1

Filed 7/27/22 Stavros v. Etiwanda School Dist. CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication 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

FOURTH APPELLATE DISTRICT

DIVISION TWO

HIEU STAVROS,

Plaintiff and Appellant,

v.

ETIWANDA SCHOOL DISTRICT et al.,

Defendants and Respondents.

E074497

(Super.Ct.No. CIVDS1620304)

OPINION

APPEAL from the Superior Court of San Bernardino County. Donna G. Garza, 

Judge. Affirmed.

Hieu Stavros, in pro. per., for Plaintiff and Appellant.

Cummings, McClorey, Davis, Acho & Associates and Ryan D. Miller for 

Defendants and Respondents.
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I. INTRODUCTION

In September 2016, Hieu Stavros (plaintiff) was terminated from her employment 

as an instructional aide at an elementary school within the Etiwanda School District (the 

District). In December 2016, she filed a civil complaint against the District as well as the 

principal of the elementary school, Ben Lautenslager (collectively, defendants), alleging 

causes of action for wrongful termination, whistleblower retaliation, denial of a name 

clearing hearing, breach of contract, and defamation. According to the complaint, 

defendants used a false report of suspected child abuse as a pretext for termination of her 

employment.

The trial court granted two separate motions for summary adjudication that 

ultimately disposed of all causes of action alleged in the complaint, and judgment was 

entered in favor of defendants. In this appeal, plaintiff does not claim the trial court erred 

in granting summary adjudication on any of the causes of action actually alleged in her 

complaint. Instead, plaintiff’s entire appeal argues that during the course of litigation, 

defendants wrongfully disclosed the report of suspected child abuse related to the 

termination of her employment. According to plaintiff, defendants’ acts of disclosure 

constituted a violation of Penal Code1section 11167.52 and improperly influenced the 

trial court proceedings.

1

 Undesignated statutory references are to the Penal Code.

2

 The statute is part of California’s Child Abuse and Neglect Reporting Act 

(CANRA), which “sets forth several different reporting requirements once child abuse or 

neglect is suspected.” (B.H. v. County of San Bernardino (2015) 62 Cal.4th 168, 178; 

[footnote continued on next page]
3

As a result of defendants’ alleged violation of section 11167.5, plaintiff requests 

that this court: (1) reverse the judgment; (2) order the district attorney to investigate the 

alleged misconduct by defendants; and (3) order that defendants bear all costs related to 

her suit. We conclude that defendants’ alleged violation of section 11167.5, even if true, 

would not warrant reversal of the judgment, and this court is without authority to issue 

the other orders requested by plaintiff. Accordingly, we deny each of plaintiff’s requests 

on appeal and affirm the judgment.

II. FACTS AND PROCEDURAL HISTORY

On December 2, 2016, plaintiff filed a civil complaint against defendants. 

Plaintiff alleged she was terminated from her employment as an instructional aide on 

September 16, and defendants used a false accusation of child abuse as a pretext for her 

termination. As a result, plaintiff alleged causes of action for (1) wrongful termination 

due to disability discrimination; (2) whistleblower retaliation; (3) denial of a name 

clearing hearing regarding a false accusation of child abuse; (4) breach of contract; and 

(5) defamation.

On December 28, 2016, plaintiff received a phone call from defense counsel. 

Defense counsel requested that plaintiff dismiss her suit and indicated that defendants had 

possession of a CANRA report in support of their position that plaintiff was terminated as 

the result of a report of child abuse. Plaintiff believed that disclosure of a CANRA report 

§ 11164 et seq.) Section 11167.5, subdivision (a), provides that any reports made under 

the statutory scheme “shall be confidential”; that any such reports may be disclosed only 

as provided for in the statute; and that a violation of the confidentiality provisions 

constitutes a misdemeanor.
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was a crime and requested the trial court refer the matter to the district attorney to 

investigate defendants’ purported violation of the confidentiality provisions of section 

11167.5. The trial court denied the request.

On November 8, 2018, defendants filed a motion for summary judgment or, in the 

alternative, summary adjudication of each cause of action set forth in the complaint. On 

December 14, plaintiff filed a motion for leave to amend her complaint. Plaintiff’s 

motion referenced defendants’ purported violation of section 11167.5 and alluded to a 

potential claim for intentional infliction of emotional distress. However, the proposed 

amended complaint submitted with plaintiff’s motion did not contain any factual 

allegations referencing a violation of section 11167.5 and did not add any new causes of 

action.

