Metropolitan News-Enterprise


Thursday, April 24, 2014


Page 1


S.C. Leaves Intact Immunity Ruling in Favor of Custody Evaluator




The California Supreme Court yesterday left standing lower court rulings preventing a party to a child custody dispute from suing the court-appointed evaluator for infliction of emotional distress.

The justices, at their weekly conference in San Francisco, unanimously denied review of the February ruling of the First District Court of Appeal in Bergeron v. Boyd.

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.

The panel noted that Boyd was granted authority to issue interim custody orders, without objection by the parties, and said he had quasi-judicial immunity.

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.

Demurrer Sustained

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. One of those, Howard v. Drapkin (1990) 222 Cal.App.3d 843, held 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.

Other Action

In other conference action, the justices unanimously left standing a Feb. 4 ruling by this district’s Court of Appeal that allows the mother of an inmate who died while in custody at Men’s Central Jail to sue the county and a deputy sheriff, but not former Sheriff Lee Baca.

Div. Eight, in an unpublished opinion by Justice Madeleine Flier, overturned Los Angeles Superior Court Judge Amy D. Hogue’s ruling that the county and Deputy Sheriff Christopher Kidder were entitled to summary judgment and judgment on the pleadings.

The suit filed by Helen Jones over the death of her son, John Horton— found hanged in his cell in March 2009—arises out of the so-called “Scannergate” scandal.

Horton’s death, and subsequent investigations, led to the discovery that guards were failing to conduct checks of inmate welfare, and has been referred to as the “scannergate” scandal.

In 2007, the Sheriff’s Department installed barcode systems to ensure deputies were conducting welfare checks. The system uses barcode plaques that guards are supposed to scan as they walk by each row of cells.

Reports Reviewed

Dennis Burns, chief of the custody operations division of the jail system, reviewed the investigative reports and evidence gathered from Horton’s death.

In Burns’ declaration, submitted by the county, he explained that his investigation had revealed that jail guards had been circumventing welfare checks of prisoners by using “cheat sheets” to fraudulently scan the barcodes as though they were walking the rows performing the checks.

Another deputy responsible for a different area of inmates, Burns said, scanned Kidder’s barcode in his absence. Burns’ explained that Kidder had not made any barcode scans and that he had created handwritten records of row checks during his three-hour absence.

Flier said Jones submitted evidence raising triable issues of fact as to whether Horton had taken his own life or was the victim of an assault or murder.

Flier rejected Hogue’s conclusion that the county was protected from the causes of action for wrongful death and negligence by statutory immunity under Government Code §845.6.

The statute immunizes public entities for injury proximately caused by the failure of employees to obtain medical care for prisoners. The statute, however, also creates limited liability when an employee knows or has reason to know that the prisoner is in need of immediate medical care and fails to take reasonable action.

 Horton entered the county jail on Feb. 24, 2009. In March, the court ordered that Horton be placed in the medical unit due to Horton’s “obvious mental health state.”

According to Jones’ complaint, the medical order was never implemented, and instead her son was placed in solitary confinement for 30 days, where she was denied permission to visit him after numerous attempts.

Jones alleged that Horton was subject to harassment, abuse, and outrageous conduct by the deputies in charge of his care, and on March 30, she contended, the deputies physically abused him “and/or facilitated Horton’s death by hanging while he was in solitary confinement.”

The county submitted declarations by medical experts opining that Horton died due to asphyxiation from hanging. Jones, however, submitted the declaration of an expert forensic pathologist who said death was due to internal bleeding in combination with the failure to provide medical attention.

Flier reasoned that the county had not established immunity because, if the death was caused by internal bleeding, the county’s failure to provide medical attention might render it liable.

The claim against Kidder, the justice said, was supported by circumstantial evidence to support the death-by-assault theory. The evidence that Horton was confined to a cell which Kidder had access to at the time of death, combined with testimony that Horton suffered recent blunt force injuries, was enough to defeat summary judgment, she said.

The case is Jones v. County of Los Angeles, B241333.


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