Wheeler v. Sahni CA4/1 ( 2021 )

Filed 2/26/21 Wheeler v. Sahni CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
ERIC WHEELER, D076967
Plaintiff and Appellant,
v. (Super. Ct. No.
37-2019-00012041-CU-NP-CTL)
NAMEETA SAHNI et al.,
Defendants and Respondents.
APPEAL from a judgment of the Superior Court of San Diego County,
Randa Trapp, Judge. Affirmed.
Eric Wheeler, in pro. per., for Plaintiff and Appellant.
Xavier Becerra, Attorney General, Monica N. Anderson, Senior
Assistant Attorney General, Neah Huynh and Andrew M. Gibson, Deputy
Attorneys General, for Defendants and Respondents.
Eric Wheeler is a self-represented litigant incarcerated at Richard J.
Donovan Correctional Facility. He appeals from a judgment of dismissal
entered after the court sustained a demurrer to all causes of action in his
operative second amended complaint without leave to amend. Respondents
are three psychologists employed by the California Department of Corrections
and Rehabilitation. Wheeler contends: (1) respondents are not entitled to
immunity under Civil Code section 47, subdivision (b) and Government Code
sections 820.2, 845.8, and 855.8, as the Information Practices Act of 1977
(IPA; Civ. Code, § 1798 et seq.)1 applies and is mandatory; and (2) his claims
are not barred by the favorable termination doctrine set forth in Heck v.
Humphrey (1994) 512 U.S. 477 (Heck) and Yount v. City of Sacramento (2008)
43 Cal.4th 885 (Yount). We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Wheeler sued Dr. Nameeta Sahni, who prepared a comprehensive risk
assessment report (CRA) about Wheeler for use at his parole hearing, at
which he was denied parole. Wheeler also sued Dr. Sahni’s supervisor, Dr.
Jasmine Tehrani, who reviewed the CRA, and Chief Psychologist Dr. Cliff
Kusaj, who approved it. Wheeler alleged state law causes of action for
negligence, defamation, and violation of the IPA, as well as one federal cause
of action for violation of the Fourteenth Amendment’s due process clause.
Wheeler sought $200,000 in compensatory and punitive damages.
1 Civil Code section 1798.18 states: “Each agency shall maintain all
records, to the maximum extent possible, with accuracy, relevance,
timeliness, and completeness. [¶] Such standard need not be met except
when such records are used to make any determination about the individual.
When an agency transfers a record outside of state government, it shall
correct, update, withhold, or delete any portion of the record that it knows or
has reason to believe is inaccurate or untimely.”
Civil Code section 1798.45, subdivision (b) provides that an individual
may bring a civil action against an agency whenever such agency “[f]ails to
maintain any record concerning any individual with such accuracy,
relevancy, timeliness, and completeness as is necessary to assure fairness in
any determination relating to the qualifications, character, rights,
opportunities of, or benefits to the individual that may be made on the basis
of such record, if, as a proximate result of such failure, a determination is
made which is adverse to the individual.”
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Respondents demurred to the complaint on grounds that the claims
were barred by statutory privilege or immunities set forth in Civil Code
section 47 and Government Code sections 820.2, 845.8, and 855.8.
Respondents also argued that all claims failed because they were barred by
the favorable-termination doctrine set forth in Yount, supra, 43 Cal.4th 885and Heck, supra, 512 U.S. 477 and Wheeler could not prove proximate
causation.
In opposition Wheeler argued respondents were not entitled to absolute
immunity for their roles in preparing and approving the CRA “per the ‘IPA’
. . . a supreme state law;[2] and Government Code section 815.6;[3]
2 Civil Code section 1798.70 of the IPA states: “This chapter shall be
construed to supersede any other provision of state law, . . . which authorizes
any agency to withhold from an individual any record containing personal
information which is otherwise accessible under the provisions of this
chapter.”
3 Government Code section 815.6 provides: “Where a public entity is
under a mandatory duty imposed by an enactment that is designed to protect
against the risk of a particular kind of injury, the public entity is liable for an
injury of that kind proximately caused by its failure to discharge the duty
unless the public entity establishes that it exercised reasonable diligence to
discharge the duty.”
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. . . and Penal Code section 115.[4]” He later filed an “amendment” to his
opposition to the demurrer, but the trial court reviewed only a portion of that
document.5
Citing Heck, supra, 512 U.S. 477, Yount, supra, 43 Cal.4th 885 and
Butterfield v. Bail (9th Cir. 1997) 120 F.3d 1023, the trial court sustained the
demurrer without leave to amend: “Defendants are immune from liability
under Civil Code [section 47, subdivision] (b) and Government Code [sections]
820.2, 845.8 and 855.8 for preparing and approving the Comprehensive Risk
Assessment in connection with plaintiff's parole proceedings. Further,
plaintiff’s collateral attack on his parole denial and continued confinement is
barred because he has not, and cannot, allege that his prison sentence has
been properly overturned or invalidated.”
