Wednesday, February 5, 2014
Evaluator Protected by Quasi-Judicial Immunity—C.A.
By KENNETH OFGANG, Staff Writer
A psychologist/child custody evaluator, who was granted authority to issue interim custody orders—without objection by the parties—had quasi-judicial immunity and could not be sued for issuing an order that allegedly caused mental distress to the children’s mother, the First District Court of Appeal ruled yesterday.
Div. Four affirmed an Alameda Superior Court judge’s dismissal of a suit filed by Larisa Bergeron against Dr. Robert Boyd, who was appointed to evaluate custody issues in the litigation between Bergeron and her former husband.
In her complaint against Boyd, Bergeron alleged that the psychologist was biased, usurped the jurisdiction of the court, and caused her to be deprived of contact with her two children for almost seven months before a judge “reversed” Boyd’s orders. She sought to recover damages for extreme emotional distress, costs of hiring a monitor for six months of supervised visitation, legal fees, and lost wages.
In sustaining Boyd’s demurrer, Judge Dennis Hayashi took notice of hearing transcripts in the custody litigation. Finding that the parties had been specifically ordered to comply with Boyd’s orders, subject to review by the trial judge, and that there had been no requests to set aside those orders, even though there had been eight hearings related to custody in the ensuing period, Hayashi ruled that the suit was barred by the quasi-judicial privilege.
Presiding Justice Ignacio Ruvolo, writing for the Court of Appeal, agreed.
The jurist cited several cases in which the court has held that a person performing a quasi-judicial function, regardless of title, is immune from liability. He cited Howard v. Drapkin (1990) 222 Cal.App.3d 843, holding that the immunity applies to custody evaluators, whether court-appointed or not.
More recent cases, he noted, have extended the immunity to a private arbitrator and to a guardian ad litem in family law case.
Ruvolo rejected the argument that quasi-judicial immunity cannot attach to an act in excess of jurisdiction.
“We agree that the family law court has the sole power to determine whether visitation will occur,” he wrote. “…However, even accepting appellant’s argument that the family court exceeded its legal authority, or even jurisdiction, to delegate custody supervision to respondent, that does not vitiate application of the quasi-judicial privilege.”
As long as the act in question is one normally performed by a judge, he said, the immunity will attach. Only in the “clear absence of all jurisdiction,” he said, will there be no immunity.
The case is Bergeron v. Boyd, A137802.
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