Evans v. Super. Ct.

Filed 10/14/09 Evans v. Super. Ct. CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIFTH APPELLATE DISTRICT

APPEAL from an order of the Superior Court of Merced County. Glenn A. Ritchey, Jr., Judge.

Jamar James Evans, in propria persona, for Plaintiff and Appellant.

Edmund G. Brown, Jr., Attorney General, Steven M. Gevercer and James W. Walter, Deputy Attorneys General, for Defendants and Respondents.

-ooOoo-

This is an appeal by a pro se litigant from the trial courts dismissal of his complaint after it sustained a defense demurrer. Plaintiff Jamar James Evans contends the trial court erred in sustaining without leave to amend the demurrer by defendants Superior Court of California, County of Merced (the Merced court), and two judges on that court, the Honorable Ronald Hansen and the Honorable Hugh Flanagan (collectively defendants). We will affirm.

PROCEDURAL BACKGROUND

On review of a trial courts decision to sustain a demurrer, we give the complaint a reasonable interpretation, reading it as a whole and its parts in their context. (Zelig v. County of Los Angeles (2002) 27 Cal.4th 1112, 1126 (Zelig).) Further, we treat the demurrer as admitting all material facts properly pleaded, but do not assume the truth of contentions, deductions or conclusions of fact or law. (Ibid.; Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 966-967.) With these standards in mind, we turn to the complaint.

The complaint alleges that the two judges committed fraud and actual malice when they made various court rulings and the Merced court failed to train or supervise when a sheriffs deputy kept plaintiff from entering the courthouse. Specifically, the complaint alleges the following rulings constitute fraud and malice: (1) on March 7, 2006, Judge Hansen made an order denying the plaintiffs petition to vacate an arbitration award and granting a counter-petition to confirm a corrupt arbitration award; (2) plaintiff served a peremptory challenge on Judge Hansen in one of four lawsuits on February 15, 2007, and thereafter on November 28, 2007, Judge Hansen denied, in part, an order on an application for waiver of additional court fees and costs, which sought payment for a reporters transcript; (3) Judge Hansen sanctioned plaintiff several times during discovery; (4) after plaintiff served the peremptory challenge on Judge Hansen, Judge Hansen made unspecified misrepresentations which damaged plaintiff; and (5) Judge Flanagan sanctioned plaintiff five minutes after Defendant Hansen had disqualified himself and subsequently dismissed plaintiffs lawsuit.

With respect to the Merced court, the complaint alleges: these violations of state constitutional rights were caused by an implementation of custom, policy, or official acts of Defendant, Superior Court of California, County of Merced. The custom or policy plaintiff alleges is a failure to train or supervise. Plaintiff alleges that one of the main components of this lawsuit is purposeful exclusion of plaintiff from entering the Merced County Courthouse. Case Evans v. Merced County Sheriffs Department, case number 150409, included this similar allegation. Plaintiff states that he was forbidden to enter the same courthouse by a Deputy Sheriff. With Defendant Hansen presiding, the lawsuit was dismissed without leave to amend. Plaintiff alleges that there is evidence in the record to substantiate a connection between the Deputy Sheriff and Terminix International. Plaintiff alleges that the official acts of the Defendant(s) constitutes an intentional tort, pursuant to Government Code, Section 815.3.

Defendants demurred to the complaint on the grounds that it failed to state a cause of action, as defendants were absolutely immune from suit, and plaintiff failed to comply with the requirements of the Government Claims Act (Govt. Code, 810 et seq.).^[1] In response, plaintiff filed a Motion to Strike Defendants Motion and Demurrer to Complaint, in which he moved to strike the demurrer on the grounds that defendants were not immune from suit because he alleged they committed actual fraud and malice, and he was not required to present a claim. Defendants filed an opposition to the motion to strike.

A hearing on the demurrer was held on June 30, 2008, at which plaintiff appeared in propria persona and defendants appeared through their attorney. After hearing arguments, the court stated that it was denying plaintiffs motion to strike and sustaining the demurrer. The court asked for brief arguments from plaintiff and defendants counsel on the issue of whether plaintiff should be given leave to amend. Defendants counsel argued leave should not be granted because there was no possibility plaintiff could amend to avoid judicial immunity. Plaintiff argued that he could state a claim by alleging actual fraud and malice. The court took the matter under submission and later issued a written ruling, filed July 1, 2008, denying plaintiffs motion to strike and sustaining the demurrer without leave to amend. The court explained that while it is often an abuse of discretion not to allow an opportunity to correct defects after sustaining a demurrer, when plaintiff was given an opportunity to suggest how he would proceed if given an opportunity to amend he responded with the same legal theories presented in his response to the demurrer, and while plaintiff disagreed with the principle of absolute immunity, he offered and suggested nothing to support his conclusions and the court was unaware of any means by which he could successfully proceed. Plaintiff subsequently filed a notice of appeal from the courts order.

DISCUSSION

Standard of Review

On appeal from a judgment dismissing an action after sustaining a demurrer without leave to amend, the standard of review is well settled: We independently determine whether the complaint states facts sufficient to constitute a cause of action and decide whether there is a reasonable possibility the defect can be cured by amendment. (Zelig, supra, 27 Cal.4th at p. 1126.) If the defect can be cured by amendment, the trial court has abused its discretion and we reverse. (Ibid.; Blank v. Kirwan (1985) 39 Cal.3d 311, 318 (Blank).) The burden of proving how the defects in the complaint can be cured by amendment falls on the appellant. (Blank, supra, 39 Cal.3d at p. 318.)

