Williams v. McCowen CA2/7

Filed 8/22/23 Williams v. McCowen CA2/7

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION SEVEN

BRIAN WILLIAMS, B321535

Plaintiff and Appellant, (Los Angeles County

Super. Ct. No. BC714309)

v.

LESLEY McCOWEN,

Defendants and

Respondent.

APPEAL from a judgment of the Superior Court of

Los Angeles County, Stephanie M. Bowick, Judge. Affirmed.

Brian Williams, in pro. per., for Plaintiff and Appellant.

Cummings, McClorey, Davis, Acho & Associates and

Sarah L. Overton for Defendant and Respondent.

____________________

Brian Williams, a self-represented litigant, appeals the

judgment dismissing Lesley McCowen, a retired deputy clerk of

the Los Angeles Superior Court, from his 50-cause-of-action,

multi-defendant, multi-million-dollar lawsuit after the trial court

sustained McCowen’s demurrer to the first amended complaint

without leave to amend. Williams named McCowen in the

caption of his pleading and alleged that she was being sued

individually and in her official capacity and that she lived and

worked in Los Angeles County. However, the first amended

complaint contained no allegations of wrongdoing (or, indeed,

allegations of any acts or omissions of any sort) by McCowen.

The trial court sustained McCowen’s demurrer on the

grounds Williams’s pleading was uncertain and failed to state

facts sufficient to constitute a cause of action and, with respect to

any claims against McCowen in her official capacity, for failure to

comply with the Government Code’s claim presentation

requirements (as to state law claims), sovereign immunity

(federal civil rights claims) and absolute quasi-judicial immunity.

On appeal Williams contends only that not all actions by a

superior court deputy clerk are necessarily protected by absolute

quasi-judicial immunity—again without identifying any

purported misconduct by Williams—and complains that the court

ruled on the demurrer in his absence when he failed to appear on

time for the hearing. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Williams’s lawsuit arose from 2015 and 2016 unlawful

detainer actions filed against him in Los Angeles Superior Court

involving an apartment he rented in 2014 from one of the named

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defendants.1 Williams filed his initial complaint on July 16, 2018

and the operative first amended complaint for damages on

March 2, 2020, naming 17 defendants and purporting to allege

50 causes of action, including for wrongful eviction, trespass,

intentional infliction of emotional distress and deprivation of civil

rights in violation of title 42 of the United States Code

section 1983 (section 1983). His prayer for relief requested, in

part, $999 million in general economic damages and $999 million

in punitive damages.

Williams alleged in paragraph 3 that McCowen was sued

individually and “in her official capacity as a Santa Monica

Superior Court Deputy Clerk Employee in and for the County of

Los Angeles” and in paragraph 33(M), on information and belief,

that McCowen resided in Los Angeles County and was a superior

court employee working at the address for the courthouse in

Santa Monica. The pleading did not otherwise mention McCowen

and contained no specific allegations concerning any acts or

omissions by McCowen for which Williams sought to hold her

liable.2

1 Williams failed to include in his designation of the record

on appeal the first amended complaint, McCowen’s demurrer, his

opposition to the demurrer, McCowen’s reply and the trial court’s

ruling. However, those documents, other than the first amended

complaint, are part of the record in a related appeal, Williams v.

Hillcrest Manor, LLC, B319608, which Williams unsuccessfully

sought to consolidate with this appeal and which he cites in his

briefs. We augment the record on our own motion to include

these five documents. (See Cal. Rules of Court,

rule 8.155(a)(1)(A).)

2 One of the central allegations in Williams’s lawsuit is that

he was not properly served in the 2015 unlawful detainer action

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McCowen demurred to the first amended complaint on

September 14, 2021, arguing any cause of action against her was

barred by absolute quasi-judicial immunity; Williams had failed

to comply with the claim presentation requirements of the

Government Claims Act (Gov. Code, § 810 et seq.); sovereign

immunity protected McCowen, a state actor in her official

capacity, from federal civil rights claims; and the pleading was

fatally uncertain and failed to state facts sufficient to constitute a

cause of action against McCowen (Code Civ. Proc., § 430.10,

subds. (e), (f)).

Williams filed an opposition, arguing the statute of

limitations had not run on any of his causes of action (an issue

not raised by McCowen in her demurrer), his pleading was not

uncertain (although supplying no additional information

concerning any theory of liability against McCowen), and court

clerks are not necessarily entitled to absolute (as opposed to

qualified) quasi-judicial immunity for all actions (quoting at

length from a federal case applying federal law, Williams v. Wood

(5th Cir. 1980) 612 F.2d 982, but again without indicating what

McCowen did that would be outside the scope of absolute quasi-

judicial immunity). Williams did not address the other grounds

for the demurrer raised by McCowen. And, although he

and the proof of service filed with the court was fraudulent.

