Forte v. OFarrell

Filed 8/30/07 Forte v. OFarrell CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

Statement of the Case

Plaintiff Eugene Forte filed an action against Monterey Superior Court Judge Robert OFarrell and others. Later, the trial court sustained Judge OFarrells demurrer without leave to amend on the ground of judicial immunity, among others. Forte appeals from the judgment dismissing the complaint as to Judge OFarrell. He claims the court erred in finding that Judge OFarrell was protected from suit by judicial immunity.

We affirm the judgment.

The Complaint

In his complaint, Forte asserted causes of action for false arrest and imprisonment, battery, abuse of process, intentional infliction of emotional distress, civil conspiracy, and a violation of his civil rights under section 1983 of the title 42 United States Code.[1]

These claims were based, in essence, on the following allegations. In an unrelated legal malpractice action against a law firm, Forte subpoenaed Stephanie Crabb for a deposition. Dennis McCarthy, her attorney from the Law Firm of Fenton & Keller, filed a motion to quash the subpoena and deposition.[2] Forte alleged that the motion was unfounded and part of a conspiracy by Judge OFarrell, McCarthy, and Crabb to conceal the fact that McCarthy had suborned Crabbs perjury in the malpractice action. A hearing on the motion to quash was scheduled for December 19, 2003. The case had originally been assigned to Judge Kay Kingsley. Four days before the hearing, it was reassigned to Judge Michael Fields. Two days later, it was reassigned to Judge OFarrell. Forte called Judge Fields for an explanation of the reassignment and was told to ask Judge OFarrell.

On the day of the hearing, Forte, through his wife, filed a peremptory challenge to Judge OFarrell. (See Code of Civ. Proc. 170.6.)[3] When the hearing commenced, Forte immediately asked Judge OFarrell why the matter had been reassigned.[4] Judge OFarrell said, Were not going to get into that. Its my case, Im taking it. . . . Judge Fields disqualified himself. I have got the case. That is the end of it. Judge OFarrell turned to the motion to quash, but Forte said, Excuse me. Judge OFarrell responded, No, thats it. Forte continued, saying Excuse . . . , but Judge OFarrell interrupted him and said, No, Excuse me. Were going in the order that this motion was set. Forte replied, No, Pardon me, your honor. Forte alleged that at that time, he was simply trying to submit his peremptory challenge. Judge OFarrell stopped him, saying, No, if . . . , but Forte interrupted him and said, Excuse me, your honor, youre interrupting me. Judge OFarrell then warned Forte, If you keep interrupting me, sir, Im going to have to cite you for contempt. And Im telling you that now, warning you. You sit down. You sit down. Well hear from the moving party first, and then well hear from you. At that point Forte complained, Youre allowing meyoure not allowing due process, your honor. Judge OFarrell directed Forte to [t]ake a seat, but Forte then stated, Heres a peremptory challenge. Youre out of here. Take it; its filed. Peremptory challenge. Peremptory challenge, your honor. At that point, the court directed the bailiff to take Forte into custody. Forte responded, Peremptory challenge, you honor. And I want to have the minute orderswhile youre handcuffing me, I want to have the minute orderin front of my children back there. You, your honor, have disrespected this judicial system long enough. [] Let go of my hand. Judge OFarrell directed the bailiff to remove Forte from the courtroom and then called for a recess.

After the recess, Judge OFarrell discussed the motion to quash with McCarthy. Judge OFarrell acknowledged Fortes challenge and said the motion would have to be reassigned. McCarthy concurred. The motion was then rescheduled for January 2004. Judge OFarrell then had Forte returned to the courtroom and held a contempt hearing.[5]

Judge OFarrell summarized the circumstances that led to the finding of contempt.[6] Forte disagreed with Judge OFarrells summary and explained that he had only wanted to present his peremptory challenge.[7] Judge OFarrell disagreed, noting that Forte could have simply announced that he had a peremptory challenge, but he did not do so. Judge OFarrell opined that Forte had come to court with his children to grandstand. Judge OFarrell found, There is not a thing that you have said that goes to mitigation, shows any apologetic attitude, or anything of that nature. As a matter of fact, youre arrogant, youre very defensive, and youre in fact, offensive. However, Judge OFarrell considered as a mitigating circumstance the fact that Forte may be suffering from a certain pathology . . . . Consequently, he sentenced Forte to eight hours in custody.