The trial court heard defendants’ motion for summary adjudication and plaintiff’s 

motion for leave to file an amended complaint on the same day in January 2019. It 

granted summary adjudication in favor of defendants on all causes of action except the 

cause of action for whistleblower retaliation. The trial court also denied plaintiff’s 

request for leave to amend but did not specify its reasons for doing so.

Trial commenced in September 2019. On the second day of trial, defendants 

moved for summary adjudication of the remaining cause of action for whistleblower 

retaliation based upon the trial court’s prior orders on motions in limine. Plaintiff waived 

notice and stipulated that defendants’ request for summary adjudication should be heard. 

The trial court granted summary adjudication on the remaining cause of action, and 

judgment was entered on November 8.
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III. DISCUSSION

A. Scope of Appellate Review 

Generally, the “scope of appellate review is limited to issues adequately raised and 

supported in appellant’s brief.” (TME Enterprises, Inc. v. Norwest Corp. (2004) 

124 Cal.App.4th 1021, 1038; see Reyes v. Kosha (1998) 65 Cal.App.4th 451, 466, fn. 6.) 

“ ‘Even when our review on appeal “is de novo, it is limited to issues which have been 

adequately raised and supported in [the appellant’s opening] brief. [Citations.] Issues 

not raised in an appellant’s brief are deemed waived or abandoned.” ’ ” (Golden Door 

Properties, LLC v. County of San Diego (2020) 50 Cal.App.5th 467, 555.)

Here, judgment was entered after the trial court granted summary adjudication in 

favor of defendants on each cause of action alleged in the complaint. On appeal, plaintiff 

has not raised any claim of error with respect to the trial court’s grant of summary 

adjudication on the causes of action actually alleged in the complaint. Accordingly, 

plaintiff has abandoned any claim of error with respect to entry of judgment on these 

causes of action, and review of such matters is beyond the scope of this appeal.

Instead, we address only plaintiff’s specific claims that defendants’ purported 

violation of section 11167.5 warrants: reversal of the judgment, an order directing the 

district attorney to investigate the allegations, and an order directing defendants pay 

plaintiff’s costs. As we explain, a violation of section 11167.5, even if true, would not 

warrant any of the relief plaintiff has requested on appeal.
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B. Defendants’ Alleged Violation of Section 11167.5 Does Not Warrant Reversal of the 

Judgment

While plaintiff’s arguments are far from clear, she generally argues that 

defendants’ purported violation of section 11167.5 requires reversal of the judgment. We 

conclude that, even if true, such allegations were outside the scope of the pleadings and,

therefore, could not have formed the basis of a successful opposition to summary 

adjudication. We further conclude that, even if plaintiff had amended the complaint to 

include such allegations, the litigation privilege would have barred plaintiff from seeking 

liability on this basis. Thus, defendants’ purported violation of section 11167.5 does not 

afford any basis to reverse the judgment in this case.

1. Summary Adjudication Cannot Be Opposed Based Upon Theories Not Alleged 

in the Complaint

In this case, judgment was entered after the trial court granted two motions for 

summary adjudication that effectively disposed of all of the causes of action alleged in 

the complaint. Generally, the rules pertaining to resolution of a summary judgment 

motion equally apply to motions for summary adjudication. (Code Civ. Proc., § 437c, 

subd. (f)(2) [A motion for summary adjudication “shall proceed in all procedural respects 

as a motion for summary judgment.”].) On appeal, we “determine de novo whether an 

issue of material fact exists and whether the moving party was entitled to summary 

judgment as a matter of law,” and we apply “the same three-step analysis as the trial 

court.” (Jones v. Awad (2019) 39 Cal.App.5th 1200, 1206.) We “(1) identify the issues 

framed by the pleadings, (2) determine whether the moving party has established facts 
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justifying judgment in its favor, and (3) determine whether the nonmoving party has 

demonstrated a triable issue of material fact.” (Id. at pp. 1206-1207.)

