Opinion
A144080
08-07-2017
AARON PATRICK MARTIN, Plaintiff and Appellant, v. THE PEOPLE et al., Defendants and Respondents.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Solano County Super. Ct. No. FCS042959)
Aaron Patrick Martin, appearing in propria persona, appeals from the superior court's judgment denying his petition for a writ of mandate. Martin sought a writ that would have ordered respondents, who are prison officials, to either return certain personal property supposedly taken from him improperly in the course of his transfer to the California Medical Facility (CMF) and then to the High Desert State Prison (HDSP), or pay compensation for the value of this property. Martin contends this missing property includes legal papers, photographs, clothing, music items, hobby materials and other sundry items, which he has valued in total at $29,956.07. The superior court denied Martin's petition, concluding that he already had an adequate remedy at law, a civil action for conversion, and that he did not prove he lost all of his belongings or that respondents acted improperly. On appeal, Martin makes a hodgepodge of arguments, none of which establish any error. Therefore, we affirm the judgment.
BACKGROUND
I.
Martin's Claims to Prison Authorities
On January 1, 2012 Martin filed an inmate appeal about numerous items of his personal property that he claimed were not returned to him upon his transfers in December 2011 to the CMF and then to the HDSP. He wrote that he was transferred to the HDSP "without most of my property. Prior to that . . . on 12-2-11 my property was packed by . . . Galvan. A 1083 [form] was brought to me to sign, but I refused because I was informed by inmates . . . that my bunkie inmate . . . kept my J-Win radio/CD/cassette player along with my extension cord [and] CDs." Martin also asserted that he requested, but was denied, a copy of the 1083 form. He acknowledged that he received some of his property at the HDSP on December 9, 2011, with an attached 1083 form, "[b]ut my legal work was mixed up in 4 boxes when it fits in 2." He asserted that he was missing numerous items, such as a television, radio, fan, lamp, CDs, clothes, food and photographs. He attached a two-page list of these items to his appeal, which items he estimated were worth $30,377, including what he indicated as an unknown number of pages of legal work, which he valued at $25,000, and 30 family photographs.
A correctional sergeant interviewed Martin about his appeal and on March 19, 2012, Associate Warden M. Voong issued a written decision. Voong partially granted Martin's appeal after reviewing Martin's inmate property card and receipts. Voong stated: "[Y]ou will only receive the items that were listed and or inventoried that belong to you. . . . You will be receiving deodorant, nail clippers, handkerchief, T-shirts (3), photos, 10 CD's, a brush, oil, shower shoes, a Norelco trimmer, a pair of Nike shoes, a Brother Typewriter, thermal pants and shirts, coco butter, shampoo. Upon an inmate's transfer between institutions of the department, the sending institution shall inventory the inmate's property and pursuant to [California Code of Regulations, title 15,] section 3191 ensure the proper disposition of property not allowed at the receiving institution as a result of privilege group, and/or security level, and/or institution mission changes."
On April 4, 2012, Martin filed for a second level appeal review of his matter. He contended that a 1083 form (it is unclear which of two he was referring to) was prepared after he was transferred and asked, "how could this be?" According to Martin, Correctional Officer Galvan had allowed his "bunkie" to pack his property, leading to his bunkie stealing "many things," and neither Galvan or a second correctional officer, Whitten, who prepared another 1083 form of Martin's property after his transfer from the CMF to the HDSP, were present for "the interview," presumably the one conducted with Martin about his appeal, although Martin had requested they be so.
On May 16, 2012, the CMF Warden issued a written decision partially granting Martin's second level appeal. The decision states that a lieutenant interviewed Correctional Officer Galvan, who "reported that he inventoried all of the property that was in/on [Martin's] locker and immediate bed area on December 2, 2011," and that Galvan authored a CDC 1083 form dated December 2, 2011. Further, the lieutenant and Officer Whitten searched through two boxes of property not yet sent to the HDSP for Martin and compared this property to Martin's inmate property card. Based on this review, CMF was going to send to Martin at the HDSP a "KTV, typewriter, extension cord, radio shack AM/FM CD clock radio, adapter, stereo jack, headphone cables, harmonica, t-shirt, nail clippers, mirror, [and] two (2) pair of glasses religious books." However, the CMF would not return certain items not listed on Martin's property card, they being two bathrobes, a language translator, a lamp, Sony headphones, a brush, and a spell corrector.
