Opinion
C083051
01-26-2018
MICHAEL DALE CLARK, Plaintiff and Appellant, v. DEPARTMENT OF CORRECTIONS AND REHABILITATION 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NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 59721)
Michael Dale Clark (Clark), a state prison inmate, sued the California Department of Corrections and Rehabilitation, two of its Secretaries, and several employees (collectively, the Department). Clark alleged claims based on theories of negligence regarding his in-prison classification decisions, and breach of contract pertaining to his transfer from and return to California pursuant to the Interstate Corrections Compact (Compact) (see Pen. Code, § 11189). After venue was changed from Sacramento County to Lassen County--where Clark was housed--the trial court sustained a demurrer without leave to amend.
On appeal, Clark challenges the venue order and contends he has stated one or more viable claims, or can amend to state a viable claim. We hold the venue order is not reviewable on appeal from the judgment, and in any event Clark has not shown prejudice. We also hold that Clark is not a third party beneficiary of a transfer agreement between California and Nevada under the Compact, and cannot state a claim for alleged breaches thereof. Further, Clark has not pleaded a viable claim for breach of a settlement agreement or negligence. Accordingly, we shall affirm.
BACKGROUND
This case arises on demurrer, thus the facts we are to consider are generally limited to those pleaded in the complaint. However, because Clark in part seeks leave to amend, we also recite additional facts that either are not disputed by the parties, or that Clark could allege if given leave. (See Connerly v. State of California (2014) 229 Cal.App.4th 457, 460.)
General Facts
While he was a state prisoner, Clark gave information to authorities about the Aryan Brotherhood, a violent and entrenched prison gang. He does not believe the Department is protecting him sufficiently, and alleges he was ousted from a witness protection placement. As part of a settlement of other litigation, he was transferred to Nevada (and at one point had been in New Mexico). He then demanded to be returned because he had been placed by Nevada authorities near gang members, endangering his life. In response to an earlier demurrer in this case, the trial court found Clark had not stated a claim based on his agreement to be transferred to Nevada, but granted leave to amend to allege breach of the settlement agreement.
The Amended Complaint
Clark filed an amended complaint alleging generally as follows:
From August 16, 2006, to February 15, 2013, except for 47 days in 2007, Clark was housed in Nevada pursuant to a contract between California and Nevada, entered into under the auspices of the Compact. He was then placed at High Desert State Prison (High Desert), in a single cell in administrative segregation because he "was known to be a 'rat.' " However, he also alleged that as of the time of the amended complaint he was in the General Population Level IV Sensitive Needs Yard. Clark alleged breach of what he alleged were two agreements made as part of a settlement. Each was attached as an exhibit, is captioned "Interstate Compact Placement Agreement," and reflects Clark's consent to be transferred to Nevada. The July 6, 2006 document provides that Clark accepted a transfer to Nevada, consulted with counsel, and understood "that the security, treatment, training and care for me will be in keeping with the standards for such programs as administered in California." Clark alleged that pursuant to the Compact, Nevada was to act solely as an agent of the Department, and that he would not lose any legal rights under California law as a result of the transfer. In two separate contract claims (the first and seventh claims), Clark alleged the agreement was breached when he was transferred to High Desert, first placed in administrative segregation, and later classified with "a 'Close B Custody' designation rather than a lower 'Medium A Custody' " designation. (See Cal. Code Regs., tit. 15, § 3377.1 [describing various custody designations].)
We previously granted Clark's request for judicial notice of this contract.
"These are facilities . . . that house prisoners with safety concerns in conditions similar to a general population setting. Sensitive needs yards have some additional safety procedures and generally are considered to be less dangerous than other institutions of similar security levels." (Mackay, Cal. State Prisoners Handbook (Prison Law Office 4th ed. 2008) Classification, Programs and Transfers, § 3.20, p. 144 (Mackay).)
The later document was on an identical form (see Cal. Code Regs., tit. 15, § 3379(a)(6) [requiring a particular form]), but Clark pleaded that it was "void" and he had attached it to the amended complaint merely for completeness.
