Opinion
F087507
12-03-2024
DENO ANTHONY JONES, Plaintiff and Appellant, v. DEPARTMENT OF CORRECTIONS AND REHABILITATION, Defendant and Respondent.
Deno Anthony Jones, in pro. per., for Plaintiff and Appellant. Rob Bonta, Attorney General, Monica N. Anderson, Assistant Attorney General, Neah Huynh, Jaime M. Ganson and Chase Goldstein, Deputy Attorneys General, for Defendant and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kern County, No. BCV-23-102645 Gregory A. Pulskamp, Judge.
Deno Anthony Jones, in pro. per., for Plaintiff and Appellant.
Rob Bonta, Attorney General, Monica N. Anderson, Assistant Attorney General, Neah Huynh, Jaime M. Ganson and Chase Goldstein, Deputy Attorneys General, for Defendant and Respondent.
OPINION
THE COURT [*]
Plaintiff Deno Anthony Jones, an inmate at Kern Valley State Prison, filed a complaint against defendant Department of Corrections and Rehabilitation (CDCR) for negligence and violation of article 1, section 32 of the California Constitution after the Board of Parole Hearings (BPH) denied Jones parole for five years. CDCR filed a demurrer to Jones's complaint. The trial court sustained CDCR's demurrer without leave to amend. The court found Jones failed to set forth a statutory basis on which CDCR could be sued or held liable under the California Constitution, and, in the alternative, Government Code section 845.8 provides immunity to CDCR from the conduct alleged in the complaint. Jones appeals, arguing the court abused its discretion when it sustained his demurrer without leave to amend. Jones's only contention on appeal is that CDCR is not immune from liability under section 845.8, subdivision (a). We affirm.
Undesignated statutory references are to the Government Code.
PROCEDURAL BACKGROUND
On February 15, 2019, Jones filed a petition for writ of habeas corpus claiming he was entitled to early parole consideration under Proposition 57 and article 1, section 32 of the California Constitution.
On November 4, 2019, the Fourth District granted the habeas corpus petition and directed CDCR to deem Jones eligible for early parole consideration under Proposition 57.
On August 19, 2021, BPH held a parole suitability hearing pursuant to Proposition 57. After the hearing on the same day, BPH denied Jones parole for five years.
On August 11, 2023, Jones filed a complaint against CDCR for negligence and violation of article 1, section 32 of the California Constitution. Jones alleged he was improperly denied release on parole because BPH did not consider the relevant precedent under Proposition 57 passed by voters and made other alleged errors.
Jones alleges other arguments in his civil complaint for damages that are not relevant to the issue he raises in this appeal.
CDCR filed a demurrer to Jones's complaint. On January 17, 2024, the trial court issued a minute order and sustained CDCR's demurrer without leave to amend, directing CDCR's counsel to prepare an order consistent with the court's ruling. On January 24, 2024, Jones filed a notice of appeal purporting to appeal from the judgment of dismissal after the minute order sustaining the demurrer without leave to amend issued. On February 26, 2024, the court filed an order sustaining the demurrer and dismissing Jones's case without leave to amend.
CDCR's demurrer and the judicially noticed documents that supported the trial court's decision are omitted from the record on appeal.
Jones's appeal is premature. It was filed after the minute order sustaining the demurrer without leave to amend, which is not appealable, and before the judgment of dismissal was entered. However, we construe Jones's premature appeal to be an appeal from a subsequent judgment of dismissal. (See Donohue v. State of California (1986) 178 Cal.App.3d 795, 800.)
The record contains no judgment; it contains only an order sustaining the demurrer and dismissing Jones's case without leave to amend. As stated above in footnote 4, we construe this order as a judgment of dismissal for appellate jurisdictional purposes.
DISCUSSION
Jones argues CDCR is not statutorily immune from liability for a decision denying parole under section 845.8, subdivision (a). CDCR contends Jones waived his challenge to the trial court's finding that he has no constitutional entitlement to early release on parole, which is a valid basis to sustain the demurrer, and, even reaching the merits of both issues, Jones failed to state a claim entitling him to relief. We agree with CDCR.
A. Additional Facts
Upon sustaining CDCR's demurrer without leave to amend, the trial court reasoned:
"The [c]ourt sustains [CDCR's] demurrer _ finding [CDCR's] arguments and supporting authority cited in the moving papers persuasive and controlling here. [Jones] fails to set forth a statutory basis on which the [CDCR] could be sued or held liable. Even so, Government Code section 845.8 provides immunity to [CDCR] from the conduct alleged in the [c]omplaint. While denial of leave to amend typically constitutes an abuse of discretion, where the pleading demonstrates on its face it is incapable of amendment, leave to amend may be denied. The [c]ourt denies leave to amend."
B. Analysis
The function of a demurrer is to test the sufficiency of a pleading as a matter of law, and thus, the appellate court applies the de novo standard of review in an appeal following the sustaining of a demurrer without leave to amend. (California Logistics, Inc. v. State of California (2008) 161 Cal.App.4th 242, 247.) "It is error for the trial court to sustain a demurrer if the plaintiff has stated a cause of action under any possible legal theory, and it is an abuse of discretion for the court to sustain a demurrer without leave to amend if the plaintiff has shown there is a reasonable possibility a defect can be cured by amendment." (Ibid.)
1. Waiver
As an initial matter, CDCR contends Jones failed to preserve for review the trial court's decision as to whether the California Constitution entitled him to early release on parole. Rather, Jones only argues the court's alternate ground for sustaining the demurrer-that CDCR is statutorily immune from liability for parole denial decisions- was incorrect.
