Filed 5/19/22 Black v. Galindo CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION THREE

Appeal from an order of the Superior Court of Orange County, William D. Claster, Judge. Affirmed.

Bayuk & Associates and Christopher W. Bayuk for Plaintiff and Appellant.

Callahan, Thompson, Sherman & Caudill and Christopher J. Zopatti for Defendants and Respondents.

* * *

Plaintiff Christienne M. Black appeals from the trial court’s order granting a special motion to strike under the anti-SLAPP (strategic lawsuit against public participation) statute. (Code Civ. Proc., § 425.16.) Her lawsuit in this case alleges causes of action based on defendant Miriam J. Galindo’s (Galindo) involvement as a therapist in Black’s divorce case involving a dispute about the custody of her children.

The trial court in this case concluded Black’s complaint allegations—which essentially assert Galindo’s reports unlawfully led to the temporary deprivation of two of her three children—are based on activity protected by the anti-SLAPP statute (thus meeting the first prong of the test for anti-SLAPP protection). The burden then shifted to Black who failed to demonstrate a probability of prevailing on her claims because the litigation privilege applies to the alleged conduct. We review the order de novo and affirm.

FACTUAL AND PROCEDURAL HISTORY

In 2002, Black (Mother) married M.B. (Father) and the couple became the parents of a daughter and two younger sons. In 2014, a divorce petition was filed and in 2018, a child custody evaluator was appointed under Evidence Code section 730 by the trial court in that case (the family court). Neither Father nor the evaluator is a party to this appeal.

Based on the stipulation of Mother and Father’s counsel, the evaluator decided Galindo would serve as a licensed mental health professional to provide counseling for the divorce petition proceedings (the divorce case).[1] Accordingly, in December 2018, based on the parties’ stipulation, the family court appointed Galindo as a “family counselor pursuant to Family Code [section] 3190.” Although Mother asserts on appeal that the appointment order was defective for lack of required statutory findings,[2] the parties’ stipulation to the order forfeited the assertion absent Mother showing the stipulation was incorrect, which she has not done. (See In re Marriage of Arceneaux (1990) 51 Cal.3d 1130, 1133 [“all intendments and presumptions are indulged in favor” of the correctness of an order].)

According to the stipulated order appointing Galindo, the parties, through their counsel, agreed among other things, that Galindo would: (1) establish “[a]ny rules or conditions for communication during off-sit[e] meetings,” (2) have “the authority to expand the time, location, etc. of Father’s custodial time with each child, and whether [F]ather can include other people in session or during off-site contact,” and (3) “prepare a report and provide the report to counsel [that would] include [discussion about] the progress o[f] Father’s contact with the children and the parties[’] cooperation with [Galindo]’s instructions.” The order also stated Galindo was “authorized to telephonically discuss progress of family therapy with counsel for each party and” the evaluator.

To that point in time, Galindo had met with members of the family several times. Although Galindo wrote an e-mail the same month the order appointing her was entered, stating she would no longer be providing services in the divorce case, it is undisputed she resumed seeing family members a few months later and we are not aware of any order by the family court that altered the December 2018 stipulated order on her appointment in the divorce case, which concluded one year later in December 2019.

At the heart of this appeal, Mother alleges that Galindo’s involvement in the divorce case resulted in the family court entering an order that “denied [Mother’s] custody and visitation to both boys between October 23, 2019 and February 10, 2020.” Mother asserts the order was granted ex parte and without notice but does not provide it for our review. Accordingly, and particularly in light of California Rules of Court, rule 5.165(b)(2), which authorizes unnoticed ex parte requests for emergency orders, we presume the order was correct. (Apex LLC v. Korusfood.com (2013) 222 Cal.App.4th 1010, 1017.)

Mother asserts the removal occurred because Galindo committed crimes such as perjury, impersonation, evidence tampering, and violating professional duties imposed on her as a licensed mental health professional. She also asserts that Galindo, Father, and Father’s counsel conspired to kidnap the children “from California.”