Here, we need not go beyond the first step. In determining the issues framed by 

the pleadings, it is apparent that the operative complaint did not seek liability based upon 

defendants’ purported violation of section 11167.5. Plaintiff filed her complaint on 

December 2, 2016, alleging various causes of action arising from the termination of her 

employment. There are no allegations referencing section 11167.5 anywhere in the 

pleading, nor are there any factual allegations suggesting liability on any cause of action 

was premised upon the wrongful disclosure of a CANRA report. According to plaintiff’s 

own recitation of the facts, she did not learn of defendants’ alleged disclosure until she 

received a phone call from defense counsel on December 28, 2016. Clearly, even when 

liberally construed, the complaint cannot be read to include a factual basis for liability 

admittedly unknown to plaintiff at the time she filed her complaint.

Because the complaint contains no allegations that would suggest liability based 

upon a violation of section 11167.5 or disclosure of the CANRA report, the issue was not 

material to resolution of summary adjudication on any cause of action. “ ‘The pleadings 

delimit the issues to be considered on a motion for summary judgment.’ . . . ‘[A]

defendant moving for summary judgment need address only the issues raised by the 

complaint; the plaintiff cannot bring up new, unpleaded issues in his or her opposing 

papers.’ ” (Laabs v. City of Victorville (2008) 163 Cal.App.4th 1242, 1253.) Thus, 

“summary judgment cannot be denied on a ground not raised by the pleadings.”

(Bostrom v. County of San Bernardino (1995) 35 Cal.App.4th 1654, 1663.) Nor is it 
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appropriate to reverse a trial court’s grant of summary judgment on a theory that was not 

pleaded. (Vulk v. State Farm General Ins. Co. (2021) 69 Cal.App.5th 243, 263 [A 

plaintiff “cannot obtain reversal of the trial court’s summary judgment ruling” on a 

theory not alleged in complaint.].)

Plaintiff never successfully amended her complaint prior to summary 

adjudication.

3

 As a result, even if plaintiff could prove that defendants violated 

section 11167.5, it would not justify reversal of the judgment. Her original complaint 

remained the operative pleading, and an alternative theory of liability based upon 

defendants’ purported violation of section 11167.5 could not have formed the basis of a 

successful opposition to summary adjudication on any cause of action.

4

3

 The record suggests that plaintiff attempted to amend her pleading on three 

occasions prior to the first summary adjudication hearing. Initially, plaintiff attempted to 

file a supplemental complaint in March 2018, but the document was rejected for failing to 

seek leave of court. Plaintiff also filed motions for leave to file a supplemental complaint 

in April 2018 and June 2018. However, both motions were denied without prejudice due 

to plaintiff’s failure to file a declaration identifying the proposed changes or the intended 

purpose and effect of any proposed change.

4

 This same rationale would also preclude reversal of the judgment to the extent 

plaintiff asserts the trial court erred with respect to rulings pertaining to discovery or 

evidentiary objections. While “[a] discovery order may be reviewed on appeal from the 

final judgment on the merits. . . . The judgment will not be reversed unless the error is so 

prejudicial that it constitutes a miscarriage of justice.” (County of Nevada v. Kinicki

(1980) 106 Cal.App.3d 357, 363.) Likewise, “ ‘an appellant who seeks a reversal based 

on the erroneous exclusion of evidence in summary judgment proceedings must establish 

how the error resulted in a “miscarriage of justice,” often referred to as prejudice.’ ” 

(Hooked Media Group, Inc. v. Apple Inc. (2020) 55 Cal.App.5th 323, 337.) Because 

defendants’ purported violation of section 11167.5 was not alleged in the complaint and, 

therefore, outside the scope of issues material to summary adjudication, plaintiff could 

not have been prejudiced by any inability to conduct discovery or present evidence on 

that issue. Even if she had been permitted to conduct discovery on that issue and 

[footnote continued on next page]
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2. The Trial Court Was Not Required To Grant Leave To Amend the Complaint 

Under the Circumstances

We acknowledge that plaintiff attempted to amend her complaint at the time of the 

hearing on defendant’s first motion for summary adjudication, and the trial court denied 

her request. The reasons for the trial court’s denial are unclear from the record. 

