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Court of Appeal, Fourth District, Division 1, California.

Barbara FLETCHER, Plaintiff and Appellant, v. COUNTY OF SAN DIEGO, et al., Defendants and Respondents.

Civ. 24165.

Decided: August 19, 1981

Garfield, Schwartz & Copeland and Judith M. Copeland, San Diego, for plaintiff and appellant. Donald L. Clark, County Counsel, Lloyd M. Harmon, Jr., Chief Deputy County Counsel, and Phillip L. Kossy, Deputy County Counsel, for defendants and respondents.

Plaintiff Barbara Fletcher appeals a judgment rendered in favor of all defendants after a demurrer was sustained without leave to amend as to her first amended complaint.   The complaint sets forth the following background giving rise to the grievance:  Barbara attended an auction conducted by the San Diego County Marshall for the purpose of bidding on a 1973 Cadillac El Dorado.   At the time she was residing with a deputy marshall, although she was not married or otherwise related to him.   The marshalls conducting the sale—J. J. Schmidt and Lesley A. Conner—contemplated the prohibition of Code of Civil Procedure section 694,1

“Neither the officer holding the execution nor his deputy can become purchaser or be interested in any purchase, at such sale.”

and barred the plaintiff from bidding.   Since the complaint asks for no relief as to the specific Cadillac El Dorado, it is reasonably inferred that it was sold to someone else.

Plaintiff alleges that this preclusion not only was contrary to law, but that she has been discriminated upon on the basis of her sex in violation of the Federal Civil Rights Act (42 U.S.C. § 1983) and California and Federal equal protection constitutional rights.   Specifically, she alleges that the marshalls' actions were:

“based solely upon a stereo-typical and incorrect and inaccurate assumption that a male living with a female acquires ownership, control and management of the female's property even in the absence of marriage.”

In the several causes of action derived from this incident, plaintiff asks (1) that the defendants be enjoined from improperly restraining her from participating in marshall's sales;  (2) that her rights to participate in such sales be clarified by a decree of declaratory relief;  (3) that she be granted general and punitive damages;  (4) that relief be granted by virtue of her status as a taxpayer;  and (5) that attorney fees be awarded.

We proceed to examine the grounds for sustaining the demurrer presuming the truth of all facts alleged.   A central assumption of the appeal is that section 694 should not be interpreted to bar the live-in girlfriend of a marshall from bidding at a marshall's sale.   While this conclusion seems subject to question by us,2 it appears to be conceded by the respondents, and so for the purposes of this case we will proceed upon the assumption that the marshalls' decision barring plaintiff from the bidding was in fact erroneous.

The trial court's ruling on the demurrer was delivered extemporaneously from the bench, and its remarks and reasons given for sustaining the demurrer are the subject of some argument in appellant's brief.   We proceed to review the validity of the ruling, however, in terms of all applicable legal principles, and do not confine ourselves to the reasons stated by the court.  Sackett v. Wyatt, 32 Cal.App.3d 592, 598, fn. 2, 108 Cal.Rptr. 219.   Respondents rely upon several theories to sustain the judgment in favor of all defendants.

Quasi-Judicial Immunity

 Respondents contend that the individual marshalls conducting the sale—Schmidt and Conner—as well as their principal, Marshall Michael Sgobba, are absolutely immune from claims because their action was taken in performance of judicial functions.   While the Civil Rights Act contains no specific provision for immunity from its provisions for judicial officers, federal courts have engrafted an immunity in favor of certain public officials for acts done in performance of their official functions (Robichaud v. Ronan (9th Cir.) 351 F.2d 533).   Phrased as “judicial immunity” when applied to judges, the term “quasi-judicial immunity” has been utilized for application to court attaches and similar personnel.   See discussion in Ashbrook v. Hoffman (7th Cir.) 617 F.2d 474, 476.   The purpose of the immunity is to insulate judicial officers from claims resulting from their exercise of discretionary judgments, which must be made free from the potential harassment of subsequent private litigation.  (Ibid.)  The key to the existence of an immunity is the classification of the function of the court officer.   Where the officer is called upon to exercise discretion, as does a judge, the insulation of absolute immunity is required in order to assure the courageous exercise of that discretion.   Where the act required is ministerial in nature, however, immunity is not extended, even though the act may bear closely upon a court procedure.   The service of a summons, for instance, would be an act by a marshall which would require little or no discretionary decision-making—and the marshall would not be immunized from liability for erroneous and damaging acts made in the course of such service.

