McClintock v. West

Filed 9/9/13

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

DOUGLAS MCCLINTOCK,

Plaintiff and Appellant, G046483

v. (Super. Ct. No. 30-2011-00457082)

MICHELLE WEST et al., OPINION

Defendants and Respondents.

Appeal from a judgment of the Superior Court of Orange County, David

McEachen, Judge. Affirmed.

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.

I

FACTS

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,

1We refer to Sara McClintock by her first name for the ease of the reader. (In re

Marriage of Smith (1990) 225 Cal.App.3d 469, 475-476, fn. 1.)

2

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

2The West defendants‟ request for judicial notice of that decision is granted, pursuant to

Evidence Code sections 452, subdivision (d), and 459.

3 Throughout his brief, McClintock repeatedly cites to his own complaint as evidence of

underlying facts, as opposed to mere allegations. This is improper, and we treat such

statements as if they included no record references at all.

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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

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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

4 The potential windfall for Sara was precisely the topic of this court‟s prior opinion, see

In re McClintock, supra, G044197. We need not go into too much detail here, but in

sum, West eventually submitted a corrected order to return the division of the retirement

accounts to its equal state, which was approved by the court in March 2010. (Ibid.)

5

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 less favorable to [McClintock] than the result reached through

the participation of the GAL, acting on [McClintock]‟s behalf.”

West‟s services were terminated in March 2010, and she thereafter sought

payment of her fees. She petitioned the court for payment of 172.5 hours spent between

October 2, 2008 and March 18, 2010, at a rate of $275 per hour for a total of $47,437.50.

She submitted a declaration to the court in support of the request. The court granted it,

stating that “the services of the Guardian Ad Litem were necessary to the conclusion of

the case.” Without her services, the court stated, there would have been no resolution of

the matter in any reasonable time frame and both parties had benefitted from her services.

McClintock was ordered to pay $37,500 and Sara was ordered to pay $10,000. The

parties were given 10 days to object to the order, but there is no evidence in the record

that anyone did.

The court also ruled on the issue of attorney fees in the divorce case, and

ordered McClintock to pay $65,000 in fees. The court felt the fees amassed were

“monumental” and with respect to the decision to order McClintock to pay the bulk of

them, the court stated: “[Sara] lays the blame for the high attorney fees entirely on

[McClintock] with some justification particularly if one believes that that the trip to the

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hospital in Massachusetts was merely an effort to game the legal system. Were that the

case, the ploy failed because the appointment of a guardian ad litem ensured the rapid

conclusion of the case to judgment.” The court also noted it had warned McClintock

“since he didn‟t seem to be paying any attention to the guardian ad litem who could have

and should have resolved the whole thing.”

B. The Instant Case

McClintock filed his initial complaint against the West defendants on

March 11, 2011. He alleged five causes of action, including negligence, fraud, breach of

fiduciary duty, breach of contract and intentional infliction of emotional distress. The

gravamen of the complaint was that West‟s actions resulted in financial losses and the

loss of custody of his children. The claims for fraud and breach of contract were based in

part on the theory that West had promised to cap her fees at $32,000 pursuant to the

September 2008 stipulation.

The West defendants demurred, arguing, among other things, that as

guardian ad litem she had quasi-judicial immunity. The court‟s tentative decision

sustained the demurrer, but McClintock then filed an amended complaint, thereby taking

the hearing off calendar.

The first amended complaint added causes of action for intentional and

negligent interference with prospective economic advantage, but was otherwise

substantially similar to the initial complaint. Again the West defendants demurred, again

raising quasi-judicial immunity, among other arguments. McClintock opposed, arguing

West was not entitled to such immunity. McClintock‟s counsel failed to appear at the

hearing on the demurrer, although McClintock appeared to argue on his own behalf. The

court ordered the demurrer sustained, with 30 days leave to amend.

In due course, McClintock, now representing himself, filed a second

amended complaint, which is the one at issue here. In addition to the claims included in

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his first amended complaint (fraud, breach of fiduciary duty, breach of contract,

intentional infliction of emotional distress, intentional and negligent interference with

prospective economic advantage), he added claims for legal malpractice and substituted a

claim for professional negligence for his original negligence cause of action. He also

claimed that West was his de facto attorney who breached her professional obligations by

failing to provide him with a copy of his files.