In his complaint, Forte alleged that there was no contempt, and Judge OFarrells conduct was intentional, outrageous, malicious, and wrongful; caused emotional distress and physical harm; and injured his reputation.

The Demurrer and Opposition

In his demurrer, Judge OFarrell argued that Fortes claims were barred for three reasons. First, Judge OFarrells acts were protected from suit by judicial immunity. (See Bradley v. Fisher (1872) 80 U.S. 335, 347 [judicial immunity from lawsuits based on exercise of judicial function]; Picket v. Wallace (1881) 57 Cal. 555, 557 [same].) Second, having failed to directly challenge his contempt conviction, Forte was barred from collaterally attacking it in an action for damages based on a wrongful arrest and conviction. (See Heck v. Humphrey (1994) 512 U.S. 477, 486-487 [reversal of conviction a prerequisite for claim that conviction violated civil rights]; Coscia v. McKenna & Cuneo 25 Cal.4th 1194, 1204 [reversal of conviction a prerequisite for legal malpractice action]; Susag v. City of Lake Forest (2002) 94 Cal.App.4th 1401, 1411 [reversal of conviction a prerequisite for tort action against arresting officers]). Third, Forte had failed to allege compliance with the Tort Claims Act. (See Gov. Code, 911.4, subd. (b), 915, subd. (c)(1), 945.4; State of California v. Superior Court (2004) 32 Cal.4th 1234, 1243-1244 [failure to allege compliance subjects complaint to demurrer].)

In his initial 400-page opposition to the demurrer, Forte essentially argued that Judge OFarrell was not entitled to judicial immunity because the peremptory challenge that Forte had filed removed all jurisdiction . . . . Next, Forte argued that the failure to allege compliance with the Tort Claims Act was a pleading defect that could be cured by additional allegations that he had filed a claim. Last, Forte asserted that holding Judge OFarrell liable would not nullify the criminal conviction of contempt.

The Hearing and the Courts Ruling

At the hearing on the demurrer before Judge Woolpert, who had taken the assignment from the Judicial Council, Forte challenged him because he was unable to satisfy Fortes request for information concerning whether Judge OFarrell had been involved in the assignment. The matter was then assigned to Judge Golden, whom Forte also challenged. However, Judge Golden struck the challenge and proceeded to conduct a hearing on the demurrer.

Judge Golden asked Forte to specify the factual allegations that, if true, would establish that Judge OFarrell was not acting within his statutory jurisdiction as a Superior Court Judge. Forte again asserted that the peremptory challenge stripped Judge OFarrell of judicial immunity for all of his subsequent actions. According to Forte, Even if I had gone ahead and been the most contemptuous person inside the courtroom, Judge Robert OFarrell was required at that time to immediately transfer that case to someone else to have a trial of the matter. And he did not do that.

Counsel for Judge OFarrell argued that Forte was confusing jurisdiction over a case with a judges inherent power to punish contempt that occurs in the courtroom.

At the end of the hearing, Judge Golden indicated that he would file an order sustaining the demurrer. Forte asked if he could read the tentative order. Judge Golden explained, Well, Mr. Forte, your view that a [peremptory challenge] deprives a judge of all jurisdiction is not correct. A judge does retain jurisdiction after the filing of a [challenge]. [] There are certain things that a judge is prohibited from doing after the filing of a [challenge]. But he is not deprived of all jurisdiction. So please get that notion out of your mind.