(Williams was apparently in custody on the date he had

purportedly been served.) In paragraph 45 on page 60 of the first

amended complaint, describing his discovery of the fraudulent

proof of service, Williams alleged a court clerk at the Santa

Monica courthouse made him a complete copy of the unlawful

detainer file. McCowen was not identified as the clerk, and

Williams did not allege any misconduct occurred in connection

with that ministerial task.

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requested leave to amend should the court sustain the demurrer,

he did not indicate in what way he believed he could amend the

pleading to cure any of its defects. McCowen filed a reply in

support of her demurrer.3

Hearing on the demurrer was scheduled for April 4, 2022 at

8:30 a.m. No argument was heard: McCowen, represented by

counsel, submitted on the court’s tentative ruling; Williams did

not appear.

The court sustained the demurrer without leave to amend,

finding in favor of McCowen on each of the grounds asserted.

First, the court found the pleading uncertain, agreeing with

McCowen that she could not reasonably ascertain what specific

facts, legal theories or causes of action were alleged against her.

(The court noted more generally Williams’s pleading failed to

state the number and nature of each cause of action in the body

of the document and failed to state as to each separate cause of

action the party or parties to whom it was directed, all as

required by California Rules of Court, rule 2.112.) The court also

agreed there were insufficient facts alleged as to McCowen to

constitute any cause of action, observing there were no specific

factual allegations at all concerning McCowen. Both grounds

went to the entire first amended complaint.

3 Several days after McCowen’s reply, Williams filed an

amended opposition in which he quoted a news article describing

a Georgia Supreme Court decision that reversed an order

dismissing a lawsuit against two court clerks based on quasi-

judicial immunity because the immunity issue had been raised

sua sponte by the trial court, not the defendants. The court

declined to consider this untimely supplemental filing.

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Similarly, because the first amended complaint concerned

an unlawful detainer proceeding, the court’s ruling continued,

any alleged conduct by McCowen arose from her duties as a clerk

of the court where Williams’s unlawful detainer action was

litigated. Accordingly, those actions (although none was alleged)

were protected by quasi-judicial immunity.

As to the state law causes of action (identified by name and

number on the caption page but not the body of the complaint),

the court explained (with citation to authority) that a timely

claim against the employing public entity is a condition precedent

to a tort action against either the entity or one of its employees.

The court sustained the demurrer to those causes of action on the

ground that Williams had failed to sufficiently allege compliance

with the Government Claims Act claims presentation

requirements. (Gov. Code, §§ 905, 911.2, 945.4.)

Finally, quoting Venegas v. County of Los Angeles (2004)

32 Cal.4th 820, 829, that, “[S]tates and state officers sued in their

official capacity are not considered persons under section 1983

and are immune from liability under the statute by virtue of the

Eleventh Amendment and the doctrine of sovereign immunity,”

the court sustained the demurrer to the five causes of action that

purported to assert section 1983 claims. The court noted that

Williams had not opposed McCowen’s sovereign immunity

argument “and therefore concedes on these points.”

The court denied Williams’s request in his opposition

papers for leave to amend, finding no reasonable probability that

the defects it identified could be cured by amendment.

Concerning immunity, the court wrote, nothing in the first

amended complaint or the written opposition indicated Williams

could coherently allege a viable cause of action. Similarly, the

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court ruled, there is no indication Williams could sufficiently

allege compliance with the Government Claims Act claim

requirements.

An order of dismissal and judgment was entered on

April 19, 2022. Williams filed a timely notice of appeal.

DISCUSSION

1. Standard of Review

A demurrer tests the legal sufficiency of the factual

allegations in a complaint. We independently review the trial

court’s ruling on a demurrer and determine de novo whether the

complaint alleges facts sufficient to state a cause of action or

discloses a complete defense. (Mathews v. Becerra (2019)

8 Cal.5th 756, 768; T.H. v. Novartis Pharmaceuticals Corp. (2017)

4 Cal.5th 145, 162.) We assume the truth of the properly pleaded

factual allegations, facts that reasonably can be inferred from

those expressly pleaded and matters of which judicial notice has

properly been taken. (Evans v. City of Berkeley (2006) 38 Cal.4th

1, 20; accord, Centinela Freeman Emergency Medical Associates v.

Health Net of California, Inc. (2016) 1 Cal.5th 994, 1010;

Schifando v. City of Los Angeles (2003) 31 Cal.4th 1074, 1081.)

We affirm the judgment if correct on any ground stated in

the demurrer, regardless of the trial court’s stated reasons (Aubry

v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 967; Regina v.

