Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County, No. 30-2008-00108356 Derek W. Hunt, Judge.
Charles Lamont Miller, in pro. per., for Plaintiff and Appellant.
Law Offices of Thomas E. Francis and Thomas E. Francis for Defendants and Respondents.
OPINION
MOORE, J.
Charles Miller sued the City of Irvine, its police chief, and several officers for civil rights violations relating to an arrest. He later pled guilty to charges stemming from that arrest. Miller never responded to a demurrer to his complaint, nor did he file an amended complaint. After multiple extensions and opportunities to file opposition papers, the court denied Miller’s motion for reconsideration of its decision to sustain the demurrer and dismissed the case. Because Miller’s complaint does not state a cause of action and cannot be amended to do so, and because Miller was granted adequate access to the courts, we affirm.
Miller represents himself on appeal. We issued an order directing prison authorities to permit Miller to appear at oral argument telephonically, which he did.
I
FACTS
In June 2008, Miller, while incarcerated, filed suit against the City of Irvine, its police department, Chief of Police David Maggard, Officers Kim, Hunt, Velarde and Sergeant Mahoney (collectively defendants). He alleged that on February 26, 2007, he was falsely arrested and that his rental car was towed from the Irvine Hyatt Regency Hotel. He then claimed that several of the officers conducted an illegal search of the vehicle and seized certain unspecified property he alleges was worth “thousands of dollars.” Then, he asserted, the car was returned to the rental car agency, and he was unable to later retrieve the property, which he alleged was stolen. Miller’s complaint claimed that he was entitled to $250,000 in damages from defendants.
Miller’s complaint omitted that in April 2007, the Orange County District Attorney filed a 27-count complaint against him, alleging that he committed various theft crimes in February and March, including on February 26. The items purportedly stolen from the car by the police were seized as evidence against him. In August, Miller pled guilty to three counts, and admitted that on “2/20, 2/24 and 2/26/07, I willfully and unlawfully entered 2 Hyatt Hotels with the intent to commit larceny. I willfully made a check to Hyatt Hotels knowing that insufficient funds were available. I took property in a value exceeding $400.00.”
On August 1, 2008, defendants demurred to Miller’s complaint on the grounds that his claims for unlawful arrest were barred by collateral estoppel, the individual officers were entitled to qualified immunity, and that Miller could not maintain an action against Irvine for civil rights violations because cities cannot be held vicariously liable under such circumstances. Miller failed to file an opposition to the demurrer. Instead, on September 4, he requested an extension until October 10 to file his opposition. Miller filed this application with the court, including a handwritten note that he was unable to serve the application on defendants because he lacked access to a photocopier. The court clerk served defendants and the court granted the motion, extending Miller’s time to file an opposition to October 10 and setting a hearing on the demurrer for October 21.
At the October 21 hearing, the court sustained the demurrer and granted 30 days for Miller to file an amended complaint. The court learned afterward that Miller had, on October 20, mailed the court an application for an order directing corrections authorities to produce him for a telephonic hearing on the demurrer. This application was not received until October 22, the day after the hearing. It did not include written opposition to defendants’ demurrer.
The court scheduled a case management conference for December 5 and sent written notice to Miller’s address of record. On November 4, Miller filed a notice of change of address, and the court clerk sent notice of the case management conference to the new address. Defendants duly filed a case management conference statement. Miller did not appear, telephonically or otherwise, at the December 5 case management conference, and the court scheduled an order to show cause re dismissal for December 19. The clerk sent notice on the same date to Miller’s most recent address. On December 19, Miller again failed to appear without notice to the court, and the court ordered the case dismissed.
On December 29, Miller filed yet another change of address and sent a letter to the court. The letter stated that Miller had received the notice of the case management conference the court had sent in early November, and stating that his failure to appear was due to the court’s failure to order corrections officials to make him available via telephone. He also claimed that on October 21 he had requested additional time to file his opposition to defendants’ demurrer (which is not in the record), and the court had failed to act. The court treated Miller’s letter as a request for reconsideration of the dismissal and the court’s order sustaining the demurrer and set another hearing for February 10, 2009. Miller filed a motion to reconsider the court’s decision to sustain the demurrer, but the motion focused entirely on his purported lack of time to file an opposition and the court’s failure to order his appearance telephonically. It did not state any legal authority supporting why the demurrer should have been overruled, nor did it include a proposed amended complaint. On February 10, Miller once again did not appear, and the court denied the motion for reconsideration. Miller now appeals.
