Howard v. Drapkin

CourtCalifornia Court of Appeals
Citation222 Cal.App.3d 843,271 Cal.Rptr. 893
Decision Date31 July 1990
PartiesVickie HOWARD, Plaintiff and Appellant, v. Robin DRAPKIN, Defendant and Respondent. Civ. B041669.

Overland, Berke, Wesley, Gits, Randolph & Levanas and Michael I. Levanas, Los Angeles, for plaintiff and appellant.

Proskauer, Rose, Goetz & Mendelsohn and Steven G. Drapkin, Los Angeles, for defendant and respondent.

Gibson, Dunn & Crutcher, Richard Chernick, Eileen Hale, Los Angeles, for amicus curiae on behalf of defendant and respondent.

CROSKEY, Associate Justice.

Plaintiff Vickie Howard ("plaintiff") appeals from a dismissal entered after a demurrer to her second amended complaint was sustained without leave to amend. The instant case evolved from a family law matter in which child custody and visitation were in dispute (the "underlying action"). Defendant Robin Drapkin ("defendant"), a psychologist, performed an evaluation of plaintiff and her family and plaintiff now claims that defendant acted improperly in carrying out that task.

In this appeal we are asked to determine whether the alleged wrongful actions of which plaintiff complains were performed in such a context that defendant can claim (1) common law immunity as a quasi-judicial officer participating in the judicial process or (2) statutory privilege under Civil Code section 47, subdivision (2) ("section 47(2)") 1 for a publication in a judicial proceeding. We conclude that defendant, acting in the capacity of a neutral third person engaged in efforts to effect a resolution of a family law dispute, is entitled to the protection of quasi-judicial immunity for the conduct of such dispute resolution services. We also find that the litigation privilege provided for in section 47(2) applies to the facts of this case. We therefore affirm the dismissal of plaintiff's complaint.


This case arises in the context of a family law dispute over custody and visitation rights with respect to the minor son of the plaintiff and her former husband, Robert. The dispute was one of a series and involved charges of physical and sexual abuse. Plaintiff initiated family law proceedings in which she sought to have Robert's custody and visitation rights terminated. Prior to any court hearing, plaintiff and Robert entered into a stipulation which provided that the defendant, as an independent psychologist, would evaluate the facts and circumstances and render non-binding findings and recommendations. This stipulation was ultimately signed by the court and converted into an order.

Plaintiff's claims against defendant apparently arise from (1) a single six-hour session between plaintiff and defendant, conducted pursuant to the aforesaid stipulation, in which plaintiff alleges that defendant was abusive, (2) defendant's report which plaintiff claims was negligently prepared, included false statements and omitted crucial information and (3) defendant's alleged failure to disclose certain conflicts of interest and lack of expertise in child abuse matters. The pleading before us is plaintiff's second amended complaint in which she had pled causes of action for In reviewing the sufficiency of the complaint we, of course, accept as true all of the properly pleaded allegations. (J'Aire Corp. v. Gregory (1979) 24 Cal.3d 799, 803, 157 Cal.Rptr. 407, 598 P.2d 60; Buckaloo v. Johnson (1975) 14 Cal.3d 815, 828, 122 Cal.Rptr. 745, 537 P.2d 865. By her demurrer, defendant admits "all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. [Citation.]" (Serrano v. Priest (1971) 5 Cal.3d 584, 591, 96 Cal.Rptr. 601, 487 P.2d 1241.) Plaintiff's complaint presents the following relevant allegations.

professional negligence, intentional infliction of emotional distress, negligent infliction of emotional distress and fraud.

Defendant is a psychologist licensed by the State of California who was hired in that capacity in early February 1987 by plaintiff and Robert. She was hired to perform a family evaluation of plaintiff, Robert and their nine-year-old child. Such evaluation was necessary because the child had accused Robert of physical, emotional and sexual abuse. Defendant was to evaluate what contact Robert would have with the child, if any.