Mother focuses on two documents Galindo submitted to the family court in the months leading up to the allegedly unlawful deprivation of her sons: a May 2019 letter and then a September 2019 report that was submitted as confidential to the court. The eight-page letter discussed Father’s visits with the children to that point, including reports of both parents’ experiences of events, as well as Galindo’s opinions about the level of compliance with the court-ordered visits and relationship dynamics between the children and their parents. The 42-page report included the same type of notes and analyses for subsequent visits and framed “[t]he presenting problem [as] estrangement between the children . . . and Father.”

Mother contends that for both the letter and report, she “provided the [t]rial [c]ourt with information (rebuttal/analysis) as well as falsity of statements and omissions with citation to supporting evidence provided to [Galindo], showing both submissions were biased, improper, misrepresented facts, omitted facts, and falsified evidence by [Galindo] pretending to be [F]ather.” Mother filed her lawsuit underlying this case eight months after the family court restored Mother’s custody of her sons. In addition to the respondents in this appeal, Mother named as defendants the evaluator in the divorce case and the attorney who represented Mother during the time period when she temporarily lost custody of her sons.[3]

Mother’s verified first amended complaint at issue in this appeal asserts 13 causes of action for: (1) professional negligence against Mother’s divorce attorney, (2) breach of fiduciary duty against Mother’s divorce attorney, (3) breach of contract against Galindo, Jorge, and their corporation (collectively defendants), (4) breach of the covenant of good faith and fair dealing against defendants, (5) “intentional misrepresentation /concealment” against defendants, (6) intentional infliction of emotional distress against defendants, (7) breach of contract against the evaluator, (8) breach of the covenant of good faith and fair dealing against the evaluator, (9) “intentional misrepresentation/concealment” against the evaluator, (10) intentional infliction of emotional distress against the evaluator, (11) negligence against defendants and the evaluator, (12) negligence per se against defendants and the evaluator, and (13) violation of the unfair competition law (Bus. & Prof. Code, § 17200 et seq.) against defendants and the evaluator.

As Mother describes her claims in this case, although the family court “reinstated [her] custody and visitation rights on February 10, 2020,” she “seeks recovery [for] her injuries/damages arising [from] the time that custody [was] denied . . . , based upon the actions of [Galindo] and her co-conspirators.”

Among other motions, the defendants filed an anti-SLAPP motion against Mother’s entire complaint against them, contending that Mother’s claims against them arose from the defendants’ protected conduct of participating in the divorce case. The defendants further argued that Mother could not show a probability of prevailing on the claims because they were subject to the litigation privilege under Civil Code section 47.

The trial court granted the defendants’ motion. On the first step of anti-SLAPP analysis, the court agreed with the defendants and found that “all allegations at issue arise from protected activity,” as “either (1) a statement made to a court in an ongoing judicial proceeding, or (2) a statement made ‘in connection with’ an ongoing judicial proceeding”—i.e., the divorce case. Then on the second step of anti-SLAPP analysis, the court found Mother had not met her burden to show a probability of prevailing on the claims, because her claims against the defendants were subject to the litigation privilege under Civil Code section 47, subdivision (b). The court also concluded leave to amend would be improper because the request would frustrate the purpose of the anti-SLAPP statute. Mother appealed.

DISCUSSION

Mother contends the trial court erred in granting the defendants’ anti-SLAPP motion. On the first step of the anti-SLAPP analysis, Mother asserts defendants’ activities were not protected by the anti-SLAPP statute because they engaged in clearly illegal conduct the statute does not protect. On the second step of the analysis regarding the probability of prevailing on her claims, Mother argues the trial court erred in applying the litigation privilege to her claims and contends she could amend her allegations to assert a claim under a federal civil rights statute (42 U.S.C. § 1983). For the reasons discussed below, Mother has not met her burden to show reversible error.

A. Standard of Review and Anti-SLAPP Principles

“We review de novo the grant or denial of an anti-SLAPP motion” (Park v. Board of Trustees of California State University (2017) 2 Cal.5th 1057, 1067) and “construe the statute broadly” (Paul v. Friedman (2002) 95 Cal.App.4th 853, 864). “A court evaluates an anti-SLAPP motion in two steps. ‘Initially, the moving defendant bears the burden of establishing that the challenged allegations or claims “aris[e] from” protected activity in which the defendant has engaged. [citations.] If the defendant carries its [first-step] burden, the plaintiff must then demonstrate [in the second step of analysis that] its claims have at least “minimal merit”’” to justify denying the defendant’s motion. (Wilson v. Cable News Network, Inc. (2019) 7 Cal.5th 871, 884 (Wilson).)

