Opinion
C080756
12-01-2017
MICHAEL CLARK, Plaintiff and Appellant, v. SCOTT KERNAN, as Secretary, etc., et al., Defendants and Respondents.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 59163)
Michael Clark (Clark), a state prison inmate, sued the Secretary and several employees of the Department of Corrections and Rehabilitation (Department) in Sacramento County. He alleged prison officials impaired his ability to maintain a civil suit (the subject of which he does not explain) by refusing to copy certain documents and by returning to the sender envelopes containing colored paper he alleges was necessary to prosecute his suit.
After the Secretary was dismissed from the action via a successful demurrer, Clark filed an amended complaint. Venue was then transferred to Lassen County, where Clark is incarcerated and where the alleged wrongs occurred. The trial court sustained a new demurrer without leave to amend, on the ground Clark did not state a cause of action against any defendant, and on the alternative ground that Clark did not exhaust available administrative remedies. Clark timely appealed from the ensuing judgment of dismissal.
On appeal, Clark contends: (1) The trial court lacked jurisdiction to rule on the motion to change venue; (2) the first amended complaint stated good causes of action for negligence; and (3) he exhausted administrative remedies.
We find no reversible error respecting the motion to change venue, and find the operative complaint does not state a cause of action. We shall affirm the judgment.
BACKGROUND
Because of the limited nature of the claims raised on appeal, we dispense with a full recitation of the procedural history of this case. What procedural facts are important will be described in the relevant parts of the Discussion, post.
DISCUSSION
I
The Venue Motion
The complaint was filed in Sacramento County. Defendant Foulk, warden of High Desert State Prison, neither answered nor demurred, and defendant took his default. Foulk later sought to join in a demurrer already on file. On January 29, 2015, Foulk moved for relief from default.
On February 25, 2015, defendant filed a first amended complaint. That day the Attorney General moved to change venue, captioning the motion as: "Warden Foulk's Notice of Motion and Motion for Change of Venue."
Clark contends that because Foulk was still in default when he moved to change venue, the trial court miscalculated when the hearing on the venue motion should have been conducted. In Clark's view, this error deprived the trial court of jurisdiction to rule on the motion and compels reversal of the judgment. We disagree.
The notice statute on which Clark relies generally provides "all moving and supporting papers shall be served and filed at least 16 court days before the hearing. . . . However, if the notice is served by mail, the required 16-day period of notice before the hearing shall be increased by five calendar days." (Code Civ. Proc., § 1005, subd. (b).)
Clark filed an opposition to the motion to change venue, mentioning Foulk's default in passing, but he did not argue that the trial court lacked the ability or jurisdiction to rule on the motion because of that default. The hearing was scheduled for March 25, 2015, but was continued to April 2, 2015. By then, Foulk had been granted relief from default.
At the hearing, the trial court (Hight, J.) considered the claim of improper service despite the fact that Clark "did not raise this argument in his opposition papers." The court found Clark had been timely served by mail on February 25, 2015, with a hearing date of March 25, 2015. "[T]he notice . . . was 16 court days plus 6 calendar days in advance of the hearing, which is sufficient under CCP 1005(b). The Court further notes that Plaintiff timely filed an opposition to the motion and appeared at the hearing." (Italics added.) The court granted the motion to change venue.
The record confirms that the motion had been filed on February 25, 2015, and was set for a hearing on March 25, 2015. As the Attorney General argues, that was the requisite notice period of 16 court days plus at least five calendar days. The trial court (Brown, J.) set aside Foulk's default on March 4, 2015, and granted him leave to file the motion to change venue, noting that it had already been filed. The hearing on that motion was later continued to April 2, 2015. That, too, was more than 16 court days and five calendar days from the date the default was set aside, as the Attorney General contends. Therefore, it does not appear any mathematical miscalculations occurred.
