Frost v. GeernaertFrost v. Geernaert
- Reporters:
- , ,
- Before:
- Spencer
Opinion
SPENCER, P. J.Introduction
Plаintiff Jack Frost appeals from an order of dismissal in favor of defendants Bruce Geernaert, Irving Shimer, John L. Cole, Phillip Saeta, Norman Dowds, Leon Savitсh and Ricardo Torres, judges of the Los Angeles County Superior Court. 1
Statement of Facts
Plaintiff filed a complaint for damages for fraud, conspiracy, and intentional inflictiоn of severe mental anguish, and for an injunction, against Santa Monica Bank, Ticor Title Insurance Co., certain individuals,
2
and
Defendants demurred on the ground they had absolute immunity for their actions. The dеmurrers were sustained without leave to amend and the action was dismissed as to defendants.
Plaintiff moved for reconsideration of the ruling; the motion was dеnied. He then moved for a new trial; that motion also was denied.
Contention
Plaintiff contends the trial court erred in sustaining defendants’ demurrer without leave to amend and dismissing his action against them. For the reasons set forth below, we disagree.
Discussion
A demurrer should not be sustained 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 the defect in the complaint can be cured by amendment. (Minsky v. City of Los Angeles (1974) 11 Cal.3d 113, 118 [113 Cal.Rptr. 102, 520 P.2d 726]; Barquis v. Merchants Collection Assn. (1972) 7 Cal.3d 94, 103 [101 Cal.Rptr. 745, 496 P.2d 817]; Kite v. Campbell (1983) 142 Cal.App.3d 793, 804 [191 Cal.Rptr. 363].) The demurrer should be sustained and leave to amend denied only “where the facts are not in dispute, and the nature of the plaintiff’s claim is clear, but, under the substantive law, no liability exists. Obviously no amendment would change the result.” (5 Witkin, Cal. Procedure (3d ed. 1985) Pleading, § 945, p. 379.)
It is well established judges are grantеd immunity from civil suit in the exercise of their judicial functions.
(Tagliavia
v.
County of Los Angeles
(1980) 112 Cal.App.3d 759, 761 [169 Cal.Rptr. 467];
Oppenheimer
v.
Ashburn
(1959) 173 Cal.App.2d 624, 629 [343 P.2d 931].) This rule applies even where the judge’s acts are alleged to have been done maliciously and corruptly.
(Tagliavia, supra,
at p. 761; accord,
Turpen
v.
Booth
(1880) 56 Cal. 65, 68.) The rule is based on “ ‘a 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, supra,
112 Cal.App.3d at p. 762, quoting from
Bradley
v.
Fisher
(1871) 80 U.S. (13 Wall.) 335, 347 [20 L.Ed. 646, 649].) Judicial immunity
Plaintiff contends this rule has been statutorily abrogated by Government Code section 822.2. That section provides “[a] public employee аcting in the scope of his employment is not liable for an injury caused by his misrepresentation, whether or not such misrepresentation be negligent or intentional, unless he is guilty of actual fraud, corruption or actual malice.” The term “employee” is defined in Government Code section 810.2 to include а “judicial officer,” which includes a superior court judge (Elec. Code, § 28). The question is therefore whether Government Code section 822.2 has abrogatеd the common law regarding judicial immunity.
In general, where statute and common law conflict, the statute will govern as the latest expression of the law. (2A Suthеrland, Statutory Construction (4th ed. 1984) § 50.01, p. 421.) However, statutes should not be interpreted to alter the common law unless it is expressly provided they should do so; there is a presumption a statute does not, by implication, repeal the common law. (People v. Zikorus (1983) 150 Cal.App.3d 324, 330 [197 Cal.Rptr. 509].)
In interpreting a statute, a fundamental rule is that the court must “ ‘ascertain the intent of the Legislature so as to effectuate the purpose of the law.’ [Citations.] In determining the intent, the court ‘turns first to the words themselves for the answer.’ [Citation.] [fl] The words must be read in context, ‘ “keeping in mind the nature and obvious purpose of the statute where they appear.” ’ [Citation.] In аscertaining the legislative intent, courts should consider not only the words used, but ‘the object in view, the evils to be remedied, the legislative history [and] public pоlicy . . . .’ [Citation.]” (People v. Aston (1985) 39 Cal.3d 481, 489 [216 Cal.Rptr. 771, 703 P.2d 111].) Inasmuch as the fundamental principle of statutory interpretation is the effectuation through the statute of legislative intent, the court must give effect to that intent “even when such an interpretation appears to be at odds with . . . the literal construction of the statutory language. [Citatiоns.]” (Pollack v. Department of Motor Vehicles (1985) 38 Cal.3d 367, 372 [211 Cal.Rptr. 748, 696 P.2d 141].)
Up through 1977, Government Code section 810.2—and therefore Government Code section 822.2—did not include judicial officers as public employees. Judiciаl officers were added to section 810.2 by Statutes 1977, chapter 745, section 1, page 2333, which also added section 27648
(id.,
at § 2, p. 2334) to the Government Code. Section 27648 provides: “If, because of a declared conflict of interest, any judge, who is otherwise entitled to
The Legislative Counsel’s Digest of Senate Bill No. 1109 reveals the Legislature’s purрose in amending section 810.2 and adding section 27648: “Existing law does not specifically include judicial oificers within the meaning of the term ‘employee’ for рurposes of claims and actions brought against public entities and public employees, [fl] This bill would specifically include judges of courts of recоrd and justice courts, within the meaning of the term ‘employee’ for such purposes, [fl] Existing law provides that if a public entity refuses or fails to provide an еmployee with a defense against a civil action arising out of an act or omission in the scope of employment and the employee retains counsel to defend against such action, the employee is entitled to recover reasonable attorney’s fees, costs, and еxpenses from the public entity. Existing law also provides that superior, municipal, and justice court judges may be represented in proceedings involving their judicial duties by the county counsel if such representation does not conflict or interfere with the county counsel’s other duties, [fl] This bill would specificаlly provide that any judge who is required to retain counsel because of a declared conflict of interest is entitled to recover attornеy’s fees, costs, and expenses from the public entity if the judge was otherwise entitled to representation.” (3 Stats. 1977 (Reg. Sess.) Summary Dig., p. 184.)
There is no indication thе Legislature intended to expand judicial liability through section 822.2 by modifying section 810.2. Moreover, the Legislature’s purpose in enacting the Tort Claims Act (
Literal construction of the statutory language in Government Code sections 810.2 and 822.2 would lead to alteration of the common law doctrinе of judicial immunity. “Nothing in the language or history of the statute[s] would suggest that the Legislature intended to achieve so significant a result by indirection. If that were the intention, it would far more likely have been accomplished by directly addressing the issue rather than inferentially as is claimed here.”
(People
v.
Riffey
(1985) 171 Cal.App.3d 419, 424 [217 Cal.Rptr. 319] [construing
The order is affirmed.
Hanson, J., and Lucas, J., concurred.
A petition for a rehearing was denied May 18, 1988, and appellant’s petition for review by the Supreme Court was denied July 20, 1988.
Notes
The order of dismissal is appealable pursuant to Code of Civil Procedure section 904.1, subdivision (a). (D’Hondt v. Regents of University of California (1984) 153 Cal.App.3d 723, 726, fn. 2 [200 Cal.Rptr. 628].)
The foregoing are not parties to this appeal.