In five separate negligence claims (the second through sixth claims), Clark alleged individual prison employees were negligent regarding his in-prison placements and in handling his administrative challenges thereto. In his first negligence claim he alleged that a "DRB" review determined he should be placed in general population (sensitive needs yard) rather than administrative segregation, but in February 2013 named officials did not obey this determination and impeded his efforts to challenge his placement. In his second negligence claim, he alleged that on February 21, 2013, named officials impeded his ability to call witnesses and failed to provide necessary documents at a classification hearing. In his third negligence claim, he alleged that on March 8, 2013, named officials released him from administrative segregation and placed him in the general population (sensitive needs yard) without a hearing, and that on March 13, 2013, he was returned to administrative segregation, then taken to a hospital and evidently placed on what he described as a degrading suicide watch. In his fourth negligence claim, Clark alleged that in March 2013, named officials kept him in administrative segregation and impeded his ability to prepare for a classification hearing. In his fifth negligence claim, Clark alleged named officials held a classification hearing on March 19, 2013, but impeded his ability to call witnesses, failed to provide accurate documentation, and miscalculated his classification point score, resulting in a higher "Close B" rather than "Medium A" classification. Although Clark couched these five counts as negligence claims predicated on the violation of specific prison regulations (and general duty principles), he also alleged the respective actions violated his due process rights and were done with the purpose of causing him injury.
"DRB" means Departmental Review Board, which addresses classification disputes. (See Cal. Dept. of Corrections & Rehabilitation, Dept. Operations Manual (2018 rev.) Classification Services Unit, ch. 1, art. 27, § 15000.10, p. 59.)
The Demurrer
The Department demurred to the amended complaint. In connection therewith, the Department successfully sought judicial notice of three documents. That does not mean the trial court accepted the truth of all statements reflected therein (see Herrera v. Deutsche Bank National Trust Co. (2011) 196 Cal.App.4th 1366, 1375), but we nonetheless describe each document.
The first was a reporter's transcript reflecting a settlement agreement set forth on the record before Judge Gilliard on March 18, 2005. (See Code Civ. Proc., § 664.6.) A prior lawsuit was to be settled (except as to New Mexico, see Clark v. New Mexico Dept. of Corrections (10th Cir. 2003) 58 Fed.Appx. 789) on the following terms: (1) the Department would pay Clark $7,500; (2) the Department would send Clark a list of people on his "enemies list"; (3) a review pursuant to In re Olson (1974) 37 Cal.App.3d 783 would be completed, meaning Clark could identify documents that he thought should be removed from his file, and any disputes would be resolved by the trial court; (4) a DRB review regarding Clark's transfer would be completed, subject to review by the trial court; and (5) Clark would be able to repair his typewriter. Each party would bear its own costs and fees, and the court would retain jurisdiction to enforce the settlement.
The second document was a transcript of a hearing before Judge Gilliard on May 6, 2005, pertaining to Clark's request to rescind the settlement based on purported fraud by the Department. Counsel for the Department alleged Clark had not participated in the Olson or DRB reviews, and the settlement had not been obtained through any fraudulent representation about a former placement procedure. Judge Gilliard offered defendant the check the Department had tendered, but defendant refused to accept it; she then found defendants had made a good faith effort to fulfill the settlement agreement and denied Clark's request to rescind it.
A separate action against the Nevada Department of Corrections and counsel for the Department arising from Clark's fraud claim remains pending in this court. (See Clark v. Nevada Dept. of Corrections, et al., case Nos. C077083 & C076822.)
The third document was a DRB memorandum dated February 24, 2006. It recites that a new transfer was proposed as part of the settlement, that defendant was a dropout from the Aryan Brotherhood who had helped the Department in various cases resulting in his safety concerns, resulting in his transfer to New Mexico in 1989; however, he had been returned to California in 2000 through no fault of his own. Various other states were proposed for placement.
In its demurrer, the Department argued Clark was not a third party beneficiary of the Compact (as Clark had earlier conceded), the consents to transfer he signed were not contracts, and even if they were, they had not been breached by his placement designations in California prison. Nor did the settlement dictate his classification designations, as the transcript did not show that he was promised any particular classification. The Department argued the statutes and regulations cited by Clark did not provide for a private cause of action.
Clark's Opposition
In opposition to the demurrer, defendant successfully sought judicial notice of two minute orders purportedly relevant to the settlement. The first order, dated April 28, 2006, reflects Judge McMaster's displeasure at "less than a full effort by [the Department] to implement an expedited transfer," and the fact the Department had not complied with his order. The minute order reprints an earlier enforcement directing the parties to timely complete the transfer process. The second minute order, dated June 28, 2006, reflects that Clark was to be transferred to Nevada pursuant to the settlement agreement.
