Alexander O. v. Lundin

Filed 3/6/07 Alexander O. v. Lundin CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION FOUR

APPEAL from an order of the Superior Court of Los Angeles County, Mary Thornton House, Judge. Affirmed.

John E. Sweeney & Associates and John E. Sweeney for Plaintiffs and Appellants.

Carroll, Kelly, Trotter, Franzen & McKenna, Mark V. Franzen, David P. Pruett and Maria E. Pappas for Defendant and Respondent.

______________________

Alexander and Michael O., through their guardian ad litem, appeal from the dismissal of their action against Mia Lundin after a demurrer was sustained without leave to amend. We affirm the order.

FACTUAL AND PROCEDURAL SUMMARY

Appellants are the twin sons of Sandra N. and Matthew O. Mother and others suspected the boys were being molested by their father. A report was made to the Los Angeles County Department of Children and Family Services (the Department) in August 1998. The Department conducted an investigation and initiated a dependency case. The sustained petition found that mother and father are engaged in an acrimonious divorce and the minors involvement and exposure to said conflict places them at risk of emotional harm and requires court jurisdiction. The conflict includes allegations by father of parental alienation by mother and allegations by mother of inappropriate sexual conduct by father.

After nearly a year of investigation and consultation, the Department filed a report dated July 8, 1999 stating that it has found no evidence that has substantiated the claims of mother Sandra that father Matthew has physically or sexually abused the minors. The Department recommended that juvenile court jurisdiction be terminated and the case ordered back to family law court. According to the charging pleading, the juvenile court issued an exit order returning the case to the Ventura family law court. The family law court took judicial notice of the juvenile court file, which included the July 1999 report and issued an order limiting mothers ability to make additional abuse reports against father.

In June 2003, the boys reported physical and sexual abuse by their father to authorities in Ventura County. The boys were interviewed and examined by a sexual assault nurse, and a protective order was sought for mother and the children against father. Father challenged the protective order based on the July 1999 report by which he was exonerated.

The children, through Sandra N. as guardian ad litem, brought this action against the Department and its social workers, alleging tortious conduct in the handling of their dependency case. Respondent Mia Lundin, fathers girlfriend, was added as a defendant in the first amended complaint.

The second amended complaint alleged only one cause of action against respondent, the sixth cause of action for conspiracy to obstruct justice. Respondent demurred, in part on the theory that appellants were not prosecutors and thus had no authority to assert causes of action under the Penal Code, and since respondent was not a governmental entity or public employee, appellants had no standing to allege violations of the Government Code against her. Respondents demurrer was sustained with leave to amend.

The Departments demurrer to the second amended complaint was sustained without leave to amend. In case No. B182726, we affirmed the order of dismissal, finding appellants claims against the Department were time barred.

Appellants filed a third amended complaint against respondent, this time alleging two causes of action against her. The sixth cause of action was essentially unchanged from the allegations in the second amended complaint: in 2003, two new social workers assigned to the dependency case acted as the agents of father and the original social worker in attempting to demean and discredit Sandra N[.], and to confuse, frighten and silence the minor plaintiffs in the attempts of these children to accurately and honestly report the horrors perpetrated upon them by father and some of his friends. The complaint alleged that father, for several years, had cohabited with respondent in her Santa Barbara residence; and that father committed numerous acts of physical abuse and sexual molestation on the children at respondents residence, with her awareness and without her objection. Respondent, father, and the social workers allegedly conspired among themselves to conceal fathers felonious conduct and to have custody of the children transferred from mother to father. In furtherance of this conspiracy, respondent made numerous and repeated false allegations against appellants mother, which the social workers used to harass appellants and their mother. In October 2004, the social workers, at the insistence of respondent and father, appeared unannounced at appellants school and demanded they be permitted to interview appellants, in violation of the Department protocol requiring consultation and pre-arrangement with the therapist appointed by the Ventura family law court, causing appellants to be upset and distraught and undermining their confidence in their mother.

Appellants alleged that in violation of the family court order prohibiting direct contact with the court-appointed therapist, and in violation of Penal Code sections 133 (deceiving a witness), 136.1 (intimidation of witnesses and victims), and 182 (conspiracy), respondent contacted the therapists office, represented herself to be the childrens therapist, and sought to arrange to convey the many false accusations and the false information she had been asserting for the previous two years. The purpose of defendant Lundin in so acting was to interfere with and subvert the therapeutic process ordered by the Ventura Family Law Court, and to affect the terms of forthcoming court orders adversely to the plaintiffs and their mother, Sandra N[.]. As a result of these acts, appellants allegedly suffered physical and sexual abuse, and serious reversals in their mental and emotional health.

Appellants added a seventh cause of action against respondent for intentional infliction of emotional distress, based on the same conduct alleged in the sixth cause of action.

Respondent demurred, asserting (as she had in her demurrer to the second amended complaint) that the criminal statutes relied on in the sixth cause of action do not create private causes of action, and that appellants failed to state facts sufficient to maintain both causes of action. Respondent asked the court to take judicial notice of a child custody evaluation submitted to the Ventura family court on May 5, 2005, for the then-pending child custody hearing. She made a later request for judicial notice of the transcript of the June 8, 2005 order of the family court, appointing respondent as the custodial parent of appellants. The court granted the two requests for judicial notice, and sustained the demurrer to the third amended complaint without leave to amend. Appellants filed a timely notice of appeal from the order of dismissal.

