Opinion
F084083
07-25-2023
BARRY L. BROOKINS, Plaintiff and Appellant, v. F. ACOSTA, et al., Defendants and Respondents
Barry L. Brookins, in pro. per., for Plaintiff and Appellant. Rob Bonta, Attorney General, Phillip J. Lindsay, Assistant Attorney General, Julie A. Malone, Yun Hwa Harper, and Lucas L. Hennes, Deputy Attorneys General, for Defendants and Respondents.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Kings County, No. 19C0342 Valerie R. Chrissakis, Judge.
Barry L. Brookins, in pro. per., for Plaintiff and Appellant.
Rob Bonta, Attorney General, Phillip J. Lindsay, Assistant Attorney General, Julie A. Malone, Yun Hwa Harper, and Lucas L. Hennes, Deputy Attorneys General, for Defendants and Respondents.
OPINION
THE COURT [*]
In January 2018, Barry Brookins, a state prison inmate, was transferred between facilities within the California Department of Corrections and Rehabilitation (CDCR). When transferred, Brookins's property was transferred with him, inventoried on a form, and stored. When he was transferred back about one week later, his property was transferred back with him, again inventoried on a form, and released. The inventory forms do not list the same property.
Originally, Brookins filed a habeas corpus petition to retrieve his allegedly missing property. That petition was denied in the superior court but the court's order denying the petition suggested Brookins could instead seek relief through a mandamus petition. He did just that and filed a mandamus petition seeking a court order mandating two named CDCR correctional officers-Acosta and Regalado-to return property to or otherwise compensate Brookins. (See Code of Civ. Proc., § 1085.)
The officers' first names do not appear in the record.
The order denying the habeas petition is included as an exhibit in Brookins's brief. The exhibit states the habeas petition was filed in January 2019, nearly one full year after Brookins claims his property was lost.
Undesignated statutory references are to the Code of Civil Procedure.
The trial court eventually denied the petition, finding it was "unclear" whether the two named officers were responsible for any lost property and otherwise were under no legal duty to accept liability. Brookins challenges that order. We affirm.
Brookins's filings in this court and the court below are largely handwritten. For ease, when quoting Brookins, we take some liberty in correcting capitalization and punctuation.
BACKGROUND
In early January 2018, Acosta and Regalado searched Brookins's cell. The search revealed a "weapon" and Brookins was transferred to a restricted housing unit.
Brookins was apparently prosecuted for possessing the weapon and sentenced to serve an additional one year in prison.
As part of the transfer, Brookins's property was stored and inventoried on form CDCR-1083. The form listed the following property: various clothing, personal hygiene items, "10" "[b]ooks/[m]agazines/[n]ewspapers," dishes, compact discs, "[l]egal [m]aterial," paper, folders, a "[p]rayer [r]ug," and various electronics. All three parties- Brookins, Acosta, and Regalado-signed the form indicating "the ... listed property [was] the extent of ALL . . . property."
Three days later, Brookins was transferred to an entirely different state prison. Brookins's property was transferred with him but not yet released, and he signed the exact same inventory form a second time, this time noting he was "receiving the property as marked on th[e] inventory sheet." About one week after that, he was transferred back, along with his property, to the original prison.
Upon arriving back at the original prison, the property was released to Brookins. The property was again inventoried on a new CDCR-1083 property inventory form. This form differed from the first in several respects. For example, items listed on the first form but not the second include a fan, hot pot, compact discs, cable wire, digital antenna, and prayer rug. Items listed on the second form but not the first include "personal papers," "[g]reeting [c]ards," and a storage container. Brookins signed the form, indicating "the . . . listed property [was] the extent of ALL . . . property."
Petition
Brookins quickly began complaining through the prison's claims process. He believed Acosta and Regalado "willfully, maliciously and discriminatorily, stole, and destroyed [his] personal property." Unsuccessful in his attempts with the claims process, Brookins turned to the superior court.
First, Brookins filed a habeas corpus petition. The judge believed habeas was "not the appropriate means" for Brookins to seek relief, and denied the petition "without prejudice to [Brookins] seeking . . . appropriate mandamus relief."