Nevertheless, we conclude that the denial of plaintiff’s request for leave to amend could 

not have been an abuse of discretion under the circumstances. Nor could plaintiff have 

suffered prejudice warranting reversal of the judgment.

“[A] request for leave to amend a complaint need not be made before a hearing on 

a motion for summary judgment; rather, it may be made at the hearing or any time before 

entry of judgment.” (Prue v. Brady Co./San Diego, Inc. (2015) 242 Cal.App.4th 1367, 

1385.) “A trial court has wide discretion to allow the amendment of pleadings, and 

generally courts will liberally allow amendments at any stage of the proceeding. 

[Citation.] On a motion for summary judgment ‘ “[w]here the complaint is challenged 

and the facts indicate that a plaintiff has a good cause of action which is imperfectly 

pleaded, the trial court should give the plaintiff an opportunity to amend.” ’ ” (Falcon v. 

Long Beach Genetics, Inc. (2014) 224 Cal.App.4th 1263, 1280.)

Initially, we observe that a judgment cannot be set aside absent prejudice 

warranting a miscarriage of justice (Cal. Const., art VI, § 13), and the denial of plaintiff’s 

presented evidence in opposition to summary adjudication, any such evidence would 

have been disregarded. (Jacobs v. Coldwell Banker Residential Brokerage Co. (2017) 14 

Cal.App.5th 438, 444 [“ ‘Evidence offered on an unpleaded claim, theory, or defense is 

irrelevant because it is outside the scope of the pleadings.’ ”].)
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request to file an amended complaint could not have prejudiced plaintiff under the 

circumstances presented in this case. Here, while plaintiff’s motion seeking leave to 

amend accused defendants of violating section 11167.5 and suggested such acts could 

support a claim for intentional infliction of emotional distress, the proposed amended 

complaint submitted with the motion did not include any of these factual allegations or 

any causes of action in addition to those already alleged in the original complaint. Thus, 

even if plaintiff had been given leave to file her proposed amended complaint, under that 

proposed pleading, defendants’ purported violation of section 11167.5 was still 

immaterial and could not have formed the basis of any successful opposition to summary 

adjudication on any cause of action.

Additionally, even if plaintiff’s proposed amended pleading had included the 

allegations set forth in her motion seeking leave to amend, the denial of leave to amend 

would not have constituted an abuse of discretion. “[I]f the proposed amendment fails to 

state a cause of action, it is proper to deny leave to amend.” (Falcon v. Long Beach 

Genetics, Inc., supra, 224 Cal.App.4th at p. 1280; see Foroudi v. The Aerospace Corp.

(2020) 57 Cal.App.5th 992, 1000-1001 [“ ‘[L]eave to amend should not be granted 

where, in all probability, amendment would be futile.’ ”]; Huff v. Wilkins (2006) 138 

Cal.App.4th 732, 746 [“Leave to amend is properly denied when the facts are undisputed 

and as a substantive matter no liability exists under the plaintiff’s new theory.”].) As we 

explain, even if true, defendants’ purported violation of section 11167.5 could not form 

the basis of a viable cause of action under any theory.
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California law recognizes that communications made in the course of a judicial 

proceeding are privileged. (Civ. Code, § 47, subd. (b).) “The principal purpose of [the 

privilege] is to afford litigants and witnesses . . . the utmost freedom of access to the 

courts without fear of being harassed subsequently by derivative tort actions.” (Silberg v. 

Anderson (1990) 50 Cal.3d 205, 213.) “To effectuate its vital purposes, the litigation 

privilege is held to be absolute in nature” (id. at p. 215), and the California Supreme 

Court has “repeatedly stated that the litigation privilege bars all tort causes of action 

except malicious prosecution” (Jacob B. v. County of Shasta (2007) 40 Cal.4th 948, 960). 

“The privilege ‘applies to any publication required or permitted5 by law in the course of a 

judicial proceeding to achieve the objects of the litigation, even though the publication is 

made outside the courtroom and no function of the court or its officers is involved.’

[Citations.] ‘The usual formulation is that the privilege applies to any communication 

(1) made in judicial or quasi-judicial proceedings; (2) by litigants or other participants 

authorized by law; (3) to achieve the objects of the litigation; and (4) that have some 

connection or logical relation to the action.’ ” (Jacob B., at p. 955.)