DISCUSSION

A demurrer must be sustained where the facts alleged do not entitle a plaintiff to relief under any legal theory. (City of Pomona v. Superior Court (2001) 89 Cal.App.4th 793, 800.) Leave to amend may be denied if there is no possibility that amendment will cure the defects in a complaint. (Ibid.) The appellate court is not bound by the trial courts construction of the complaint, but must make its own independent interpretation. (Ibid.) We do not review the validity of the trial courts reasoning but only the propriety of the ruling itself. (Id. at p. 801.)

Appellants acknowledge the insufficiency of their sixth cause of action as a claim for Conspiracy to Obstruct Justice. They explain that this characterization is in error. However, the facts alleged in this cause of action directly, and those incorporated by reference from the earlier claims set forth in the Third Amended Complaint, more than adequately assert a claim for fraud against the defendant. Although a party generally is not permitted to change its position on appeal and raise new issues not presented in the trial court, a litigant may raise a pure question of law for the first time on appeal if it is based on undisputed facts. (Sanchez v. Truck Ins. Exchange (1994) 21 Cal.App.4th 1778, 1787.) A demurrer is directed to the face of a complaint and raises only questions of law; an appellant challenging the sustaining of a demurrer may change his or her theory on appeal and an appellate court may affirm or reverse the ruling on new grounds. (B & P Development Corp. v. City of Saratoga (1986) 185 Cal.App.3d 949, 959.)

The same principle applies to respondent, who argues for the first time on appeal that she is a mandatory reporter with absolute immunity under Penal Code section 11172 for any report made to child protective agencies, and that she is protected by Civil Code section 47, subdivision (b) (section 47(b)). A demurrer is properly sustained where a complaint or matters that are judicially noticeable disclose a complete defense. (See Taylor v. City of Los Angeles Dept. of Water & Power (2006) 144 Cal.App.4th 1216, 1228.)

Respondent relies on information contained in the child custody evaluation submitted to the family law court as establishing her status as a mandatory reporter. The court file became the subject of judicial notice in this proceeding.

Judicial notice may be taken of the records of a court of this state, including the documents contained in a court file. (Evid. Code, 452, subd. (d); Sosinsky v. Grant (1992) 6 Cal.App.4th 1548, 1564.) This is not to say, however, that judicial notice may be taken of the truth of facts asserted in every document in a court record. (People v. Tolbert (1986) 176 Cal.App.3d 685, 690; see also In re David C. (1984) 152 Cal.App.3d 1189, 1204-1205.) Judicial notice of findings of fact does not mean those findings are true, but simply that they were made. (People v. Moore (1997) 59 Cal.App.4th 168, 178.)

In this case, the court could properly take judicial notice of the fact that a custody evaluation was submitted to the Ventura family court. It could not take judicial notice of the truth of the contents of that report. Respondents reliance on that report to establish she was a mandatory reporter was improper. She has not established a defense to the complaint on this theory.

Respondent also asserts the conduct alleged by appellants is protected by section 47(b), commonly referred to as the litigation privilege. That section provides that a privileged publication or broadcast is one made: In any (1) legislative proceeding, (2) judicial proceeding, (3) in any other official proceeding authorized by law, or (4) in the initiation or course of any other proceeding authorized by law and reviewable under section 1084 et seq. of the Code of Civil Procedure. The privilege applies to any communication, whether or not it amounts to a publication, and to all torts except malicious prosecution. (Silberg v. Anderson (1990) 50 Cal.3d 205, 212.)

The principal purpose of section 47(b) is to provide litigants and witnesses with the utmost freedom of access to the courts without fear of subsequent harassment by derivative tort actions. (Moore v. Conliffe (1994) 7 Cal.4th 634, 641-642, quoting Silberg v. Anderson, supra, 50 Cal.3d at p. 213.) Section 47(b) promotes the effectiveness of judicial proceedings by encouraging open channels of communication and the presentation of evidence in judicial proceedings. [Citation.] A further purpose of the privilege is to assure utmost freedom of communication between citizens and public authorities whose responsibility is to investigate and remedy wrongdoing. [Citations.] Such open communication is a fundamental adjunct to the right of access to judicial and quasi-judicial proceedings. [Citation.] Since the external threat of liability is destructive of this fundamental right and inconsistent with the effective administration of justice [citation], courts have applied the privilege to eliminate the threat of liability for communications made during all kinds of truth-seeking proceedings: judicial, quasi-judicial, legislative and other official proceedings. (Silberg v. Anderson, supra, 50 Cal.3d at p. 213.)

The immunity conferred by section 47(b) applies to communications with some relation to an anticipated lawsuit. (Rubin v. Green (1993) 4 Cal.4th 1187, 1194.) This includes preliminary conversations and interviews related to a contemplated action. (Id. at p. 1195, citing Ascherman v. Natanson (1972) 23 Cal.App.3d 861, 865.) Section 47(b) applies to all torts other than malicious prosecution, including fraud, negligence and negligent misrepresentation. (Harris v. King (1998) 60 Cal.App.4th 1185, 1188.)