The second level appeal decision also quotes two regulations. First, " '[i]n permitting inmates to possess items of personal property while they are incarcerated, the department does not accept liability for the theft, loss, damage, or destruction of such property resulting from the intentional or careless act or activities of any inmate' " (Cal. Code Regs., tit. 15, § 3193, subd. (a)); second, " '[t]he Department shall accept liability for the loss or destruction of inmate personal property when it is established that such loss or destruction results from employee action.' " (Id., subd. (b).)
On June 12, 2012, Martin filed for a third level appeal review. He stated that some of his property had been returned to him, but his television was poorly packed and both it and his radio were broken. He asserted that Officer Whitten should have verified they worked when he inventoried Martin's property. Also, Martin stated, he was missing numerous items, including legal documents, music items, clothes, hobby materials and sundries, and a typewriter and shoes that the second level review decision stated were returned to him. He contended he could possess certain property items that were unlisted on his inmate property card because they "were given to me via granted 602's [inmate appeals]," asserted that Officer Galvan was not asked if he allowed an inmate to pack Martin's property, leading to the theft of some of it, and stated he could provide "several witnesses" to show Galvan did so.
On August 24, 2012, J. Lozano, Chief of the California Department of Corrections and Rehabilitation (CDCR) Office of Appeals, issued a third level decision denying Martin's appeal, stating: "[Martin] was appropriately informed that all of his allowable verified property items at the time of his transfer were appropriately sent to him at the HDSP. . . . [T]here is no evidence to support [Martin] was in possession of any other of the alleged claimed property items at the time of his transfer and that [Martin] did in fact receive the CDC 1083s regarding his property. . . . As there is no evidence to support [Martin's contention that] property was lost, stolen or improperly destroyed by the institution staff, the [Third Level of Review] finds no cause to intervene."
II.
Martin's Claim to the Claims Board
In October 2012, the Victims Compensation Government Claims Board (Claims Board) received a claim from Martin for $30,377.15 in compensation for personal property to which he was entitled, but had not received. The Claims Board wrote to Martin that his claim was incomplete and untimely. Martin responded that he could not file his claim earlier because he understood he had to first exhaust his administrative remedies with prison authorities. On January 25, 2013, the Claims Board informed Martin that its staff recommended denial of the claim as untimely and that it would adopt this recommendation on February 21, 2013.
III.
Martin's Petitions in Superior Court
In March 2013, Martin, appearing in propria persona, filed a petition for writ of habeas corpus and/or writ of mandate in the Solano County Superior Court regarding his personal property. In May 2013, the court denied the petition for writ of habeas corpus, construed the petition as seeking a writ of mandate and issued an order to show cause. However, on July 18, 2013, the court ruled that it had acted erroneously because Martin had not complied with the procedural rules for summons outlined in Code of Civil Procedure sections 410.50 and 412.10 et seq., and denied the petition without prejudice.
On January 28, 2014, Martin filed a new petition for writs of prohibition and mandate against Vimal Singh, the warden of the CMF, and Officers Galvan and Whitten. Martin sought reversal of the denial of his inmate appeals for the recovery of his personal property, contending that prison authorities allowed another inmate to steal his property and improperly withheld property in the course of his transfers to the CMF and the HDSP in December 2011.
Respondents to this appeal do not clearly identify themselves. Presumably, they are the respondents below, or their successors.
Specifically, Martin alleged that on December 1, 2011, he was admitted to the hospital because he was suffering from a bad diabetic reaction. At that time, Officer Galvan "allowed another inmate to pack petitioner's property in violation of policy, which was done unsupervised and allowed the inmate time to steal property." On December 6, 2011, Martin was transferred to the HDSP. At the CMF the next day, Officer Whitten repacked Martin's personal property and purportedly fabricated a property receipt that left off many items that Galvan had logged "after the inmate theft." As a result, only some clothing items and some legal work were sent to the HDSP.
