California Court of Appeal, First District, Fourth Division
As Modified on Denial of Rehearing 3/6/2014
Alameda County Superior Court, Hon. Dennis Hayashi. (No. RG12615764)
[Copyrighted Material Omitted]
Law Office of Paul Kleven, Paul Kleven, Berkeley, Counsel for Appellant.
Supple & Canvel, Rick Canvel, Sausalito, Robert D. Sanford, San Francisco, Counsel for Respondent.
Embroiled in protracted, acrimonious child custody proceedings with her former spouse, Larisa Bergeron (appellant) sued psychologist and family court child custody evaluator Robert Boyd, Ph.D. (respondent) for breach of contract, negligence, and intentional infliction of emotional distress. The acts complained of included the issuance of an interim custody order that restricted appellant's access to her children.
Respondent demurred to the complaint, asserting that the conduct complained of was protected by the common law privilege for quasi-judicial acts and by the litigation privilege. (Civ.Code, § 47.) Both in the trial court and on appeal, appellant contends respondent was without jurisdiction to issue such an order, and thus, the act of doing so was not privileged. The trial court agreed that the quasi-judicial privilege applied, and sustained the demurrer without leave to amend on that basis. We affirm.
STANDARD OF REVIEW
Our standard of review of a trial court's ruling
sustaining a demurrer is governed by well settled principles. " A demurrer
tests the sufficiency of a complaint as a matter of law. [Citation.]"
(Hale v. Sharp Healthcare (2010) 183 Cal.App.4th 1373, 1379, 108 Cal.Rptr.3d 669.) Accordingly, we review the trial court's ruling de novo, exercising our independent judgment. ( Ibid .; Lazar v. Hertz Corp . (1999) 69 Cal.App.4th 1494, 1501, 82 Cal.Rptr.2d 368.) " ‘ The judgment must be affirmed " if any one of the several grounds of demurrer is well taken. [Citations.]" [Citation.] However, it is error for a trial court to sustain a demurrer when the plaintiff has stated a cause of action under any possible legal theory. [Citation.] And it is an abuse of discretion to sustain a demurrer without leave to amend if the plaintiff shows there is a reasonable possibility any defect identified by the defendant [167 Cal.Rptr.3d 428] can be cured by amendment.’ [Citation.]" ( Hale v. Sharp Healthcare, supra, at p. 1379, 108 Cal.Rptr.3d 669.)
As we stated recently in La Serena Properties, LLC v. Weisbach (2010) 186 Cal.App.4th 893, 112 Cal.Rptr.3d 597 ( Weisbach ), " [w]hen considering an appeal from a judgment entered after the trial court sustained a demurrer without leave to amend, we ‘ accept as true all well-pleaded facts in the complaint and give a reasonable construction to the complaint as a whole.’ ( Animal Legal Defense Fund v. Mendes (2008) 160 Cal.App.4th 136, 140, fn. 1 [72 Cal.Rptr.3d 553]..., citing Blank v. Kirwan (1985) 39 Cal.3d 311, 318, 216 Cal.Rptr. 718 [703 P.2d 58]....) In addition, we may consider matters that are properly the subject of judicial notice, and were considered by the trial court. ( Buesa v. City of Los Angeles (2009) 177 Cal.App.4th 1537, 1543[100 Cal.Rptr.3d 86]....)" ( Weisbach, supra, at p. 897, 112 Cal.Rptr.3d 597.)
FACTUAL AND PROCEDURAL BACKGROUND
Our factual summary is derived from appellant's complaint, and the matters judicially noticed, specifically, certain pleadings and the transcript from the January 25, 2011 hearing (January 25 hearing) in the underlying Alameda County Superior Court family law action captioned Bergeron v. Bergeron (2010, No. VF10518920). ( Holland v. ...