DISCUSSION
We conclude that respondent psychologists, employees of a state
agency, did not incur liability in preparing or reviewing the CRA because
Civil Code section 47, subdivision (b) provides an absolute privilege for any
publication made in the proper discharge of an official duty in any legislative
4 Penal Code section 115, subdivision (a) states: “Every person who
knowingly procures or offers any false or forged instrument to be filed,
registered, or recorded in any public office within this state, which
instrument, if genuine, might be filed, registered, or recorded under any law
of this state or of the United States, is guilty of a felony.”
5 The trial court ruled that under the California Rules of Court, “Plaintiff
filed two oppositions when only one is permitted. Further, the first
opposition is 19 pages and the second is 70 pages when only 15 pages are
allowed for an opposition. . . . The court, in its discretion, has considered
only the first 15 pages of the amended opposition filed September 9, 2019.”
This court similarly limits its review to the portion of the record that the
court considered.
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proceeding, judicial proceeding, or “in any other official proceeding authorized
by law.” (Sacramento Brewing Co. v. Desmond, Miller & Desmond (1999) 75
Cal.App.4th 1082, 1086.) Here, the CRA that respondents authored or
approved was mandated by law to be used at Wheeler’s parole hearing (Cal.
Code Regs., tit. 15, § 2240), which is an official proceeding under Penal Code
section 3041. Civil Code section 47, subdivision (b) therefore immunizes
respondents from all liability for the causes of action and claims alleged here,
including defamation, negligence, and intentional infliction of emotional
distress. (Silberg v. Anderson (1990) 50 Cal.3d 205, 215.)
In his opening brief, Wheeler argues that Civil Code section 47 does not
apply to his claims because respondents were mandated to maintain accurate
records; therefore, a failure to comply is actionable under both the IPA and
Government Code section 815.6. However, the Civil Code section 47 privilege
also applies to claims based on an alleged breach of a mandatory duty. (See
Lebbos v. State Bar (1985) 165 Cal.App.3d 656, 669 [finding that trial court
properly sustained demurrer to violation of a mandatory duty claim based on
immunity of Civil Code section 47].) Moreover, “[i]f a specific immunity
statute applies, ‘it cannot be abrogated by a statute which simply imposes a
general legal duty or liability.’ ” (Creason v. Department of Health Services
(1998) 18 Cal.4th 623, 635.) Accordingly, the general duty set forth in the
IPA and Government Code section 815.6 cannot abrogate the immunity set
forth in the specific immunity statutes.
Government Code section 820.2 also provides immunity to a public
employee from liability for “an injury resulting from his act or omission
where the act or omission was the result of the exercise of the discretion
vested in him, whether or not such discretion be abused.” Here, the
psychologists, in performance of their official duties as public employees,
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were required to exercise their discretion in formulating the CRA and making
recommendations regarding parole; therefore, their actions are immune from
liability under Government Code section 820.2.
Under Government Code section 845.8, subdivision (a), “[n]either a
public entity nor a public employee is liable for: (a) Any injury resulting from
determining whether to parole or release a prisoner or from determining the
terms and conditions of his parole or release or from determining whether to
revoke his parole or release.” Because the psychologists’ actions involved a
parole decision, they are immune from liability. This immunity is absolute
and broad, immunizing “all acts within the ambit of release procedures . . .
from tort liability” (State of California v. Superior Court (1974) 37 Cal.App.3d
1023, 1027-1028), including alleged IPA violations. (See Torres v.
Department of Corrections & Rehabilitation (2013) 217 Cal.App.4th 844, 849
[in applying the immunity of Government Code section 845.8 to defendants’
parole decision, court found that “statutory liabilities [must] be subordinated
to statutory immunities”].)
Government Code section 855.8, subdivision (a) states: “Neither a
public entity nor a public employee acting within the scope of his employment
is liable for injury resulting from diagnosing or failing to diagnose that a
person is afflicted with mental illness or addiction or from failing to prescribe
for mental illness or addiction.” Here, as Wheeler complains that the CRA
includes a misdiagnosis of him, this statute applies and immunizes
respondents from liability.
In light of the above analysis of privilege and immunity, and our
conclusion the court did not err in sustaining the demurrer without leave to
amend, we need not discuss the additional issues Wheeler raises.
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DISPOSITION
The judgment is affirmed.
O’ROURKE, Acting P. J.
WE CONCUR:
AARON, J.
DATO, J.
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