II
DISCUSSION
Standard of Review on Defendant’s Demurrer
“On review of an order sustaining a demurrer without leave to amend, our standard of review is de novo, ‘i.e., we exercise our independent judgment about whether the complaint states a cause of action as a matter of law.’ [Citation.]” (Santa Teresa Citizen Action Group v. State Energy Resources Conservation & Development Com. (2003) 105 Cal.App.4th 1441, 1445.) “‘“We treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. [Citation.]”’” (Zelig v. City of Los Angeles (2002) 27 Cal.4th 1112, 1126.) Additionally, “when [a demurrer] is sustained without leave to amend, we decide whether there is a reasonable possibility that the defect can be cured by amendment; if it can be, the trial court has abused its discretion and we reverse; if not, there has been no abuse of discretion and we affirm. [Citations.] The burden of proving such reasonable possibility is squarely on the plaintiff. [Citation.]” (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)
Although Miller was granted leave to amend, we treat the demurrer as sustained without leave to amend for purposes of this appeal.
Miller’s Claims
Though not artfully pled, the face of Miller’s complaint asserts that he was unlawfully arrested and imprisoned and that his property was searched and seized. These events allegedly occurred on February 26, 2007, the same date on which he later admitted to committing larceny. We treat his complaint as a claim for a violation of his civil rights by the police. Unfortunately for Miller, he cannot collaterally attack his criminal conviction through a civil case.
“The principle that civil rights actions cannot call into question undisturbed convictions was established by the United States Supreme Court in Heck v. Humphrey (1994) 512 U.S. 477 (Heck). In that case, a man convicted of manslaughter sued various defendants under [42 United States Code] section 1983, asserting they had engaged in unlawful acts that had led to his arrest and conviction. (Heck, supra, 512 U.S. at pp. 478-479.) The court analogized to the common law tort action of malicious prosecution, which requires termination of the prior criminal proceeding in favor of the accused. This requirement avoids collateral attacks on the conviction, and avoids inconsistent resolutions arising from the same facts. The court held: ‘[T]he hoary principle that civil tort actions are not appropriate vehicles for challenging the validity of outstanding criminal judgments applies to [section] 1983 damages actions that necessarily require the plaintiff to prove the unlawfulness of his conviction or confinement, just as it has always applied to actions for malicious prosecution.’ (Heck, supra, 512 U.S. at p. 486, fn. omitted.) Thus, in order to maintain a claim for damages under section 1983 for harm caused by actions, which, if they were unlawful, would render a conviction invalid, the plaintiff must prove the conviction had been reversed or otherwise expunged. (Heck, supra, 512 U.S. at pp. 486-487.)” (Truong v. Orange County Sheriff’s Dept. (2005) 129 Cal.App.4th 1423, 1427.) The same principle applies to state law claims pleaded in addition to federal civil rights claims. In Susag v. City of Lake Forest (2002) 94 Cal.App.4th 1401, 1412-1413.)
Miller’s claims are barred by these principles because pursuing claims for false arrest, search, and property seizure would necessarily call into question his criminal conviction. He pled guilty to three counts, including larceny, which necessarily means that his claims of false arrest and illegal search and seizure must fail. Although Miller claimed at oral argument that the property allegedly missing was not related to his arrest, this assertion is not supported by the record. As the appellant, it is Miller’s responsibility to support his claims with the record. (McComber v. Wells (1999) 72 Cal.App.4th 512, 522.)
With respect to his claim against Irvine, Miller has no basis for holding a local government vicariously liable in a section 1983 action. (Irwin v. City of Hemet (1994) 22 Cal.App.4th 507, 526.) He has not pled any facts that would justify holding Irvine separately liable. Therefore, his claim against Irvine must also fail. We cannot envision any amendment to the complaint that would cure these fundamental deficiencies, and therefore, sustaining the demurrer was proper.
Meaningful Access to the Courts
Miller spends most of his brief arguing that the trial court abused its discretion by failing to order prison authorities to permit Miller to appear by telephone at the case management and other hearings. Penal Code section 2601, subdivision (d) guarantees prisoners the right to initiate civil actions, and therefore prisoners must have “meaningful access” to the courts to prosecute and defend bona fide civil actions. (Wantuch v. Davis (1995) 32 Cal.App.4th 786, 792 (Wantuch).) “Meaningful access to the courts by an indigent prisoner ‘does not necessarily mandate a particular remedy’ to secure access. [Citation.]” (Ibid.)
