Filed 6/30/16 Larson v. McConnell 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication 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

HARVEY EUGENE LARSON,

Plaintiff and Appellant,

v.

JUDITH D. MCCONNELL, A JUSTICE 

OF THE COURT OF APPEAL et al.,

Defendants and Respondents.

 B267312

 (San Diego County

 Super. Ct. No. 37-2014-00030163-CU-

 PN-CTL)

APPEAL from a judgment of the Superior Court of San Diego County.

Eddie C. Sturgeon, Judge. Affirmed.

Harvey Eugene Larson, in pro. per., for Plaintiff and Appellant.

Murchison & Cumming, William J. Snyder and Scott J. Loeding, for Defendants 

and Respondents.

* * * * * *
2

After Harvey Eugene Larson (Larson) was unsuccessful in the appeal of his 

petition for resentencing under the Three Strikes Reform Act of 2012, he sued four 

justices of the California Court of Appeal and two attorneys with Appellate Defenders, 

Inc. for damages and injunctive relief. The trial court sustained the justices’ demurrer on 

grounds of absolute judicial immunity. Its ruling was dictated by controlling law. 

We accordingly affirm.

FACTS AND PROCEDURAL BACKGROUND

In 2000, a jury convicted Larson of resisting an executive officer (Pen. Code, 

§ 69) and exhibiting a deadly weapon to a police officer to resist arrest (Pen. Code,

§ 417.8), as well as the personal use of a deadly or dangerous weapon (Pen. Code,

§ 12022, subd. (b)(1)). Larson had three prior convictions that qualified as “strikes” 

under California’s Three Strikes law (Pen. Code, §§ 667, subds. (b)-(j) & 1170.12, subds. 

(a)-(d)), had served three prior prison terms (Pen. Code, § 667.5, subd. (b)), and had been 

convicted of a prior “serious” felony (Pen. Code, § 667, subd. (a)(1)). The trial court 

imposed a sentence of 34 years to life on the resisting arrest count and stayed the

sentence on the exhibiting a deadly weapon count under Penal Code section 654.

In March 2013, Larson filed a petition for resentencing under the Three Strikes 

Reform Act of 2012 on the ground that the felonies he committed in 2000 were neither 

“serious” nor “violent.” The trial court ruled that Larson was ineligible for relief 

because, in light of the jury’s findings, the offense on which he was serving time was a 

“felony in which the defendant personally used a dangerous or deadly weapon,” which is 

a “serious felony” under Penal Code section 1192.7, subdivision (c)(1)(23). Larson 

appealed, and his appellate counsel filed a brief under People v. Wende (1979) 25 Cal.3d 

436, indicating that there were no arguable issues on appeal and asking the Court of 

Appeal to independently review the trial record. At the invitation of the Court of Appeal, 

Larson filed a supplemental brief.

In April 2014, the Court of Appeal, Fourth Appellate District, Division One, 

affirmed the trial court’s denial of Larson’s petition.
3

Five months later, in September 2014, Larson sued four of the justices in Division 

One of the Fourth District Court of Appeal for negligence, alleging that they “denied 

claims raised on appeal.”1 He sought compensatory and punitive damages. After the 

justices demurred on grounds of absolute judicial immunity, Larson filed a document 

entitled “Request for Injunctive Relief,” seeking to amend his complaint to add a request 

for injunctive relief against the justices The trial court sustained the demurrer without 

leave to amend on the ground that “[t]he moving judicial officers are protected by judicial 

immunity.”

After the court entered its judgment of dismissal, Larson filed a notice of appeal.

The California Supreme Court assigned the appeal to Division Two of the Second 

Appellate District.

DISCUSSION

It is a “long-standing and absolute” “principle of common law” that “judges are 

granted immunity from civil suit in the exercise of their judicial functions.” (Howard 

v. Drapkin (1990) 222 Cal.App.3d 843, 851; Frost v. Geernaert (1988) 200 Cal.App.3d 

1104, 1107-1108.) Absolute immunity from suit “‘protect[s] the finality of judgments 

[and] discourag[es] inappropriate collateral attacks’” and also “‘protect[s] judicial 

independence by insulating judges from vexatious actions prosecuted by disgruntled 

litigants.’” (Howard, at p. 852, quoting Forrester v. White (1988) 484 U.S. 219, 225, 

superseded on other grounds by 42 U.S.C. § 1983.) This immunity attaches whether or 

not the judge’s actions are “erroneous” or “malicious.” (Howard, at p. 851.) Dismissal 

by demurrer is proper when absolute immunity applies. (Regan v. Price (2005) 

131 Cal.App.4th 1491, 1495.)

In this case, Larson is suing four justices in Division One of the Fourth District 

Court of Appeal for negligently denying his appeal of the trial court’s ruling on his

 

1 Larson also sued the two attorneys who represented him on appeal, but they are 

not parties to this appeal.
4

petition for resentencing. In ruling on his appeal, the judges were exercising their judicial 

function, and absolute immunity bars Larson’s claims against them.

On appeal, Larson raises three arguments. First, he suggests that absolute 

immunity applies only to actions for damages, not for injunctive relief; thus, he reasons, 

his claim for injunctive relief should remain viable. To be sure, Pulliam v. Allen (1984) 

466 U.S. 522, 536-537 (Pulliam), held that absolute judicial immunity did not apply to 

claims for “prospective relief” under section 1983 of title 42 of the United States Code. 

At least one California case has extended Pulliam’s rule to “any action for injunctive 

relief.” (Lezama v. Justice Court (1987) 190 Cal.App.3d 15, 20.) But Congress 

superseded Pulliam on this point, extending judicial immunity to bar any injunctive relief 

“unless a declaratory decree was violated or declaratory relief was unavailable.” 

(42 U.S.C. § 1983.) We need not decide whether Lezama’s rationale survives Congress’s 

abrogation of Pulliam because Lezama itself recognized that injunctive relief is 

unavailable where there is an adequate remedy of law. (Lezama, at p. 21.) Here, there is: 

Larson has the right to seek review of the Court of Appeal’s ruling with our Supreme 

Court. (Cal. Rules of Court, rule 8.500.) Thus, Larson’s claims against the judges are 

barred in their entirety.

Second, Larson suggests that the post-Pulliam exception now contained in section 

1983 applies to him. However, the Court of Appeal in affirming the denial of his petition 

did not “violat[e]” any “declaratory decree”; nor is there any showing that “declaratory 

relief [i]s unavailable.” (42 U.S.C. § 1983.) Thus, even if we ignored the adequacy of 

Larson’s remedy at law and assumed that the statutory exception for certain injunctive 

relief claims under section 1983 applies to a state tort claim, Larson cannot avail himself 

of this exception.

Lastly, Larson argues that the Court of Appeal’s ruling is wrong on the merits. 

This is irrelevant to the question of absolute immunity, which applies whether or not the 

ruling was “erroneous.”
5

DISPOSITION

The order of dismissal is affirmed. Defendants are entitled to their costs on 

appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

_______________________, J.

HOFFSTADT

We concur:

________________________, P.J.

BOREN

________________________, J.

CHAVEZ