Filed 6/28/21 Foster v. Lu CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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
SECOND APPELLATE DISTRICT
DIVISION TWO
RICKY TYRONE FOSTER, B306845
Plaintiff and Appellant, (Los Angeles County
Super. Ct.
v. No. 20STCV02763)
ELAINE LU, as Judge of the
Superior Court, etc.,
Defendant and Respondent.
APPEAL from a judgment of the Superior Court for Los
Angeles County, Barbara Ann Meiers, Judge. Affirmed.
Ricky Tyrone Foster, in pro. per., for Plaintiff and
Appellant.
Cummings, McClorey, Davis, Acho & Associates and Sarah
L. Overton for Defendant and Respondent.
______________________________
Appellant Ricky Tyrone Foster, serving a life sentence, filed
a civil action against four prison officials because they allegedly
failed to timely file his petition for review in the California
Supreme Court. (Foster v. Ibbotson et al. (Super. Ct. L.A. County,
2014, No. 14K08085).) Foster failed to appear for the trial of that
action on December 17, 2015; it was dismissed without prejudice
on the same day by the respondent in this appeal, Judge Elaine
Lu.1 Foster appealed the dismissal of case No. 14K08085 to the
superior court appellate division. (Foster v. Ibbotson (Nov. 16,
2018, BV032137 [nonpub. opn.] (Ibbotson).)
Foster filed the civil action at bar on January 22, 2020,
against Judge Lu, alleging she violated his rights by dismissing
case No. 14K08085. Judge Lu’s demurrer to this action was
sustained without leave to amend. Foster appealed. We affirm.
Pertinent Procedural History2
After the dismissal of case No. 14K08085 without prejudice
on December 17, 2015, Foster attempted to file a first amended
complaint and various motions. On October 20, 2016, the
superior court ordered Foster’s motions off calendar, found he
had not complied with Code of Civil Procedure section 473, and
ordered the first amended complaint stricken. Foster appealed
but the appellate division dismissed the appeal because Foster
had not provided an adequate record. (Ibbotson, supra,
BV032137.)
____________________________________________________________
1 As an active judge on the Los Angeles Superior Court,
Judge Lu is protected by judicial immunity.
2 We have relied on the appellate division’s opinion for the
history of case No. 14K08085. (Ibbotson, supra, BV032137.)
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After the within civil action had been filed, Judge Lu
demurred to the complaint on April 6, 2020. Foster filed an
opposition and Judge Lu filed a reply. On June 29, 2020, the
court sustained the demurrer without leave to amend for the
reasons stated in the demurrer and ordered the action dismissed.
Foster filed a notice of appeal on July 27, 2020. The court
entered the order of dismissal and judgment on September 15,
2020. We deem the notice of appeal as having been filed after
September 15, 2020. (Cal. Rules of Court, rule 8.308(c)
[premature appeal].)
Foster’s Complaint
The first cause of action is ostensibly based on title 42
United States Code section 1983 and the Fourteenth Amendment
of the United States Constitution. This cause of action alleges
that Judge Lu deprived Foster of his due process rights and
abused her judicial discretion by the action taken on October 20,
2016, in dismissing case No. 14K08085.
The second cause of action alleges that Judge Lu should
have, but did not, enter a default against the defendants in case
No. 14K08085. This allegedly deprived Foster of his rights under
the due process clause.
The third cause of action again invokes title 42 United
States Code section 1983 and the Fourteenth Amendment of the
United States Constitution. This cause of action alleges that
Foster was deprived of his right to prosecute a civil action,
namely, case No. 14K08085.
The complaint seeks a battery of remedies that, for the
most part, are beyond the superior court’s power to implement.
The complaint seeks a declaration that Judge Lu violated
Foster’s rights under the due process clause; requests that the
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superior court issue an order directing the California Supreme
Court to deem the petition for review timely filed; seeks damages
of $80,000 and exemplary damages of $3,000; requests that the
trial court vacate the order of dismissal entered on October 20,
2016; and award Foster his costs and reasonable attorney’s fees.
