Williams v. McCowen CA2/7

Filed 8/22/23 Williams v. McCowen CA2/7
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
BRIAN WILLIAMS, B321535
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. BC714309)
v.
LESLEY McCOWEN,
Defendants and
Respondent.
APPEAL from a judgment of the Superior Court of
Los Angeles County, Stephanie M. Bowick, Judge. Affirmed.
Brian Williams, in pro. per., for Plaintiff and Appellant.
Cummings, McClorey, Davis, Acho & Associates and
Sarah L. Overton for Defendant and Respondent.
____________________
Brian Williams, a self-represented litigant, appeals the
judgment dismissing Lesley McCowen, a retired deputy clerk of
the Los Angeles Superior Court, from his 50-cause-of-action,
multi-defendant, multi-million-dollar lawsuit after the trial court
sustained McCowen’s demurrer to the first amended complaint
without leave to amend. Williams named McCowen in the
caption of his pleading and alleged that she was being sued
individually and in her official capacity and that she lived and
worked in Los Angeles County. However, the first amended
complaint contained no allegations of wrongdoing (or, indeed,
allegations of any acts or omissions of any sort) by McCowen.
The trial court sustained McCowen’s demurrer on the
grounds Williams’s pleading was uncertain and failed to state
facts sufficient to constitute a cause of action and, with respect to
any claims against McCowen in her official capacity, for failure to
comply with the Government Code’s claim presentation
requirements (as to state law claims), sovereign immunity
(federal civil rights claims) and absolute quasi-judicial immunity.
On appeal Williams contends only that not all actions by a
superior court deputy clerk are necessarily protected by absolute
quasi-judicial immunity—again without identifying any
purported misconduct by Williams—and complains that the court
ruled on the demurrer in his absence when he failed to appear on
time for the hearing. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Williams’s lawsuit arose from 2015 and 2016 unlawful
detainer actions filed against him in Los Angeles Superior Court
involving an apartment he rented in 2014 from one of the named
2
defendants.1 Williams filed his initial complaint on July 16, 2018
and the operative first amended complaint for damages on
March 2, 2020, naming 17 defendants and purporting to allege
50 causes of action, including for wrongful eviction, trespass,
intentional infliction of emotional distress and deprivation of civil
rights in violation of title 42 of the United States Code
section 1983 (section 1983). His prayer for relief requested, in
part, $999 million in general economic damages and $999 million
in punitive damages.
Williams alleged in paragraph 3 that McCowen was sued
individually and “in her official capacity as a Santa Monica
Superior Court Deputy Clerk Employee in and for the County of
Los Angeles” and in paragraph 33(M), on information and belief,
that McCowen resided in Los Angeles County and was a superior
court employee working at the address for the courthouse in
Santa Monica. The pleading did not otherwise mention McCowen
and contained no specific allegations concerning any acts or
omissions by McCowen for which Williams sought to hold her
liable.2
1 Williams failed to include in his designation of the record
on appeal the first amended complaint, McCowen’s demurrer, his
opposition to the demurrer, McCowen’s reply and the trial court’s
ruling. However, those documents, other than the first amended
complaint, are part of the record in a related appeal, Williams v.
Hillcrest Manor, LLC, B319608, which Williams unsuccessfully
sought to consolidate with this appeal and which he cites in his
briefs. We augment the record on our own motion to include
these five documents. (See Cal. Rules of Court,
rule 8.155(a)(1)(A).)
2 One of the central allegations in Williams’s lawsuit is that
he was not properly served in the 2015 unlawful detainer action
3
McCowen demurred to the first amended complaint on
September 14, 2021, arguing any cause of action against her was
barred by absolute quasi-judicial immunity; Williams had failed
to comply with the claim presentation requirements of the
Government Claims Act (Gov. Code, § 810 et seq.); sovereign
immunity protected McCowen, a state actor in her official
capacity, from federal civil rights claims; and the pleading was
fatally uncertain and failed to state facts sufficient to constitute a
cause of action against McCowen (Code Civ. Proc., § 430.10,
subds. (e), (f)).
Williams filed an opposition, arguing the statute of
limitations had not run on any of his causes of action (an issue
not raised by McCowen in her demurrer), his pleading was not
uncertain (although supplying no additional information
concerning any theory of liability against McCowen), and court
clerks are not necessarily entitled to absolute (as opposed to
qualified) quasi-judicial immunity for all actions (quoting at
length from a federal case applying federal law, Williams v. Wood
(5th Cir. 1980) 612 F.2d 982, but again without indicating what
McCowen did that would be outside the scope of absolute quasi-
judicial immunity). Williams did not address the other grounds
for the demurrer raised by McCowen. And, although he
and the proof of service filed with the court was fraudulent.
