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McClintock v. West

California Court of Appeals, Fourth District, Third Division

September 9, 2013

DOUGLAS McCLINTOCK, Plaintiff and Appellant,
MICHELLE WEST et al., Defendants and Respondents.

Appeal from a judgment of the Superior Court of Orange County, No. 30-2011-00457082 David McEachen, Judge.

Douglas G. McClintock, in pro. per., for Plaintiff and Appellant.

Lewis Brisbois Bisgaard & Smith, Roy G. Weatherup, Bartley L. Becker and Allison A. Arabian for Defendants and Respondents.



This is an appeal from a judgment after a demurrer was sustained without leave to amend. Plaintiff Douglas McClintock sued Michelle West and the Law Offices of Michelle West (collectively the West defendants) for damages resulting from West’s purported misconduct while acting as his guardian ad litem during a divorce proceeding. At all times in the underlying case, West was acting under the supervision of an experienced family law judge.

The court sustained the West defendants’ demurrer to McClintock’s second amended complaint, concluding that the doctrine of quasi-judicial immunity and the litigation privilege, among other things, precluded McClintock’s claims. We agree and affirm.



A. The Divorce Action

In 2006, McClintock’s wife, Sara, [1] filed for divorce. Sara, like McClintock, an attorney, sought legal and physical custody of the couple’s two children and intended to relocate to the Midwest. When the case was called for trial in February 2008, McClintock did not appear. His attorney, Stephen Kaufman, advised the court that he had checked himself into a hospital in Massachusetts for severe depression. The court refused to grant a continuance without evidence of McClintock’s condition. The next day, Kaufman presented a letter that had been faxed by a physician. The trial judge stated the letter convinced him that McClintock could not act on his own behalf, and he appointed Michelle West as guardian ad litem. (In re Marriage of McClintock (Mar. 8, 2012, G044197) [nonpub. opn.].)[2] On the same day, the court entered an order awarding Sara temporary sole custody of the children.

McClintock claims: “Judge Naughton unilaterally appointed West without holding a hearing on Appellant’s competence and without any evidence in the record that Appellant was anything more than depressed.... (It later became apparent that Judge Naughton unilaterally appointed West in order to give her a huge financial windfall after Appellant was finally able to get her removed two years later.)”[3]

After she was appointed, West spoke to McClintock by phone. McClintock later alleged he told West his priorities were to regain custody and visitation rights with his children and to divide the marital property through a settlement.

In March, West and Sara signed a stipulation that the custody order was to remain in effect and that West would continue as guardian ad litem for McClintock for all purposes. McClintock later alleged that in June, West agreed to a request from Sara’s attorney to release McClintock’s medical records.

West and Kaufman, on McClintock’s behalf, then negotiated a stipulated judgment on reserved issues with Sara and her attorney. The court approved the stipulated judgment on July 1. Among other provisions, the parties equally divided approximately $1.4 million in retirement accounts. McClintock was to provide account statements and execute releases to grant Sara access to the accounts, and McClintock was to be responsible for any attorney fees resulting from the failure to do so. McClintock was to maintain the children’s medical coverage. The stipulated judgment also provided for equal division of proceeds from the marital home after an equalization payment to Sara.

McClintock alleges that prior to the hearing on July 1, he tried to speak to West when he saw her in the parking lot, but she refused to speak to him. He alleges that West accused him of “stalking” her after the hearing.

The remaining issues were settled in September, via another stipulated judgment and order on reserved issues. One part of that order stated that $32, 000 from the sale of the residence was payable to “Michelle West as an entire flat fee for all past and future services through the division of the marital estate and the house sale... as guardian ad litem.”

At some point during this period, McClintock apparently filed a motion to relieve West of her duties as guardian ad litem. According to a later declaration filed by Sara, McClintock claimed he had no mental disabilities, yet at the same time, he applied for and was granted full disability based on his mental status.

The stipulated judgment and order entered in September became a final judgment on October 1. The judgment gave sole physical and legal custody to Sara, and stated that McClintock “shall have no contact with the minor children, ” and that “[a]ny future contact of any kind shall only occur at the request of the minor children through a qualified therapist, and the parties stipulate that this order is not modifiable, except at the request of the minor children.” While McClintock blames West for his failure to reunite with his children and the “alienation of the children by Sara, ” there is evidence in the record that a reunification therapist testified at trial that there was no alienation by Sara, and McClintock was largely responsible for the rift between him and his children.

Around the same time, Sara gave notice of an ex parte motion seeking to shorten time on a motion to give West the authority to carry out the July 1 agreement with respect to the retirement accounts. In her supporting declaration, Sara stated that McClintock had not turned over any retirement account statements by the stipulated deadline. McClintock had also failed to make the equalization payment, independently contacting the escrow agent responsible for the sale of the home and informing the agent that he had a dispute with the July 1 agreement. He had also failed to maintain the children’s medical coverage.

Most urgently, given the declining state of the stock market in September 2008, Sara sought to have the retirement accounts divided immediately. She stated: “The Guardian Ad Litem has little control over the Respondent, and the court must make the orders requested in order to allow the assets to be divided pursuant to the terms of the Judgment. The respondent has chosen to ignore this court’s orders....” She argued that McClintock’s recalcitrance had caused Sara to incur over $140, 000 in attorney fees and costs.

The proposed order went further than the July 1 agreement, however, and sought to require McClintock transfer 50 percent of the value of the various accounts as of July 1, 2008.[4] Kaufman did not oppose or notify McClintock of the hearing, but filed a declaration asking that each party bear its own costs. The court granted the order as requested and awarded $9, 000 in attorney fees and costs to Sara. The court also broadened West’s discretion as guardian ad litem, and she was ordered to take all steps necessary to facilitate the transfer of the retirement accounts, as well as to do what was needed to effectuate the judgment.

In 2009, McClintock fired Kaufman and filed for fee arbitration in an advisory proceeding. McClintock claimed that Kaufman was not entitled to any attorney fees. He asserted that Kaufman had entered into a stipulation to grant Sara legal and physical custody without his authority, failed to object to the appointment of West or seek to overturn the order, failed to respond to him or act according to his direction, failed to give notice of an ex parte motion, and entered into the stipulation for judgment which resulted in an order for unequal division of property and unreasonable attorney fees and fees for West. West testified on Kaufman’s behalf.

The arbitrators concluded that Kaufman was entitled to approximately $31, 000 in fees. With respect to West’s appointment, the arbitrators stated: “It is also very clear from review of the transcript of the February 13, 2008 proceeding, that the court, in making that appointment [of West as guardian ad litem] was bending over backward to protect the interests of [McClintock], who would otherwise have been required to proceed to trial in absentia. The result of such a default trial proceeding would certainly have been ...

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