plaintiffs and dismissing
claims of prejudice without due process.”
Plaintiffs offer no record citations or legal authority to support
their grave charges against the trial court. “Concrete evidence—not just the
lawyer’s or client’s ire—is needed before a lawyer levies serious accusations
against a trial judge. Disparaging the trial judge is a tactic that is not taken
lightly by a reviewing court. Counsel better make sure he or she has the facts
right before venturing into such dangerous territory because it is
sanctionable for an attorney to make the unsupported assertion that the
judge was acting out of bias toward a party.” (N.D. v. Superior Court (2026)
117 Cal.App.5th 1292, 1300 (N.D.) [cleaned up].)
In any event, the trial court properly handled each challenge. It
correctly denied the peremptory challenge as untimely. (Code Civ. Proc.,
§170.6, subd. (a)(2) [challenge due within 15 days after notice of judge’s
assignment].) It also correctly struck the statement of disqualification for
actual bias. (See Code Civ. Proc., § 170.4, subd. (b).) “[T]he law is clear that
the challenged judge herself may strike a statement of disqualification that
discloses no legal grounds for disqualification.” (N.D., supra, 117 Cal.App.5th
at p. 1299.) Here, plaintiffs levied conclusory accusations that were properly
stricken. And even if the court had erred, plaintiffs’ only avenue for review
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was a timely writ petition. (See Code Civ. Proc., § 170.3, subd. (d); D.C. v.
Harvard-Westlake School (2009) 176 Cal.App.4th 836, 849.)
DISPOSITION
The judgment is affirmed. Respondents shall recover their costs
on appeal.
SCOTT, J.
WE CONCUR:
MOORE, ACTING P. J.
GOODING, J.
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