Quasi-judicial Immunity in Conservatorships: a Guide for Conservators and Their Counsel

• Publication year: 2016
• Author: By Michelle L. Barnett, Esq., Charles Riffle, Esq., and Sarah Brooks, Esq.

QUASI-JUDICIAL IMMUNITY IN CONSERVATORSHIPS: A GUIDE FOR CONSERVATORS AND THEIR COUNSEL

By Michelle L. Barnett, Esq.,^* Charles Riffle, Esq.,^* and Sarah Brooks, Esq.^*

In 2014, the Fourth District Court of Appeal in McClintock v. West¹ held that a guardian ad litem in a family law case was entitled to quasi-judicial immunity in a subsequent tort action initiated against her by her former ward. In 2015, in the unpublished decision Burk-Soorani v. Simon,² the Second District Court of Appeal extended quasi-judicial immunity to a professional conservator who was sued in a tort action for elder abuse and wrongful death after she made healthcare decisions for a conservatee. The reasoning of the Fourth and Second District Courts of Appeal suggests that California courts may soon extend the protection of quasi-judicial immunity to conservators. But should they?

This article will examine the history of the quasi-judicial immunity doctrine, the application of the doctrine in California and elsewhere, and whether quasi-judicial immunity is warranted in the context of California conservatorships. As this article will demonstrate, the state's comprehensive statutory framework governing conservatorships renders quasi-judicial immunity unnecessary for the conservator of the estate. And whether a conservator of the person is cloaked with the protection of quasi-judicial immunity should hinge upon whether the conservator acted within the scope of his or her authority in a matter "intimately related to the judicial process."³

I. THE DOCTRINE OF QUASI-JUDICIAL IMMUNITY

A. Historical Foundation for Quasi-Judicial Immunity

In England, during feudal times, the King, through courts of equity, took responsibility for the care and protection of the estates of incapacitated lords.⁴ After the American Revolution, this regal responsibility of parens patriae, or parent of the country, devolved to the individual state legislatures as representatives of the people.⁵ Courts of equity, established in various state constitutions or by legislative action, became responsible for the care of the incapacitated person's property, and also for the incapacitated person's individual welfare.⁶

There have never been enough judges to personally handle all such parens patriae cases. To ease the judicial burden, the various state legislatures created statutory mechanisms permitting judges to preside over their parens patriae responsibilities through the use of surrogates. Such surrogates are ultimately held accountable to the probate judge and operate under his or her auspices. In California, the parens patriae surrogates include court investigators, public guardians, probate research attorneys, court clerks, bailiffs, guardians ad litem, guardians, and conservators.⁷ Without the dedicated services of these surrogates, the California court system could not fulfill its parens patriae responsibility to safeguard the assets and otherwise protect the young, sick, and incapacitated citizens of this State.

B. The Evolution of Quasi-Judicial Immunity in California Courts

It is unquestioned in California that judges have absolute immunity from suit for the exercise of their judicial powers.⁸ Similarly, California courts, relying on precedent from federal courts, have consistently extended the protection of quasi-judicial immunity to judicial surrogates who assist courts in carrying out their judicial functions.⁹ After all, these surrogates are simply acting as an arm of the court. As discussed below, the list of judicial surrogates protected by the doctrine of quasi-judicial immunity has grown in the recent years. It now includes guardians ad litem, and in at least one case, a conservator.¹⁰

1. Howard v. Drapkin

Howard v. Drapkin is the leading case examining the doctrine of quasi-judicial immunity under California law. The case arose out of a family law action for child custody and visitation. Due to allegations of physical, emotional, and sexual abuse, the parties stipulated to the appointment of psychologist, Robin Drapkin, to perform a family evaluation and render non-binding findings and recommendations to the parties. Pursuant to the stipulation, Drapkin was authorized to provide written reports to the parties, but not to the court. Drapkin also was authorized to testify in the custody hearings if requested by the parties.¹¹ The family law judge signed the stipulated order, but had not required the stipulation, did not participate in drafting it, and did not supervise Drapkin's work.¹² After Drapkin conducted her evaluation, the minor's mother, Vickie Howard, alleged that Drapkin acted improperly in carrying out her evaluation and filed a civil action against Drapkin for professional negligence, intentional infliction of emotional distress, negligent infliction of emotional distress, and fraud.¹³ Drapkin demurred on grounds that she was protected by the doctrine of quasi-judicial immunity and the litigation privilege.¹⁴ The trial court sustained Drapkin's demurrer, and the Second District Court of Appeal affirmed.¹⁵

