Filed 3/14/14 Guerra v. Young CA4/2

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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

                                   FOURTH APPELLATE DISTRICT

                                                 DIVISION TWO


FLORENCIO GUERRA,

         Plaintiff and Appellant,                                        E055456

v.                                                                       (Super.Ct.No. RIC1107509)

RICHARD YOUNG et al.,                                                    OPINION

         Defendants and Respondents.




         APPEAL from the Superior Court of Riverside County. John W. Vineyard,

Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) Affirmed.

         Abiri & Szeto, Robert Abiri, and Kenneth H. Szeto for Plaintiff and Appellant.

         Callahan, Thompson, Sherman & Caudill and Christopher J. Zopatti for

Defendants and Respondents Richard Young and Pathways Family Counseling Services.

         Law Offices of James R. Rogers, Keith E. Zwillinger, and Rachel H. Mills for

Defendant and Respondent Yvette Chavez.




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       Plaintiff Florencio Guerra alleges that defendant Yvette Chavez carried out a

court-ordered child custody evaluation of him, even though she was not legally qualified

to do so.

       We will hold that the trial court properly sustained demurrers by Chavez and the

other defendants based on the absolute litigation privilege (Civ. Code, § 47, subd. (b)(2)).

                                               I

                               FACTUAL BACKGROUND

       The following facts are taken from the complaint and from matters of which

defendants asked the trial court to take judicial notice.

       Between January and March 2009, Yvette Chavez carried out a child custody

evaluation of Guerra (commonly known as a 730 evaluation; see Evid. Code, § 730). At

the time, Guerra was a party to litigation involving the custody of his daughter. In July

2008, the family law court had ordered Guerra to undergo the evaluation; it had

appointed Pathways Family Counseling Services, Inc. (Pathways) as the evaluator.

Chavez was an employee of Pathways. Richard Young, who was the Clinical Director of

Pathways and Chavez’s supervisor, assigned Chavez to perform Guerra’s evaluation.

       To perform the evaluation, Chavez was legally required to comply with certain

education, training, experience, and continuing education requirements. She was also

legally required to file a declaration in Guerra’s custody case stating that she had

complied with these requirements. In August 2008, she did file such a declaration. In




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November 2008, however, her “certifications . . . expired.” Thus, in January through

March 2009, when she actually performed the evaluation, she was not qualified to do so.

       In July 2009, in the midst of Guerra’s custody trial, Chavez admitted in sworn

testimony that she had failed to satisfy the requirements for performing the evaluation.

“As a result of . . . [d]efendants’ failure to maintain Chavez’s licensure in good standing,

. . . the court was forced to declare a mistrial.” Guerra’s resulting damages included the

cost of a new child custody evaluation, legal expenses for a new trial, lost wages, travel

expenses, medical expenses, and emotional distress.

                                             II

                            PROCEDURAL BACKGROUND

       Guerra filed this action in April 2011. He named as defendants Pathways, Young,

and Chavez. He asserted seven causes of action: (1) intentional misrepresentation, (2)

negligent misrepresentation, (3) intentional infliction of emotional distress, (4) negligent

infliction of emotional distress, (5) negligence, (6) negligence per se, and (7) negligent

supervision (against Young and Pathways only).

       Defendants promptly filed demurrers, on multiple grounds, including: (1) the

litigation privilege (Civ. Code, § 47, subd. (b)(2)); (2) quasi-judicial immunity; and (3)

the statute of limitations for malpractice actions against a health care provider (Code Civ.

Proc., § 340.5).

       After hearing argument, the trial court sustained the demurrers, without leave to

amend, on these three grounds. It then entered judgment accordingly.



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                                             III

                      THE ABSOLUTE LITIGATION PRIVILEGE

       Guerra contends that the trial court erred by ruling that the litigation privilege

applied.

       “The litigation privilege, codified at Civil Code section 47, subdivision (b),

provides that a ‘publication or broadcast’ made as part of a ‘judicial proceeding’ is

privileged. This privilege is absolute in nature, applying ‘to all publications, irrespective

of their maliciousness.’ [Citation.] ‘The usual formulation is that the privilege applies to

any communication (1) made in judicial or quasi-judicial proceedings; (2) by litigants or

other participants authorized by law; (3) to achieve the objects of the litigation; and (4)

that [has] some connection or logical relation to the action.’ [Citation.] The privilege ‘is

not limited to statements made during a trial or other proceedings, but may extend to

steps taken prior thereto, or afterwards.’ [Citation.]” (Action Apartment Assn., Inc. v.

