Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Imperial County, No. ECU03736, Jeffrey B. Jones, Judge.
O'ROURKE, J.
Bobby S. Janoe is currently incarcerated in state prison. Proceeding in propria persona, he sued the California Department of Corrections and Rehabilitation (CDCR) and individual employee defendants identified only as Garcia, Neciuk, Shepherd and Weitzel. He alleged a cause of action for negligence and negligent infliction of emotional distress for injuries resulting from the employees' failure to detect checks fraudulently made out to him and depositing them in his inmate trust account. Defendants demurred, claiming the complaint failed to state facts alleging statutory liability and the defendants were immune from liability. The trial court sustained the demurrer without leave to amend and entered judgment in the defendants' favor.
Janoe contends: (1) the trial court denied him due process and meaningful access to the court because it proceeded with a hearing on the demurrer despite his absence; (2) he alleged sufficient facts to state a valid cause of action, and (3) the trial court erred in finding the defendants enjoyed statutory immunity. We affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Janoe's complaint alleged the following facts: In April 2006, his brother sent him money orders and checks that had been physically altered so that Janoe's name was written or typed over the names of their actual payees. The employees "received, processed and deposited" the instruments in Janoe's trust account and immediately withdrew $74.90 for filing fees Janoe had incurred. After Janoe spent some of his account funds at the prison canteen, he was issued a serious rule violation for possession of stolen property and check fraud.
In the complaint Janoe described his injuries as follows: "[I]t was determined that I meet the 180 classification criteria as a result of being found guilty of a division 'B' offense within the previous 3 years and are [sic]no longer eligible to be housed in a 270 design general population. Due to my 180 classification I posed a threat to institutional safety and security and I was humiliatingly striped [sic] searched and hand cuffed [sic] and escorted to administrative segregation where I was once again striped [sic] searched to verify I did not possess any contraband. I was taken to a classification committee where in [sic] four unfavorable points were added to my classification score. I was classified as maximum custody.... I was endorsed to be transferred to a 180 design facility, maximum security. Being housed in administrative segregation, I could no longer receive contact visits from my family and friends. I could no longer use the telephone at all. All of my personal property was confiscated and placed in R&R. Being housed in administrative segregation, I am not even issued any cloths [sic], except boxer shorts, T-shirt and socks. Everytime [sic] I leave my assigned cell, I am humiliatingly escorted in hand cuffs [sic] with an officer actually holding my hands or arm as I walk. I will continue to be housed in administrative segregation until I am transferred to a maximum security 180 design facility pursuant to the classification committee determination I am a threat."
He further alleged, "Defendants were negligent in their duty, by depositing obviously fraudulent check [sic] into my trust account... The [CDCR] was negligent in employing defendant(s) and are [sic] vicariously liable under the doctrine of respondeat superior."
An exhibit to Janoe's complaint was copy of a memorandum from the chief deputy warden addressing the administrative charges against Janoe, the facts supporting the charges, the investigation process and Janoe's involvement in it, the administrative decision, and Janoe's appeal of that decision. The memorandum states, "[A]lthough you were not in a position to view the incoming checks, you received monthly statements from the Calipatria State Prison's Accounting Department. These statements indicated deposits had been made to your account, which would have given you knowledge of your account activity and current funds available. [¶]... A review of your trust account statement and activity prior to the $2,021.51... deposits on April 27, 2006, clearly indicated your previous account balance was zero."
On November 26, 2007, Janoe moved the court for an order to be transported to court or the appointment of counsel, and a hearing on the motion was scheduled for December 18, 2007.
On December 14, 2007, the defendants demurred on grounds the complaint failed to state sufficient facts to constitute a cause of action under Code of Civil Procedure section 430.10, subdivision (e) because: (1) the state of California and the CDCR are immune from liability in personal injury suits under Government Code section 844.6; (2) the individual defendants are immune from liability under sections 820.4 and 821.6; and (3) the complaint did not comply with section 951's enhanced pleading requirements.
All further statutory references are to the Government Code unless otherwise stated.
On December 26, 2007, the trial court issued an order to show cause (OSC) why Janoe should not be sanctioned or the case dismissed for his failure to appear at the December 18, 2007 case management hearing. It set a hearing on both that matter and defendants' demurrer to Janoe's complaint for February 1, 2008.