Here, defendants and their attorney of record were participants in a judicial 

proceeding. Discussions between defendants and their attorney of record; defense 

5

 The phrases “permitted by law” and “authorized by law,” in this context, refer to 

the general category of communication being made and not the content of the 

communication. (Jacob B. v. County of Shasta, supra, 40 Cal.4th at pp. 958-959.) Thus, 

our Supreme Court has held that, even if the content of a communication is protected by 

statutory confidentiality laws, the litigation privilege will still apply if the communication 

was of a type normally “permitted” or “authorized” in a judicial proceeding. (Ibid. [letter 

by county victim witness program employee to juvenile court disclosing statutorily 

protected information falls within litigation privilege].)
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counsel’s communication with plaintiff requesting dismissal; and the submission of 

declarations in support of a motion were all communications made in the course of that 

judicial proceeding. Finally, plaintiff explicitly alleged that defendants relied on a false 

report of child abuse as a pretext for terminating her employment. Thus, communications 

involving such a report would clearly be relevant to the litigation and, specifically, a valid 

defense to the very claims asserted by plaintiff in the litigation. Thus, this case presents 

all of the elements necessary for the application of the litigation privilege and, even if 

true, plaintiff could not have relied upon her allegations of a wrongful CANRA 

disclosure as a basis for liability under any theory.

The trial court’s denial of leave to amend could not have prejudiced plaintiff 

where the proposed amended complaint did not actually contain any new cause of action 

or new factual allegations different from the original complaint. Further, even if plaintiff 

had included the allegations she now relies upon on appeal, the trial court would not have 

abused its discretion in denying leave to amend because such allegations could not 

support a viable cause of action in the context of this case.

3. Plaintiff’s Reliance on Cuff Is Misplaced

On appeal, plaintiff appears to suggest that the judgment should be reversed 

because Cuff v. Grossmont Union High School Dist. (2013) 221 Cal.App.4th 582 (Cuff) 

stands for the proposition that a civil litigant may enforce a violation of section 11167.5. 

According to plaintiff, the Court of Appeal in Cuff concluded that a cause of action 

existed “solely on the basis of the illegal release of the [CANRA] form.” We disagree.
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In Cuff, a school counselor prepared a mandated CANRA report and provided a 

copy of the report to a noncustodial parent in violation of section 11167.5. (Cuff, supra, 

221 Cal.App.4th at p. 586.) The noncustodial parent then used the report to initiate a 

legal proceeding to seek custody of his children. (Id. at p. 586.) The custodial parent 

filed a civil complaint against the school counselor and school district for invasion of 

privacy, and the trial court granted summary judgment in favor of the defendants based 

upon a defense of statutory immunity. (Id. at p. 587.) The Court of Appeal reversed, 

holding that none of the statutory provisions invoked by defendants afforded immunity 

under the circumstances presented. (Id. at p. 588.) As we explain, Cuff is distinguishable 

on multiple levels.

First, Cuff is procedurally distinguishable because the plaintiff in Cuff actually 

alleged a cause of action for invasion of privacy based upon the defendants’ violation of 

section 11167.5. (Cuff, supra, 221 Cal.App.4th at p. 587.) Thus, the defendants’ 

violation of section 11167.5 was directly material to the cause of action challenged on 

summary judgment. Cuff does not stand for the proposition that a violation of section 

11167.5 requires reversal of a judgment where the act was never alleged as a basis for 

liability in the complaint.

Second, Cuff is legally distinguishable because the decision in that case considered 

whether specific statutes provided an immunity defense to a cause of action premised 

upon a violation of section 11167.5. (Id. at pp. 589-595.) Specifically, the defendants’

asserted claims of immunity were based upon Penal Code section 11172; Education Code 

section 49076; and Government Code 820.2. (Ibid.) The Court of Appeal in Cuff did not 
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examine the sufficiency of the plaintiff’s allegations or evidence in support of the 

plaintiff’s cause of action.