City of Santa Monica (2007) 41 Cal.4th 1232, 1241.)

       “[T]he privilege protects only against communicative acts and not against

noncommunicative acts. [Citation.] ‘Because the litigation privilege protects only

publications and communications, a “threshold issue in determining the applicability” of

the privilege is whether the defendant’s conduct was communicative or

noncommunicative.’ [Citation.] However, ‘if the gravamen of the action is

communicative, the litigation privilege extends to noncommunicative acts that are

necessarily related to the communicative conduct . . . . Stated another way, unless it is



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demonstrated that an independent, noncommunicative, wrongful act was the gravamen of

the action, the litigation privilege applies.’ [Citation.]” (Jacob B. v. County of Shasta

(2007) 40 Cal.4th 948, 956-957.)

       Guerra argues that the gravamen of the action is the “failure to maintain Chavez’s

licensure in good standing,” which is a “noncommunicative act.”1 He claims that the trial

court was led astray by focusing on the first and second causes of action, for intentional

and negligent misrepresentation; thus, it concluded that the entire action arose out of

Chavez’s alleged misrepresentations in her declaration, which were at least arguably



       1       Pathways argues that the complaint fails to allege any problem with
Chavez’s licensure. It is true that there is a distinction between Chavez’s licensure and
her qualifications to perform a child custody evaluation. A child custody evaluator may
be a licensed physician, psychologist, marriage and family therapist, or clinical social
worker; indeed, under certain circumstances, a child custody evaluator may even be
unlicensed. (Fam. Code, § 3110.5, subd. (c); Cal. Rules of Court, rule 5.225(c).) Even if
a person has an appropriate license, however, to qualify to do child custody evaluations,
he or she must complete certain initial education, training, and experience requirements.
(Id., rule 5.225(d), (e), (g), (h).) Finally, after a person has qualified initially, he or she
must complete certain continuing education and experience requirements to remain
qualified. (Id., rule 5.225(g), (i).) And, of course, he or she must keep his or her license
in effect.

         Here, the complaint alleges that Chavez’s “certifications” expired in November
2008. It also alleges that she “had not undertaken sufficient training and/or coursework
. . . .” Thus, it implies that the problem was a failure to keep up with the continuing
education requirements. However, it also specifically alleges that defendants “fail[ed] to
maintain Chavez’s licensure in good standing . . . .” It is quite conceivable that the
failure to meet continuing education requirements also affected Chavez’s licensure, as
many state licenses have continuing education requirements. Thus, the complaint
adequately alleges that Chavez was both unlicensed and unqualified. Rather than focus
on licensure, we will discuss the failure to maintain Chavez’s qualifications, i.e.,
including but not limited to licensure.



                                               5
communicative acts. In our view, however, it is Guerra who has gone astray, by treating

Chavez’s declaration as the only relevant communicative act.

       Certainly with regard to the first and second causes of action, it is appropriate to

focus on the declaration. These allege that defendants represented “to the court handling

the [c]ustody [t]rial in [Chavez’s] [d]eclaration” that Chavez was qualified to perform the

evaluation, and that this representation was false. Thus, the gravamen of these causes of

action is a communicative act. Indeed, it is an act of communicating directly with the

court by filing a document in ongoing litigation. It is hard to imagine an act more clearly

within the litigation privilege.

       Guerra nevertheless argues that the action as a whole arises out of the failure to

maintain Chavez’s qualifications. He points out that, even after Chavez filed her

declaration, if only she had maintained her qualifications, he would not be suing.

Actually, though, the tort was not that she filed the declaration, and it was not that she

failed to maintain her qualifications — it was that she proceeded to perform the child

custody evaluation. She could have avoided being sued simply by not doing the

evaluation, for any reason (e.g., because she recognized the problem and stepped aside or

did not recognize the problem but decided to leave the profession).

       Thus, the relevant communicative act was the child custody evaluation itself. The

order appointing Chavez required her to file a copy of her evaluation report with the

court; it also provided that the report “shall be received into evidence without foundation,

and over any hearsay objection . . . .” And eventually, Chavez did testify. These are all



                                              6
acts of communicating directly with the court in litigation. As such, they fall squarely

within the protection of the privilege.