In his formal written order, Judge Golden initially observed that although the complaint listed claims for false arrest and imprisonment, battery, abuse of process, intentional infliction of emotional distress, civil conspiracy, and violation of civil rights, it was difficult to determine whether the allegations stated a cause of action under any theory because the complaint was so replete with extended, discursive, argumentative, evidentiary and immaterial allegations. He further noted that the briefing in support of and opposition to the demurrer failed to identify any cause of action purportedly asserted in the complaint, to identify the elements of such a cause of action, or to demonstrate that the complaint does or does not adequately allege each of such elements.

Judge Golden then focused on the pertinent and controlling allegations: (1) Judge OFarrell was a judge; (2) Forte challenged him in a pending proceeding and then appeared before him on December 19, 2004; (3) after the challenge, Judge OFarrell intimidated and harassed him; (4) that conduct was outrageous and malicious and intended to humiliate and inflict mental anguish and emotional distress; (5) lacking reasonable cause, jurisdiction, and authority, Judge OFarrell used his position as a judge to have Forte wrongfully arrested and imprisoned and thereby caused an unauthorized touching, which resulted in additional emotional distress, physical pain and harm, and damage to Fortes reputation; and (6) Judge OFarrell conspired with other defendants to intimidate, threaten, and inflict emotional distress and to abuse legal process by having McCarthy file an unfounded motion to quash Crabbs subpoena.

Accepting Fortes causes of action as asserted, Judge Golden found that taken together, the allegations demonstrate that the alleged conduct of Judge OFarrell for which [Forte] seeks compensation in this action, was the conduct of official acts within his statutory jurisdiction as a Superior Court judge, notwithstanding the allegations that he acted erroneously, maliciously or in excess of his authority or that he committed grave procedural errors. Thus, assuming the truth of the allegations, Judge Golden concluded that Judge OFarrells conduct was protected by judicial immunity, which absolutely barred the prosecution of each purported cause of action against him.

Judge Golden further concluded that, except for the civil rights claim, all of the state tort claims were also barred by Fortes failure to allege compliance with the Tort Claims Act.

Standard of Review

A demurrer tests whether the complaint states facts sufficient to constitute a cause of action upon which relief may be based. In ruling on a demurrer, the trial court may not consider contentions, deductions or conclusions of fact or law but only the material facts pleaded in the complaint and those reasonably implied. The court may also consider matters subject to judicial notice. The court should not sustain a demurrer without leave to amend if the complaint, liberally construed, can state a cause of action under any theory or if there is a reasonable possibility that defects in the complaint can be cured by amendment. (Young v. Gannon (2002) 97 Cal.App.4th 209, 220.)

On appeal from an order sustaining a demurrer without leave to amend, we treat the demurrer as admitting all material facts and consider all matters properly before the trial court, and independently decide whether the complaint states a cause of act, and if not, whether there is a reasonable possibility its defects can be cured. The plaintiff bears the burden of establishing such a reasonable possibility. (Zelig v. County of Los Angeles (2002) 27 Cal.4th 1112, 1126.)

Judicial Immunity

Defendant contends the court erred in sustaining the demurrer on the ground of judicial immunity.

The concept of judicial immunity is long-standing and absolute, with its roots in English common law. It bars civil actions against judges for acts performed in the exercise of their judicial functions and it applies to all judicial determinations, including those rendered in excess of the judges jurisdiction, no matter how erroneous or even malicious or corrupt they may be. [Citations.] The judge is immune unless he has acted in the clear absence of all jurisdiction. [Citations.] [Citation.] Beyond doubt, the doctrine of civil immunity of the judiciary in the performance of judicial functions is deeply rooted in California law. [Citations.] (Howard v. Drapkin (1990) 222 Cal.App.3d 843, 851-852, fn. omitted, italics added; Mireles v. Waco (1991) 502 U.S. 9, 11 [immunity from suit, not just an assessment of damages]; Soliz v. Williams (1999) 74 Cal.App.4th 577, 585 [immunity from suit].)