Clark argued that because the transfer was made in connection with the settlement, it was an enforceable contract, and made him a third party beneficiary to the Compact itself; otherwise, he was entitled to have the settlement rescinded. He alleged his placement in administrative segregation and Close B Custody breached the contract; specifically, the DRB ordered him to be placed in the general population sensitive needs yard, but this was not done, and this violated the "treatment" and "care" provisions of the Compact. He also claimed he was improperly denied classification credits for time he spent in medium custody. He argued the amended complaint properly alleged a breach of the bargained-for settlement agreement. Clark argued his negligence claims were viable, based on breaches of statutory and regulatory standards of care (under a negligence per se theory), and the individual defendants were not immune from liability.
The Department's Reply
In reply, the Department again argued Clark was not a third party beneficiary of the Compact or contract, and because the settlement agreement did not address Clark's placement, it had not been breached. As for the negligence claims, the Department again contended the statutes and regulations cited by Clark did not establish private causes of action or mandatory duties.
Ruling on Demurrer, Judgment, and Appeal
The trial court sustained the demurrer without leave to amend. It found Clark's consent to transfer was not a contract, and even if it was, no breach was shown because the Department did not promise a particular type of housing as part of the settlement. The court found the negligence claims failed because none of the statutes or regulations cited by Clark created a mandatory duty on the part of the Department or supported a private cause of action.
After a judgment was entered, defendants concede--and we agree--that under the "prison-delivery rule" (Silverbrand v. County of Los Angeles (2009) 46 Cal.4th 106, 129), Clark timely filed this appeal from the judgment.
DISCUSSION
I
Change of Venue
When the Department demurred to the amended complaint, it also moved to change venue to Lassen County. After considering Clark's written opposition, the trial court granted the motion. Clark now seeks review of the order changing venue.
As we have held before, 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, italics added; see Calhoun v. Vallejo City Unified School Dist. (1993) 20 Cal.App.4th 39, 41-42; Code Civ. Proc., § 400.) A party who fails to seek timely writ relief from a venue ruling loses the right to review of the order. (See Dunas v. Superior Court (1970) 9 Cal.App.3d 236, 240.)
Clark claims he prepared a petition for writ of mandate, but that it was lost during a transfer. This is a concession that no such writ was filed, and he concedes in a footnote this would normally preclude appellate review.
Moreover, we are reviewing a judgment following an order sustaining a demurrer without leave to amend. The amended complaint either states a viable cause of action or it does not; whether the Lassen or Sacramento trial courts ruled on the issue seems immaterial. We may not reverse any judgment for any matter of procedure unless there has been a miscarriage of justice. (Cal. Const., art. VI, § 13; see also Code Civ. Proc., § 475.) 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; see Waller v. TJD, Inc. (1992) 12 Cal.App.4th 830, 833.)
Thus, we need not address Clark's claim, pressed at oral argument, that because the Sacramento trial court overruled an earlier demurrer on his negligence claims, the motion to change venue was improper forum-shopping.
Clark's only claim of prejudice is that the trial court denied him the right to appear at the venue hearing in violation of his right of access to the courts. (See, e.g., Apollo v. Gyaami (2008) 167 Cal.App.4th 1468, 1482-1484.) But he has not shown that his access to the courts was impaired. He cites a minute order showing he was not present at the venue hearing. That does not show he was prevented from appearing by telephone, it shows only that he did not appear. He also cites documents by which the trial court established procedures for him to use a telephone, and claims these procedures were either improper or that he was prevented from implementing them. But he has not provided adequate argument and record citations to show how these procedures prevented him from appearing by telephone. Accordingly, we reject this claim. (See Tilbury Constructors, Inc. v. State Comp. Ins. Fund (2006) 137 Cal.App.4th 466, 482; Duarte v. Chino Community Hospital (1999) 72 Cal.App.4th 849, 856.) Moreover, although Clark claims the purported error in denying him access to the courts deprived the trial court of jurisdiction to act, he has not provided legal authority showing such an error 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.)
Accordingly, we reject Clark's attack on the venue order.
II
Breach of Contract
Clark argues he has stated viable claims of breach of contract. We disagree.