The minute order dated March 4, 2015, for relief from entry of default is captioned as a tentative ruling with an indication the hearing would take place on March 12, 2015. However the March 4 minute order concludes by reciting that the trial court "affirmed the tentative ruling." The record does not show what, if any, hearing took place on March 12. In a footnote, Clark faults the trial court clerk for not including proper documents in the record. But his designation of the record did not include a March 12 minute order. Clark reasons in another footnote that because relief from default was not granted until March 12, the April 2, 2015 hearing was too soon. But it was Clark's burden, as the appellant, to prepare an adequate record. (See Mountain Lion Coalition v. Fish & Game Com. (1989) 214 Cal.App.3d 1043, 1051, fn. 9) The record as prepared shows relief from default on March 4. "To the extent the record is incomplete, we construe it against [the appellant]." (Sutter Health Uninsured Pricing Cases (2009) 171 Cal.App.4th 495, 498.) Accordingly, we will not presume the March 12 hearing, if held, was relevant.
Further, we are reviewing a judgment of dismissal following a sustained demurrer. This procedural posture raises two separate hurdles for Clark.
First, "An order granting or denying a motion to transfer venue is reviewable only by petition for writ of mandate." (K.R.L. Partnership v. Superior Court (2004) 120 Cal.App.4th 490, 496, fn. 6; see Calhoun v. Vallejo City Unified School Dist. (1993) 20 Cal.App.4th 39, 41-42 [declining to review venue ruling on appeal from the judgment]; Code Civ. Proc., § 400.) This is not a petition for writ of mandate, and Clark's notice of appeal did not state he was seeking review of the order granting the venue motion.
Clark claims the flaws he perceives are "jurisdictional" and therefore reviewable on appeal from the judgment. The Attorney General does not acknowledge the issue at all. But Clark has not provided authority showing such errors deprived the trial court of jurisdiction in the "fundamental sense" of an "absence of power." (Abelleira v. District Court of Appeal (1941) 17 Cal.2d 280, 288; see 2 Witkin, Cal. Procedure (5th ed. 2008) Jurisdiction, §§ 1, 11, pp. 575-576, 584.) "There are many time provisions, e.g., in procedural rules, that are not directory but mandatory; these are binding, and parties must comply with them to avoid a default or other penalty. But failure to comply does not render the proceeding void, and usually the court has the power to relieve a delinquent party from his or her default." (2 Witkin, supra, at § 4, p. 578.) Breach of time limits will not ordinarily divest a court of jurisdiction to act. (See id., § 290, pp. 898-899; Van Gaalen v. Superior Court (1978) 80 Cal.App.3d 371, 379 [trial court had jurisdiction to hear motion to change venue despite late affidavit].)
Second, Clark has not shown a miscarriage of justice. We are enjoined by our constitution not to reverse any judgment "for any error as to any matter of procedure, unless, after an examination of the entire cause, including the evidence, the court shall be of the opinion that the error complained of has resulted in a miscarriage of justice." (Cal. Const., art. VI, § 13; see also Code Civ. Proc., § 475.)
"The principal purpose of the requirement to file and serve a notice of motion a specified number of days before the hearing (§ 1005, subd. (b)) is to provide the opposing party adequate time to prepare an opposition. That purpose is served if the party appears at the hearing, opposes the motion on the merits, and was not prejudiced in preparing an opposition by the untimely notice." (Arambula v. Union Carbide Corp. (2005) 128 Cal.App.4th 333, 343, italics added; see In re Marriage of Obrecht (2016) 245 Cal.App.4th 1, 13; Reedy v. Bussell (2007) 148 Cal.App.4th 1272, 1289.) Prejudice is not presumed, and "our duty to examine the entire cause arises when and only when the appellant has fulfilled his duty to tender a proper prejudice argument." (Paterno v. State of California (1999) 74 Cal.App.4th 68, 106.)
Clark filed an opposition challenging the merits of the venue motion, appeared at the hearing, and was provided an opportunity to be heard, satisfying the purpose of the notice statute. Further, as we explain in Part II, post, whether or not his complaint stated a claim is a legal matter we review de novo; therefore, any impropriety in the identity of the court hearing the demurrer has no effect on our review of the adjudication thereof. In short, Clark has not explained how he was prejudiced by any alleged errors regarding the timing of the motion and the fact Foulk was in default, therefore his contention of reversible error fails. (See Waller v. TJD, Inc. (1992) 12 Cal.App.4th 830, 833; Santina v. General Petroleum Corp. (1940) 41 Cal.App.2d 74, 77.)