The doctrine is based on the  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.  (Tagliavia v. County of Los Angeles (1980) 112 Cal.App.3d 759, 762, quoting Bradley v. Fisher, supra, 80 U.S. at p. 347.) The rationale behind the doctrine of is twofold. First, it protect[s] the finality of judgments [and] discourage[es] inappropriate collateral attacks. [Citation.] Second, it protect[s] judicial independence by insulating judges from vexatious actions prosecuted by disgruntled litigants. [Citation.] (Howard v. Drapkin, supra, 222 Cal.App.3d at p. 852.)

Thus, a judge is immune from civil actions that are based on the performance of judicial acts that the judge has jurisdiction to perform. (Mireles v. Waco, supra, 502 U.S. 9, 11-12.) [W]hether an act by a judge is a judicial one relate[s] to the nature of the act itself, i.e., whether it is a function normally performed by a judge, and to the expectations of the parties, i.e., whether they dealt with the judge in his judicial capacity. [Citation.] (Id. at p. 12; see Olney v. Sacramento County Bar Assn. (1989) 212 Cal.App.3d 807, 811 [Immunity exists for judicial actions; those relating to a function normally performed by a judge and where the parties understood they were dealing with the judge in his official capacity].) Moreover, for the purpose of determining whether a court has jurisdiction to perform a particular judicial act, jurisdiction is broadly construed. (National Collegiate Athletic Assn v. Tarkanian (1988) 488 U.S. 179, 197, fn. 17; Dennis v. Sparks (1980) 449 U.S. 24, 29; Stump v. Sparkman (1978) 435 U.S. 349, 356; Lewis v. Linn (1962) 209 Cal.App.2d 394, 399, 401.)

Conversely, a judge is not immune from actions based on nonjudicial acts or judicial acts performed in the absence of all jurisdiction. (Mireles v. Waco, supra, 502 U.S. 9, 11-12; Regan v. Price (2005) 131 Cal.App.4th 1491, 1496; see Howard v. Drapkin, supra, 222 Cal.App.3d at p. 851, fn. 3 [Acts and decisions which are not judicial or adjudicative, i.e., acts and decisions performed and made by a judge which are administrative or legislative are not subject to absolute judicial immunity].)

Concerning whether Judge OFarrells conduct comprised judicial acts that he had jurisdiction to perform, we note that apart from a courts subject matter and personal jurisdiction in a given case, judges have inherent power to exercise reasonable control over all proceedings connected with the litigation before it [citations] in order to insure the orderly administration of justice [citation] and maintain the dignity and authority of the court [citation] and to summarily punish for acts committed in the immediate view and presence of the court when they impede, embarrass or obstruct it in the discharge of its duties. [Citations.] (Mowrer v. Superior Court (1969) 3 Cal.App.3d 223, 230; In re Shortridge (1893) 99 Cal. 526, 532; Pedrow v. Federoff (1926) 77 Cal.App. 164, 175 [maintain order and decorum].) In other words, a court has inherent power to punish contempts of court. (In re McKinney (1968) 70 Cal.2d 8, 10.)

The courts inherent power is derived from the state Constitution and is not dependent on statutes. (See Walker v. Superior Court (1991) 53 Cal.3d 257, 267; Cottle v. Superior Court (1992) 3 Cal.App.4th 1367, 1377.) Nevertheless, the Legislature has also expressly granted judges the power to maintain orderly proceedings and control the conduct of all persons coming before them. ( 128, subds. (a)(3) & (a)(5) [power of the court]; Mowrer v. Superior Court, supra, 3 Cal.App.3d at p. 230.) This statutory power includes the power to punish disorderly, contemptuous, or insolent behavior in court toward a judge that tends to interrupt the course of a judicial proceeding. ( 177 [power of judicial officers]; 178 [power to punish for contempt]; 1209 [acts constituting contempt]; see In re Baroldi (1987) 189 Cal.App.3d 101, 106 [inherent and statutory power to punish contempt], disapproved on other grounds in Boysaw v. Superior Court (2000) 23 Cal.4th 215, 221; cf. Fine v. Superior Court (2002) 97 Cal.App.4th 651, 664-665 [even temporary judges have power of contempt].)