We agree with CDCR that Jones waived his appellate claim on the ground that the California Constitution provides no entitlement to early release on parole. (Kelley v. Bailey (1961) 189 Cal.App.2d 728, 731 [a party who fails to "present a point in his brief is precluded from insisting that the court consider the matter"]; accord, In re A.C. (2017) 13 Cal.App.5th 661, 672 [when an appealing party fails to raise a point, the reviewing court treats the point as waived].) On this basis alone, the demurrer was properly sustained. (B &P Development Corp. v. City of Saratoga (1986) 185 Cal.App.3d 949, 959 [a trial court's ruling on a demurrer must be affirmed if any of the grounds raised by defendant justifies the court's ruling of sustaining the demurrer].)
2. Merits
Nonetheless, we exercise our discretion to reach the merits. (People v. Holmes, McClain and Newborn (2022) 12 Cal.5th 719, 772 [an appellate court has authority to address a waived claim on the merits].) We first address whether Jones stated a cause of action arising out of the California Constitution against CDCR.
Proposition 57 amended California's Constitution and requires state prisoners convicted of "a nonviolent felony offense" to be considered for parole as soon as they have completed the "full term" for their "primary offense." (Cal. Const., art. I, § 32, subd. (a)(1); In re Gadlin (2019) 31 Cal.App.5th 784, 786.) Proposition 57 does not require early parole release; it only offers consideration for parole. (See In re Gadlin, at pp. 787-788.) "[T]he process of considering an application for parole consists of determining both the prisoner's eligibility for parole, i.e., whether [the prisoner] has served the requisite minimum period of confinement, and his ... suitability for parole." (Leyva v. Nielsen (2000) 83 Cal.App.4th 1061, 1066 (Leyva).) "[T]he determination of whether a prisoner should be paroled is discretionary." (Ibid.)
Here, pursuant to Proposition 57, Jones was considered eligible for parole and received a parole suitability hearing held by BPH. After the hearing, BPH denied Jones's request for early release on parole for five years. The record before us shows compliance with article 1, section 32 of the California Constitution. We find Jones failed to set forth an adequate constitutional claim. The demurrer was properly sustained on this ground.
Turning to Jones's negligence cause of action, article 1, section 32 of the California Constitution does not create a duty on any public entity or commissioner to grant parole after a parole suitability hearing. (See e.g. Leyva, supra, 83 Cal.App.4th at p. 1066.) Section 845.8 extends immunity from suit to public entities and public officials for injuries allegedly resulting from their discretionary decisions to release or not release a prisoner. (Id. at p. 1067; accord, Johnson v. State (1968) 69 Cal.2d 782, 794-795.) "The stated purpose of section 845.8, subdivision (a), is to allow correctional personnel to make determinations of release or parole unfettered by any fear of tort liability ._ To impose tort liability would have a chilling effect on the decision-making process, impede implementation of trial release programs[,] and prolong incarceration unjustifiably for many prisoners." (Martinez v. State of California (1978) 85 Cal.App.3d 430, 437.)
The Fourth District considered a nearly identical issue to our case. There, the plaintiff filed a personal injury action against the Board of Prison Terms when it denied the plaintiff parole after holding a parole hearing. (Leyva, supra, 83 Cal.App.4th at p. 1064.) The appellate court affirmed the decision to sustain the defendant's demurrer without leave to amend on the grounds that a public entity, other commissioners, and deputy commissioners are immune from suit under sections 845.8 and 820.2 for "injuries allegedly resulting from their discretionary decisions" involving the parole determination process. (Id. at pp. 1066-1067.) We agree with the Leyva court's analysis and apply it with equal force here. The record shows Jones failed to allege any cognizable cause of action for negligence because CDCR is statutorily immune from liability from decisions denying parole. (See § 845.8, subd. (a).)
Jones argues CDCR is not immune, contending there are exceptions to state immunity, without offering any examples or reasoning behind what those "exceptions" are. Nor do we find any exceptions apply here. (Eastburn v. Regional Fire Protection Authority (2003) 31 Cal.4th 1175, 1183 [direct tort liability of public entities must be based on a specific statute declaring them to be liable, or at least creating some specific duty of care, "[o]therwise, the general rule of immunity for public entities would be largely eroded by the routine application of general tort principles"].)
We note CDCR's demurrer, judicially noticed documents the trial court relied on when it made its ruling to sustain CDCR's demurrer, as well as any oral arguments made at the hearing on the demurrer regarding the challenged issues were not provided in this appeal. Jones cannot claim that CDCR is immune from liability without providing some evidence or testimony that is different from the record that is before us. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318 [the burden of proving a reasonable possibility that the court abused its discretion when a demurrer is sustained without leave to amend rests "squarely on the plaintiff" to provide an adequate record for review]; People v. Malabag (1997) 51 Cal.App.4th 1419, 1427 ["[t]he orders of the trial court are presumed to be valid and defendant has the burden of providing a record adequate to support his arguments on appeal"].) Thus, on this challenge to CDCR's immunity, the gap in the record on appeal works to Jones's detriment, preventing us from determining whether there were arguments or evidence presented in CDCR's demurrer or at the hearing to support Jones's contention.
Leave to amend is properly denied when the facts are not in dispute, and the nature of the claim is clear but there is no liability under substantive law. (Sackett v. Wyatt (1973) 32 Cal.App.3d 592, 603.) Under the facts as stated there is no liability here and it would be futile to permit further amendment.
DISPOSITION
The judgment of dismissal is affirmed. Each party shall bear their own costs pursuant to California Rules of Court, rule 8.278(a)(5).
[*] Before Detjen, Acting P. J., Pena, J. and Meehan, J.