II
Adequacy of the Operative Complaint
On appeal, Clark contends the first amended complaint alleges good claims for "negligence per se" because defendants allegedly breached certain administrative regulations. He relies in part on the general legal rules set forth Civil Code sections 1708 and 1714, subdivision (a)
Civil Code section 1708 provides: "Every person is bound, without contract, to abstain from injuring the person or property of another, or infringing upon any of his or her rights." Civil Code section 1714, subdivision (a) provides in relevant part: "Everyone is responsible, not only for the result of his or her willful acts, but also for an injury occasioned to another by his or her want of ordinary care or skill in the management of his or her property or person, except so far as the latter has, willfully or by want of ordinary care, brought the injury upon himself or herself."
On demurrer "[w]e accept the well-pleaded facts alleged in the complaint and matters judicially noticeable, but not rhetoric or conclusions of law. We consider de novo whether the complaint states a viable claim for relief." (People ex rel Brown v. Powerex (2007) 153 Cal.App.4th 93, 97.)
The operative complaint captions two claims of negligence.
The first claim alleges that in February 2014, named defendants, acting as agents of defendants Foulk and then-Secretary Beard, refused to copy Clark's government tort claim and supporting documents so that he could file them to support an undescribed civil action for monetary damages against public employees. Other defendants ratified these actions, depriving Clark of access to the legal system. The second claim alleges named defendants breached a duty to allow Clark "to receive in first class mail 'Legal paper, to include colored paper required by court rules (no cotton paper)' under" an administrative regulation. Two envelopes mailed to Clark containing colored paper were returned to the sender, and this action was upheld or ratified by other defendants, impairing his access to the legal system.
Both of these claims are tethered to specific prison regulations cited by Clark, contained in title 15 of the California Code of Regulations (Regs.). We conclude the refusal of colored paper does not violate any prison regulation. Although the refusal to duplicate claim might, Clark cannot predicate a negligence suit for damages on such violation. Further, because he has not argued on appeal that he is entitled to injunctive or declaratory relief, he has abandoned those possible remedies in this case.
A. Colored Paper
One regulation provides that among the things an inmate may receive in the mail are packages containing "[l]egal paper, to include colored paper required by court rules (no cotton paper)." (Regs., § 3134(a)(8), italics added.) Clark alleges prison officials rejected two packages of colored paper mailed to him, and he claims he needs this paper to comply with court rules. However, the two court rules he relied on in his amended complaint (though not in his appellate brief) do not support this claim.
The first, California Rules of Court, rule 2.108, applicable to trial courts, speaks of lined paper and the use of line numbering; it says nothing about colored paper.
The second, California Rules of Court, rule 8.40(b) (rule 8.40(b)), applicable to appellate courts, provides that certain appellate court documents should be bound in certain colors. But it is not an iron-clad rule. It begins: "As far as practicable" (rule 8.40(b)(1)) certain colors shall be used for certain documents. Further, rule 8.40(b)(3) provides that a non-conforming document "must be accepted for filing." Clark has not alleged that any document he has ever filed in any appellate court has been rejected for the lack of colored bindings. Indeed, this court filed his opening brief in this case although it did not have a green cover. (Cf. rule 8.40(b)(1).) This reflects the understanding by the courts that prisoners lack access to some stationery supplies.
Accordingly, although Clark alleges a need for colored paper, that is a legal conclusion, not a factual allegation. We reject his legal conclusion, and find the court rules relied on by Clark negate his pleaded claim in this regard. Thus, he has not stated a viable claim for breach of prison regulations regarding receipt of colored paper. .
The prison rejected Clark's first-level appeal because colored paper "is not mandatory for processing legal papers by an inmate, and it is disallowed at" the prison. Clark does not provide any argument or authority to refute this rationale.
B. Copying Government Claims
Clark alleges the prison improperly refuses to copy documents he needs in order to file a civil suit. He seeks money damages based on negligence per se principles. Regardless of any merit in his claim of improper refusal, his argument for damages lacks merit.