B. First-step Analysis

For “defendant’s first-step burden” to “determine whether a claim arises from protected activity, courts must ‘consider the elements of the challenged claim and what actions by the defendant supply those elements and consequently form the basis for liability.’ [Citation.] Courts then must evaluate whether the defendant has shown any of these actions fall within one or more of the four categories of ‘“act[s]”’ protected by the anti-SLAPP statute.” (Wilson, supra, 7 Cal.5th at p. 884.) Pertinent to the defendants’ position in this case, two of the categories protected by the anti-SLAPP statute are: “(1) any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law, [and] (2) any written or oral statement or writing made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official proceeding authorized by law.” (Code Civ. Proc., § 425.16, subds. (e)(1)-(2).)

Under Flatley v. Mauro (2006) 39 Cal.4th 299 (Flatley), there is a narrow exception to the traditional first step of the anti-SLAPP analysis: “where either the defendant concedes the illegality of its conduct or the illegality is conclusively shown by the evidence, the [defendant’s anti-SLAPP] motion must be denied.” (Id. at p. 316.) Moreover, the concept of illegal conduct for purposes of applying the Flatley exception means criminal conduct, rather than conduct that merely violates a statute or aspect of common law. (Bergstein v. Stroock & Stroock & Lavan LLP (2015) 236 Cal.App.4th 793, 806-807 (Bergstein).)

In contrast to the traditional first step of the anti-SLAPP analysis, “if a plaintiff claims [the Flatley exception applies, i.e.,] the defendant’s conduct is illegal and thus not protected activity, the plaintiff bears the burden of conclusively proving the illegal conduct.” (Cross v. Cooper (2011) 197 Cal.App.4th 357, 385 (Cross) [for meeting the first step “burden, the defendant need not show as a matter of law that his or her conduct was legal”]; accord Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260, 286 (Soukup).)

Applying the above principles to Mother’s briefing, the only way to conclude the defendants’ alleged conduct is not protected by the anti-SLAPP statute is to conclude the Flatley exception applies to the conduct. Mother asserts her complaint allegations show defendants’ liability arises from Galindo’s submissions in the divorce case, a judicial proceeding. (Code Civ. Proc., § 425.16, subds. (e)(1)-(2).) Given that none of the defendants concede alleged conduct was illegal, to prevail on the first step of the anti-SLAPP analysis, Mother must show the evidence conclusively establishes that crimes were committed by defendants.

Mother has failed to carry her burden for the Flatley exception. According to the record provided, in her trial court opposition to defendants’ motion, Mother submitted a 29-page declaration, a two-page declaration by her counsel, and a memorandum of points and authorities. Relevant to the Flatley exception, Mother asserted in her memorandum that “[p]erjury, blackmail/coercion, and/or concealment of facts from a [c]ourt are illegal and not protected” by the anti-SLAPP statute. Mother did not discuss any specific elements for the crimes she asserted and instead argued that by “[a]pplying the reasoning of Lefebvre [v. Lefebvre (2011) 199 Cal.App.4th 696],” a consideration of “the entirety of [Mother’s] declaration” showed that Galindo “submitting a document to the [trial c]ourt that is completely perjurious and/or conceals evidence is [sic] illegal conduct for purposes of the first [step] of [the anti-SLAPP analysis], and is therefore not subject to [the statute’s] protection.”

In Lefebvre, a man sued his ex-wife and a codefendant for malicious prosecution and other claims. (Lefebvre v. Lefebvre, supra, 199 Cal.App.4th at p. 701 (Lefebvre).) The ex-wife had reported to a sheriff’s deputy that the man had threatened to kill her and their children and the codefendant confirmed the report to the deputy. (Id. at p. 700.) The man was charged, tried, and found not guilty. (Ibid.) The jury foreman made a public statement about the lack of any credible evidence to support the man’s indictment and the trial judge granted the man’s motion for a finding of factual innocence. (Ibid.)