Martin further contended his petition was necessary because he did not have a plain, speedy and adequate remedy in the ordinary course of law and there was "no other adequate procedure to require respondents to use discretion governed by legal rules to do justice according to the mandate of law and the constitution, or to otherwise entitle petitioner to enjoy the benefits sought through this petition." Also, he had exhausted all of his administrative remedies, including appealing respondents' decisions and filing a claim with the Claims Board.
Martin sought a peremptory writ of prohibition restraining respondents from taking any further steps about his property, such as destroying it, and a writ of mandate directing respondents to locate and return his missing property immediately or pay him $29,956.07, its purported value. He contended that respondents "effectively acted as a bailee of [his] personal property, making a petition[] for writ of mandamus the most appropriate remedy."
Martin also filed a request for relief from the provisions of Government Code section 945.4, which prohibits a suit for money or damages against a public entity on certain causes of action until a written claim has been presented to the public entity and has been acted upon. On March 27, 2014, the superior court denied this request for relief on the ground that it was untimely and that Martin had not shown that he timely filed a claim with the Claims Board.
In April 2014, respondents filed an answer to Martin's petition. They contended that Martin did not show he lacked an adequate remedy at law or that prison staff were responsible for his alleged loss of personal property. Respondents denied Martin had provided evidence that they or any CDCR employee caused loss or damage to his personal property, allowed any of his personal property to be stolen, or fabricated any information on his inmate property inventory lists or his inmate property card. They also denied that Martin had provided any evidence that respondents or any CDCR employee had improperly withheld any of his personal property, or that Martin had a right to monetary compensation. They contended Martin had other adequate remedies besides a writ of mandate because he could have filed a request for relief with the Claims Board and, thereafter, a civil claim for compensation.
In July 2014, the superior court, after holding a hearing, ordered Martin's petition denied on two grounds. First, it found that Martin had an adequate remedy at law via a civil action for conversion, citing Flores v. Department of Corrections and Rehabilitation (2014) 224 Cal.App.4th 199 (Flores), and that he did not make a sufficient showing of an excuse for his failure to timely pursue his legal remedy, presumably a reference to his untimely filing of a claim with the Claims Board, citing Andrews v. Police Court of Stockton (1943) 21 Cal.2d 479, 480 [the loss of an adequate remedy due to neglect without sufficient excuse does not require granting a petition for a writ of mandate].) Second, the court found that Martin did not show he actually had possessed all of the property that he claimed was missing or that respondents were responsible for any loss or destruction of property. The court subsequently filed a judgment in favor of respondents. Martin filed a timely notice of appeal.
Martin filed his notice of appeal on January 22, 2015, over five months after the court's entry of judgment on August 12, 2014. His notice was timely because it was filed within 180 days of the filing of the judgment (Cal. Rules of Court, rule 8.104(a)(1)(C)), as the record does not contain a proof of service showing service of entry of this final judgment or of the final judgment itself (the relevant proof of service refers only to a "Proposed Judgment"). The People do not contend otherwise.
DISCUSSION
Martin appeals from the superior court's judgment. He does not establish that the superior court erred in denying his petition.
I.
Standard of Review
" ' "In reviewing a trial court's judgment on a petition for a writ of ordinary mandate [brought under Code Civ. Proc., § 1085], we apply the substantial evidence test to the trial court's factual findings. However, we exercise our independent judgment on legal issues . . . ." ' " (City and County of San Francisco v. Regents of University of California (2017) 11 Cal.App.5th 1107, 1111.)