A judges inherent and statutory power and authority to punish contemptuous conduct committed before him or her in court during a proceeding establishes beyond reasonable dispute that the conduct by Judge OFarrell alleged in the complaint comprised judicial acts that Judge OFarrell had jurisdiction to perform.[8] (E.g., Crooks v. Maynard (9th Cir. 1990) 913 F.2d 699, 700 [holding person in contempt clearly a judicial act]; cf. Bradley v. Fisher, supra, 80 U.S. 335, 344-345 [disbarring attorney for contemptuous conduct a judicial act within jurisdiction]; Mireles v. Waco, supra, 502 U.S. at pp. 10, 13 [directing bailiff to seize and, if necessary, drag the public defender into the courtroom because of his failure to appear a judicial act within jurisdiction; Frazierv.Moffatt (1951) 108 Cal.App.2d 379, 380-383, 387 [directing police to arrest person making noise in caf that disturbed the judge a judicial act within jurisdiction]; cf. Frost v. Geernaert (1988) 200 Cal.App.3d 1104, 1106-1107, 1110 [judicial immunity from claims of fraud, conspiracy, and intentional infliction of emotional distress based on judges rulings]; Tagliavia v. County of Los Angeles, supra, 112 Cal.App.3d 759, 761 [immunity from claims of false imprisonment].)

Forte reiterates the claim that his peremptory challenge removed Judge OFarrells jurisdiction to take any action, including declaring Forte in contempt and holding a contempt hearing, and therefore, that conduct was performed in the absence of all jurisdiction. Forte relies on McCartney v. Commission on Judicial Qualifications (1974) 12 Cal.3d 512 (McCartney), overruled on other grounds in Spruance v. Commission on Judicial Qualifications (1975) 13 Cal.3d 778, 799, fn. 18, and disapproved on other grounds in Doan v. Commission on Judicial Performance (1995) 11 Cal.4th 294, 325.

In McCartney, supra, 12 Cal.3d 512, the court explained, It is well recognized that in enacting Code of Civil Procedure section 170.6 the Legislature guaranteed to litigants an extraordinary right to disqualify a judge. The right is automatic in the sense that a good faith belief in prejudice is alone sufficient, proof of facts showing actual prejudice not being required. [Citations.] Accordingly, the rule has developed that, once an affidavit of prejudice has been filed under section 170.6, the court has no jurisdiction to hold further proceedings in the matter except to inquire into the timeliness of the affidavit or its technical sufficiency under the statute. [Citations.] When the affidavit is timely and properly made, immediate disqualification is mandatory. [Citation.] (Id. at pp. 531-532, italics added, original italics omitted; see, e.g., Lewis v. Linn, supra, 209 Cal.App.2d 394 [since judge had jurisdiction to determine timeliness and sufficiency of peremptory challenge, he was immune from suit based on allegedly defamatory statements made while doing so].)

Thus, a timely peremptory challenge disables the judge from conducting further proceedings related to the particular case before that judge. (See Geddes v. Superior Court (2005) 126 Cal.App.4th 417, 425 [where challenge is made, judge is immediately divested of authority to rule in the case, and may not hear any other matter therein that involves a contested issue of law or fact (italics added)]; Brown v. Superior Court (1981) 124 Cal.App.3d 1059, 1062 [where challenge is made, the judge is thereupon disqualified from hearing any contested issue of law or fact in that case (italics added)].)

McCartney neither holds nor suggests that under section 170.6, the filing and acceptance of a peremptory challenge not only eliminates a judges authority to take further action in the case before him or her but also negates the judges inherent and statutory power to punish contemptuous conduct. Nor does Forte provide any pertinent authority or legislative history to support such a far-reaching application of the statute. Moreover, for several reasons, we reject it.