When the man sued his ex-wife and the codefendant they in turn filed an anti-SLAPP motion that the trial court denied because it “found that the record ‘conclusively’ established that [the ex-wife and codefendant’s] statements to the police were ‘illegal activity’ under Penal Code section 148.5 [false report of criminal offense], and, as such, not ‘protected activity’ within the meaning of the anti-SLAPP statute.” (Lefebvre, supra, 199 Cal.App.4th at p. 701.) The appellate court affirmed (id. at p. 706) and explicitly stated in its discussion: “Because [the ex-wife] does not contest that she submitted an illegal, false criminal report, ‘[w]e end our review [on the point] here.’” (Id. at p. 705.)

Based on the contrast in factual records and party contentions, Lefebvre provides no support for Mother’s position that the record conclusively shows the illegality needed for Mother to prevail on the first step of anti-SLAPP analysis. In her appellate briefing, Mother unpersuasively argues she should prevail because Galindo “never denied the illegality, impropriety and falsity of her actions as” asserted by Mother. The argument fails because it was Mother’s burden to show criminal conduct, not Galindo’s burden to show the opposite. (Cross, supra, 197 Cal.App.4th at p. 385; accord Soukup, supra, 39 Cal.4th at p. 286.)

None of Mother’s other assertions conclusively show criminal conduct needed for her to prevail on the first step of the anti-SLAPP analysis. Although she cites statutes to claim crimes have been undisputedly shown, Mother nowhere specifies the factual elements necessary to demonstrate liability as a matter of law for any of the alleged statutory violations. For example, Mother cites to Penal Code section 529 and repeatedly asserts Galindo “impersonated [F]ather” in connection with the divorce case. Mother cites to her own declaration which states she “was present on the day Ms. Galindo testified [and that] Ms. Galindo testified . . . she logged onto [a Web site required by the family court] using [F]ather’s username and password.”

The elements of false impersonation under Penal Code section 529, subdivision (a), require proof of “a deliberate effort to pass oneself off as another” (People v. Rathert (2000) 24 Cal.4th 200, 208) as well as one additional act by the perpetrator falling under one of three scenarios: “[(1)] Posted bail or acted as surety for anyone in any proceeding . . . [¶] [; (2)] Verified, published, acknowledged, or proved, in the name of [the impersonated individual], any written document; [¶] . . . [¶] [or (3)] Did any act that, if done by the person being falsely impersonated, might cause (that person to be liable in a lawsuit or criminal prosecution/ [or] that person to pay any amount of money/ [or] that person to be subject to any charge, forfeiture, or penalty/ [or] the defendant or anyone else to receive a benefit as a result).” (CALCRIM No. 2044.)

Mother’s entire discussion on Penal Code section 529, subdivision (a), consists of an assertion that Galindo logged onto the Web site as Father “for the purposes of obtaining information that would be submitted to the [family c]ourt.” This does not show the criminal conduct required for the Flatley exception to apply because it does not conclusively show the statute was violated.

As another example, Mother cites to Penal Code section 141 and asserts Galindo presented false evidence to the family court. Mother’s only specific citation to facts supporting the assertion is to a portion of her declaration that states: “In short, Ms. Galindo tampered with evidence by creating a false log on history for [F]ather, and she has now corrupted the [family c]ourt’s program.” Mother also generally cites to a 24-page segment of her declaration without specifying any particular conduct. We do not entertain the general citation as a factual basis for the illegal conduct Mother must show. (See Cahill v. San Diego Gas & Electric Co. (2011) 194 Cal.App.4th 939, 956 [“‘[w]e are not bound to develop appellants’ arguments for them’”].)

Penal Code section 141, subdivision (a), provides that it is a crime for a person to “alter[], modifi[y], plant[], place[], manufacture[], conceal[], or move[] any physical matter, digital image, or video recording, with specific intent that the action will result in a person being charged with a crime or with the specific intent that the physical matter will be wrongfully produced as genuine or true upon a trial.” Mother does not conclusively show Galindo had a specific intent to tamper with evidence presented to the family court in this manner. As shown by the above examples, Mother has not conclusively shown criminal conduct as required for the Flatley exception to apply. We discern no reversible error by the trial court in the first step of the anti-SLAPP analysis.