"The judgment appealed from is presumed correct. [Citation.] The appellant must challenge it by 'rais[ing] claims of reversible error or other defect [citation], and "present[ing] argument and authority on each point made." ' [Citation.] 'This means that an appellant must do more than assert error and leave it to the appellate court to search the record and the law books to test his claim.' [Citation.] 'It is not our place to construct theories or arguments to undermine the judgment and defeat the presumption of correctness.' " (Flores, supra, 224 Cal.App.4th at p. 204.) " 'Failure of an appellant in a civil action to articulate any pertinent or intelligible legal argument in an opening brief may, in the discretion of the court, be deemed an abandonment of the appeal justifying dismissal." (Id. at p. 205.) A party appearing in propria persona "is to be treated like any other party and is entitled to the same, but no greater consideration than other litigants and attorneys." (Barton v. New United Motor Manufacturing, Inc. (1996) 43 Cal.App.4th 1200, 1210.)
II.
Relevant Law
A petition for a writ of mandate brought under Code of Civil Procedure section 1085 "may be issued against a public body or public officer 'to compel the performance of an act which the law specially enjoins, as a duty resulting from an office, trust, or station' in cases 'where there is not a plain, speedy, and adequate remedy, in the ordinary course of law.' [Citations.] 'Two basic requirements are essential to the issuance of the writ: (1) A clear, present and usually ministerial duty upon the part of the respondent [citations]; and (2) a clear, present and beneficial right in the petitioner to the performance of that duty [citation].' [Citation.] 'A "ministerial duty" is one generally imposed upon a person in public office who, by virtue of that position, is obligated "to perform in a prescribed manner required by law when a given state of facts exists." ' " (Flores, supra, 224 Cal.App.4th at p. 205.)
" 'Section 1086 of the Code of Civil Procedure provides that the writ of mandate "must be issued in all cases where there is not a plain, speedy, and adequate remedy, in the ordinary course of law." Although the statute does not expressly forbid the issuance of the writ if another adequate remedy exists, it has long been established as a general rule that the writ will not be issued if another such remedy was available to the petitioner. [Citations.] The burden, of course, is on the petitioner to show that he did not have such a remedy.' [Citation.]
" ' " 'The question whether there is a "plain, speedy and adequate remedy in the ordinary course of law," within the meaning of the statute, is one of fact, depending upon the circumstances of each particular case, and the determination of it is a matter largely within the sound discretion of the court . . . [.]' " [Citation.]' [Citation.] If it is clear, however, that mandate is the only remedy that can furnish the relief to which the petitioner is entitled, the discretion disappears and the petitioner is entitled to the writ." (Flores, supra, 224 Cal.App.4th at pp. 205-206.)
III.
The Superior Court Did Not Abuse Its Discretion in Finding Martin Had an Adequate
Remedy at Law.
The superior court's first reason for rejecting Martin's petition was its factual finding that Martin had an adequate remedy at law, a civil action for conversion, based on Flores. Martin gives us no reason to conclude the court abused its discretion in making this finding.
In Flores, a prison inmate petitioned for a writ of mandate, contending he was entitled to the return of a television that prison authorities confiscated as contraband during a routine search of his cell. (Flores, supra, 224 Cal.App.4th at pp. 202-203.) Although Flores had documentation showing he received a television earlier in the year, prison authorities concluded the one in his cell was a "floater," and that it did not have identifying information showing it was the television referred to in Flores's documentation. (Id. at p. 203.) Flores filed an inmate appeal, a government claim, and then a petition for a writ of mandate seeking replacement of the television or compensation for its loss. (Ibid.) The superior court sustained the defendants' demurrer to Flores's petition, which the defendants brought on the grounds that Flores had an adequate remedy by way of a civil action and did not demonstrate defendants had a clear, present and ministerial duty to return the confiscated contraband to him. (Ibid.)
The appellate court affirmed the superior court's ruling on multiple grounds, including that Flores failed to show he did not have adequate remedy at law. The appellate court noted that "[a] civil action for conversion lies where a person has been wrongfully dispossessed of his or her personal property. (Farmers Ins. Exchange v. Zerin (1997) 53 Cal.App.4th 445, 451-452.) Available remedies for conversion include specific recovery of property with damages for its detention and damages based on the value of the property. (Civ. Code, §§ 3336, 3379; Allstate Leasing Corp. v. Smith (1965) 238 Cal.App.2d 128, 132-133.)" (Flores, supra, 224 Cal.App.4th at p. 206.) The appellate court affirmed the superior court's ruling because Flores had "not shown that the remedies by way of an action for conversion were unavailable to him or inadequate." (Ibid.)