As noted, the courts inherent powers are derived from the state constitution. Although the Legislature may enact statutes regulating the inherent powers of the courts, it may not do so in a way that would defeat or materially impair the courts exercise of their core constitutional powers and functions. (Kerns v. CSE Ins. Group (2003) 106 Cal.App.4th 368, 388.) Fortes view of section 170.6 runs afoul of this prohibition because it would not nullify a judges inherent power to control proceedings, insure the orderly administration of justice, maintain the dignity of the court, and punish contempt. Because we assume the Legislature intends its enactments to be constitutional (see San Francisco Taxpayers Assn. v. Board of Supervisors (1992) 2 Cal.4th 571, 581; In re Waters of Long Valley Creek Stream System (1979) 25 Cal.3d 339, 349), we seriously doubt the Legislature intended section 170.6 to nullify a courts inherent power to punish contempt committed in its presence.

We consider it equally unreasonable to suppose that the Legislature intended a peremptory challenge to nullify only a judges statutory power to control proceedings and punish contempt. Such a limited nullification would have no practical effect and thus be utterly meaningless because a judge could still exercise his or her inherent power to control proceedings and punish contempt. Generally, we avoid statutory interpretations that would render part of a statute meaningless. (See Thornburg v. El CentroRegionalMedicalCenter (2006) 143 Cal.App.4th 198, 204.)

Finally, under Fortes overly simplistic and literal understanding of section 170.6, once a party filed a peremptory challenge, which was timely and sufficient, the party could then abuse the court and be disruptive and disorderly, and the challenged judge would be powerless to take immediate action to control the proceedings and punish the contemnor. We consider it patently unreasonable, if not absurd, to think that the Legislature intended the filing of a peremptory challenge to paralyze judges faced with the contemptuous conduct of a party, even that of a party filing the peremptory challenge. (See Torres v. Parkhouse Tire Service, Inc. (2001) 26 Cal.4th 995, 1003 [courts avoid an interpretation that would lead to absurd consequences].) On the contrary,  [i]n a direct contempt, that is a contempt in the immediate presence of the court, the judge in whose presence the contempt was committed possesses the constitutional power to punish the offender summarily. [Citations.] Such power is necessary to preserve the integrity of the court. In such a case no question of the disqualification of the judge affronted by the direct contempt can arise. The necessities of the case require that the affronted judge preside. [Citations.] (Vaughn v. Municipal Court (1967) 252 Cal.App.2d 348, 366, quoting Turkington v. Municipal Court (1948) 85 Cal.App.2d 631, 635-636.)

Forte argues that some of the acts alleged in the complaintconspiring with McCarthy to bring the motion to quash and manipulating the assignment of judges in cases after December 19, 2004were ministerial and therefore not entitled to judicial immunity. However, those allegations are gratuitous and irrelevant, and we agree with Judge Goldens observation that the complaint is replete with extended, discursive, argumentative, evidentiary and immaterial allegations . . . . The gravamen of Fortes claims for false arrest and imprisonment, battery, abuse of process, intentional infliction of emotional distress, and violation of civil rights is the harm he suffered as a result of being taken into custody, held in contempt, and punished. Judge OFarrells conduct in that regard involved judicial, not ministerial, acts.

Forte also argues that judicial immunity does not protect Judge OFarrell from claims under section 1983 of title 42 of the United States Code for the violation of his civil rights. However, it is settled that judicial immunity bars such actions. (Pierson v. Ray (1967) 386 U.S. 547, 553-555.) Fortes reliance on Scheuer v. Rhodes (1974) 416 U.S. 232 is misplaced. That case did not involve conduct by a judge or the applicability of judicial immunity. Fortes reliance on Heck v. Humphrey, supra, 512 U.S. 477 is especially misplaced because that case reaffirmed that judicial immunity applies to civil rights actions. (Id. at p. 490, fn. 10.)