The West defendants again demurred. With regard to the new contentions

regarding legal malpractice, West asserted that she appeared as McClintock‟s guardian ad

litem, not his attorney. Even assuming she had acted as an attorney on isolated

occasions, the primary duty to furnish documents would have fallen to Kaufman, the

attorney of record. The West defendants also filed a lengthy request for judicial notice,

which was unopposed.

In opposition to the demurrer, McClintock contended that West owed him a

duty of care and that she was not entitled to quasi-judicial immunity. He pointed to the

stalking incident as evidence that West had acted outside her role as guardian ad litem.

McClintock argued that he had adequately set forth sufficient claim as to each cause of

action, mostly in an entirely conclusory manner.5 He did not offer any argument that if

the demurrer was sustained, further leave to amend should be granted.

The court granted the request for judicial notice, with the exception of one

document, and sustained the demurrer without leave to amend. The court concluded that

West was entitled to quasi-judicial immunity on the claims alleging breach of a duty of

care. With respect to the fraud and breach of contract claims, the litigation privilege

barred any claims based on statements West had made in the divorce proceedings or in

5For example, with respect to the legal malpractice claim, this was the entirety of

McClintock‟s argument: “As alleged in the SAC, West repeatedly acted in the role of

Plaintiff‟s attorney rather than guardian ad litem. She corresponded repeatedly directly

with the other attorney. She advocated as an attorney. The SAC alleges numerous acts

of negligence that constitute malpractice.”

8

her application for fees. With regard to the stalking incident, even if outside of West‟s

role as guardian ad litem, McClintock had not set forth any viable theory of causation and

damages. The judgment and order of dismissal was subsequently entered.

II

DISCUSSION

A. Standard of Review

“In reviewing the sufficiency of a complaint against a general demurrer, we

are guided by long-settled rules. „We treat the demurrer as admitting all material facts

properly pleaded, but not contentions, deductions or conclusions of fact or law.

[Citation.] We also consider matters which may be judicially noticed.‟ [Citation.]

Further, we give the complaint a reasonable interpretation, reading it as a whole and its

parts in their context. [Citation.]” (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) We

give no effect, however, to contentions, deductions or conclusions of either fact or law.

(Evans v. City of Berkeley (2006) 38 Cal.4th 1, 6.)

“When a demurrer is sustained, we determine whether the complaint states

facts sufficient to constitute a cause of action. [Citation.] And when it is sustained

without leave to amend, we decide whether there is a reasonable possibility that the

defect can be cured by amendment: if it can be, the trial court has abused its discretion

and we reverse; if not, there has been no abuse of discretion and we affirm. [Citations.]

The burden of proving such reasonable possibility is squarely on the plaintiff.

[Citation.]” (Blank v. Kirwan, supra, 39 Cal.3d at p. 318.)

B. Quasi-Judicial Immunity

1. The Role of the Guardian Ad Litem

Code of Civil Procedure section 372, subdivision (a), states in relevant part:

“When . . . an incompetent person . . . is a party, that person shall appear either by . . . a

guardian ad litem appointed by the court in which the action or proceeding is pending, or

9

by a judge thereof, in each case. . . . The . . . guardian ad litem so appearing for any . . .

incompetent person . . . shall have power, with the approval of the court in which the

action or proceeding is pending, to compromise the same, to agree to the order or

judgment to be entered therein for or against the ward . . . and to satisfy any judgment or

order in favor of the ward . . . or release or discharge any claim of the ward . . . pursuant

to that compromise.”

“A guardian ad litem is not a party to an action, but merely the

representative of record of a party.” (Estate of Cochems (1952) 110 Cal.App.2d 27, 29.)

He or she “represents the interests of a person in legal proceedings who lacks capacity to

represent himself or herself . . . .” (J.W. v. Superior Court (1993) 17 Cal.App.4th 958,

965.) But while a guardian ad litem‟s role is as a representative of the ward, he or she

does not act as an advocate, and does not simply represent the ward‟s wishes. “The court

is, in effect, the guardian of the minor and the guardian ad litem is but an officer and

representative of the court. [Citation.]” (Serway v. Galentine (1946) 75 Cal.App.2d 86,

89.)

