Demurrer
Cal.App.4th 443, 450, emphasis in original.) If the requirements for publication are not met, the service is ineffective and the default judgment entered thereon is void. (Olvera v. Olvera (1991) 232 Cal.App.3d 32, 41.)
The testimony from Plaintiff’s process server shows why it may be difficult for Plaintiff to serve the “Trespassing Defendant.” Nevertheless, publication would not be an appropriate method of service, because Plaintiff is unable to identify the defendant by his full name and only refers to him as “Andrew” or “Trespassing Defendant.” The fact that a broader investigation may not be possible does not mean it can be excused in order to allow service by publication. It is understood that publication rarely results in actual notice, but publication without so much as a defendant’s full name seems virtually worthless.
For the foregoing reasons the motion to serve “Trespassing Defendant” by publication is denied.
The Court notes, if Plaintiff is unable to accomplish personal service, relief may be available under CCP section 413.30. Under section 413.30, if a plaintiff who, “despite exercising reasonable diligence, has been unable to effect service of the summons by any of the methods authorized under this chapter,” the court may “direct that summons be served in a manner that is reasonably calculated to give actual notice to the party to be served, including by electronic mail or other electronic technology, and that proof of such service be made as prescribed by the court.”
Non-traditional methods for serving process, such as mail and posting, or electronic service, may be available under this section. (See, e.g., Cohen v. Board of Supervisors (1971) 20 Cal.App.3d 236, 239; Bush v. Writers Guild of America, West, Inc. (C.D. Cal., Apr. 20, 2026, No. 2:25-CV- 11038-RGK-AGR) 2026 WL 1122205, at *3.)
The Clerk shall give notice of the ruling.
10. 2025-1487435 Defendant Brian Baron’s demurrer to plaintiff Kimberly Ann Davis’ Davis vs. complaint is moot in light of the order granting his special motion to Baron strike her complaint. [ROA ##34, 129.]
Defendant Tustin Police Department’s demurrer to Plaintiff’s. complaint is sustained with 21 days leave to amend. [ROA #13.]
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Defendant County of Orange’s demurrer to Plaintiff’s complaint is sustained with 21 days leave to amend. [ROA #17.]
Defendants Esther Solis and Citalli Gonzales’ demurrer Plaintiff’s complaint is sustained. The court will hear from Plaintiff and
Defendants’ counsel as to whether Plaintiff should be given leave to amend. [ROA #21.]
Legal Standard on Demurrer A demurrer can be used only to challenge defects that appear within the “four corners” of the pleading – which includes the pleading, any exhibits attached, and matters of which the court is permitted to take judicial notice. Blank v. Kirwan (1985) 39 Cal.3d 311, 318; Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994. Limited to the “four corners” as such, a pleading is adequate if it contains a reasonably precise statement of the ultimate facts, in ordinary and concise language, and with sufficient detail to acquaint a defendant with the nature, source and extent of the claim. Leek v. Cooper (2011) 194 Cal.App.4th 399, 413.
On demurrer, a complaint must be liberally construed. Code Civ. Proc. § 452; Stevens v. Superior Court (1999) 75 Cal.App.4th 594, 601. All material facts properly pleaded, and reasonable inferences, must be accepted as true. Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 966-967.
A demurrer for uncertainty is not intended to reach the failure to incorporate sufficient facts in the pleading, but is directed at the uncertainty existing in the allegations actually made. People v. Lim (1941) 18 Cal. 2d 872, 883. “A demurrer for uncertainty is strictly construed, even where a complaint is in some respects uncertain, because ambiguities can be clarified under modern discovery procedures.” Khoury v. Maly’s of California, Inc. (1993) 14 Cal. App. 4th 612, 616. Errors and confusion created by “the inept pleader” are to be forgiven if the pleading contains sufficient facts entitling plaintiff to relief.
Saunders v. Cariss (1990) 224 Cal. App. 3d 905, 908. A party attacking a pleading on “uncertainty” grounds must specify how and why the pleading is uncertain, and where that uncertainty can be found in the challenged pleading. Fenton v. Groveland Community Services Dept. (1982) 135 Cal.App.3d 797, 809 (disapproved on other grounds in Katzberg v. Regents of the University of California (2002) 29 Cal.4th 300).
Brian Baron Demurrer Brian Baron filed a special motion to strike at the same time he filed his demurrer. The special motion to strike was heard first and was granted. [5/6/26 Minute Order (ROA #129).]
His demurrer is therefore moot.
Tustin Police Dept. Demurrer
The Tort Claims Act provides that “[a] public entity may ... be sued,” but that with specified exceptions “no suit for money or damages may be brought against a public entity ... until a written claim therefor has been presented to the public entity and has been acted upon by the board, or has been deemed to have been rejected by the board....” Govt. Code §§ 945, 945.4; cf. id. §§ 905, 905.2, 910 et seq. Where required, the claim must be filed within six months after accrual of the cause of action; leave to file a claim after the sixmonth deadline must be sought within one year after accrual of the cause of action. Govt.Code, §§ 911.2, 911.4. See also Briggs v. Lawrence (1991) 230 Cal.App.3d 605, 612 (discussing law).
Plaintiff does not allege in her complaint that she timely presented a claim to the City of Tustin for the acts of the Tustin Police Department alleged in her complaint. Shirk v. Vista Unified School Dist. (2007) 42 Cal.4th 201, 209 (finding timely presentment must be alleged to state claim).
Plaintiff contends she seeks nonmonetary damages so failure to comply with the Government Tort Claims Act does not bar her entire claim(s) against Defendant Tustin Police Department. But Plaintiff’s prayer for relief does not seek any nonmonetary relief against the Tustin Police Department.