Judge Lu is Immune From Liability
“An unbroken line of authorities including many English
cases as well as authorities in our own country from the
beginning of our judicial history sustains the principle that
judicial officers are not liable for the erroneous exercise of
judicial powers vested in them. [¶] Equally unanimous is the
reasoning contained in these cases that this immunity from
liability is based upon considerations of public policy. That to
hold judicial officers personally liable for errors of judgment
concerning either questions of law or fact would be subversive of
both independence and efficiency in the administration of
justice.” (Frazier v. Moffatt (1951) 108 Cal.App.2d 379, 384.)
“[T]he civil immunity of the judiciary in the performance of
judicial functions is deeply rooted in California law.”
(Oppenheimer v. Ashburn (1959) 173 Cal.App.2d 624, 630.)
It is patent that Judge Lu was acting in her judicial
capacity, i.e., exercising her judicial powers when she dismissed
case No. 14K08085. (Ibbotson, supra, BV032137.) One way for a
lay person to understand what is meant by “judicial capacity” is
that only a judge could have taken the action that Judge Lu took
both on December 17, 2015, when she dismissed the case without
prejudice, and on October 20, 2016, when she struck the
complaint and ordered Foster’s motions off calendar and then
dismissed the case.
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The reason for judicial immunity has been given by the
United States Supreme Court in an explanation that cannot be
improved upon: “For it is a general principle of the highest
importance to the proper administration of justice that a judicial
officer, in exercising the authority vested in him, shall be free to
act upon his own convictions, without apprehension of personal
consequences to himself. Liability to answer to every one who
might feel himself aggrieved by the action of the judge, would be
inconsistent with the possession of this freedom, and would
destroy that independence without which no judiciary can be
either respectable or useful. As observed by a distinguished
English judge, it would establish the weakness of judicial
authority in a degrading responsibility.” (Bradley v. Fisher
(1872) 80 U.S. 335, 347.)
Foster’s contention that judicial immunity does not apply if
the relief sought is declaratory or injunctive relief relies on the
outdated decision in Supreme Court of Virginia v. Consumers
Union U.S., Inc. (1980) 446 U.S. 719, which has been set aside by
the 1996 amendments to title 42 United States Code section
1983, which “provides judicial officers immunity from injunctive
relief even when the common law would not.” (Moore v. Urquhart
(9th Cir. 2018) 899 F.3d 1094, 1104.) Judicial immunity extends
to actions for declaratory, injunctive, and other equitable relief.
(Moore v. Brewster (9th Cir. 1996) 96 F.3d 1240, 1243.)
Given the law on judicial immunity, the superior court
could not do anything other than sustain Judge Lu’s demurrer
without leave to amend.
Other Grounds for the Demurrer
There were other grounds that justified a dismissal of this
case. We note these grounds only summarily in that the
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complaint is absolutely barred by the doctrine of judicial
immunity. The additional grounds for dismissal also show that
this action was completely devoid of merit.
The court did not have jurisdiction to set aside earlier
orders of the superior court. (Alvarez v. Superior Court (2004)
117 Cal.App.4th 1107, 1111.) The first and third causes of action
are barred by the statute of limitations which, by the adoption of
the forum’s limitations period (Knox v. Davis (9th Cir. 2001) 260
F.3d 1009, 1012–1013), is two years. The second cause of action
seeking monetary damages is barred because of Foster’s failure to
file a written claim for damages. (Phillips v. Desert Hospital
District (1989) 49 Cal.3d 699, 708.) Judge Lu did not err in
dismissing Foster’s action in case No. 14K08085 since Foster was
in default. In fact, we see no error in any of the superior court’s
rulings in case No. 14K08085, which means that none of the
causes of action have stated facts sufficient to constitute a cause
of action.
This is a Frivolous and Vexatious Action
The conclusion is inescapable that this action was, from the
first, frivolous and vexatious. No reasonable attorney would have
filed and maintained this action, much less pursued an appeal
since it is clear that the appeal is “totally and completely without
merit.” (In re Marriage of Flaherty (1982) 31 Cal.3d 637, 650.)
Had an attorney done as Foster did, we would be considering the
imposition of sanctions. (Ibid.) While generally speaking Foster
is held to the same standard as an attorney, his demonstrated
lack of knowledge of basic legal principles is a marginal excuse
for pursuing this meritless litigation.
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DISPOSITION
The judgment is affirmed. Respondent is entitled to costs
on appeal.
NOT TO BE PUBLISHED.
LUI, P. J.
We concur:
ASHMANN-GERST, J.
CHAVEZ, J.
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