While the guardian ad litem has the power to assent to procedural steps that

will facilitate a determination of the ward‟s case (Torres v. Friedman (1985) 169

Cal.App.3d 880, 887), the guardian ad litem‟s authority is that of “„an agent with limited

powers.‟ [Citation.]” (Berry v. Chaplin (1946) 74 Cal.App.2d 652, 657.) For example,

when a guardian ad litem believes that settling a case is in the ward‟s best interests, that

decision requires court approval. (Code Civ. Proc., § 372.) The court has a duty to

ensure that the ward‟s rights are protected by the guardian ad litem. (Berry v. Chaplin,

supra, 74 Cal.App.2d at p. 657.) The guardian ad litem, therefore, when representing an

adult deemed incapable of representing themselves, is in a similar role to a conservator,

who derives his or her authority from the power of the state to protect incompetent

persons. (See, e.g., Young v. CBS Broadcasting, Inc. (2012) 212 Cal.App.4th 551, 562.)

10

2. Guardians Ad Litem Enjoy Quasi-Judicial Immunity When Acting within

the Scope of their Authority

The seminal California case on quasi-judicial immunity is Howard v.

Drapkin (1990) 222 Cal.App.3d 843 (Howard). The defendant in that case was a court-

appointed psychologist who had been appointed to evaluate the plaintiff‟s child custody

dispute. (Id. at p. 847.) The plaintiff claimed the psychologist had acted improperly in

carrying out that evaluation. (Ibid.) The defendant filed a demurrer to the plaintiff‟s

complaint, arguing she had immunity as an expert witness, and the trial court agreed,

sustaining the demurrer without leave to amend. (Id. at p. 850.) The Court of Appeal

ultimately agreed. (Id. at p. 857.)

The Court of Appeal provided an overview of common law immunity,

beginning with the concept 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 judge‟s

jurisdiction, no matter how erroneous or even malicious or corrupt they may be.

[Citations.]” (Howard, supra, 222 Cal.App.3d at p. 851, fn. omitted.) “The rationale

behind the doctrine is twofold. First, it „protect[s] the finality of judgments [and]

discourag[es] inappropriate collateral attacks.‟ [Citation.] Second, it „protect[s] judicial

independence by insulating judges from vexatious actions prosecuted by disgruntled

litigants. [Citation.]‟ [Citation.]” (Id. at p. 852.)

The court then discussed the concept of quasi-judicial immunity, which

“extended absolute judicial immunity to persons other than judges if those persons act in

a judicial or quasi-judicial capacity.” (Howard, supra, 222 Cal.App.3d at pp. 852-853.)

Quasi-judicial immunity has been extended to court commissioners, grand jurors,

administrative hearing officers, arbitrators and the organizations sponsoring them, the

State Bar and Committee of Bar Examiners, and prosecutors. (Id. at p. 853.) “As with

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the reason for granting judicial immunity, quasi-judicial immunity is given to promote

uninhibited and independent decisionmaking. [Citation.]” (Ibid.) The court noted that

federal decisions had extended immunity to trust officers, conservators, receivers,

guardians ad litem, psychologists and attorneys for children in child abuse cases. (Id. at

pp. 855-856; see also Kurzawa v. Mueller (6th Cir. 1984) 732 F.2d 1456, 1458 [guardian

ad litem “must act in the best interests of the [person] he represents [and s]uch a position

clearly places him squarely within the judicial process”].)

The Howard court noted that the “overburdened judicial system” was

dependent on attracting independent and impartial services and expertise to function.

“Thus, we believe it appropriate that these „nonjudicial persons who fulfill quasi-judicial

functions intimately related to the judicial process‟ [citation] should be given absolute

quasi-judicial immunity for damage claims arising from their performance of duties in

connection with the judicial process. Without such immunity, such persons will be

reluctant to accept court appointments or provide work product for the courts‟ use.

Additionally, the threat of civil liability may affect the manner in which they perform

their jobs. [Citation.]” (Howard, supra, 222 Cal.App.3d at pp. 857.)

McClintock argues that under Howard, quasi-judicial immunity should

only apply to “neutral” third parties, and not a guardian ad litem, whose role involves

making decisions for her ward. But that is not what Howard states, and we believe the

test it sets forth is applicable here. The question, under Howard, is whether a guardian ad

litem fulfills a function that is “„intimately related to the judicial process‟” (Howard,

supra, 222 Cal.App.3d at p. 857), and the answer to that question is yes. As we discussed

ante, the guardian ad litem‟s role is that of a court-appointed officer, who, under the

appointment of and under the supervision of the trial court, must act in her ward‟s best

interests. That is indeed a function intimately related, and indeed, one which the trial

court found in this case was indispensible to bringing the case to a conclusion.