(Williams was apparently in custody on the date he had
purportedly been served.) In paragraph 45 on page 60 of the first
amended complaint, describing his discovery of the fraudulent
proof of service, Williams alleged a court clerk at the Santa
Monica courthouse made him a complete copy of the unlawful
detainer file. McCowen was not identified as the clerk, and
Williams did not allege any misconduct occurred in connection
with that ministerial task.
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requested leave to amend should the court sustain the demurrer,
he did not indicate in what way he believed he could amend the
pleading to cure any of its defects. McCowen filed a reply in
support of her demurrer.3
Hearing on the demurrer was scheduled for April 4, 2022 at
8:30 a.m. No argument was heard: McCowen, represented by
counsel, submitted on the court’s tentative ruling; Williams did
not appear.
The court sustained the demurrer without leave to amend,
finding in favor of McCowen on each of the grounds asserted.
First, the court found the pleading uncertain, agreeing with
McCowen that she could not reasonably ascertain what specific
facts, legal theories or causes of action were alleged against her.
(The court noted more generally Williams’s pleading failed to
state the number and nature of each cause of action in the body
of the document and failed to state as to each separate cause of
action the party or parties to whom it was directed, all as
required by California Rules of Court, rule 2.112.) The court also
agreed there were insufficient facts alleged as to McCowen to
constitute any cause of action, observing there were no specific
factual allegations at all concerning McCowen. Both grounds
went to the entire first amended complaint.
3 Several days after McCowen’s reply, Williams filed an
amended opposition in which he quoted a news article describing
a Georgia Supreme Court decision that reversed an order
dismissing a lawsuit against two court clerks based on quasi-
judicial immunity because the immunity issue had been raised
sua sponte by the trial court, not the defendants. The court
declined to consider this untimely supplemental filing.
5
Similarly, because the first amended complaint concerned
an unlawful detainer proceeding, the court’s ruling continued,
any alleged conduct by McCowen arose from her duties as a clerk
of the court where Williams’s unlawful detainer action was
litigated. Accordingly, those actions (although none was alleged)
were protected by quasi-judicial immunity.
As to the state law causes of action (identified by name and
number on the caption page but not the body of the complaint),
the court explained (with citation to authority) that a timely
claim against the employing public entity is a condition precedent
to a tort action against either the entity or one of its employees.
The court sustained the demurrer to those causes of action on the
ground that Williams had failed to sufficiently allege compliance
with the Government Claims Act claims presentation
requirements. (Gov. Code, §§ 905, 911.2, 945.4.)
Finally, quoting Venegas v. County of Los Angeles (2004)
32 Cal.4th 820, 829, that, “[S]tates and state officers sued in their
official capacity are not considered persons under section 1983
and are immune from liability under the statute by virtue of the
Eleventh Amendment and the doctrine of sovereign immunity,”
the court sustained the demurrer to the five causes of action that
purported to assert section 1983 claims. The court noted that
Williams had not opposed McCowen’s sovereign immunity
argument “and therefore concedes on these points.”
The court denied Williams’s request in his opposition
papers for leave to amend, finding no reasonable probability that
the defects it identified could be cured by amendment.
Concerning immunity, the court wrote, nothing in the first
amended complaint or the written opposition indicated Williams
could coherently allege a viable cause of action. Similarly, the
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court ruled, there is no indication Williams could sufficiently
allege compliance with the Government Claims Act claim
requirements.
An order of dismissal and judgment was entered on
April 19, 2022. Williams filed a timely notice of appeal.
DISCUSSION
1. Standard of Review
A demurrer tests the legal sufficiency of the factual
allegations in a complaint. We independently review the trial
court’s ruling on a demurrer and determine de novo whether the
complaint alleges facts sufficient to state a cause of action or
discloses a complete defense. (Mathews v. Becerra (2019)
8 Cal.5th 756, 768; T.H. v. Novartis Pharmaceuticals Corp. (2017)
4 Cal.5th 145, 162.) We assume the truth of the properly pleaded
factual allegations, facts that reasonably can be inferred from
those expressly pleaded and matters of which judicial notice has
properly been taken. (Evans v. City of Berkeley (2006) 38 Cal.4th
1, 20; accord, Centinela Freeman Emergency Medical Associates v.
Health Net of California, Inc. (2016) 1 Cal.5th 994, 1010;
Schifando v. City of Los Angeles (2003) 31 Cal.4th 1074, 1081.)
We affirm the judgment if correct on any ground stated in
the demurrer, regardless of the trial court’s stated reasons (Aubry
v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 967; Regina v.
State of California (2023) 89 Cal.App.5th 386, 396-397), but
liberally construe the pleading with a view to substantial justice
between the parties. (Code Civ. Proc., § 452; Ivanoff v. Bank of
America, N.A. (2017) 9 Cal.App.5th 719, 726; see Schifando v.
