Thomas v. Treisman CA5

Filed 2/19/15 Thomas v. Treisman CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FIFTH APPELLATE DISTRICT

JOSH THOMAS, F068936 Plaintiff and Appellant, (Super. Ct. No. 13CECG02175) v.

DOUGLAS TREISMAN et al., OPINION Defendants and Respondents.

THE COURT* APPEAL from a judgment of the Superior Court of Fresno County. Kristi Culver Kapetan, Judge. Josh Thomas, in pro. per., for Plaintiff and Appellant. Daniel C. Cederborg, County Counsel, and Michael R. Linden, Deputy County Counsel, for Defendants and Respondents. -ooOoo-

* Before Detjen, Acting P.J., Peña, J. and Smith, J.

This is an appeal from a judgment of the Superior Court of Fresno County entered in favor of respondents Douglas Treisman and T. Worthington Vogel. Appellant Josh Thomas, an inmate, filed a lawsuit against Treisman and Vogel, inter alios, on July 8, 2013. Thomas claimed that the pair—over the course of several parole hearings held between 2007 and 2012—portrayed him as an “‘unreasonable risk’” and “‘unpredictable,’” described his criminal offense as “‘heinous,’” “‘dispassionate,’” and “‘calculated,’” prepared false documents, failed to provide a reporter’s transcript, delayed a hearing for almost one year, and engaged in other conduct that infringed upon his various rights under state and federal law.1 At the time of the alleged incidents, Treisman and Vogel were deputy district attorneys. On October 3, 2013, Treisman and Vogel filed a demurrer on the basis of immunity. In the final judgment filed January 29, 2014, the superior court sustained the demurrer without leave to amend. DISCUSSION Appellate review of a judgment sustaining a demurrer entails a de novo examination of the complaint to determine whether the facts alleged were sufficient to state a cause of action under any legal theory. (Protect Agricultural Land v. Stanislaus County Local Agency Formation Com. (2014) 223 Cal.App.4th 550, 557.) For this purpose, we “accept as true the properly pleaded material factual allegations of the complaint, together with facts that may properly be judicially noticed.” (Crowley v. Katleman (1994) 8 Cal.4th 666, 672; see Esparza v. County of Los Angeles (2014) 224 Cal.App.4th 452, 459 [“‘Where the complaint’s allegations or judicially noticeable facts reveal the existence of an affirmative defense, the “plaintiff must ‘plead around’ the defense, by alleging specific facts that would avoid the apparent defense.”’”].) On appeal, the plaintiff bears the burden of demonstrating that the superior court erred in