As another appellate court noted, "when another has wrongfully exercised dominion over an owner's property, the owner's 'remedies include specific recovery of the property, or its present value, plus damages for the period of its detention (Civ. Code, § 3379; Code Civ. Proc., §§ 509, 627, 667); or damages for the value of the property at the time of conversion plus interest and the expense of pursuing the property. (Civ. Code, § 3336.)' [¶] A party entitled to specific recovery of the property is entitled to an alternative judgment under Code of Civil Procedure section 667. The unsuccessful party must deliver the property if possible and has no option to pay for it and keep it. [Citations.] Under such an alternative judgment, a party recovers either the property or its value, but not both." (National Diversified Servs., Inc. v. Bernstein (1985) 168 Cal.App.3d 410, 418-419.)
We reach this same conclusion here. Martin has not shown on appeal that the superior court abused its discretion when it concluded he had an adequate remedy at law via a civil action for conversion, nor has Martin effectively distinguished Flores from his case. He primarily relies on a case decided before Flores, Escamilla v. Department of Corrections & Rehabilitation (2006) 141 Cal.App.4th 498 (Escamilla) in his effort to do so. There, the appellate court held that a petition for a writ of habeas corpus should be treated as a petition for a writ of mandate because the latter was an appropriate vehicle for an inmate to compel the return of personal property wrongfully withheld by prison officials in violation of their statutory duty. (Id. at pp. 509-510.) Martin's reliance on Escamilla is misplaced because, as the Flores court pointed out, "Escamilla did not discuss the issue of an adequate remedy at law. ' "An opinion is not authority for a point not raised, considered, or resolved therein." ' " (Flores, supra, 224 Cal.App.4th at p. 208.) For the same reason, Escamilla's determination that a writ petition was an appropriate vehicle is inapposite here.
Indeed, Escamilla, if anything, provides further support for the superior court's conclusion that Martin had a plain, speedy and adequate remedy in a civil action for conversion. The Escamilla court also concluded that Escamilla, as an inmate seeking recovery of his personal property, or compensation for that property, from prison authorities under a bailee theory did not need to first pursue a claim with the Claims Board to obtain petition relief. As recounted in Flores, the Escamilla court "concluded a claim for the return of specific property held by a public entity as the bailee did not require presentation of a government claim prior to seeking judicial relief by way of mandate, because it was not a claim for money or damages to which the claim filing requirement applied. The court quoted Minsky v. City of Los Angeles (1974) 11 Cal.3d 113, which states, ' "[T]he government in effect occupies the position of a bailee when it seizes from an arrestee property that is not shown to be contraband. [Citation.] The arrestee retains his right to eventual specific recovery, whether he seeks to regain tangible property like an automobile, ring, wallet or camera, or whether he seeks to recover a specific sum of money which, under general constructive trust principles, is traceable to property within the possession of the defendant. [Citations.]" [Citation.]' (Escamilla, supra, 141 Cal.App.4th at p. 506, italics added.)" (Flores, supra, 224 Cal.App.4th at p. 207.)
Here, Martin also argues prison officials should return his personal property, or pay him compensation for the value of this property, under a bailee theory. Escamilla indicates he was not required to file a claim with the Claims Board before pursuing a civil conversion action under this theory. Therefore, whether or not Martin's claim to the Claims Board was rejected as untimely, he could have pursued such a conversion action, further indicating that it was an adequate remedy at law for the relief he sought.
In short, Martin gives us no good reason to conclude that the superior court abused its discretion when it concluded he had an adequate remedy at law, a civil action for conversion. This alone is sufficient reason for us to affirm the court's judgment.