       In Gootee v. Lightner (1990) 224 Cal.App.3d 587, the plaintiff and his ex-wife

stipulated to have the defendants perform a child custody evaluation. Defendant Lightner

performed the evaluation, prepared a report, and testified in court. The plaintiff then

sued, alleging that Lightner had negligently performed tests and intentionally or

negligently destroyed raw test data. (Id. at pp. 589-590.) The appellate court held that

the defendants were entitled to summary judgment based on the litigation privilege. (Id.

at pp. 591-596.) It stated: “Because the gravamen of appellant’s claim relies on

negligent or intentional tortious conduct committed by respondents in connection with

the testimonial function, we conclude the absolute privilege bars civil lawsuits (other than

for malicious prosecution) seeking to impose liability on respondents for such

misfeasance.” (Id. at p. 591.)

       The court rejected the argument that the tortious conduct was “outside the

protective ambit of the privilege because it occurred independently from the testimonial

aspects of respondents’ undertaking.” (Gootee v. Lightner, supra, 224 Cal.App.3d at

p. 593.) It explained: “[A]ppellant cites no pertinent authority for the proposition that

‘preparatory activities’ committed in conjunction with or anticipation of privileged

testimony give rise to independent tort claims. Instead, the authorities provide to the

contrary.” (Id. at p. 593.) “[T]he protective mantle of the privilege embraces not only

the courtroom testimony of witnesses, but also protects prior preparatory activity leading



                                             7
to the witnesses’ testimony.” (Id. at p. 594, fn. omitted; see also Laborde v. Aronson

(2001) 92 Cal.App.4th 459, 461, 463-465 [litigation privilege barred action for breach of

contract, malpractice, defamation, invasion of privacy, conversion, interference with

contract, and intentional infliction of emotional distress arising out of 730 evaluation],

disapproved on other grounds in Musaelian v. Adams (2009) 45 Cal.4th 512, 520.)

       Here, as in Gootee, the entire action arises out of alleged misconduct in the course

of performing a child custody evaluation. Maintaining Chavez’s qualifications was

simply one of the “preparatory activities” that were necessary if Chavez was going to

submit her report or testify in court. Hence, the entire action is barred by the litigation

privilege.

       Guerra argues that he should have been given an opportunity to amend his

complaint. Once again, however, this argument presumes that the relevant

communicative act is the filing of the declaration; thus, Guerra offers to delete any

reference to the declaration from his complaint. He also offers to plead that the failure to

maintain Chavez’s qualifications constituted a breach of contract and a violation of the

Unfair Business Practices Act (Bus. & Prof. Code, § 17200). These causes of action,

however, would still arise out of Chavez’s performance of the child custody evaluation.

Thus, for the reasons already stated, these amendments would not avoid the litigation

privilege. (Laborde v. Aronson, supra, 92 Cal.App.4th at pp. 461, 463-465 [litigation

privilege bars breach of contract claim arising out of 730 evaluation]; see also Feldman v.




                                              8
1100 Park Lane Associates (2008) 160 Cal.App.4th 1467, 1494-1498 [litigation privilege

bars breach of contract claim and Unfair Business Practices Act claim].)2

       We therefore conclude that the trial court properly sustained the demurrers without

leave to amend. Because we are holding that the litigation privilege applied, we need not

discuss the alternative grounds for the demurrers (i.e., quasi-judicial immunity and the

statute of limitations).




       2       We do not mean to suggest that a person who hires an expert witness can
never sue the expert for breach of contract. “[T]he litigation privilege does not apply to
prevent a party from suing his own expert witness, even if that suit is based upon the
expert’s testimony.” (Lambert v. Carneghi (2008) 158 Cal.App.4th 1120, 1144, fn.
omitted.) But “[i]n this regard, an individually retained expert must be distinguished
from a jointly retained, or court appointed, expert. The litigation privilege has been held
to apply to jointly retained or court-appointed experts. [Citations.]” (Ibid.) Here, the
record conclusively establishes, as a matter of judicial notice, that Chavez was a court-
appointed expert.



                                             9
                                         IV

                                   DISPOSITION

      The judgment is affirmed. Defendants are awarded costs on appeal against

Guerra.

      NOT TO BE PUBLISHED IN OFFICIAL REPORTS


                                                           RICHLI
                                                                                 J.

We concur:


HOLLENHORST
          Acting P. J.


McKINSTER
                        J.




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