Taking the court at its word, Brookins filed a mandamus petition. (§ 1085.) The petition described "a property mishandling issue" and named Acosta and Regalado as the respondents. Brookins claimed "all of the property that belongs to [him was] now missing in a ten day period which at all times [the property] was within the possession of staff(s) custody [sic] . . .."
In an amended filing, Brookins specifically asserted the following property was missing:
1) "50,000 legal documents;"
2) "Six legal law books;"
3) "565 personal family photo's w/ obituaries w/ centimental meaning [sic];"
4) Certain shoes;
5) "Thermal top" and "bottom;"
6) "Universal adaptor;"
7) "Battery charger w/ batteries;"
8) "Mirror;" and
9) "Gloves."
He claimed the total value for missing property was $6,479.95.
The Attorney General essentially answered the amended petition by "deny[ing] that [the two named officers] were negligent or that any of their actions contributed to the alleged loss of [Brookins's] personal property." Referring to the discrepancy in inventory forms, the Attorney General admitted the second inventory "speaks for itself."
Ruling
In its ruling, the trial court acknowledged the two inventory forms were "not identical[.]" It is also found Brookins's property "was in the possession of California Department of Corrections and Rehabilitation" at all relevant times.
The court noted CDCR was "not named as a [r]espondent; only Acosta and Regalado [were] named." It opined "[w]hether [Brookins's] loss of property" was due to the "named" officers or "some other ... party [was] unclear."
Ultimately, while the court believed "the difference in [inventory] forms [was] . . . troubling[,]" it nonetheless denied the petition because it could not find Brookins had "proven that [the two named officers] failed to perform their ministerial duties and/or that there [were] any grounds upon which to issue mandamus relief directing" those officers, as opposed to CDCR, to accept liability.
DISCUSSION
In Brookins's handwritten brief, he contends the Attorney General, representing Acosta and Regalado, failed to timely respond to the mandamus petition. The Attorney General primarily urges us to dismiss the appeal due to procedural inadequacies in Brookins's brief. (See Cal. Rules of Court, rule 8.204.) We decline the Attorney General's invitation. (Cal. Rules of Court, rule 8.204(e)(2)(C) ["reviewing court may" "[disregard ... noncompliance" in "filed" brief].)
Alternatively, the Attorney General argues the court properly denied the petition because Acosta and Regalado-the only named respondents-had no duty to compensate Brookins. We agree with this argument.
The Attorney General also claims a mandamus petition is an inappropriate vehicle for Brookins to seek relief. We disagree. (Escamilla v. Department of Corrections and Rehabilitation (2006) 141 Cal.App.4th 498, 509 ["the most appropriate writ to direct the government to return personal property or its value in a bailment or bailment-like situation is a writ of mandamus"]; but see Flores v. Department of Corrections & Rehabilitation (2014) 224 Cal.App.4th 199, 205-206 (Flores) [writ relief inappropriate where" 'another adequate remedy'" exists].)
"A writ of mandate 'may be issued by any court ... to compel the performance of an act which the law specially enjoins, as a duty resulting from an office, trust, or station ....' (Code Civ. Proc., § 1085, subd. (a).)" (Kavanaugh v. West Sonoma County Union High School Dist. (2003) 29 Cal.4th 911, 916 (Kavanaugh).)" 'A ministerial act is an act that a public officer is required to perform in a prescribed manner in obedience to the mandate of legal authority and without regard to his own judgment or opinion concerning such act's propriety or impropriety, when a given state of facts exists.'" (Ibid.) "The writ will issue against a county, city or other public body or against a public officer." (County of Los Angeles v. City of Los Angeles (2013) 214 Cal.App.4th 643, 653.)
"[A]n appellate court defers to a trial court's factual determinations if supported by substantial evidence ...." (Kavanaugh, supra, 29 Cal.4th at p. 916.) "[T]he trial court's legal interpretation .. . is subject to de novo review .. .." (Ibid.)
Here, the trial court denied Brookins's petition on the merits. The court found Acosta and Regalado did not personally owe a duty to compensate Brookins for any lost property. This conclusion is supported by both fact and law.
Brookins repeatedly asserts the petition was dismissed. He is incorrect.