On January 8, 2008, Janoe filed a response to the OSC, stating he did not attend the case management hearing because he had never received a ruling from the court regarding his request for a transportation order. He also included a memorandum from a prison employee dated almost two years earlier — on May 2006 — which stated, "We do not... initiate the phone call. If attorneys or the courts request the call then we process the request. In your case, the [Imperial County Superior Court] does not request telephone conf[erence] calls but they encourage the use for Court Call Services. I am providing the instructions for you to set up your call.... In addition, if you are indigent [there] is a process for fee waivers you have to submit to the court."
The trial court's order sustaining the demurrer pointed out Janoe failed to appear at the February 1, 2008 hearing and stated, "The [c]ourt took judicial notice of [Janoe's] previous appearance by telephone from Calipatria State Prison on the defendants' motion to quash the summons, held on October 19, 2007, and found plaintiff was capable of arranging to be heard by telephone." The trial court sustained the demurrer without leave to amend on all the grounds stated in the defendants' moving papers, except that relating to the statue of limitations.
In its statement of decision, the court also stated, "[T]he court found the defect related to... section 845.6 (plaintiff's failure to allege or show the administrative rules violation conviction complained of had been overturned) was incurable, in that plaintiff's effort to obtain this result had already been denied." The People explain that the trial court was referring to its previous denial of Janoe's writ challenging the administrative proceeding, and clarify that the court erred in referring to sections 845.6 and 845.4.
DISCUSSION
I.
Janoe relies on Wantuch v. Davis (1995) 32 Cal.App.4th 786, 797 (Wantuch) and contends, "The Trial Court erred in finding that [he] was capable of arranging to appear in [c]ourt by telephone... to argue against defendants['] demurrer."
The Wantuch court held, "A prisoner may not be deprived, by his or her inmate status, of meaningful access to the civil courts if the prisoner is both indigent and a party to a bona fide civil action threatening his or her personal or property interests." (Wantuch, supra, 32 Cal.App.4th at p. 792.) In Wantuch an incarcerated defendant, who sued his defense attorney, twice failed to appear at scheduled status conferences. Consequently, after issuing an OSC for failure to prosecute, the trial court denied the defendant's request for appointment of counsel and struck his complaint and answer to a cross-complaint. The court imposed terminating sanctions against the defendant. (Id. at pp. 791, 795.) The Court of Appeal reversed, finding an abuse of discretion in determining the appropriate remedy for securing the defendant's access to the court. (Id. at p. 794.) It reasoned, "A prisoner does not have the right to any particular remedy. A prisoner may not, for example, compel a trial court to appoint counsel." (Id. at p. 793.) Moreover, a prisoner may not ordinarily compel his or her appearance in court. (Id. at p. 794.)
The Wantuch court stated the abuse of discretion standard applied in determining a defendant was "well able to represent himself in [the proceeding and] pretrial proceedings can be effectively conducted in writing or by telephone." (Wantuch, supra, 32 Cal.App.4th at p. 796.) Here, the trial court found, based on Janoe's previous telephonic appearance, that he was capable of appearing telephonically at the case management hearing. Janoe's own evidence shows the prison allows him to initiate telephonic appearances and obtain a waiver for his indigence. There was no abuse of discretion. Further, unlike in Wantuch, the trial court did not issue terminating sanctions against Janoe for his non-appearance, but rather proceeded to dispose of the demurrer on the merits, based on Janoe's written submissions.
Janoe contends the trial court abused its discretion by not ruling on his motion for a transportation order prior to the hearing date. The claim is forfeited. An appellate court is not "required to consider alleged error where the appellant merely complains of it without pertinent argument." (Rossiter v. Benoit (1979) 88 Cal.App.3d 706, 710.) In addition, Janoe did not press the trial court for a ruling on this order.
" '[W]here the court, through inadvertence or neglect, neither rules nor reserves its ruling... the party who objected must make some effort to have the court actually rule. If the point is not pressed and is forgotten, he may be deemed to have waived or abandoned it, just as if he had failed to make the objection in the first place.' " (People v. Obie (1974) 41 Cal.App.3d 744, 750, overruled on another ground in People v. Rollo (1977) 20 Cal.3d 109, 120, fn. 4.) Moreover, the motion for a transportation order referenced the December 18, 2007 case management hearing, but the trial court scheduled and heard arguments on the demurrer on February 1, 2008. Janoe missed that latter hearing, and there is no evidence he had sought a transport order to attend it.