State of California (2023) 89 Cal.App.5th 386, 396-397), but

liberally construe the pleading with a view to substantial justice

between the parties. (Code Civ. Proc., § 452; Ivanoff v. Bank of

America, N.A. (2017) 9 Cal.App.5th 719, 726; see Schifando v.

City of Los Angeles, supra, 31 Cal.4th at p. 1081.)

“‘Where the complaint is defective, “[i]n the furtherance of

justice great liberality should be exercised in permitting a

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plaintiff to amend his [or her] complaint.”’” (Aubry v. Tri-City

Hospital Dist., supra, 2 Cal.4th at p. 970.) A plaintiff may

demonstrate for the first time to the reviewing court how a

complaint can be amended to cure the defect. (Code Civ. Proc.,

§ 472c, subd. (a) [“[w]hen any court makes an order sustaining a

demurrer without leave to amend the question as to whether or

not such court abused its discretion in making such an order is

open on appeal even though no request to amend such pleading

was made”]; see Sierra Palms Homeowners Assn. v. Metro Gold

Line Foothill Extension Construction Authority (2018)

19 Cal.App.5th 1127, 1132 [plaintiff may carry burden of proving

an amendment would cure a legal defect for the first time on

appeal]; Rubenstein v. The Gap, Inc. (2017) 14 Cal.App.5th 870,

881 [“‘[w]hile such a showing can be made for the first time to the

reviewing court [citation], it must be made’”].)

2. The Trial Court Properly Sustained the Demurrer to

Williams’s First Amended Complaint

The trial court properly sustained McCowen’s demurrer to

the entire first amended complaint—that is, to all of Williams’s

federal and state law causes of action—based on absolute quasi-

judicial immunity.4 As the United States Supreme Court

4 We acknowledge, as McCowen has emphasized, that

Williams did not designate an adequate record, omitting among

other documents his first amended complaint and the court’s

ruling on the demurrer (see, e.g., Ballard v. Uribe (1986)

41 Cal.3d 564, 574 [“a party challenging a judgment has the

burden of showing reversible error by an adequate record”]—an

error we corrected by augmenting the record on our own motion.

He also failed to comply with mandatory court rules requiring

that briefs contain specific claims of legal error supported by

argument with citations to the record and, if possible, legal

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explained in Stump v. Sparkman (1978) 435 U.S. 349, “‘[J]udges

of courts of superior or general jurisdiction are not liable to civil

actions for their judicial acts’” and “will not be deprived of

immunity because the action [they] took was in error, was done

maliciously, or was in excess of [their] authority.” (Id. at pp. 355,

356.) “[R]ather,” the Court continued, a judge “will be subject to

liability only when he has acted in the ‘clear absence of all

jurisdiction’” or outside “his ‘judicial’ capacity.” (Id. at pp. 356-

357, 360.)

California courts (like federal courts and other states’

courts) have extended this doctrine of absolute judicial immunity

to individuals other than judges acting in a judicial or quasi-

judicial capacity. (See, e.g., Holt v. Brock (2022) 85 Cal.App.5th

611, 621 [“[q]uasi-judicial immunity extends judicial immunity ‘to

persons other than judges if those persons act in a judicial or

quasi-judicial capacity’”]; Howard v. Drapkin (1990)

222 Cal.App.3d 843, 852-853 [same].) As pertinent here, court

clerks have absolute quasi-judicial immunity from damages for

performing tasks that are an integral part of the judicial process.

(Acres v. Marston (2021) 72 Cal.App.5th 417, 422; see Mirrison v.

Jones (9th Cr. 1979) 607 F.2d 1269, cert. den. (1980) 445 U.S.

962.)

authority (Cal. Rules of Court, rule 8.204(a)(1)(B) & (C); see

Roman v. BRE Properties, Inc. (2015) 237 Cal.App.4th 1040, 1053

[reviewing court may disregard any portion of a brief that fails to

comply with these requirements]). Nonetheless, we do not affirm

the judgment on either of those grounds, doing our best,

whenever we can, not to strictly apply technical rules of appellate

practice in a manner that deprives self-represented litigants of a

hearing.

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In his opening brief Williams once again asserts that court

clerks are not necessarily guaranteed absolute quasi-judicial

immunity, quoting, as he had in his opposition to the demurrer,

from Williams v. Wood, supra, 612 F.2d 982, which held in some

circumstances a court clerk enjoys only qualified, not absolute,

immunity to a lawsuit for damages.5 But Williams’s first

amended complaint is devoid of factual allegations about

McCowen’s role in the underlying unlawful detainer actions. And

he makes no argument he could amend the pleading to allege her

conduct, whatever it might have been, would support a finding

that she was not entitled to absolute quasi-judicial immunity (or

even that he could defeat qualified immunity if he was able to

establish that quasi-judicial immunity was limited in some

instances under governing law).