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Further, the policy considerations raised in Howard apply here — indeed,

this case could be a poster child for such considerations. If West had known she might be

subject to liability for causes of action ranging from negligence to intentional interference

with prospective economic advantage, resulting in the potential for years of litigation and

financial liability greater than her entire fee for handling the case, would she have ever

agreed to the appointment? Why would any qualified person ever accept appointment as

a guardian ad litem when his or her decisions could be subject to such post hoc second

guessing?

Moreover, in addition to the difficulty of finding anyone to accept such an

assignment, the risk of liability could impact how the guardian ad litem carried out her

role. As we discussed ante, the guardian ad litem does not advocate for her ward in the

way an attorney does — her job is acting in the ward‟s best interests, and the ward might

not always agree with the guardian ad litem‟s decisions. Her ability to act would be

compromised if the threat of future liability encouraged a guardian ad litem to put a

ward‟s wishes above his interests. (Howard, supra, 222 Cal.App.3d at pp. 853, 857.)

The countervailing policy present here is the accountability of guardians ad

litem, but there are sufficient mechanisms in place to address such concerns. First,

immunity is limited to acts within the scope of the guardian‟s authority. Second, in

addition to a guardian ad litem, wards generally have legal counsel as well, as was the

case here. Third, as we have noted, guardians ad litem are appointed by and subject to

the supervision of the trial court. The trial court can remove a guardian if he or she is not

performing responsibly, either on its own motion or at a party‟s request. Fourth, the trial

court‟s decisions are ultimately subject to review by an appropriate writ or appeal.

Ultimately, both the parties and the judicial system are best served by addressing any

issues with the guardian ad litem‟s performance during the initial case, rather than by a

subsequent lawsuit collaterally attacking the original judgment.

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In opposition to the argument that guardians ad litem are entitled to such

immunity, McClintock cites a number of federal cases that do not offer him much help.

He points to Miller v. Gammie (9th Cir. 2003) 335 F.3d 889, a case that involved

immunity for a social worker and a social therapist in a civil rights action under 42

United States Code section 1983. (Id. at p. 893-894.) The Ninth Circuit took the view

that immunity was dependent on the specific function performed and could not be

determined at the pleading stage. (Id. at p. 899.) But that case is not dispositive here. As

a federal case interpreting a federal statute, it is not binding on this court‟s interpretation

of state law.

That case is also less than instructive here because it does not involve a

guardian ad litem. Other federal cases, as the Howard court noted (Howard, supra, 22

Cal.App.3d at pp. 855-856), have found that guardians ad litem are entitled to quasi-

judicial immunity. In addition to the cases cited in Howard, in Gardner By Gardner v.

Parson (3d. Cir. 1989) 874 F.2d 131, the court held that “a guardian should be absolutely

immune when acting as an „integral part[] of the judicial process.‟ [Citation.]” (Id. at

p. 146.) While most of the federal cases on this issue arise out of guardians ad litem

acting in an investigative capacity in child custody proceedings, they do not stand for the

proposition that quasi-judicial immunity should or must be limited to that context. (See,

e.g., Cok v. Consentino (1st Cir. 1989) 876 F.2d 1, 3; Myers v. Morris (8th Cir. 1987) 810

F.2d 1437, 1466-1467; Ward v. San Diego County Dep’t of Social Services (S.D. Cal.

1988) 691 F.Supp. 238, 239-241.)

Other unhelpful federal cases cited by McClintock are Robinson v. Freeze

(8th Cir. 1994) 15 F.3d 107, a case filed by an inmate against a bailiff under 42 United

States Code section 1983, and Richman v. Sheahan (7th Cir. 2001) 270 F.3d 430, another

civil rights action filed against bailiffs in an Illinois courtroom. While these cases may

be, as McClintock argues, “the law of the land” with respect to federal civil rights claims

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filed in federal court, they do not apply to a common law action against a guardian ad

litem filed in California state court.

In sum, both precedent with respect to other quasi-judicial personnel and

policy considerations persuade us that quasi-judicial immunity was appropriately

accorded to West in this case. Accordingly, the trial court properly sustained the West

defendants‟ demurrer to the causes of action for professional negligence, breach of

fiduciary duty, intentional infliction of emotional distress, intentional interference with

prospective economic advantage, and negligent interference with prospective economic

advantage.6

C. The Litigation Privilege

McClintock argues quasi-judicial immunity cannot apply to his claims for

breach of contract or fraud. The basis for those claims is West‟s fee application after her

services as guardian ad litem were completed. McClintock alleges that West, in the

September 2008 stipulation, agreed to “cap” her fees, but later sought additional fees,

which he claims constituted both breach of contract and fraud. West‟s request for fees,

however, is subject to the litigation privilege.