We turn to the allegations of the third amended complaint. Appellants alleged that the social workers assigned to their dependency case in 2003 acted with father and the original social worker to demean and discredit Sandra N[.], and to confuse, frighten and silence the minor plaintiffs in the attempts of these children to accurately and honestly report the horrors perpetrated upon them by [father] and some of his friends. They further alleged that father and respondent cohabited at respondents residence, and that numerous acts of physical and sexual abuse were committed upon appellants by their father at respondents residence, with her awareness and without her objection. Respondent, the social workers, and appellants father allegedly conspired to conceal the felonious conduct of [father], and to accomplish the transfer of custody of the minor plaintiffs from [mother] to [father].

The communicative nature of the conduct upon which appellants base their cause of action is set out in paragraphs 65 and 66 of the third amended complaint:

65. In furtherance of this conspiracy, the defendant Mia Lundin has made numerous and repeated false allegations against the plaintiffs mother, Sandra N[.]. The false allegations by the defendant Lundin, made independently, and in concert with Matthew O[.], have been received by [the social workers], and used as the basis for harassment of the minor plaintiffs and their mother, Sandra N[.].

66. Allegations against Sandra N[.] made by the defendant Lundin have included each of the following:

(a) That Sandra N[.] has implanted false memories of abuse by Matthew O[.] which abuse did not in fact occur;

(b) That Sandra N[.] has conducted a systematic alienation of Alexander and Michael from their father;

(c) That Sandra N[.] is afflicted with the disease syndrome known as Munchhausen by proxy.

Appellants alleged that respondent was unqualified to make such allegations against mother; that the allegations were false; and that the social workers knew respondent was unqualified and that the allegations were false, but nevertheless pursued a course of harassment of Sandra N[.] and her twin boys, and interference in the process of the Ventura Family Law Court.

These allegations relate to respondents actions in the dependency case and to the family litigation between mother and father. Appellants are attempting to impose liability on respondent for making certain statements related to the two actions, and for failing to make other statements related to the actions. These communications are all related to pending litigation within the meaning of section 47(b), and respondent is entitled to immunity.

Appellants also alleged that the social workers harassed appellants and their mother by appearing at appellants school unannounced to interview appellants. This, allegedly, was in violation of the Departments protocol, was undertaken at the insistence of father and respondent, and was undertaken by the defendants for the purpose of circumventing the instant lawsuit, to fabricate further evidence discrediting the claims of the plaintiffs and their mother, and to justify the assertion of physical custody over the boys, whose residence has remained in Los Angeles County. Respondents alleged involvement consisted of insisting that the social workers interview appellants in preparation for the dependency and family cases. These allegations also fall within the litigation privilege.

Finally, appellants alleged that despite the specific order of the family court that neither the parties nor their agents were to make direct contact with appellants court- therapist, respondent contacted the therapists office, represented herself to be the childrens therapist, and sought to arrange to convey the many false accusations and the false information she had been asserting for the previous two years. The purpose of defendant Lundin in so acting was to interfere with and subvert the therapeutic process ordered by the Ventura Family Law Court, and to affect the terms of forthcoming court orders adversely to the plaintiffs and their mother, Sandra N[.]. Once again, respondents alleged conduct involved communication made in relation to litigation. She is immune from liability under section 47(b).

Appellants claim Government Code section 820.21, which eliminates the immunity of social workers, trumps the litigation privilege asserted by respondent. Section 820.21 provides that [n]otwithstanding any other provision of the law, the civil immunity of juvenile court social workers, child protection workers, and other public employees authorized to initiate or conduct investigations or proceedings pursuant to Chapter 2 . . . of the Welfare and Institutions Code shall not extend to perjury, fabrication of evidence, failure to disclose known exculpatory evidence, or obtaining testimony by duress, fraud, or undue influence, if committed with malice.

This exception to immunity is limited to social workers, child protection workers, and other public employees charged with initiating or conducting proceedings for the protection and safety of minor children. (See Welf. & Inst. Code, 202, subd. (a).) We find no indication the Legislature intended to extend this exception beyond the child welfare professionals specified in Government Code section 820.21. There is no claim that respondent falls within the specified professions, and hence no basis to deprive her of the immunity of section 47(b).

Giving the complaint a liberal reading, we conclude as a matter of law that the wrongs alleged against respondent fall within the immunity provision of section 47(b). Whether the sixth cause of action is denominated one for civil conspiracy or fraudulent deceit, appellants are thus unable to state an actionable claim against respondent. The seventh cause of action, for intentional infliction of emotional distress, is premised on the same conduct alleged in the sixth cause of action. It fails for the same reason. The trial court properly sustained respondents demurrer to the third amended complaint without leave to amend.

DISPOSITION

The order is affirmed. Respondent is to have her costs on appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

EPSTEIN, P. J.

We concur:

MANELLA, J.

SUZUKAWA, J.

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