Because of the decision to retain defendant, plaintiff and Robert agreed to continue an order to show cause hearing which had been scheduled for February 26, 1987. It was further continued from time to time while the evaluation was progressing. The agreement to hire defendant was put into the form of a stipulation and was signed by plaintiff and Robert and by their respective attorneys in the underlying action. (It was entitled "STIPULATION AND ORDER FOR CHILD CUSTODY EVALUATION.") The family law judge had not required the stipulation, did not participate in drafting it and did not supervise defendant's work. Eventually, however, the "order" portion of the stipulation was signed by the court on August 12, 1987, approximately six months after the parties had signed it. Defendant's written report, made after her evaluation was finished, states that her evaluation began March 18, 1987 and ended September 3, 1987.

By the terms of the stipulation, defendant was authorized to provide written reports, but only to plaintiff and to Robert, not to the court. Plaintiff or Robert could call defendant to testify in the custody hearings but the court could not. Defendant was obligated to complete her evaluation, to prepare a written report and to participate in the proceedings or in a deposition only if her fees for such activity were paid in advance.

Plaintiff alleges that her final evaluation meeting with defendant was scheduled for the evening before the order to show cause hearing. Defendant represented to plaintiff that this meeting would only last an hour and a half. It lasted over six hours--from 5:30 p.m. to 11:50 p.m. For five of those six hours, defendant personally attacked plaintiff, screamed at her, ridiculed her, accused her of lying and fabricating evidence, threatened she would lose custody of her son if she persisted in believing his allegations about his father, and misrepresented that the child's doctors and other experts involved in the case did not believe the child had been abused. Plaintiff claims that defendant did this to induce plaintiff to abandon her belief that Robert had abused their child.

With respect to defendant's alleged non-disclosures, plaintiff asserts that defendant (1) failed to divulge her lack of expertise in the area of child and sexual abuse, (2) failed to disclose that she and Robert had a prior professional relationship in that they had spoken and participated together in professional seminars and (3) failed to disclose that she was a close personal friend of the wife of one of the partners in the law firm which represented Robert in the underlying action.

Plaintiff alleges that in defendant's written report, she neglected to state that a September 1979 hospital examination of the child resulted in the examining doctor (1) finding evidence of " 'irritation of [the child's] scrotum glans [sic], penis and shaft of penis' " and (2) stating that " 'It seemed like somebody had been chomping on his penis.' " Besides omitting this and other material information in the written report, plaintiff claims that defendant failed to investigate certain other relevant matters.

Finally, plaintiff asserts that defendant acted with the intent to circumvent the judicial process and to cause plaintiff severe humiliation, mental anguish, and emotional and physical distress. Plaintiff claims that defendant's acts were willful, wanton, malicious and oppressive and she seeks both compensatory and punitive damages.

Defendant filed a general demurrer to the second amended complaint, contending that she has quasi-judicial, quasi-arbitral and/or arbitral immunity as well as immunity as an expert witness. She also claimed entitlement to the "judicial proceeding" or litigation privilege set out in section 47(2). In opposing the demurrer, plaintiff argued that defendant was not a quasi-judicial officer or an arbitrator, having been hired as a private evaluator, and that case law imposes an "interest of justice" limitation upon the section 47(2) privilege which would work in this case to defeat defendant's reliance on such defense. The trial court rejected plaintiff's arguments and sustained the demurrer without leave to amend. An order of dismissal was entered February 28, 1989.


This appeal raises the issue of the availability of (1) quasi-judicial immunity by reason of defendant's involvement as a neutral dispute-resolving participant in the judicial process and (2) the absolute privilege under the provisions of section 47(2), as a complete bar to plaintiff's actions.


Defendant asserts both of these grounds and we have concluded that both arguments are meritorious. 2 For the historical and policy reasons discussed below, we believe that absolute quasi-judicial immunity is properly extended to neutral third persons who are engaged in mediation, conciliation, evaluation or similar dispute resolution efforts. As to defendant's second argument, the issue of section 47(2) privilege has, since the filing of the briefs herein, been resolved in defendant's favor by the Supreme Court's decision in Silberg v. Anderson (1990) 50 Cal.3d 205, 266 Cal.Rptr. 638, 786 P.2d 365.

1. Common Law Immunity
a. Overview of Judicial Immunity

The concept of judicial immunity is longstanding and absolute, with its roots in English common law. It bars civil actions against judges for acts performed in the exercise of their judicial functions 3 and it The rationale behind the doctrine is twofold. First, it "protect[s] the finality of judgments [and] discourag[es] inappropriate collateral attacks." (Forrester v. White, supra, 484 U.S....

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