As pertinent here, Civil Code section 47, subdivision (b) provides: “A

privileged publication or broadcast is one made: [¶] . . . [¶] (b) In any . . . (2) judicial

proceeding . . . .” (Civ. Code, § 47, subd. (b).) “The principal purpose of [Civil Code]

section 47[, subdivision (b),] is to afford litigants . . . the utmost freedom of access to the

6 We note that even if quasi-judicial immunity did not apply, many of these causes of

action would fail as a matter of law. Interference with prospective economic advantage,

for example, requires “an economic relationship between the plaintiff and a third party,

with the probability of future economic benefit to the plaintiff.” (Sole Energy Co. v.

Petrominerals Corp. (2005) 128 Cal.App.4th 212, 241.) The dissolving marriage alleged

here is not the type of economic relationship contemplated by the tort. We will discuss

the additional problems with McClintock‟s claim for intentional infliction of emotional

distress post in section II.E.

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courts without fear of being harassed subsequently by derivative tort actions.

[Citations.]” (Silberg v. Anderson (1990) 50 Cal.3d 205, 213.) “Although originally

enacted with reference to defamation [citation], the privilege is now held applicable to

any communication, whether or not it amounts to a publication [citations], and all torts

except malicious prosecution. [Citations.] Further, it applies to any publication required

or permitted by law in the course of a judicial proceeding to achieve the objects of the

litigation . . . . [Citations.]” (Id. at p. 212.)

West‟s fee request, as part of the divorce action, was plainly “in the course

of a judicial proceeding to achieve the objects of the litigation . . . .” (Silberg v.

Anderson, supra, 50 Cal.3d at p. 212.) McClintock claims the privilege should not apply

because he did not have the opportunity to cross-examine West. He is incorrect; he cites

no authority for the proposition that the only acts subject to the litigation privilege are

those where the parties are subject to full adversarial examination. That would exclude

the privilege from the ambit of many trial court proceedings, including all law and

motion practice. That is simply not the law. The litigation privilege applies “broadly to

bar tort actions based on privileged communications, excepting only the tort of malicious

prosecution.” (Haberg v. California Federal Bank (2004) 32 Cal.4th 350, 358.) Indeed,

it is not limited to statements made in a courtroom at all, but also those in contemplation

of litigation. (Id. at p. 361.)

Here, McClintock had the opportunity to litigate West‟s fee request as part

of the divorce proceedings. The fee request was served on him, and if he filed any

opposition, he failed to include it in the appellate record. He was also served with the

court‟s order granting the request. There is nothing in the record indicating that

McClintock objected to the order in the 10-day period ordered by the court. If

McClintock had an issue with the court‟s decision, the time to raise it was then, or in the

appropriate writ or appeal from that order. Derivative lawsuits like this one are part of

the reason the litigation privilege exists — to prevent never-ending second bites at the

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apple about matters that took place during a prior proceeding. Thus, the litigation

privilege bars McClintock‟s causes of action for fraud and breach of contract.7

D. Legal Malpractice

Attempting to avoid doctrines such as quasi-judicial immunity or the

litigation privilege, McClintock‟s second amended complaint alleged, for the first time,

legal malpractice. The complaint asserts West “repeatedly acted in a role as Plaintiff‟s

attorney” rather than as guardian ad litem. To allege legal malpractice, the plaintiff must

demonstrate “the existence of an attorney-client relationship.” (Jager v. County of

Alameda (1992) 8 Cal.App.4th 294, 297 (Jager).) The existence of such a relationship is

a question of law. (Responsible Citizens v. Superior Court (1993) 16 Cal.App.4th 1717,

1733.)

In Jager, the plaintiff sued the district attorney for legal malpractice in

connection with the collection of child support. (Jager, supra, 8 Cal.App.4th at p. 296.)

The court sustained the defendants‟ demurrer without leave to amend, holding that “Even

our most liberal construction of Jager‟s complaint does not demonstrate an attorney-client

relationship or a duty of care otherwise owed by respondents to Jager.” (Id. at p. 297.)