Plaintiff is not exempt from the rules governing appeals because he is representing himself in propria persona. A party representing himself is to be treated like any other party and is entitled to the same, but no greater, consideration than other litigants and attorneys. (Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1246-1247; see Leslie v. Board of Medical Quality Assurance (1991) 234 Cal.App.3d 117, 121 [self-represented parties are held to the same restrictive procedural rules as an attorney].)

Judicial Immunity

Plaintiff challenges only the denial of leave to amend with respect to his claims based on the acts of the two judges. Plaintiff contends the trial court erred in sustaining the demurrer without leave to amend because there is no immunity where it is alleged that the judicial officer has committed a crime while acting in their judicial capacity. Plaintiff asserts the two judges were willful participants in fraudulent activities by making orders that were knowingly false, and contrary to state law, and that he attempted to allege the judges committed a crime and used their powers as officers of the court to help friends or associates out of legal trouble and execute fraudulent orders that damaged him. Plaintiff admits that his complaint is based on rulings by Judge Hansen and Judge Flanagan in three other cases, but maintains the judges are not immune from suit if they have committed a crime or made rulings that are knowingly false and contrary to the law.

It is well settled that judges are granted immunity from civil suit in the exercise of their judicial functions. (Frost v. Geernaert (1988) 200 Cal.App.3d 1104, 1107 (Frost); Tagliavia v. County of Los Angeles (1980) 112 Cal.App.3d 759, 761 (Tagliavia).) Judges are immune from civil suit even when their acts are alleged to have been done maliciously and corruptly. (Frost, supra, 200 Cal.App.3d at p. 1107; Tagliavia, supra, 112 Cal.App.3d at p. 761.) The rule is based on a general principle of the highest importance to the proper administration of justice that a judicial officer, in exercising the authority vested in him, shall be free to act upon his own convictions, without apprehension of personal consequence to himself. (Soliz v. Williams (1999) 74 Cal.App.4th 577, 586.) Thus the protection must be absolute, . . . The effect of judicial immunity is that the action against the judicial officer must be dismissed. (Howard v. Drapkin (1990) 222 Cal.App.3d 843, 852.)

Here, the complaints allegations are all based on plaintiffs contention that the two judges committed fraud while making rulings in the exercise of their judicial functions. Under the authorities cited above, they are absolutely immune from civil suit. This is true even if plaintiff has or can allege, as he claims, that they committed actual fraud or malice, or even a crime. (See, e.g., Frost, supra, 200 Cal.App.3d at pp. 1108-1109 [Section 822.2, which provides for liability of a public employee acting in the scope of his employment where the employee is guilty of actual fraud, corruption or actual malice, does not abrogate the common law doctrine of judicial immunity for acts done in the exercise of the judicial function].) To the extent plaintiff is premising the Merced courts liability on the judges acts, his claim comes squarely within section 815.2, subdivision (b), which provides: a public entity is not liable for an injury resulting from an act or omission of an employee of the public entity where the employee is immune from liability. Since the judges acts come within the doctrine of judicial immunity, the Merced court as an entity is also immune from civil liability.

Plaintiff does not cite any authority to the contrary. The cases he does rely on do not address the issue of judicial immunity from a civil suit: People v. Ward (1890) 85 Cal. 585 concerned an appeal of a misdemeanor conviction of a justice of the peace, while Baird v. Justices Court of Riverside Township (1909) 11 Cal.App. 439 held that a police judge was prohibited from practicing law in front of a justice of the peace who served the same county as the police judge. The remaining cases plaintiff cites do not have any bearing here, as they concern disciplinary charges brought by an administrative body against a judge, not a civil suit where judicial immunity is at issue. (See Broadman v. Commission on Judicial Performance (1998) 18 Cal.4th 1079; Kennick v. Commission on Judicial Performance (1990) 50 Cal.3d 297, disapproved in part by Doan v. Commission on Judicial Performance (1995) 11 Cal.4th 294, 325; Kloepfer v. Commission on Judicial Performance (1989) 49 Cal.3d 826; Ryan v. Commission on Judicial Performance (1988) 45 Cal.3d 518; Cannon v. Commission on Judicial Qualifications (1975) 14 Cal.3d 678; Spruance v. Commission on Judicial Qualifications (1975) 13 Cal.3d 778.)

Plaintiff complains that he was not given an opportunity to explain to the trial court how he would amend the complaint. The record, however, belies his claim, as the record shows the trial court specifically asked him to address the issue of whether he should be given leave to amend and he responded to the trial courts invitation by explaining his theory that there is no judicial immunity where actual fraud or malice is alleged. As we have stated, however, defendants have absolute immunity for decisions made in the exercise of their judicial functions, which are the only actions upon which plaintiff bases his complaint. We conclude, therefore, that plaintiff failed to meet his burden of proving there was a reasonable possibility for curing the defects in his complaint. Thus, the trial court properly denied leave to amend.

DISPOSITION

The order sustaining the demurrer without leave to amend is affirmed. Respondents shall recover their costs on appeal.

_____________________

Gomes, J.

WE CONCUR:

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Cornell, Acting P.J.

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Dawson, J.

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^[1]Subsequent statutory references are to the Government Code.