Under Penal Code section 2600, subdivision (a), a prisoner may be denied only those rights "reasonably related to legitimate penological interests." Under Penal Code section 2601, subdivision (d), prisoners have the right "[t]o initiate civil actions" upon payment of a modest fee. Clark correctly points out that he must file a government claim before suing a public entity. (See Gov. Code, §§ 911.2, 945.4; 3 Witkin, Cal. Procedure, supra, Actions, § 231, p. 309 [government liability "subject to a procedural condition precedent, i.e., the timely filing of a written claim in proper form with the proper officer or body"].) The Attorney General's request for judicial notice granted by the trial court contains the relevant government claim form, which requires that an original and two copies of the claim form must be filed.
A general regulation provides in part: "Inmate access to the courts shall not be obstructed." (Regs., § 3160, subd. (a).) One implementing regulation provides:
"Legal duplication services may be provided to inmates for the purposes of initiating or maintaining a court action. The printed forms required by state and federal courts shall be made available to inmates. An inmate shall be required to pay for the duplication of printed forms and other written or typed materials, and for any special paper and envelopes required for mailing to the courts so long as the inmate has more than $1.00 in his or her trust account or the inmate has
attorney representation for the court action. An inmate who is indigent and is without attorney representation for the court action may receive legal duplicating services without charge subject to subsection (d)." (Regs., § 3162, subd. (b).)
Another regulation provides: "Subject to the length requirements of subsection 3123(c), an indigent inmate who does not have attorney representation may receive duplication services without charge for the following legal documents" and the following list includes: "Documents in support of a civil action, as authorized by the court or as required by statute or court rule." (Regs., § 3162, subd. (d) & (d)(5), italics added.)
The refusal to copy legal documents does not necessarily deprive a prisoner of access to the courts, but it may do so in a given case. (See Hiser v. Franklin (9th Cir. 1996) 94 F.3d 1287, 1294, fn. 6 ["An inmate has a right to photocopying . . . when, and only when, necessary to guarantee him meaningful access to the courts"]; Allen v. Sakai (9th Cir. 1994) 48 F.3d 1082, 1089 ["it does not require sophisticated 'legal scholarship' to know that a plaintiff's access to the courts could be hindered seriously by an inability to make multiple, accurate copies of legal documents"].)
If indeed Clark must file a government claim with two copies before he can file a lawsuit, an assertion not disputed by the Attorney General, such documents might be properly construed as documents "in support of a civil action," (Regs., § 3162, subd. (d)(5)) entitling Clark to reasonable copying services. But we need not resolve that issue today, because in this appeal Clark seeks only money damages based on negligence for the alleged violations of the regulations. As the Attorney General points out, "Prison regulations . . . are primarily designed to guide prison officials in the administration of the prison and are not designed to confer basic rights upon the inmates." (In re Johnson (2009) 176 Cal.App.4th 290, 297.) "Only the Legislature, through enactment of a statute, can create a private right of action to directly enforce an administrative regulation." (Thurman v. Bayshore Transit Management, Inc. (2012) 203 Cal.App.4th 1112, 1132.)
We are aware that the Department's operations manual lists the types of legal documents that can be copied and does not list government tort claims. (Dept. of Corrections and Rehabilitation, Operations Manual (2017 rev.) ch. 1, art. 18, § 14010.21.2, p. 49.) This provision was cited to deny all three levels of Clark's administrative appeals. We express no view about this provision, which was not briefed on appeal.
Clark mentions in passing that the amended complaint also sought declaratory and injunctive relief, but because he has not briefed those theories on appeal we deem them to be abandoned. (See Meddock v. County of Yolo (2013) 220 Cal.App.4th 170, 175, fn. 2.)