City of Los Angeles, supra, 31 Cal.4th at p. 1081.)
“‘Where the complaint is defective, “[i]n the furtherance of
justice great liberality should be exercised in permitting a
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plaintiff to amend his [or her] complaint.”’” (Aubry v. Tri-City
Hospital Dist., supra, 2 Cal.4th at p. 970.) A plaintiff may
demonstrate for the first time to the reviewing court how a
complaint can be amended to cure the defect. (Code Civ. Proc.,
§ 472c, subd. (a) [“[w]hen any court makes an order sustaining a
demurrer without leave to amend the question as to whether or
not such court abused its discretion in making such an order is
open on appeal even though no request to amend such pleading
was made”]; see Sierra Palms Homeowners Assn. v. Metro Gold
Line Foothill Extension Construction Authority (2018)
19 Cal.App.5th 1127, 1132 [plaintiff may carry burden of proving
an amendment would cure a legal defect for the first time on
appeal]; Rubenstein v. The Gap, Inc. (2017) 14 Cal.App.5th 870,
881 [“‘[w]hile such a showing can be made for the first time to the
reviewing court [citation], it must be made’”].)
2. The Trial Court Properly Sustained the Demurrer to
Williams’s First Amended Complaint
The trial court properly sustained McCowen’s demurrer to
the entire first amended complaint—that is, to all of Williams’s
federal and state law causes of action—based on absolute quasi-
judicial immunity.4 As the United States Supreme Court
4 We acknowledge, as McCowen has emphasized, that
Williams did not designate an adequate record, omitting among
other documents his first amended complaint and the court’s
ruling on the demurrer (see, e.g., Ballard v. Uribe (1986)
41 Cal.3d 564, 574 [“a party challenging a judgment has the
burden of showing reversible error by an adequate record”]—an
error we corrected by augmenting the record on our own motion.
He also failed to comply with mandatory court rules requiring
that briefs contain specific claims of legal error supported by
argument with citations to the record and, if possible, legal
8
explained in Stump v. Sparkman (1978) 435 U.S. 349, “‘[J]udges
of courts of superior or general jurisdiction are not liable to civil
actions for their judicial acts’” and “will not be deprived of
immunity because the action [they] took was in error, was done
maliciously, or was in excess of [their] authority.” (Id. at pp. 355,
356.) “[R]ather,” the Court continued, a judge “will be subject to
liability only when he has acted in the ‘clear absence of all
jurisdiction’” or outside “his ‘judicial’ capacity.” (Id. at pp. 356-
357, 360.)
California courts (like federal courts and other states’
courts) have extended this doctrine of absolute judicial immunity
to individuals other than judges acting in a judicial or quasi-
judicial capacity. (See, e.g., Holt v. Brock (2022) 85 Cal.App.5th
611, 621 [“[q]uasi-judicial immunity extends judicial immunity ‘to
persons other than judges if those persons act in a judicial or
quasi-judicial capacity’”]; Howard v. Drapkin (1990)
222 Cal.App.3d 843, 852-853 [same].) As pertinent here, court
clerks have absolute quasi-judicial immunity from damages for
performing tasks that are an integral part of the judicial process.
(Acres v. Marston (2021) 72 Cal.App.5th 417, 422; see Mirrison v.
Jones (9th Cr. 1979) 607 F.2d 1269, cert. den. (1980) 445 U.S.
962.)
authority (Cal. Rules of Court, rule 8.204(a)(1)(B) & (C); see
Roman v. BRE Properties, Inc. (2015) 237 Cal.App.4th 1040, 1053
[reviewing court may disregard any portion of a brief that fails to
comply with these requirements]). Nonetheless, we do not affirm
the judgment on either of those grounds, doing our best,
whenever we can, not to strictly apply technical rules of appellate
practice in a manner that deprives self-represented litigants of a
hearing.
9
In his opening brief Williams once again asserts that court
clerks are not necessarily guaranteed absolute quasi-judicial
immunity, quoting, as he had in his opposition to the demurrer,
from Williams v. Wood, supra, 612 F.2d 982, which held in some
circumstances a court clerk enjoys only qualified, not absolute,
immunity to a lawsuit for damages.5 But Williams’s first
amended complaint is devoid of factual allegations about
McCowen’s role in the underlying unlawful detainer actions. And
he makes no argument he could amend the pleading to allege her
conduct, whatever it might have been, would support a finding
that she was not entitled to absolute quasi-judicial immunity (or
even that he could defeat qualified immunity if he was able to
establish that quasi-judicial immunity was limited in some
instances under governing law).