The federal cases Miller cites are inapposite. Under federal law, an inmate’s right of meaningful access to courts is limited to three types of claims: direct appeals, habeas petitions, or actions under 42 United States Code section 1983 challenging conditions of confinement, none of which apply here. (Lewis v. Casey (1996) 518 U.S. 343, 352.) “Impairment of any other litigating capacity is simply one of the incidental (and perfectly constitutional) consequences of conviction and incarceration.” (Id. at p. 355.)
“In determining the appropriate remedy to secure access, the trial court should consider the nature of the action, the potential effect on the prisoner’s property, the necessity for the prisoner’s presence, the prisoner’s role in the action, the prisoner’s literacy, intelligence and competence to represent himself or herself, the stage of the proceedings, the access of the prisoner to a law library and legal materials, the length of the sentence, the feasibility of transferring the prisoner to court and the cost and inconvenience to the prison and judicial systems. [Citation.]” (Wantuch, supra, 32 Cal.App.4th at p. 793.) “The trial court determines the appropriate remedy to secure access in the exercise of its sound discretion. [Citations.] 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.’ [Citation.]” (Id. at p. 794.)
There was no abuse of discretion and no miscarriage of justice in this case. The case was not dismissed solely because Miller failed to appear; it was dismissed because he 1) failed to file an opposition to the demurrer arguing that he had a valid cause of action and 2) failed to file an amended complaint. The case was only set for a case management conference and an order to show cause re dismissal after Miller failed to file either of those documents, and he was given ample opportunity and additional time to do so. We reject Miller’s argument that the trial court did not grant him sufficient time to submit opposition to the demurrer. Indeed, the record demonstrates that the trial court bent over backwards to accommodate both his propria persona and prisoner status.
Miller points to a statement by the court made during the December 19, 2008 hearing as an example of the court’s unfairness to him: “I’m going to dismiss it. But if he ever hires a lawyer and the lawyer comes back saying ‘he was in jail, ’ chances are I’ll have to let him out of it. But time passes, and we’ll see.” Miller fails to acknowledge that the court did give him another opportunity to demonstrate why the case should not be dismissed via motion for reconsideration and the February hearing. At that time he once again failed to argue why the demurrer should not be sustained.
Further, the case upon which Miller relies is readily distinguishable. In Jameson v. Desta (2009) 179 Cal.App.4th 672, the appellate court held the trial court had erred by dismissing a civil case after the plaintiff prisoner failed to appear telephonically at a case management hearing and at a hearing on an order to show cause. In that case, however, the plaintiff had “repeatedly made clear his desire to participate in all court proceedings and informed the court that he was not being allowed to do so.” (Id. at p. 675.) Here, there is nothing in the record demonstrating that a court order was necessary to secure Miller’s ability to appear at a telephonic hearing. More importantly, this case was not dismissed solely because Miller failed to appear at a hearing; it was dismissed because he failed to file either an opposition to the demurrer or an amended complaint. Therefore, Jameson is inapposite.
We conclude that at this stage of the case, court orders for telephonic appearance were not required in the absence of facts demonstrating that Miller could not otherwise appear. Additionally, a telephonic appearance alone would not have been enough, because despite having had since August 2008 to do so, Miller had still failed to file either an opposition to the demurrer or an amended complaint. No reasonable judge would have failed to sustain the demurrer without, at a minimum, written opposition or an amended complaint. Indeed, as set forth in our discussion above, no amount of written or oral argument could rescue Miller’s complaint, which was patently without merit. Thus, there was no miscarriage of justice and no error.
Attorney Fees
Defendants request an award of attorney fees pursuant to Code of Civil Procedure sections 1021.7 and 1038. This request does not appear to be unfounded, but we cannot conclusively determine that this lawsuit was filed entirely without good faith. Therefore, the request for attorney fees is denied.
III
DISPOSITION
The judgment is affirmed. In the interests of justice and in consideration of Miller’s indigent status, we decline to award costs to defendants.
WE CONCUR: RYLAARSDAM, ACTING P. J., FYBEL, J.