 Respondent cites several Federal cases for the proposition that decisions of sheriffs acting as an arm of the court are immunized from liability.3  None of these cases addresses the precise factual problem presented here, however.   There is no dispute about the function performed by these defendant marshalls—they were conducting an execution sale of property in accordance with court order, and as an official arm of the municipal court.   While the absolute immunity contended would extend even to intentionally wrongful or malicious acts, the specific misconduct alleged here involves no personal animosity or ill will—simply a misdirected and erroneous—and impermissibly sexually stereotyped—mis-application of law.   Can it be said that an erroneous interpretation of law governing a marshall's sale is not an exercise of discretion?   The terminology construed was that preventing a deputy marshall from being “interested in any purchase.”   To our mind (see fn. 2, ante) the question whether a deputy marshall is “interested” in a purchase to be made by his live-in girlfriend is a close one.   It resembles in many ways the decisions judges are called upon to make.   We believe the exercise of this decision-making obligation requires the utilization of substantial discretion on the part of the marshalls conducting the sale.   It is our opinion, therefore, that the making of this decision was clothed with absolute quasi-judicial immunity, and the officers cannot be sued for making the wrong decision.

No contention is made in the pleadings that the action of the individual officers conducting the sale was upon instruction or order of anyone, or that any of the defendants other than Schmidt and Conner were instrumental in barring plaintiff from her sale.   All other defendants are subject to liability only on theories of respondeat superior.   None of the defendants can therefore be found liable in money damages, and the demurrer to the cause of action which seeks compensatory and punitive damages was properly sustained.

Injunctive Relief

 Respondent contends injunctive relief should be denied because the proper remedy for enforcement of one's right to proper treatment from a government official is a proceeding in mandamus.   See Moore v. Superior Court, 6 Cal.2d 421, 423–424, 57 P.2d 1314.   Assuming, however, that in some circumstances injunctive relief might be appropriate (see, e. g., MacLeod v. City of Los Altos (1960) 182 Cal.App.2d 364, 6 Cal.Rptr. 326, as a matter of law it is not available in this case.   As previously indicated, it appears the particular automobile sought to be purchased is now not under the control of any of the defendants.   No facts are included in the complaint indicating the plaintiff intends to attempt purchase of any additional automobiles at marshall's sales.   Injunctive relief lies only to prevent threatened injury, and has no application to wrongs which have been completed.  Gold v. Los Angeles Democratic League, 49 Cal.App.3d 365, 372, 122 Cal.Rptr. 732.

Declaratory Relief

 In light of the specific allegations of the complaint, the cause of action for declaratory relief is subject to demurrer.   Where the defense of immunity is available as a bar to an action for damages, it is also a defense to an action for declaratory relief based upon the same facts.  (See 3 Witkin, Cal. Procedure (2nd ed. 1971) Pleading, § 706, page 2330.)   Further, the remedy of declaratory relief addresses future wrongs.   Where, as here, the only claim of injustice is as to a past event, with respect to which the actors are immune from liability, declaratory relief is an inappropriate remedy.   See Witkin, id., § 722, at pp. 2342–2343.)

Taxpayer's Suit

 The characterization of plaintiff's action as a “taxpayer's suit” is simply an effort to obtain injunctive relief upon the basis of a different statutory section—section 526a—rather than the ordinary authority, section 526.   The usual purpose of attempted characterization of a plaintiff as a “taxpayer” is to achieve standing to sue, where otherwise there might be none.   The plaintiff in this case certainly has standing to sue, and hence the addition of a cause of action in the character of a “taxpayer” would seem to add nothing.   It provides no additional basis for injunctive relief where the plaintiff's principal cause of action for injunctive relief has been denied.   More directly, however, a taxpayer's suit is an action to restrain illegal expenditures.   It is a remedy made available to those who fill the coffers to question wasteful public misuse of funds.  (See Bledsoe v. Watson, 30 Cal.App.3d 105, 108–109, 106 Cal.Rptr. 197.)   Even with a stretched imagination one has difficulty discerning how an erroneous decision by a marshall in barring plaintiff from bidding on a used automobile is a misappropriation of public funds.   The trial court was well within bounds of the exercise of discretion in sustaining the demurrer to this cause of action.