C. Second-step Analysis

As noted, at the second step of the anti-SLAPP analysis, the burden shifts and the plaintiff must “demonstrate that each challenged claim based on protected activity is legally sufficient and factually substantiated. The court, without resolving evidentiary conflicts, must determine whether the plaintiff’s showing, if accepted by the trier of fact, would be sufficient to sustain a favorable judgment. If not, the claim is stricken.” (Baral v. Schnitt (2016) 1 Cal.5th 376, 396.)

“‘A plaintiff cannot establish a probability of prevailing [in responding to an anti-SLAPP motion] if the litigation privilege precludes the defendant’s liability on the claim.’” (Bergstein, supra, 236 Cal.App.4th at p. 814; accord Flatley, supra, 39 Cal.4th at p. 323 [litigation privilege may present a substantive defense the plaintiff must overcome to demonstrate a probability of prevailing].) Outside of exceptions not implicated in this case, “‘communications with “some relation” to judicial proceedings’ are ‘absolutely immune from tort liability’ by the litigation privilege.” (Rusheen v. Cohen (2006) 37 Cal.4th 1048, 1057 (Rusheen); see Civ. Code, § 47 [“A privileged publication or broadcast is one made:” “In any . . . judicial proceeding, [or] in any other official proceeding authorized by law”]; see also Scalzo v. Baker (2010) 185 Cal.App.4th 91, 100 [“the privilege ‘applies to any publication required or permitted by law in the course of a judicial proceeding to achieve the objects of the litigation, even though the publication is made outside the courtroom and no function of the court or its officers is involved’”].)

Given it is not disputed that the gravamen of Galindo’s challenged conduct was communicative and occurred in connection with her role as a therapist in the divorce case, her conduct falls within the litigation privilege’s scope. (See Rusheen, supra, 37 Cal.4th at p. 1058 [litigation privilege properly applied to claims based on allegations of filing false or perjurious testimony or declarations].) Mother baldly asserts that a “professional witness” like Galindo “should be held to a higher standard” and “should not be allowed to utilize [the litigation privilege] as a sword to influence judicial decisions . . . , especially [because Mother] was denied the opportunity to cross-examine [Galindo] until after her loss of custody and visitation rights.”

Mother argues unpersuasively against “‘[t]he breadth of the litigation privilege,’” which, when applicable, “‘immunizes defendants from virtually any tort liability (including claims for fraud), with the sole exception of causes of action for malicious prosecution.’” (Finton Construction, Inc. v. Bidna & Keys, APLC (2015) 238 Cal.App.4th 200, 212.) “‘Any doubt about whether the privilege applies is resolved in favor of applying it.’” (Ibid.; see Flatley, supra, 39 Cal.4th at p. 322 [“‘in immunizing participants from liability for torts arising from communications made during judicial proceedings, the law places upon litigants the burden of exposing during trial the bias of witnesses and the falsity of evidence, thereby enhancing the finality of judgments and avoiding an unending roundelay of litigation, an evil far worse than an occasional unfair result’”].)

D. Complaint Amendment Contention

Finally, Mother contends she should have been granted leave to amend her complaint to assert a civil rights cause of action under section 1983 of title 42 of the United States Code (1983 claim).[4] We entertain Mother’s amendment assertion only to the extent it might help her meet the second-step burden of the anti-SLAPP analysis, and only if the assertion is “founded upon timely submitted facts already before the court.” (Nguyen-Lam v. Cao (2009) 171 Cal.App.4th 858, 871-872 [“the anti-SLAPP statute is silent on the question of amendment”].)

As noted, Mother’s burden to show a “probability of prevailing” requires her to make a prima facie showing of facts that would support a judgment in her favor. (Taus v. Loftus (2007) 40 Cal.4th 683, 714.) The litigation privilege of Civil Code section 47 does not apply to 1983 claims. (See Martinez v. California (1980) 444 U.S. 277, 284, fn. 8.)