On demurrer, "We 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 fact that a contract was made can be pleaded. However, where the relevant documents are in the record, as they are here, the question of whether those documents amount to an enforceable contract (and the terms thereof) presents legal--not factual--questions. We deem true all pleaded facts, but not adjectival descriptions or legal conclusions, in determining whether a cause of action has been stated. (See Blank v. Kirwin (1985) 39 Cal.3d 311, 318; Smyth v. USAA Property & Casualty Ins. Co. (1992) 5 Cal.App.4th 1470, 1473.) Attachments to a complaint may be considered and inconsistent allegations of meaning and effect may be disregarded. (Weitzenkorn v. Lesser (1953) 40 Cal.2d 778, 785-786; Nichols v. Canoga Industries (1978) 83 Cal.App.3d 956, 965.) And when a trial court takes judicial notice of a document, it may consider its legal effect in considering whether a good cause of action has been stated, regardless of the pleader's contrary pleading. (See Fontenot v. Wells Fargo Bank, N.A. (2011) 198 Cal.App.4th 256, 264-265; Poseidon Development, Inc. v. Woodland Lane Estates, LLC (2007) 152 Cal.App.4th 1106, 1117-1118 (Poseidon).)
Clark claims his consents to transfer under the Compact equate to enforceable contracts as to which he is a party, and that he has pleaded viable breaches of that contract, based on the settlement. He points out that the consents to transfer provide that his "security, treatment, training and care . . . will be in keeping with the standards for such programs as administered in California." He claims that by placing him in administrative segregation on February 15, 2013, and placing him in "Close B Custody" instead of "Medium A Custody" on March 19, 2013, the Department breached this provision and the settlement.
Contrary to Clark's view, a "contract" as that term is used in the Compact refers to a contract between states. (See Pen. Code, § 11189, art. III, subd. (a) ["Each party state may make one or more contracts with any one or more of the other party states for the confinement of inmates on behalf of a sending state in institutions situated within receiving states"]; 3 Witkin, Cal. Crim. Law (4th ed. 2012) Punishment, § 16, pp. 63-65.) The documents Clark signed reflected his consent to transfer pursuant to the California-Nevada contract entered pursuant to the Compact, they were not binding contracts. (See Doe v. Pennsylvania Bd. of Probation and Parole (3d Cir. 2008) 513 F.3d 95, 107 ["no explicit third-party obligation appears in the Compact and there is no compelling evidence that, by entering into the Compact, Pennsylvania and New Jersey implicitly intended to give legally enforceable rights to Doe. Doe and similarly situated parolees are not beneficiaries of this Compact; they are merely the subjects of it"]; Annot., Interstate Corrections Compact (2010) 54 A.L.R.6th 1, 72-73, § 15.)
At oral argument Clark emphasized a portion of this court's decision in In re J.G. (2008) 159 Cal.App.4th 1056 to bolster his claim that he has rights under the California-Nevada contract. He reads too much into that case. There, a California state inmate was held outside this state as part of a federal-state witness protection program. (See Pen. Code, § 2911.) We invalidated a regulation that prevented him from appearing in person at his parole hearing, finding that regulation violated the authorizing statute which provided in part that by participating in the program, the inmate did not waive his "right to personally appear" (id., subd. (e)) at parole hearings (In re J.G., at pp. 1068-1069). In granting habeas corpus, we were enforcing that state statutory right. Clark points to language in another part of the opinion that is either an alternate holding or perhaps dicta, in which we added our view that the federal "contract itself provides additional grounds for granting the petition." (Id. at p. 1070.) We then quoted a portion of the inmate's participation agreement (not the federal-state contract) that confirmed that his parole hearings " 'will be conducted on this same basis as if [he] were in a California institution.' " (Ibid.) We then stated the regulation barring personal appearance at parole hearings for participants both violated the relevant statute "and the express terms of his contract." (Ibid.) By "his contract" we meant his participation agreement as quoted, not the federal-state contract that authorized that agreement. We did not hold or imply that the inmate was a third party beneficiary of the federal-state contract, but simply pointed out that the inmate had been assured via his participation agreement that he would not be treated adversely at parole hearing by virtue of participating in the program. We decline to read that language (whether an alternate holding or dicta) to mean an inmate is generally a third party beneficiary of a transfer contract, as Clark would have us do. That portion of the opinion did not address (or hold) that the inmate was a third party beneficiary of the federal-state contract, and cases are not authority for propositions not considered. (See Hart v. Burnett (1860) 15 Cal. 530, 598.)
To the extent Clark claims the generic security, treatment, and care references in his transfer consent forms were a promise that he would be classified a certain way or placed in a specific type of housing in California, he is mistaken. (See California Correctional Supervisors Organization, Inc. v. Department of Corrections (2002) 96 Cal.App.4th 824, 830-833 [statutory duty to provide a safe workplace did not compel any specific action by the employer, which retained discretion to act] (CCSO).)