We agree with the Attorney General that violation of title 15 of the California Code of Regulations does not without more trigger civil monetary liability: " 'The existence of regulations such as these governing the conduct of prison employees does not necessarily entitle Plaintiff to sue civilly to enforce the regulations or to sue for damages based on the violation of the regulations.' [Citation.] 'There is no implied private right of action under title fifteen of the California Code of Regulations.' " (Davis v. Powell (S.D.Cal. 2011) 901 F.Supp.2d 1196, 1211; see Chappell v. Perez (E.D. Cal. 2001) 2011 WL 2296816, p. *2; Treglia v. Cate (N.D. Cal. 2010) 2010 WL 3398542, p. *2.) And because Clark has neither explained what the proposed lawsuit is about, nor pleaded that he has now lost the ability to pursue it, he has not pleaded any actual injury from the purported improper denial of access to the courts. (See 5 Witkin, supra, Cal. Procedure, Pleading § 933, p. 348 ["Every complaint (except one for declaratory relief alone) must of course allege an injury resulting from the defendant's wrong"]; see also Lewis v. Casey (1996) 518 U.S. 343, 348-355 [135 L.Ed.2d 606, 616-620] [inmates must show actual harm from alleged impaired access to courts].)
The limitations on citing unpublished California cases (Cal. Rules of Court, rule 8.1115) do not apply to unpublished federal cases, and although we are not bound by lower federal court decisions, we may cite them for persuasive value. (See, e.g., Elkman v. National States Ins. Co. (2009) 173 Cal.App.4th 1305, 1319; fn. 6; City of Hawthorne ex rel. Wohlner v. H&C Disposal Co. (2003) 109 Cal.App.4th 1668, 1678, fn. 5.)
Clark has provided no authority to the contrary, and has thus failed in his duty to provide coherent legal analysis supporting his claims of error. (See In re Marriage of Nichols (1994) 27 Cal.App.4th 661, 672, 673, fn. 3.)
We are aware that in some contexts, violation of safety regulations can provide the basis for a tort suit. (See generally, 6 Witkin, Sum. of Cal. Law (10th ed. 2005) Torts, §§ 875-876, pp. 105-108.) But in those cases, the Legislature has vested an agency with the power to develop safety rules within that agency's area of expertise. Clark has not demonstrated that the Legislature has vested the prison authorities with the power to adopt regulations exposing prison officials to civil liability. (Cf. California Service Station etc. Assn. v. American Home Assurance Co. (1998) 62 Cal.App.4th 1166, 1175 ["the courts and the Legislature may create a negligence duty of care, but an administrative agency cannot independently impose a duty of care if that authority has not been properly delegated to the agency by the Legislature"].)
We reject Clark's view that he can use the generic duty of care principles in the Civil Code to enforce specific administrative rules. Those statutes (see fn. 2, ante) reflect general common-law principles. Clark has not provided any authority or analysis demonstrating that these statutes provide for money damages for violation of administrative regulations, as was his duty as the appellant.
Because the complaint does not state a good cause of action, we need not address the issue of administrative exhaustion. (See Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 967.) We deny Clark's request for judicial notice of a report he alleges advances his claim of problems processing inmate grievances. However, we note that as to the copying claim, Clark went through the final "third-level" review, denied on the merits on legal grounds defended herein by the Attorney General. Thus, if there were any technical problem with exhaustion, any further administrative efforts would be futile. (See In re Locks (2000) 79 Cal.App.4th 890, 893-894 [any failure to exhaust unimportant because Attorney General disputed the legal point, rendering any further administrative proceedings futile], questioned on other grounds by In re Qawi (2004) 32 Cal.4th 1, 26-27 and disapproved on other grounds by In re Greenshields (2014) 227 Cal.App.4th 1284, 1287; 3 Witkin, Cal. Procedure, supra, Actions, § 340, p. 445.) To the extent there may be other issues lurking in Clark's brief, they are "overtaken or outflanked by resolution of the matters which we do discuss or do not warrant discussion because they are too fragmentary or obscure." (Claypool v. Wilson (1992) 4 Cal.App.4th 646, 659.)
DISPOSITION
The judgment is affirmed. Plaintiff shall pay defendants' costs of this appeal. (See Cal. Rules of Court, rule 8.278 (a)(2).)
/s/_________
Duarte, J. We concur: /s/_________
Mauro, Acting P. J. /s/_________
Murray, J.