The record did not clearly establish Acosta and Regalado lost or destroyed Brookins's property. California Code of Regulations, title 15, sections 3190 and 3191 govern the inmate-property-inventory-and-storage process when prisoners are transferred between institutions or into segregated housing. When inmates like Brookins are transferred to a distinct institution, the inventory-and-storage process necessarily involves CDCR employees at both the sending and receiving institution. The trial court's factual finding in this case that it was "unclear" Acosta and Regalado were responsible for Brookins's missing property is entitled to deference. (Kavanaugh, supra, 29 Cal.4th at p. 916.)
The trial court expressed lament about the discrepancy in inventory forms, implying it believed Brookins's property actually was lost. We express no opinion on the issue.
The law, on the other hand, requires CDCR to "accept liability for the loss or destruction of inmate personal property when it is established that such loss or destruction results from employee action." (Cal. Code Regs, tit. 15, § 3193, subd. (b); Flores, supra, 224 Cal.App.4th at p. 206.) But CDCR is an entity. The law does not likewise require individual CDCR employees to accept liability.
Accordingly, there exists no ministerial act which the trial court could compel Acosta and Regalado to perform. (See § 1085, subd. (a) ["mandate may be issued ... to compel the performance of an act which the law specially enjoins"]; Menefield v. Foreman (2014) 231 Cal.App.4th 211, 216-217 ["mandate will lie when . _ the public official has a legal and usually ministerial duty to perform"].) In other words, as the trial court correctly noted, Brookins should have sought to compel CDCR to compensate him for any lost property, but he did not.
No matter the equities, we have no occasion to substitute CDCR as a party to this action. Doing so would require this court to shed neutrality and engage in prohibited advocacy. (McClain v. Kissler (2019) 39 Cal.App.5th 399, 416 [" 'mere selfrepresentation is not a ground for exceptionally lenient treatment' "]; Nuno v. California State University, Bakersfield (2020) 47 Cal.App.5th 799, 811 ["judges must not assume the role of advocate for any litigant"].)
Finally, timeliness concerning the Attorney General's response is immaterial.The trial court here did not grant an untimely demurrer; it ruled on the petition's merit. To the extent Brookins believes he was entitled to a default judgment because the Attorney General's response was untimely, he is mistaken. "The writ cannot be granted by default. The case must be heard by the court, whether the adverse party appears or not." (§ 1088.)
The Attorney General disputes the suggestion he failed to timely respond. We need not resolve the dispute.
The Attorney General did file a demurrer. While the record is unclear whether the court officially denied the demurrer, the court clearly did not grant it because its ruling rested on the merits.
In sum, Acosta and Regalado were under no legal duty to accept liability for Brookins's lost property. The trial court properly denied the petition because it could not compel them to perform a duty that does not exist.
It bears noting, as the Attorney General points out, Brookins could have pursued other civil actions including a claim for conversion. (See, e.g., Flores, supra, 224 Cal.App.4th at p. 206.) Again, he did not. Whether those remedies are still available is a complex question we do not address. (See, e.g., Coy v. County of Los Angeles (1990) 235 Cal.App.3d 1077, 1090 ["three-year statute of limitation for conversion"].)
Brookins's arguments related to judicial bias and constitutional violations merit no discussion because they are undeveloped and have no support in the record. To illustrate, Brookins simply claims a "1st amendment retaliatory cell search" is "supported by Yets v. CDCR" because his "personal property" was "found in possession of other prisoner(s)." He also added the judge "ha[d] a fiduciary duty while in office to uphold & enforce the law," but instead "prejudiced, discriminated, biased, stonewalled, thwarted, rebuffed & whitewashed through [the] proceedings . . .." " 'In order to demonstrate error, an appellant must supply the reviewing court with some cogent argument supported by legal analysis and citation to the record.'" (United Grand Corp. v. Malibu Hillbillies, LLC (2019) 36 Cal.App.5th 142, 146.) Brookins has failed to do so. In any event, the Attorney General denied Brookins's claim he was searched "for any improper purpose," the trial court partly addressed the matter in its habeas ruling, and Brookins makes clear "the issue being raised ... is that [Acosta and Regalado] be held fully liable for the loss of [his] personal property . . .." Our review discloses no concern.
The March 10, 2022, order denying Brookins's petition for mandate is affirmed. The parties shall bear their own costs on appeal.
[*] Before Pena, Acting P. J., Smith, J. and Snauffer, J.