In any event, Janoe in his summary argument does not meet his burden of showing prejudice from the trial court's failure to rule on his motion for transportation order. Prejudice is never presumed; it must be affirmatively demonstrated. "Anyone who seeks on appeal to predicate a reversal of conviction on error must show that it was prejudicial." (People v. Archerd (1970) 3 Cal.3d 615, 643; People v. Bell (1998) 61 Cal.App.4th 282, 291.)
II.
A demurrer tests the legal sufficiency of factual allegations in a complaint. (Rakestraw v. California Physicians' Service (2000) 81 Cal.App.4th 39, 43-44 (Rakestraw).) The judgment must be affirmed if any one of the several grounds of demurrer is well taken. (Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 967.) On appeal from a judgment dismissing a complaint after a demurrer is sustained without leave to amend, we review de novo the trial court's decision to sustain the demurrer, and we review under the abuse of discretion standard the decision to deny the plaintiff leave to amend. (Lazar v. Hertz Corp. (1999) 69 Cal.App.4th 1494, 1501 .)
In reviewing the sufficiency of a complaint against a general demurrer, this court treats the demurrer as admitting the truth of all properly pleaded material facts, as well as facts inferred from the pleadings, but not the truth of contentions, deductions, or conclusions of fact or law; this court also considers matters that may be judicially noticed. (Schifando v. City of Los Angeles (2003) 31 Cal.4th 1074, 1081 (Schifando); Rakestraw, supra, 81 Cal.App.4th at p. 43.) When a general demurrer is sustained, this court determines whether the complaint states facts sufficient to constitute a cause of action under any legal theory. (Schifando, supra, at p. 1081; Rakestraw, supra, 81 Cal.App.4th at p. 43.) On appeal, the plaintiff bears the burden of demonstrating the trial court erroneously sustained the demurrer as a matter of law and that there is a reasonable possibility an amendment would cure the defect. (Schifando, supra, at p. 1081; Rakestraw, supra, 81 Cal.App.4th at p. 43.)
A.
Janoe does not contend the CDCR is directly liable for his injuries, but rather that it is "vicariously liable under the doctrine of respondeat superior." Section 815.2, subdivision (b) provides that a public entity is not liable for an injury resulting from an act or omission of an employee of the public entity if the employee is immune from liability. Here, Janoe's claimed injuries resulted from the administrative decision to reduce his privileges. But to the extent the individual employees were responsible for these injuries, their conduct was immune from prosecution under section 821.6, which provides that a public employee is not liable for " 'injury caused by his instituting or prosecuting any judicial or administrative proceeding within the scope of his employment, even if he acts maliciously and without probable cause.' " (See Amylou v. County of Riverside (1994) 28 CalApp.4th 1205, 1209-1212.) Accordingly, the CDCR was not liable for Janoe's injuries.
Even if Janoe had alleged direct liability, his claim would have failed based on section 815 and the legislative policies underlying it; no statute imposes direct liability on public entities in such situations. Moreover, the claim would have been barred by the immunity provision of section 844.6, which states a public entity cannot be liable to a prisoner for injury, except under certain circumstances not applicable here. (Hart v. Orange County (1967) 254 Cal.App.2d 302, 304.)
B.
Janoe contends "the gravamen of [his] complaint" against the individual defendants, who work in the prison trust account office, is that they carelessly "processed, accepted, and deposited stolen checks and money orders to [his] trust account, that were obviously physically altered, when they arrived at the trust office, and should have never been accepted for deposited [sic] to my trust account."
For a plaintiff to prove facts sufficient to support a finding of negligence, he must show that defendant had a duty to use due care, that he breached that duty, and that the breach was the proximate or legal cause of the resulting injury. The existence of a duty of care is a question of law to be determined by the court alone. (Munoz v. City of Union City (2004) 120 Cal.App.4th 1077, 1093 (Munoz).)
This claim also fails because Janoe did not comply with the rigorous pleading requirements of section 951, which provides, "any complaint for damages in any civil action brought against a publicly elected or appointed state or local officer, in his or her individual capacity, where the alleged injury is proximately caused by the officer acting under color of law, shall allege with particularity sufficient material facts to establish the individual liability of the publicly elected or appointed state or local officer and the plaintiff's right to recover therefrom."