6

 (Id. at pp. 595-597.) “ ‘An opinion is not authority for 

propositions not considered.’ ” (Kinsman v. Unocal Corp. (2005) 37 Cal.4th 659, 680; 

see Santa Clara County Local Transportation Authority v. Guardino (1995) 11 Cal.4th 

220, 243.) Thus, other than its determination that specified statutes do not afford 

immunity, Cuff cannot be read for the proposition that a violation of section 11167.5 will 

always give rise to civil liability or the proposition that other defenses will not apply.

Finally, even if plaintiff had pleaded a cause of action for invasion of privacy 

premised upon a violation of section 11167.5 as alleged in Cuff, the facts of this case 

would lead to a different result. As we have already explained, the facts of this case 

show that plaintiff would be barred by the litigation privilege from asserting liability 

based upon defendants’ alleged disclosure. In contrast, the defendants in Cuff were not 

parties to any pending litigation at the time of the alleged violation of section 11167.5,

were not parties to the family law proceeding initiated in reliance on the CANRA report 

they disclosed, and the school counselor acknowledged that she did not release the report 

for the purpose of supporting any claim in pending litigation. (Cuff, supra,

221 Cal.App.4th at p. 586.) Thus, the elements necessary to support the application of 

the litigation privilege were not present in Cuff, and the facts of this case would dictate a 

different outcome.

6

 Instead, the Court of Appeal affirmed denial of a motion for summary judgment 

brought by the plaintiff on purely procedural grounds, holding that the plaintiff’s motion 

was untimely. (Cuff, supra, 221 Cal.App.4th at pp. 595-597.)
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For the reasons set forth, we disagree with plaintiff’s contention that Cuff requires 

reversal of the judgment. Affirming the grant of summary adjudication in favor of 

defendants in this case, as well as the trial court’s denial of plaintiff’s request for leave to 

amend, does not conflict with any principal set forth in Cuff.

C. The Courts Do Not Have Authority To Order the District Attorney To Conduct a 

Criminal Investigation or Prosecution

We also decline plaintiff’s request to issue an order requiring the district attorney 

to investigate her claims that defendants violated section 11167.5.

7

 Plaintiff claims that 

this court is empowered to issue a “Writ of Mandamus to the District Attorney requesting 

reasons in writing why they are not prosecuting a case that has a duly filed police report, 

an investigation from a sheriff’s detective, and a signed confession.” Plaintiff is 

mistaken. Neither this court nor the trial court has authority to issue such an order.

“ ‘The California Constitution establishes a system of state government in which 

power is divided among three coequal branches . . . ,and further states that those charged 

with the exercise of one power may not exercise any other. (Cal. Const., art. III, § 3).’ 

[Citation.] This division of power ‘ “ ‘ “ ‘limits the authority of one of the three branches 

of government to arrogate to itself the core functions of another branch.’ ” ’ ” ’

[Citation.] Through this limitation, we ‘avoid both the “concentration of power in a 

7

 While we have expressed the opinion that the litigation privilege would have 

precluded civil liability for a violation of section 11167.5 in this case, it would not 

preclude a criminal prosecution for violation of that statute. (Action Apartment Assn., 

Inc. v. City of Santa Monica (2007) 41 Cal.4th 1232, 1245 [“[T]he litigation privilege 

does not bar certain government actions, including criminal prosecutions and regulatory 

actions brought pursuant to state statutes.”].)
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single branch of government,” and the “overreaching” by one branch against the 

others.’ ” (People v. Lamoureux (2019) 42 Cal.App.5th 241, 252.)

In this system, “our state constitution delegates the prosecutorial function to the 

executive branch, which is represented by the district attorney.” (People v. Cortes (1999) 

71 Cal.App.4th 62, 79.) “ ‘[T]he prosecuting authorities, exercising executive functions, 

ordinarily have the sole discretion to determine whom to charge with public offenses and 

what charges to bring.’ ” (Manduley v. Superior Court (2002) 27 Cal.4th 537, 552.) This 

discretion “generally is not subject to judicial supervision.” (People v. Parmar (2001) 

86 Cal.App.4th 781, 793.) As a result, “ ‘[n]o private citizen, however personally 

aggrieved, may institute criminal proceedings independently [citation], and the 

prosecutor’s own discretion is not subject to judicial control at the behest of persons other 

than the accused.’ ” (Gananian v. Wagstaffe (2011) 199 Cal.App.4th 1532, 1545-1546, 

italics omitted.)