Liability of County

 Counties can be subject to liability by virtue of the federal Civil Rights Act if they officially take unconstitutional action, or if they sanction by custom and practice unconstitutional action of their employees.  (Monell v. New York City Dept. of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611.)   No allegations of the complaint link the County of San Diego to any policy utilized by the marshalls in the conduct of their sale.   And the trial court and this court can judicially notice that by virtue of Government Code sections 72002.1 and 72113, the marshalls are under the control and supervision of the municipal court, and not the County of San Diego.   There is no substance to the contention that the County had anything to do with the marshalls' activities, and the demurrer as to the county was properly sustained.

Attorney Fees

The plaintiff cites no factual or legal basis for her separate cause of action for attorney fees.   Fees may be awarded in certain cases under the authority of the Civil Rights Act.  (See Knight v. Auciello, 453 F.2d 852 (1st Cir.).)   Lacking knowledge of the asserted basis of entitlement to fees, we are at a loss to rule completely on the contention;  however, an award of fees in most, if not all, cases is dependent upon the successful outcome of the petitioner's case.   Where all the causes of action of the complaint have been dismissed by virtue of a sustained demurrer, the cause of action for fees must also fall.


 We have seen that, one by one, plaintiff's theories of recovery or relief are to be denied.   She cannot recover from the individuals involved in the sale because they are immune from liability.   She cannot obtain an injunction requiring compliance with what she deems to be the law because her proper remedy is to seek a writ of mandate, and besides, the sale is all over and the injunction would do no good.   Her request for declaratory relief fails on essentially the same ground—it does no one benefit to declare rights respecting a transaction which is now over and done with.   What this case confirms is that an error in the exercise of quasi-judicial discretion with respect to an accomplished act by a governmental agent, acting within the scope of his office and exercising discretion vested in him, is not actionable by court process.

We have searched the record, including the transcript of oral argument before the trial court judge, for a suggestion that the plaintiff might wish to broaden her lawsuit to encompass future events—to challenge what she may conceive to be a continuing policy of misadministration by the marshall's office.   We find no such suggestion.   Plaintiff has limited her case to this one past incident.   She has amended her complaint once.   No request was made to the trial court for permission to file an additional amendment.   No mention is contained in the appellate brief of any desire to expand the allegations of the complaint.   Should the plaintiff change her mind and elect to seek prospective relief concerning possible future attempts to purchase vehicles at marshall's sales, she is free to file a new lawsuit on that ground.   This judgment, not based upon a determination on the merits but upon pleading defects, is no bar to such future action.   See 4 Witkin, Cal. Procedure (2nd ed. 1971) Judgment, § 173, p. 3325.

Judgment affirmed.



1.   All references are to the Code of Civil Procedure unless otherwise specified.

2.   As highlighted in Marvin v. Marvin, 18 Cal.3d 660 at 665, 134 Cal.Rptr. 815, 557 P.2d 106:  “During the past 15 years, there has been a substantial increase in the number of couples living together without marrying.  [Fn. omitted.]  Such nonmarital relationships lead to legal controversy when one partner dies or the couple separates.”   As further elucidated in Marvin, the long-term sexual partnership of a couple without benefit of marriage nevertheless may give rise to mutual claims of various kinds upon miscellaneous theories.   It is not all that far fetched to say that a deputy marshall should be presumed to be “interested in [a] purchase” made by his “Marvin -type” roommate.   Such construction would require equal application to male as to female roommates of deputies, however, which was in plaintiff's complaint alleged not to be the case.

3.   Steinpreis v. Shook (4th Cir. 1967) 377 F.2d 282;  Salvati v. Dale (W.D.Pa.1973) 364 F.Supp. 691;  State of Louisiana ex rel. Purkey v. Ciolino (E.D.La.1975) 393 F.Supp. 102, 108.

FROEHLICH, Associate Justice.* FN* Assigned by the Chairperson of the Judicial Council.

GERALD BROWN, P. J., and COLOGNE, J., concur.