Plaintiff also notes that a 42 U.S.C. section 1983 Civil Rights claim is not subject to the Government Tort Claims act. She is correct. Williams v. Horvath (1976) 16 Cal.3d 834, 842 (“[T]he California remedy of recourse to the Tort Claims Act need not be first sought before a plaintiff is free to invoke the Civil Rights Act.”).
Plaintiff has not alleged a section 1983 claim against the Tustin Police Department, however.
There are two elements to stating a cause of action under section 1983. “The plaintiff must first show a deprivation of a constitutional right, and secondly, must show that the defendant was acting under color of state law in depriving the plaintiff of this right. (13B Wright, Miller & Cooper, Federal Practice and Procedure (2d ed., 1984) § 3573.2, p. 203.)” Hayssen v. Board of Zoning Adjustments (1985) 171 Cal.App.3d 400, 409.
Plaintiff has not alleged what federal right she was deprived of or what conduct by the Tustin Police Department deprived her of such right. “As to the first element, section 1983 is not a source of substantive rights but provides a forum for a remedy only. A substantive right must be found in the Constitution or in federal law.” Id. Indeed, in the absence of allegations of specific conduct by
a Tustin police officer, Plaintiff has not stated any cause of action against the Tustin Police Department.
Plaintiff alleges, according to statements in court records, the Tustin Police Department described her as delusional. [Complaint at 4:7.] Other than that, the crux of Plaintiff’s complaint appears to be that “[t]he listed individuals and organizations allowed my son's father to alienate me and my family from him, causing me and my family significant emotional distress.” [Id. at 4:15-16.]
This is insufficient to state any of the claims listed by Plaintiff: Violation of Civil Rights (42 U.S.C.§ 1983) Discrimination Negligence Fraud Upon the Court (CA Penal Code§ 115) Legalized Kidnapping Emotional Distress Corruption and Official Misconduct Child Endangerment /Abuse [Complaint at 1.]
Accordingly, the Tustin Police Department’s demurrer to Plaintiff’s complaint is sustained.
County of Orange Demurrer In its demurrer, the County of Orange acknowledges Plaintiff submitted a claim on 8/12/24. [Demurrer MPA (ROA #17) at 5:16- 17.]
The County demurs primarily on the ground that Plaintiff has not alleged sufficient facts of acts by the County to state a claim and that what she has alleged is uncertain.
This demurrer is sustained.
The County also demurs on the ground that it is immune for discretionary actions. Govt. Code §820.2, but this is an issue not best resolved on demurrer. Lopez v. Southern Cal. Rapid Transit Dist. (1985) 40 Cal.3d 780, 794.
Solis/Gonzales Demurrer These defendants are investigator/mediator and a mediator with the family court services of the Orange County Superior Court. They are identified in Plaintiff’s complaint as court officials. [Complaint at 2:11-12.]
Plaintiff does not allege specific acts by either of them but alleges “[c]ourt officials have been complicit in this injustice, displaying a
disturbing comfort in perpetuating blatant falsehoods. Their actions, combined with a lack of accountability, have directly placed my son in harm’s way.” [Complaint at 7:2-4.]
In addition to grounds for demurrer discussed above, these moving defendant also assert immunity. As court officials, they are cloaked in quasi-judicial immunity.
The doctrine of judicial immunity “bars civil actions against judges for acts performed in the exercise of their judicial functions”; 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.” Howard v. Drapkin (1990) 222 Cal.App.3d 843, 851. The purpose of the doctrine is two-fold: it protects the finality of judgments and discourages inappropriate collateral attacks and also protects judicial independence by “insulating judges from vexatious actions prosecuted by disgruntled litigants.” Id. at p. 852. The protection “must be absolute”; the effect of which “is that the action against the judicial officer must be dismissed.” Id.
Under the concept of “quasi-judicial immunity,” California courts extended absolute 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. And in Howard v. Drapkin, the court expressly extended quasi-judicial immunity to third-parties for their conduct in performing dispute resolution services which are connected to the judicial process and involve either (1) the making of binding decisions, (2) the making of findings or recommendations to the court or (3) the arbitration, mediation, conciliation, evaluation or other similar resolution of pending disputes. 222 Cal.App.3d at 860. See also Bergeron v. Boyd (2014) 223 Cal.App.4th 877, 880 (finding quasi judicial immunity protected psychologist/ family court child custody evaluator).
Nor would Plaintiff’s section 1983 claim for damages, had she sufficiently alleged one against these defendants, overcome Defendants’ immunity. “Title 42 U.S.C. § 1983 (1982) was not intended to abolish the doctrine of judicial immunity. Judicial immunity applies however erroneous the act may have been, and however injurious in its consequences it may have proved to the plaintiff.” Houghton v. Osborne (9th Cir. 1987) 834 F.2d 745, 750 (citations and internal quote marks omitted). As to injunctive relief, Plaintiff’s claim would also fail. Section 1983 limits redress against judicial officers to instances where either the conduct to be enjoined was the subject of an earlier declaratory relief judgment or such earlier relief was not available to the litigants. Litigants seeking to use Section 1983 to enjoin the conduct of a judicial officer must
either first obtain a declaratory judgment and then enforce the judgment; or show that under the particular circumstances presented, such declaratory relief was not available. In the absence of those circumstances, judicial officers are immune even from prospective injunctive relief available under Pulliam. See Roth v. King (D.C. Cir. 2006) 449 F.3d 1272, 1286–1287.
For all the reasons discussed, the Solis/Gonzales demurrer is sustained.