Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. BC386903, John S. Wiley, Jr., Judge.
Cedric Greene, in pro. per., for Plaintiff and Appellant.
Edmund G. Brown, Jr., Attorney General, David S. Chaney, Chief Assistant Attorney General, James M. Schiavenza, Senior Assistant Attorney General, Pamela J. Holmes and Elizabeth G. O’Donnell, Deputy Attorneys General, for Defendant and Respondent.
SUZUKAWA, J.
Plaintiff Cedric Greene appeals the judgment of dismissal of his action for failure to file an amended complaint. Finding no abuse of discretion, we affirm.
FACTUAL AND PROCEDURAL HISTORY
On March 10, 2008, plaintiff, then a parolee, filed the present action in propria persona against defendant Jennifer Levis, a psychologist with the California Department of Corrections and Rehabilitation. The form complaint stated one cause of action for defamation, as follows: “On June 29, 2007, defendant alleged to receive a page from an unknown telephone number. She reported that she assumed that the caller was a colleague of hers... which was the reason she returned the call. Once the call was returned, she states that the caller informed her that they were plaintiff. Plaintiff never called or contacted the defendant on 6-29-07, and has not contacted her on any date within the years of his life. However, her alleged claim led to plaintiff being incarcerated without proper cause.”
Defendant demurred. Plaintiff filed a motion to strike the demurrer on the ground that it was filed under an erroneous case number; on the morning of the hearing on the demurrer, he personally served substantive opposition. After a hearing, the trial court sustained the demurrer with leave to amend.
Plaintiff filed a first amended complaint on May 27, 2008. The factual allegations of the first amended complaint were virtually identical to those of the initial complaint, but the amended complaint omitted the claim for defamation and instead asserted a claim for negligent infliction of emotional distress.
Defendant demurred to the first amended complaint on July 1, 2008. Plaintiff filed opposition on July 7, 2008, and filed a surreply (captioned “Plaintiff’s Reply to Defendant’s Reply of Plaintiff’s Opposition”) on September 2, 2008.
The demurrer was scheduled to be heard on September 2, 2008. On that date, the court told defendant’s counsel that plaintiff had filed a document advising the court that he had been reincarcerated. The court provided counsel with the address of the location where plaintiff was incarcerated and his booking number, and it continued the demurrer hearing to September 10, 2008.
The court sustained defendant’s demurrer with 10 days leave to amend on September 10, 2008. Because plaintiff was still in custody, he did not appear at the demurrer hearing. The Attorney General’s Office served plaintiff with notice of ruling on the demurrer on September 11, 2008, at the Los Angeles County Jail. The Attorney General’s Office subsequently learned that plaintiff had been transferred from county jail to the Lancaster State Prison; accordingly, on October 17, 2008, it again served plaintiff with the notice of ruling, this time at Lancaster State Prison.
Plaintiff did not file an amended complaint. On October 29, 2008, defendant filed a motion to dismiss the complaint for failure to amend. The same day, the Attorney General’s Office served plaintiff with the motion to dismiss at Lancaster State Prison and at his address of record on San Julian Street. The court granted the motion on December 1, 2008, and the Attorney General’s Office served plaintiff with notice of the ruling at Lancaster State Prison and at the San Julian Street address on December 2, 2008.
The court entered judgment of dismissal on December 24, 2008. Notice of entry of judgment was served on January 8, 2009. Plaintiff filed a timely notice of appeal from the judgment on January 23, 2009.
DISCUSSION
Plaintiff contends on appeal that the trial court abused its discretion by dismissing his case at a hearing of which he was not given notice and that he could not attend. For the reasons that follow, we do not agree.
Plaintiff asserts in his appellate briefs that he was not given notice of the ruling on defendant’s demurrer or of the hearing on defendant’s motion to dismiss. However, he has never made these contentions under oath. Thus, even if we could consider them for the first time on appeal, they do not constitute admissible evidence on which we could base a reversal. (E.g., DiCola v. White Brothers Performance Products, Inc. (2008) 158 Cal.App.4th 666, 683 [unsworn statement is not evidence]; Bridgeman v. McPherson (2006) 141 Cal.App.4th 277, 286 [unsworn memoranda of points and authorities do not constitute evidence].) Further, the Attorney General’s Office has submitted evidence that it served plaintiff with notice of the ruling at the county jail and at Lancaster State Prison, and that it served plaintiff with notice of the dismissal hearing at the Lancaster State Prison and at his address of record on San Julian Street. Thus, plaintiff’s contentions regarding lack of notice do not provide a basis for reversing the judgment of dismissal.
Plaintiff also contends that the trial court abused its discretion by refusing to stay the proceedings while he was in custody. The law is otherwise. While a prisoner has a statutory right under Penal Code section 2601, subdivision (d) to initiate civil actions and is guaranteed meaningful access to the courts to prosecute his or her action, “[m]eaningful access... ‘does not necessarily mandate a particular remedy’ to secure access. [Citation.]” (Wantuch v. Davis (1995) 32 Cal.App.4th 786, 792.) “A prisoner may not, for example, compel a trial court to appoint counsel. [Citations.]... Nor may a prisoner ordinarily compel his or her appearance in court. [Citations.]” (Id. at pp. 793 794, italics added; see also Hoversten v. Superior Court (1999) 74 Cal.App.4th 636, 642 [“Prisoners do not ordinarily have the right to appear personally in court on civil matters.”].)
In the present case, although plaintiff could not appear personally at the September 10 demurrer hearing because of his incarceration, he filed opposition and a surreply. He thus had the opportunity fully to present his views to the court. The court’s decision to conduct the hearing in his absence was not an abuse of discretion. The court also did not abuse its discretion by conducting the December 1 dismissal hearing in plaintiff’s absence. Plaintiff had been given notice of the hearing and had an opportunity to file written opposition to plaintiff’s motion. This adequately protected his right of access to the courts. (Wantuch v. Davis, supra, 32 Cal.App.4th at pp. 793-794; Hoversten v. Superior Court, supra, 74 Cal.App.4th at p. 642.)
The trial court determines the appropriate remedy to secure access in the exercise of its sound discretion. (Wantuch v. Davis, supra, 32 Cal.App.4th at p. 794.) “The exercise of the trial court’s discretion will not be overturned on appeal ‘unless it appears that there has been a miscarriage of justice.’ (Denham v. Superior Court (1970) 2 Cal.3d 557, 566.)” (Wantuch v. Davis, supra, 32 Cal.App.4th at p. 794.) Because we find no abuse of discretion in the present case, we affirm.
Plaintiff raised new issues in his reply brief, which we do not consider. (Reichardt v. Hoffman (1997) 52 Cal.App.4th 754, 764.)
DISPOSITION
The judgment of dismissal is affirmed. Defendant shall recover her costs on appeal.
We concur: WILLHITE, Acting P.J., MANELLA, J.