In addition to an essential element that the conduct complained of was committed by a person acting under color of state law (Vergos v. McNeal (2007) 146 Cal.App.4th 1387, 1402), for a 1983 claim of judicial deception, the Ninth Circuit Court of Appeals stated, “[A] plaintiff must prove that ‘(1) the defendant official deliberately fabricated evidence and (2) the deliberate fabrication caused the plaintiff’s deprivation of liberty.’” (Keates v. Koile (9th Cir. 2018) 883 F.3d 1228, 1240; see Benavidez v. County of San Diego (9th Cir. 2021) 993 F.3d 1134, 1148 [misrepresentation must have been material to the underlying judicial action].) “Mere negligence or lack of due care by state officials in the conduct of their duties does not trigger the substantive due process protections of the Fourteenth Amendment and therefore does not state a claim under section 1983.” (Woodrum v. Woodward County (9th Cir. 1989) 866 F.2d 1121, 1126; see County of Sacramento v. Lewis (1998) 523 U.S. 833, 847.)

Given Mother’s opportunities to brief the amendment issue she asserts, we decline to entertain citations to legal authorities and factual points in the appellate record presented after Mother’s filing of her opposition brief in the trial court and opening appellate brief in this court. (See Shade Foods, Inc. v. Innovative Products Sales & Marketing, Inc. (2000) 78 Cal.App.4th 847, 894-895, fn. 10 [“‘“points raised in the reply brief for the first time will not be considered, unless good reason is shown for failure to present them before”’”].)

In Mother’s briefing that we consider, she fails to present any meaningful analysis on the factual elements necessary to support a 1983 claim. (see Holden v. City of San Diego (2019) 43 Cal.App.5th 404, 418-419 [disregarding contention for lack of proper substantive analysis].) None of the cited cases therein discuss judicial deception analysis and Mother’s sole factual citation to the record in the considered briefing cites to the family court’s comments at a February 2020 hearing which do not touch on any facts that show deliberate conduct attributable to Galindo supporting Mother’s contention for amendment to assert a 1983 claim. In sum, the contention fails on its briefing (Cal. Rules of Court, rule 8.204(a)(1)(B)) and we discern no basis to reverse the trial court’s order granting defendants’ anti-SLAPP motion.

DISPOSITION

The order granting defendants’ anti-SLAPP motion is affirmed. Respondents shall recover their costs on appeal.

SANCHEZ, J.

WE CONCUR:

O’LEARY, P. J.

MARKS, J.*

*Judge of the Orange County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.

[1] Mother identifies defendants Miriam J. Galindo and Jorge F. Galindo as wife and husband and the joint owners of the third defendant in this appeal, a corporation named Jorge Galindo Family Therapists & Associates, Inc. Because Mother alleges liability against Jorge and the corporation under vicarious liability principles only, the correctness of the trial court’s ruling rises and falls with Mother’s allegations about Miriam’s conduct. Accordingly, we do not specifically discuss Jorge or the corporation in this appeal.

[2] The statute provides in relevant part that: “(a) The court may require parents or any other party involved in a custody or visitation dispute, and the minor child, to participate in outpatient counseling with a licensed mental health professional . . . for not more than one year, . . . if the court finds both of the following: [¶] (1) The dispute between the parents, between the parent or parents and the child, between the parent or parents and another party seeking custody or visitation rights with the child, or between a party seeking custody or visitation rights and the child, poses a substantial danger to the best interest of the child. [¶] (2) The counseling is in the best interest of the child.

¶ . . . ¶ (d) The court, in its finding, shall set forth reasons why it has found both of the following: [¶] (1) The dispute poses a substantial danger to the best interest of the child and the counseling is in the best interest of the child. [¶] (2) The financial burden created by the court order for counseling does not otherwise jeopardize a party’s other financial obligations. (Fam. Code, § 3190, subd. (a).)

[3] We do not discuss Mother’s allegations against her attorney or the evaluator.

[4] The statute states in relevant part: “Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer’s judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable.” (42 U.S.C. § 1983.)