In addition, Williams has forfeited any challenge to the
order sustaining the demurrer to his state law causes of action
for failure to comply with the claims presentation requirement of
the Government Claims Act because that aspect of the trial
court’s ruling was not addressed in his briefs in this court.
(See Tiernan v. Trustees of Cal. State University & Colleges
(1982) 33 Cal.3d 211, 216, fn. 4 [issues not raised on appeal may
be “deemed waived”]; Swain v. LaserAway Medical Group, Inc.
(2020) 57 Cal.App.5th 59, 72 [issues not raised in an appellant’s
brief are forfeited]; Eck v. City of Los Angeles (2019)
41 Cal.App.5th 141, 146.) Similarly, Williams does not contest
5 Williams’s opening brief also includes an extended
quotation from a news article about a Georgia Supreme Court
case that reversed a quasi-judicial immunity ruling for two court
clerks on procedural grounds not pertinent to the case at bar.
(See fn. 3.)
10
the trial court’s ruling sustaining the demurrer to his federal civil
rights causes of action under section 1983 based on principles of
sovereign immunity.
Finally, apart from these affirmative defenses, which bar
Williams’s claims against McCowen, Williams has failed to
identify the elements of any cause of action he purports to plead
against her and to show how the facts alleged are “sufficient to
establish every element of that cause of action.” (Cantu v.
Resolution Trust Corp. (1992) 4 Cal.App.4th 857, 879; accord,
Rossberg v. Bank of America, N.A. (2013) 219 Cal.App.4th 1481,
1502 [appellants challenging order sustaining demurrer “bore the
burden to show how the alleged facts are sufficient to establish
every element” of cause of action]; Sui v. Price (2011)
196 Cal.App.4th 933, 938 [“[t]he plaintiff ‘bears the burden of
demonstrating that the trial court erroneously sustained the
demurrer as a matter of law’ and ‘must show the complaint
alleges facts sufficient to establish every element of [the] cause of
action’”].) That, too, warrants affirming the trial court’s order
sustaining the demurrer.
3. Williams’s Failure To Timely Appear at the Hearing on
the Demurrer Does Not Constitute a Ground for Reversal
The court’s seven-page April 4, 2022 minute order included
at the bottom of the final page this comment: “The Court notes
that the Plaintiff Brian Williams arrived in Department 19 of the
Stanley Mosk Courthouse at 08:58 AM, after all matters for the
08:30 AM calendar for Department 19 have concluded.” In his
opening brief Williams concedes he arrived after 8:30 a.m. but
explains that he travels by bus to court from San Diego and has
no telephone or computer access except through the Los Angeles
County Law Library and, therefore, was unable to notify the
11
court he would be late. Williams contends the court should have
put the matter on “second call,” rather than proceed in his
(unexplained) absence, noting he had never missed any prior
court hearings.
Even if we could accept Williams’s unsworn, outside-the-
record justification for his failure to timely appear at the hearing
on McCowen’s demurrer, he identifies no reversible error. The
issue before the trial court was whether the first amended
complaint alleged any legally viable cause of action against
McCowen; and, as discussed, we review de novo the court’s
ruling. Williams does not identify any pertinent argument he
could have made at the hearing in the trial court that might have
changed the outcome. (See Cassim v. Allstate Ins. Co. (2004)
33 Cal.4th 780, 800 [error justifies reversal in a civil action only if
it is reasonably probable a different result would have been
reached absent the error].) Moreover, to the extent Williams
believed he actually had something of significance to add to his
written opposition—“new or different facts, circumstances, or
law”—he could have filed an application for reconsideration
under Code of Civil Procedure section 1008. Williams declined to
take advantage of that procedure.
4. Leave To Amend Was Properly Denied
Although Williams asked the trial court to grant leave to
amend if McCowen’s demurrer was sustained, he does not argue
the trial court abused its discretion in denying that request nor
does he repeat his request in this court, let alone suggest what
facts he could allege in good faith that would cure the defects in
any cause of action he might assert against McCowen. It is
plaintiff’s burden to demonstrate an amendment would cure a
complaint’s defects. (Schifando v. City of Los Angeles, supra,
12
31 Cal.4th at p. 1081; Ivanoff v. Bank of America, N.A., supra,
9 Cal.App.5th at p. 735.) Leave to amend need not be granted
where it would be futile to do so. (See Ivanoff, at p. 726; Vaillette
v. Fireman’s Fund Ins. Co. (1993) 18 Cal.App.4th 680, 685.)
McCowen’s demurrer was properly sustained without leave to
amend.
DISPOSITION
The order of dismissal and judgment is affirmed. McCowen
is to recover her costs on appeal.
PERLUSS, P. J.
We concur:
FEUER, J.
MARTINEZ, J.
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