Based both on statute and prior case law, the court found the duty owed by the district

attorney was to the county, not to an individual seeking to collect child support. (Id. at

pp. 297-298.)

The situation here is similar. While a guardian ad litem‟s duty is to act in

the ward‟s best interests, as we discussed ante in section II.B., he or she does not answer

to the ward, but to the court. “[T]he guardian ad litem is but an officer and representative

of the court.” (Serway v. Galentine, supra, 75 Cal.App.2d at p. 89; see also Berry v.

Chaplin, supra, 74 Cal.App.2d at p. 657 [noting the guardian ad litem is both an officer

7 To the extent relevant, West‟s testimony during Kaufman‟s fee arbitration was also

subject to the litigation privilege.

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and agent of the court].) Thus, as a matter of law, there is no basis for finding an

attorney-client relationship between a guardian ad litem and a ward.

Further, any factual indicia of an attorney-client relationship is completely

absent here. There was no agreement for representation between McClintock and West.

There are no allegations that West was attorney of record at any point, appeared in court

without Kaufman, signed any document as McClintock‟s attorney, or was named as

attorney in any document. Indeed, McClintock claims that West refused to speak to him

after May 2008, which is hardly indicative of an attorney-client relationship. In short,

there are simply no allegations of an attorney-client relationship sufficient to hold West

accountable for legal malpractice. Because he has failed to adequately allege such a

relationship, the demurrer to this claim was properly sustained.

E. West’s Alleged Actions Outside the Scope of Her Authority

In a short argument devoid of legal authority, McClintock argues the court

should have overruled the demurrer based on West‟s actions that fell outside the scope of

her role as guardian ad litem. The only such action that McClintock discusses is the so-

called “stalking” incident, which he claims led to West‟s refusal to communicate with

him. He argues this is the most “damaging” thing imaginable, and claims that thereafter

West‟s representation of him was “a total sham.” None of these allegations, however,

create a cognizable cause of action.

In his reply brief, McClintock argues West‟s actions in this respect were

“extreme and outrageous.” To the extent that McClintock suggests we analyze these

actions under his claim for intentional infliction of emotional distress (even though not

alleged in the second amended complaint as such), we will do so.

“„[T]o state a cause of action for intentional infliction of emotional distress

a plaintiff must show: (1) outrageous conduct by the defendant; (2) the defendant‟s

intention of causing or reckless disregard of the probability of causing emotional distress;

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(3) the plaintiff‟s suffering severe or extreme emotional distress; and (4) actual and

proximate causation of the emotional distress by the defendant's outrageous conduct.‟

[Citation.]” (Huntingdon Life Sciences, Inc. v. Stop Huntingdon Animal Cruelty USA,

Inc. (2005) 129 Cal.App.4th 1228, 1259.) “„Conduct, to be “„outrageous‟” must be so

extreme as to exceed all bounds of that usually tolerated in a civilized society.‟

[Citation.]” (Ibid.)

As a matter of law, accusing a person of stalking, stating that one is afraid

of him, and refraining from contacting them directly thereafter is not “extreme and

outrageous” conduct, even in this context. West had other means to learn McClintock‟s

desires, to the extent they were relevant and that she did not already know them, such as

by communicating with Kaufman. Even if West‟s conduct was somehow interpreted as

sufficiently extreme or outrageous, there is no allegation or reasonable inference that

West‟s conduct was undertaken with the intent to cause or with the reckless disregard of

the probability of causing such emotional distress.

With respect to releasing McClintock‟s medical records to Sara‟s attorney,

which was the actual pleaded basis for the intentional infliction of emotional distress

claim, West‟s decision to execute the release is subject to quasi-judicial immunity, for the

reasons discussed ante in section II.B. The court properly sustained the demurrer to this

cause of action.

F. Leave to Amend

McClintock did not argue below, and does not argue here, that further leave

to amend his complaint is warranted. Given the legal principles set forth above, we find

no reasonable probability that McClintock could amend his complaint to state a viable

cause of action. The demurrer was therefore properly sustained without leave to amend.

(Blank v. Kirwan, supra, 39 Cal.3d at p. 318.)

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III

DISPOSITION

The judgment is affirmed. The West defendants are entitled to their costs

on appeal.

MOORE, J.

WE CONCUR:

O‟LEARY, P. J.

RYLAARSDAM, J.

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