Thus, it is the prosecuting authority, exercising its executive functions, that has the 

discretion to decide what crimes to investigate and prosecute. It is beyond the power of 

the courts to order the district attorney to investigate or prosecute any specific crime, and 

any such order would represent an unconstitutional encroachment on the core functions 

of a separate and coequal branch of government. Even if defendants’ actions could be 
17

considered a violation of section 11167.5, it is beyond the power of this court to direct the 

district attorney to investigate or initiate a criminal proceeding of that conduct.

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D. Plaintiff Is Not Entitled to Costs

Finally, we deny plaintiff’s request for an order requiring defendants to bear “the 

entirety of the cost of litigation up to this point.” The award of costs in a civil proceeding 

is governed by statute, and neither this court nor the trial court have the discretion to 

award plaintiff costs in a manner at variance with that required by statute.

“A costs award is generally reviewed on appeal for abuse of discretion. [Citation.] 

‘. . . However, because the right to costs is governed strictly by statute [citation] a court 

has no discretion to award costs not statutorily authorized.’ [Citation.] ‘[W]hen the issue 

to be determined is whether the criteria for an award of costs has been satisfied, and that 

8

 Similar considerations also require us to reject any suggestion that the trial court 

should have done more to prevent defendants’ alleged violation of section 11167.5. The 

Legislature has specifically limited the trial court’s ability to address alleged criminal acts 

in the context of a civil proceeding, expressly providing that “[n]either specific nor 

preventive relief can be granted . . . to enforce a penal law, except in a case of nuisance or 

as otherwise provided by law.” (Civ. Code, § 3369.) This statute is “ ‘the expression of 

the fundamental rule that courts of equity are not concerned with criminal matters and 

they cannot be resorted to for the prevention of criminal acts, except where property 

rights are involved.’ ” (Leider v. Lewis (2017) 2 Cal.5th 1121, 1130.) As a result, even if 

the trial court were of the opinion that defendants’ actions constituted a violation of 

section 11167.5, it had no authority to issue orders for the purpose of enforcing that 

statute. (Id. at p. 1137.) Such an act would have exceeded its jurisdiction in the context 

of plaintiff’s civil proceeding. (People v. National Automobile & Casualty Ins. Co.

(2000) 82 Cal.App.4th 120, 125 [“ ‘Speaking generally, any acts which exceed the 

defined power of a court in any instance, whether that power be defined by constitutional 

provision, express statutory declaration, or rules developed by the courts and followed 

under the doctrine of stare decisis, are in excess of jurisdiction . . . .’ ”].) Thus, to the 

extent plaintiff suggests that the trial court should have done something independently to 

enforce the provisions of section 11167.5, we find no merit in this claim.
18

issue requires statutory construction, it presents a question of law requiring de novo 

review.’ ” (Rozanova v. Uribe (2021) 68 Cal.App.5th 392, 399.)

Code of Civil Procedure section 1032, subdivision (b), provides: “Except as 

otherwise expressly provided by statute, a prevailing party is entitled as a matter of right 

to recover costs in any action or proceeding.” The statute specifically provides that a 

defendant is the prevailing party as against a plaintiff who fails to recover any relief 

against that defendant. (Code Civ. Proc., § 1032, subd. (a)(4); DeSaulles v. Community 

Hospital of Monterey Peninsula (2016) 62 Cal.4th 1140, 1147.) This statute controls in 

the absence of “another statute provid[ing] for different means of allocating costs.” 

(Ibid.)

Here, judgment has been entered in favor of defendants. Further, as we have 

already explained, the claims raised by plaintiff on appeal would not warrant reversal of 

the judgment, even if the factual allegations supporting those claims were deemed true. 

Under the express terms of Code of Civil Procedure section 1032, subdivision (a)(4), 

defendants were the prevailing parties entitled to costs, since they obtained a judgment in 

their favor. Thus, the governing statute provides no authority for this court or the trial 

court to award costs to plaintiff, and we deny plaintiff’s request for such an order.
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IV. DISPOSITION

The judgment is affirmed. Defendants to recover their costs on appeal.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

FIELDS

J.

We concur:

McKINSTER

Acting P. J.

RAPHAEL

J.