In addition, Williams has forfeited any challenge to the

order sustaining the demurrer to his state law causes of action

for failure to comply with the claims presentation requirement of

the Government Claims Act because that aspect of the trial

court’s ruling was not addressed in his briefs in this court.

(See Tiernan v. Trustees of Cal. State University & Colleges

(1982) 33 Cal.3d 211, 216, fn. 4 [issues not raised on appeal may

be “deemed waived”]; Swain v. LaserAway Medical Group, Inc.

(2020) 57 Cal.App.5th 59, 72 [issues not raised in an appellant’s

brief are forfeited]; Eck v. City of Los Angeles (2019)

41 Cal.App.5th 141, 146.) Similarly, Williams does not contest

5 Williams’s opening brief also includes an extended

quotation from a news article about a Georgia Supreme Court

case that reversed a quasi-judicial immunity ruling for two court

clerks on procedural grounds not pertinent to the case at bar.

(See fn. 3.)

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the trial court’s ruling sustaining the demurrer to his federal civil

rights causes of action under section 1983 based on principles of

sovereign immunity.

Finally, apart from these affirmative defenses, which bar

Williams’s claims against McCowen, Williams has failed to

identify the elements of any cause of action he purports to plead

against her and to show how the facts alleged are “sufficient to

establish every element of that cause of action.” (Cantu v.

Resolution Trust Corp. (1992) 4 Cal.App.4th 857, 879; accord,

Rossberg v. Bank of America, N.A. (2013) 219 Cal.App.4th 1481,

1502 [appellants challenging order sustaining demurrer “bore the

burden to show how the alleged facts are sufficient to establish

every element” of cause of action]; Sui v. Price (2011)

196 Cal.App.4th 933, 938 [“[t]he plaintiff ‘bears the burden of

demonstrating that the trial court erroneously sustained the

demurrer as a matter of law’ and ‘must show the complaint

alleges facts sufficient to establish every element of [the] cause of

action’”].) That, too, warrants affirming the trial court’s order

sustaining the demurrer.

3. Williams’s Failure To Timely Appear at the Hearing on

the Demurrer Does Not Constitute a Ground for Reversal

The court’s seven-page April 4, 2022 minute order included

at the bottom of the final page this comment: “The Court notes

that the Plaintiff Brian Williams arrived in Department 19 of the

Stanley Mosk Courthouse at 08:58 AM, after all matters for the

08:30 AM calendar for Department 19 have concluded.” In his

opening brief Williams concedes he arrived after 8:30 a.m. but

explains that he travels by bus to court from San Diego and has

no telephone or computer access except through the Los Angeles

County Law Library and, therefore, was unable to notify the

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court he would be late. Williams contends the court should have

put the matter on “second call,” rather than proceed in his

(unexplained) absence, noting he had never missed any prior

court hearings.

Even if we could accept Williams’s unsworn, outside-the-

record justification for his failure to timely appear at the hearing

on McCowen’s demurrer, he identifies no reversible error. The

issue before the trial court was whether the first amended

complaint alleged any legally viable cause of action against

McCowen; and, as discussed, we review de novo the court’s

ruling. Williams does not identify any pertinent argument he

could have made at the hearing in the trial court that might have

changed the outcome. (See Cassim v. Allstate Ins. Co. (2004)

33 Cal.4th 780, 800 [error justifies reversal in a civil action only if

it is reasonably probable a different result would have been

reached absent the error].) Moreover, to the extent Williams

believed he actually had something of significance to add to his

written opposition—“new or different facts, circumstances, or

law”—he could have filed an application for reconsideration

under Code of Civil Procedure section 1008. Williams declined to

take advantage of that procedure.

4. Leave To Amend Was Properly Denied

Although Williams asked the trial court to grant leave to

amend if McCowen’s demurrer was sustained, he does not argue

the trial court abused its discretion in denying that request nor

does he repeat his request in this court, let alone suggest what

facts he could allege in good faith that would cure the defects in

any cause of action he might assert against McCowen. It is

plaintiff’s burden to demonstrate an amendment would cure a

complaint’s defects. (Schifando v. City of Los Angeles, supra,

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31 Cal.4th at p. 1081; Ivanoff v. Bank of America, N.A., supra,

9 Cal.App.5th at p. 735.) Leave to amend need not be granted

where it would be futile to do so. (See Ivanoff, at p. 726; Vaillette

v. Fireman’s Fund Ins. Co. (1993) 18 Cal.App.4th 680, 685.)

McCowen’s demurrer was properly sustained without leave to

amend.

DISPOSITION

The order of dismissal and judgment is affirmed. McCowen

is to recover her costs on appeal.

PERLUSS, P. J.

We concur:

FEUER, J.

MARTINEZ, J.

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