Further, because the settlement was placed on the record before Judge Gilliard, its legal effect can be determined on demurrer. It did not address any particular housing or classification in California, and therefore Clark has not alleged a viable claim for breach of such purported promise. The settlement itself negates the effect of his contrary pleading about the settlement. (See Poseidon, supra, 152 Cal.App.4th at pp. 1117-1118.)
Thus, we conclude Clark has not pleaded a viable breach of contract claim.
Clark makes passing references to the denial of certain credits. But he also states "on administrative appeal" that denial was "found to have been inappropriate." To the extent this makes any sense, it suggests Clark achieved through the administrative process whatever relief he wanted regarding those credits. If he meant something else, he has not explained it to us with sufficient clarity.
III
Negligence
Clark asserts he has pleaded good claims of negligence, based on various prison regulations and statutes he claims set forth enforceable duties, that is, predicated on a "negligence per se" theory whereby those regulations and statutes established enforceable standards of care that were breached by named defendants. Not so.
Claims based on statutes or against public entities must be pleaded with specificity. (See Lopez v. Southern Cal. Rapid Transit Dist. (1985) 40 Cal.3d 780, 795; Fischer v. San Pedro Peninsula Hospital (1989) 214 Cal.App.3d 590, 604.) Clark's briefing falls short of explaining with any clarity why any particular positive law supports his negligence claims. He has not fulfilled his duty to provide coherent legal analysis. (See In re Marriage of Nichols (1994) 27 Cal.App.4th 661, 672-673, fn. 3.)
In any event, to the extent we understand Clark's claims, they lack merit.
First, California prison regulations--the alleged violations of which were pleaded as to each negligence claim--do not support causes of action for negligence. " 'The existence of regulations . . . 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. 2012) 901 F.Supp.2d 1196, 1211; see Treglia v. Cate (N.D. Cal. 2010) 2010 U.S. Dist. Lexis 131063, p. *2; Chappell v. Perez (E.D. Cal. 2011) 2011 U.S. Dist. Lexis 48111, p. *2.)
The limitations on citing unpublished California cases (see Cal. Rules of Court, rule 8.1115) do not apply to unpublished federal cases, which may be cited for persuasive value. (See Farm Raised Salmon Cases (2008) 42 Cal.4th 1077, 1096, fn. 18.)
We acknowledge that sometimes a violation of a safety regulation can support a tort suit. (See generally, 6 Witkin, Sum. of Cal. Law (10th ed. 2005) Torts, §§ 875-876, pp. 105-108.) But in such cases the Legislature has vested an agency with the power to develop safety rules. Clark has not shown that the Legislature has vested the Department 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"].)
It seems that Clark is trying to use a negligence suit to challenge the Department's discretionary classification decisions. Clark's briefing partly relies on general negligence statutes, Civil Code sections 1708 and 1714. However, these statutes do not provide for liability against a public entity. (See, e.g., Eastburn v. Regional Fire Protection Agency (2003) 31 Cal.4th 1175, 1183; Katzberg v. Regents of University of California (2002) 29 Cal.4th 300, 327-328 (Katzberg).)
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." Clark makes stray references to other statutes but does not analyze or explain them. In his amended complaint, Clark cited Penal Code provisions pertaining to the rights of prisoners, and although they are briefly discussed by the Department on appeal, because Clark does not cite or discuss them on appeal, neither do we.
Where discretionary administrative acts must be performed, a tort suit for negligence does not lie. (See Ley v. State of California (2004) 114 Cal.App.4th 1297, 1306 [involuntary patient who was assaulted by another patient alleged breach of a duty to remove his assailant from the program; held, patient "did not have a cause of action for damages based on the violation of a mandatory duty, because these decisions [whether to remove a patient from the program] involve discretionary medical judgments"].) "It is not enough . . . that the public entity or officer have been under an obligation to perform a function if the function itself involves the exercise of discretion." (Haggis v. City of Los Angeles (2000) 22 Cal.4th 490, 498, italics added.)
The Department summarizes Clark's negligence theory as follows:
"Clark is not claiming any injury that occurred as a result of an accident. Rather, Clark's claim are based his own unique correctional-malpractice theory in which the standard of care is defined by prison regulations. But a negligence claim cannot be based on such a standard. [Citation.] Otherwise, the state judiciary would be the final arbiter of all disputes in prison—down to how many pairs of socks an inmate gets per week. [Citation.]"
This seems to be an accurate characterization of Clark's negligence theory.