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The Second District held that absolute quasi-judicial immunity is properly extended to neutral 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 to the court; or (3) the arbitration, mediation, conciliation, evaluation, or other similar resolution of pending disputes.¹⁶ Thus, the Second District affirmed the trial court's dismissal of the action because Drapkin, a court-appointed psychologist, was a neutral third party who was performing dispute resolution services connected to the judicial process.¹⁷

In reaching its decision, the Second District recognized that the overburdened judicial system must attract independent and impartial services and expertise to function.¹⁸ Therefore, it is necessary "that these 'nonjudicial persons who fulfill quasi-judicial functions intimately related to the judicial process' [citation] should be given absolute quasi-judicial immunity for damage claims arising from their performance of duties in connection with the judicial process."¹⁹ Without such immunity, "persons will be reluctant to accept court appointments or provide work product for the courts' use. Additionally, the threat of civil liability may affect the manner in which they perform their jobs. [Citation.]"²⁰

2. McClintock v. West

In 2014, the Fourth District Court of Appeal, in McClintock v. West, extended quasi-judicial immunity to a guardian ad litem in a family law dispute.²¹ The case involved divorce proceedings in which the court appointed Michele West as guardian ad litem to act on behalf of Douglas McClintock, who had checked himself into a hospital for depression on the eve of his divorce trial.²² While serving as guardian ad litem, West made decisions on McClintock's behalf regarding the division of assets and child custody.²³ After the divorce case concluded, McClintock sued West for negligence, fraud, breach of fiduciary duty, breach of contract, and intentional infliction of emotional distress.²⁴ The trial court sustained West's demurrer without leave to amend, and the Fourth District Court of Appeal affirmed.²⁵

The Court of Appeal held that the litigation privilege barred McClintock's breach of contract and fraud claims and ruled that West, as McClintock's guardian ad litem, had quasi-judicial immunity from McClintock's remaining tort claims.²⁶ In its consideration of the case, the Fourth District did a comprehensive review of the California cases that had extended quasi-judicial immunity to various judicial surrogates, including court commissioners, prosecutors, grand jurors, arbitrators, the State Bar and committee of Bar Examiners, and a court-appointed psychologist.²⁷ The Fourth District concluded that the correct test to be applied to determine whether quasi-judicial immunity should be extended to a guardian ad litem was whether the guardian ad litem fulfilled "a function that [was] 'intimately related to the judicial process . . . .'"²⁸ In deciding that West fulfilled such a function as guardian ad litem, the court pointed out that West acted under the supervision of the trial court and in the best interests of her ward.²⁹ As the court reasoned, acting in the best interests of the ward was "a function intimately related [to the judicial process], and indeed, one which the trial court found in this case was indispensable to bringing the case to conclusion."³⁰

The Fourth District observed that "while a guardian ad litem's role is as a representative of the ward, he or she does not act as an advocate, and does not simply represent the ward's wishes. 'The court is, in effect, the guardian . . . and the guardian ad litem is but an officer and representative of the court. [Citation.]'"³¹ The Fourth District further noted that "the guardian ad litem's authority is that of 'an agent with limited powers[,]' [citation]"³² and "when a guardian ad litem believes that settling a case is in the ward's best interests, that decision requires court approval."³³ The court must then determine whether the ward's interests are adequately protected. "The guardian ad litem, therefore, when representing an adult deemed incapable of representing himself or herself, is in a similar role to a conservator, who derives his or her authority from the power of the state to protect incompetent persons."³⁴

The Fourth District found that the policy considerations raised in Howard v. Drapkin weighed heavily in favor of immunity for West, asking "if West had known she'd be subject to liability, would she have agreed to appointment?"³⁵ The Fourth District further opined, "[w]hy would any qualified person ever accept appointment as guardian ad litem when his or her decisions could be subject to such post hoc second-guessing?"³⁶ Moreover, the Fourth District found that there were sufficient safeguards in place to ensure...