In sum, we hold that Judge Golden properly and correctly concluded that Judge OFarrell was judicially immune from Fortes claims. Accordingly, Judge Golden did not err in sustaining Judge OFarrells demurrer without leave to amend.[9]

Fortes Other Claims

Forte contends that Judge OFarrell violated his right to due process in conducting the contempt hearing and failing to stay the eight hour sentence after Judge OFarrell became personally embroiled with Forte. However, this claim challenges the propriety of the contempt conviction and punishment, which is unrelated to this case and therefore not subject to review on appeal from the judgment dismissing his action against Judge OFarrell.

Forte also purports to raise 25 questions for review in this appeal. However, most of these questions are irrelevant concerning whether the court properly sustained the demurrer. Moreover, Forte supplies no discussion or argument concerning them. Accordingly, we decline to address them. (See Interinsurance Exchange v. Collins (1994) 30 Cal.App.4th 1445, 1448 [issues raised but not briefed are waived]; Bartlett v. State of California (1988) 199 Cal.App.3d 392, 401 [failure to discuss or provide authority treated as abandonment of claim].)

Dismissal and/or Costs and Attorneys Fees

Judge OFarrell claims that Fortes appeal is frivolous and was brought for the improper purpose of delaying the proceedings. Thus, Judge OFarrell asks this court either to dismiss the appeal or award Judge OFarrell his costs and attorney fees. (See Cal. Rules of Court, rule 8.276(e).)

We observe that Fortes opening and reply briefs, like his complaint and virtually all of his pleadings in this case, are larded with wholly irrelevant soapbox hyperbole, intemperate accusations, and ad hominem vitriol against public officials, the Monterey County Superior Court, the Monterey Herald, and various law firms. Forte believes that they have all conspired to cover up the crime of trial fixing that occurred in the lawsuit he filed after his attempt to buy some real estate fell through. (See ante, fn. 2.)

Moreover, as noted, Forte attempts to assert a due process claim that is not within the scope of his appeal and raises questions without providing legal analysis or support. When he does provide legal discussion, his approach generally consists of stringing long passages from practice guides together with isolated, ostensibly favorable, quotations from cases that are either distinguishable or irrelevant.

Nevertheless, we note that Forte, who represents himself, filed a lawsuit, and the trial court sustained a demurrer without leave to amend and entered judgment the action against him. We believe that Forte was entitled to appeal from the judgment and have the validity of the trial courts ruling reviewed by this court. Thus, notwithstanding the manner, style, and often irrelevant content of Fortes briefs, the record does not convince us that his appeal was clearly and obviously frivolous or that Forte filed it solely for purposes of delay. Accordingly, we deny Judge OFarrells motion.

Disposition

The judgment is affirmed. Judge OFarrell is entitled to his costs on appeal.

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RUSHING, P.J.

WE CONCUR:

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PREMO, J.

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McADAMS, J.

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[1] As defendants, Forte also named the County of Monterey, the Monterey County District Attorneys Office, the County Counsels Office for Monterey County, the Monterey County Sheriffs Office, the law firm of Fenton & Keller, and numerous individuals, some of whom worked at these agencies, offices, and firms.

[2] Both Crabb and McCarthy were also named as defendants in the action against OFarrell.

Forte had previously filed an action against Crabb, a real estate agent, who had represented him in connection with his unsuccessful effort to purchase a parcel of real property from William and Collien Powell. (See Eugene Forte v. Stephanie Crabb et al. (Nov. 14, 2003, H024270) [nonpub. opn.].) He also filed an action against the Powells (See Eugene Forte v. William Powell et al. (Mar. 27, 2003, H023259) [nonpub. opn.].) and one of the attorneys who represented him in that action (See EugeneForte v. Larry Lichtenegger (Aug. 30, 2004, H026208) [nonpub. opn.].)