Janoe recognizes the deficiency of his pleadings and states in his opening brief that he "has tried to obtain the name of the individual who in fact processed, accepted and deposited the stolen checks and money orders to [his] trust account, but the CDCR in bad faith has rebuffed [his] request." Even if his complaint could be amended to obtain that information, he has not alleged with particularity sufficient material facts to show that the individual employees owed him a duty of care in their processing, accepting and depositing of stolen checks in his inmate trust account or that their actions proximately caused his injuries.
Janoe relies on Penal Code section 5008 for his claim the individual employees owed him a duty of care. But that statute is unavailing because it does not create any such duty. It merely mandates the CDCR to deposit inmates' funds in individual trust accounts. We do not determine, as a matter of law, that a duty of care should be established because Janoe has not alleged facts addressing the criteria for such a determination as outlined in Rowland v. Christian (1968) 69 Cal.2nd 108 (Rowland), abrogated on another point in Bird v. Saenz (2002) 28 Cal.4th 910, 915. "In [Rowland] the court identified a number of elements to be assessed in deciding whether a defendant owed a tort duty to a plaintiff. 'These factors include: (1) the foreseeability of harm to the injured party; (2) the degree of certainty that the injured party suffered harm; (3) the closeness of the connection between the defendant's conduct and the injury suffered; (4) the moral blame attached to the defendant's conduct; (5) the policy of preventing future harm; (6) the extent of the burden to the defendant; and (7) the consequences to the community of imposing a duty to exercise care, with resulting potential liability. [Citation.] Where a public entity is involved, the court considers the following additional factors: the availability, cost, and prevalence of insurance for the risk involved; the extent of the agency's powers; the role imposed on it by law; and the limitations imposed on it by budget.' [Citation.] '[W]hen addressing conduct on the part of a defendant that is "deliberative, and... undertaken to promote a chosen goal,... [c]hief among the factors which must be considered is the social value of the interest which the actor is seeking to advance." ' " (Munoz, supra, 120 Cal.App.4th at p. 1093.)
Janoe also relies on California Code of Regulations, title 15, section 3140, subdivision (a)(1). But that regulation does not create a duty of care. It simply states, "Funds may be mailed to an inmate in the form of a money order, certified check, personal check, or any other negotiable means except cash and Travelers Checks. [¶] The check or money order shall be made payable to the California Department of Corrections and Rehabilitation with the inmate's last name and departmental identification number. This information shall be on the face of the check or money order."
Separately, Janoe has not pleaded particular facts showing that the individual employees' actions were the proximate cause of his claimed injuries. Janoe argues, without identifying anyone by name, "Had this individual Defendant been competently performing their [sic] duties, none of these stolen checks or stolen money order's [sic] would have been accepted for deposit to Plaintiff's trust account. If none of the stolen checks and money orders were accepted for deposit to Plaintiff's trust account, this whole incident would have been avoided." Janoe's argument is flawed. Although there would have been no administrative action against Janoe for possession of stolen property and check fraud if the individual defendants did not deposit the money in his trust account, their action alone did not suffice to proximately cause his injuries. Janoe elected to withdraw the funds, although his previous account balance was zero and he claimed he was unaware the checks were fraudulent. Following his withdrawal, the authorities filed charges against him and conducted an investigation. He was allowed to present a defense, and he did so. The authorities determined he was guilty and imposed the penalties. Janoe's complaint does not permit us to conclude he made out a valid cause of action for negligence.
A claim of negligent infliction of emotional distress is not an independent tort but rather "it is the tort of negligence to which the traditional elements of duty, breach of duty, causation, and damages apply." (Ess v. Eskaton Properties, Inc. (2000) 97 Cal.App.4th 120, 126.) Janoe's emotional distress claim also fails based on the above analysis because he did not allege sufficient facts to show the individual defendants owed him a duty of care or that their actions proximately caused his emotional distress.
Janoe has not met his burden of showing that his complaint is capable of being amended to remedy the defects identified above. Accordingly, we conclude the trial court did not err in sustaining the demurrer or abuse its discretion in denying leave to amend.
DISPOSITION
The judgment is affirmed.
I CONCUR: HUFFMAN, Acting P. J., McDONALD, J.