A prisoner does have due process rights regarding classification decisions, and the Department has adopted regulations providing for notice, a hearing, and administrative review thereof. (See Mackay, supra, § 3.8, pp. 121-123; § 3.11, pp. 126-127; § 3.28, p. 159.) The amended complaint alleges these regulations were not followed. But to obtain relief, a prisoner must seek habeas corpus to show that classification procedures did not comport with due process (see In re Jenkins (2010) 50 Cal.4th 1167, 1175-1180; People v. Superior Court (Hamilton) (1991) 230 Cal.App.3d 1592, 1595-1598 [loss of credits due to disciplinary violation; writ granted due to lack of impartial hearing officer]), or show a lack of evidence to support the decision (see In re Fernandez (2013) 212 Cal.App.4th 1199, 1205-1207; In re Hutchinson (1972) 23 Cal.App.3d 337, 341 ["Segregation under conditions of maximum security must be deemed excessive where . . . the prison authorities offer no facts which justify its continuance"]). A prisoner can also file a mandamus action to force compliance with mandatory duties (see CCSO, supra, 96 Cal.App.4th at p. 827), or a governmental tort suit alleging breach of a mandatory duty causing harm (see Bradford v. State of California (1973) 36 Cal.App.3d 16, 19-21; see Gov. Code, § 815.6).
A civil rights action based on deprivation of due process might also be brought. (See 42 U.S.C.A. § 1983; but see Sandin v. Conner (1995) 515 U.S. 472, 483-484 [132 L.Ed.2d 418, 429-430] [an in-prison placement generally will not support a federal due process claim unless it imposes atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life].) But Clark does not argue he can amend to plead such a claim and we will not make the argument for him. (See Paterno v. State of California, supra, 74 Cal.App.4th at p. 106.) And although California due process principles (Cal. Const., art. I, § 7(a)) are broader, because they include protectable dignity interests in not being subjected to arbitrary procedures (see Saleeby v. State Bar (1985) 39 Cal.3d 547, 563-565), a violation of the state due process clause does not support a claim for money damages. (See Katzberg, supra, 29 Cal.4th at pp. 317-329.)
Clark does not pursue these alternative avenues of relief in this case. There is no general tort of "negligent classification" as Clark essentially pleads, and neither a trial court nor a jury can second-guess discretionary classification decisions.
Accordingly, the demurrer was properly sustained as to negligence.
There is another point to consider. We accept Clark's view that prison authorities have a duty to protect inmates from foreseeable threats of harm. (See Giraldo v. Department of Corrections & Rehabilitation (2008) 168 Cal.App.4th 231.) But Clark has not explained how this general duty has been breached, or has resulted in any proximately caused harm, another element of a negligence claim. (See 5 Witkin, Cal. Procedure, supra, Pleading § 933, p. 348.) As already explained, how to execute the duty of prison officials to protect Clark falls in the first instance within their discretion. (See CCSO, supra, 96 Cal.App.4th at pp. 830-833.) Clark's complaint alleged that he suffered emotional distress, medical problems, depression, "deprivation of privileges and exercise," and lack of vocational training, among other things, but did not plead how the Department's alleged actions caused any such harm.
IV
Leave to Amend
Clark seeks leave to amend, relying on the rule: "For every wrong there is a remedy." (Civ. Code, § 3523.) But when a plaintiff seeks leave to amend on appeal following a demurrer he "must clearly and specifically set forth the 'applicable substantive law' [citation] and the legal basis for amendment, i.e., the elements of the cause of action and authority for it. Further, the plaintiff must set forth factual allegations that sufficiently state all required elements of that cause of action. [Citations.] Allegations must be factual and specific, not vague or conclusionary." (Rakestraw v. California Physicians' Service (2000) 81 Cal.App.4th 39, 43-44; see Blank v. Kirwan, supra, 39 Cal.3d at p. 318.) Clark has not satisfied this duty, because his brief does not articulate specific new facts he would allege, nor has he explained how any such facts would be material, i.e., how they would state a good cause of action.
Although the amended complaint sought declaratory and injunctive relief, Clark has not briefed these remedies on appeal, therefore we do not address them. (See 9 Witkin, Cal. Procedure, supra, Appeal, § 701, p. 769.) We note that in oral argument Clark claimed he was unaware of his ability to request additional time for briefing. But he asked for and received additional time to file a reply brief and then failed to file one.
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/_________
Hull, Acting P. J. /s/_________
Renner, J.