The parties have not addressed, and the superior court did not rule on, whether Martin in effect sought to require respondents to perform a ministerial or a discretionary duty. Therefore, we do not address this issue further, other than to note that Martin in his petition contended his petition was appropriate to "require respondents to use discretion governed by legal rules to do justice according to the mandate of law and the constitution." This would appear to be an inappropriate use of the writ of mandate process because "[a] writ is not to be used to control the exercise of discretion, but to ensure that ministerial duties have been fulfilled." (California High-Speed Rail Authority v. Superior Court (2014) 228 Cal.App.4th 676, 707.)
IV.
The Superior Court Did Not Abuse Its Discretion in Finding Martin Did Not Prove He
Actually Had All of the Personal Property He Claimed Was Missing or That
Respondents Were Responsible for Any Loss or Destruction of His Property.
Martin also gives us no reason to reverse the superior court's finding that he did not prove he actually had all of the personal property he claimed was missing or that respondents were responsible for any loss or destruction of his property.
As is stated in a case cited by the superior court in its order denying Martin's petition, "a petition of writ of mandate is " 'like any other complaint in a civil action in that allegations not admitted to be true [cannot] be accepted as true.' " (Cal. Standardbred Sires Stakes Com. v. Cal. Horse Racing Bd. (1991) 231 Cal.App.3d 751, 762.) " 'Statement of facts therein alleged controverted by answer must be established by evidentiary proof.' " (Ibid.)
Martin relies on numerous unsupported contentions, including those he either made in his petition or stated without providing an evidentiary basis. He contended below without providing any proof that he had witnesses who saw Officer Galvan violate prison policy by allowing another inmate to pack Martin's personal property and stated that some of his personal property did not need to be registered on his inmate property card. He cites the superior court's initial decision to issue an order to show cause as some kind of validation of his case, when that order was not dispositive of any matters. He argues that the lists prepared by Officers Galvan and Whitten did not indicate any of his property was contraband, without establishing this had any significance. He contended below that legal papers were not returned to him, but indicated that legal papers were returned to him and did not state anything more than that an unknown number of pages were missing. Indeed, Martin, perhaps aware of the lack of evidence he submitted below, asserts on appeal that "the burden is on the respondents to prove that they followed their procedures" regarding his property. This is not the case.
Further, Martin ignores that respondents in their answer denied that they were responsible in any way for the loss or destruction of any personal property to which Martin was entitled. Their answer and supporting papers deny any wrongdoing and state that Officers Galvan and Whitten inventoried all of the personal property of Martin's that was to be inventoried, that some personal property was provided to Martin and some was withheld properly under prison rules. Martin submitted no evidence to effectively rebut respondents' denials in their answers, although he had the burden to do so as petitioner. And he offers nothing in his appellate papers to demonstrate the superior court erred in its factual finding that he failed to prove his case. This is a second, independent reason for our affirmance of the superior court's judgment.
V.
Martin's Claim That the Superior Court Committed an Error That Prejudicially
Delayed His Case Lacks Any Merit.
Finally, Martin contends that the superior court's judgment should be reversed because the court delayed his filing of his petition, thereby prejudicing his case. Specifically, Martin argues that if the superior court had not erred by issuing an order to show cause on his original petition for writ of habeas corpus/writ of mandate and then denying his petition without prejudice because he did not properly serve it, his petition would have been heard before Flores was issued. He also suggests he would have obtained a better result before the judge who considered his original petition because that judge indicated in the initial order to show cause that Martin had stated a prima facie case for relief.
This argument makes no sense under the circumstances. Martin does not contend the court was wrong to deny his petition without prejudice. Also, he ignores that the superior court issued this denial only a couple of months after issuing its order to show cause, that he waited more than six months before filing his second petition and that the pre-Flores law on conversion that we have cited also indicates he had an adequate remedy at law under the circumstances of his case. His prejudicial delay argument lacks merit.
DISPOSITION
The judgment is affirmed.
/s/_________
STEWART, J. We concur. /s/_________
KLINE, P.J. /s/_________
RICHMAN, J.