[3] Code of Civil Procedure section 170.6 provides, in relevant part, (a)(1) No judge, court commissioner, or referee of any superior court of the State of California shall try any civil or criminal action or special proceeding of any kind or character nor hear any matter therein that involves a contested issue of law or fact when it shall be established as hereinafter provided that the judge or court commissioner is prejudiced against any party or attorney or the interest of any party or attorney appearing in the action or proceeding. []  . . .  [] (3) If the motion is duly presented and the affidavit or declaration under penalty of perjury is duly filed or an oral statement under oath is duly made, thereupon and without any further act or proof, the judge supervising the master calendar, if any, shall assign some other judge, court commissioner, or referee to try the cause or hear the matter. In other cases, the trial of the cause or the hearing of the matter shall be assigned or transferred to another judge, court commissioner, or referee of the court in which the trial or matter is pending or, if there is no other judge, court commissioner, or referee of the court in which the trial or matter is pending, the Chair of the Judicial Council shall assign some other judge, court commissioner, or referee to try the cause or hear the matter as promptly as possible. Except as provided in this section, no party or attorney shall be permitted to make more than one such motion in any one action or special proceeding pursuant to this section; and in actions or special proceedings where there may be more than one plaintiff or similar party or more than one defendant or similar party appearing in the action or special proceeding, only one motion for each side may be made in any one action or special proceeding.

All further statutory references are to the Code of Civil Procedure unless otherwise specified.

[4] Forte attached and incorporated a transcript of the hearing.

[5] Forte attached and incorporated a transcript of the hearing.

[6] Judge OFarrell stated, The case in which youre involved was called for hearing on the motion that wasit was the motion of the other party to the case. You asked to be heard first. I granted that request, and you asked a question, which I gave an answer to. And then you insisted on asking more questions, and I told you thats not the proper time, you will have a chance to reply after the attorney on the moving side was completely heard. [] You wouldnt accept that and you kept talking, raising your voice, and being, frankly, bully-ish. And when I warned you a number of times to please sit down, a stop talkingand let the record reflect right now that you are smirking in a very arrogant fashionthat when you failed to do that, I asked you to take a seat in the jury box and we would deal with the matter afterwards. [] You refused to do that and continued to force yourself upon the Court verbally. And at that time I had no other option, to ensure that the proceedings of the court were conducted properly, other than to remand you I into custody, which I did. [] Then when you went into custody, you gave the bailiff an extremely difficult time. You wrestled. You screamed. You disrupted the entire courthouse or at least certainly the second floor of the courthouse. Other bailiffs had to be summoned to subdue you. You delayed the proceedings in this court.

[7] Forte asserted that he was trying to find out why the motion had been reassigned to Judge OFarrell and assert his peremptory challenge, but Judge OFarrell continued to interrupt me. Forte opined that Judge OFarrell was aware that over the years Forte had been trying to expose a corrupt judicial system here in Monterey, and that Judge OFarrell and other judges had ignored his requests for an investigation. Forte complained that the court had violated the canons of judicial ethics by not allowing him to speak and assert his peremptory challenge. Forte complained that when he was returned to the courtroom in handcuffs, he had to wait while Judge OFarrell dealt with another matter and then took a short recess before the hearing could commence. Forte accused Judge OFarrell of intentionally avoiding the peremptory challenge and McCarthy of hiding a document and suborning perjury by Crabb. Forte further accused Judge OFarrell of not being a fair and impartial judge in two other lawsuits he had filed, noting particular rulings that Judge OFarrell had made. Given this background, Forte opined that Judge OFarrell was anxious to go ahead and try to hold me in contempt of court.

[8] Forte did not allege that Judge OFarrell personally assaulted or used excessive force against Forte to remove him from the courtroom or that Judge OFarrell expressly directed the bailiff to use excessive force. Nor could the transcript of the hearing reasonably support such allegations. (See Mireles v. Waco, supra, 502 U.S. at p. 12 [direction to police officers to carry out a judicial order with excessive force is not a judicial function]; Gregory v. Thompson (9th Cir. 1974) 500 F.2d 59, 63-64 [personal assault on party and eviction from court by judge not judicial act]; Regan v. Price (2005) 131 Cal.App.4th 1491, 1498 [assault and battery on party by referee at discovery proceeding not judicial act].)

[9] Given our conclusion, we need not determine whether the demurrer was, or could have been, sustained in whole or in part on other grounds.