Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEALS from judgments of the Superior Court of Kings County No. 04C0191. Stephen J. Henry, Judge. (Retired Judge of the Fresno S.Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.)
Robert P. Smith III, in pro. per., for Plaintiff and Appellant.
Bill Lockyer, Attorney General, James M. Humes, Chief Assistant Attorney General, James M. Schiavenza, Senior Assistant Attorney General, Pamela J. Holmes and Mark A. Brown, Deputy Attorneys General, for Defendants and Respondents State of California, Todd Barton and Jeff Lewis.
Peter D. Moock, County Counsel, and Kyle Sand, Deputy County Counsel, for Defendant and Respondent Kings County.
OPINION
Levy, J.
In these consolidated appeals, appellant, Robert P. Smith III, challenges the dismissal of his first amended complaint and the denial of two motions seeking injunctive relief. The underlying premise of this action is appellant’s claim that, as a state prison inmate, he has been denied meaningful access to the courts in prosecuting various civil actions. Based on allegations that the Kings County Superior Court (Superior Court) and its clerks improperly handled these lawsuits, appellant filed the underlying complaint against respondents, the State of California (State), Kings County (County), and the executive officers of the Kings County Superior Court, seeking damages under 42 United States Code section 1983 and declaratory and injunctive relief.
The trial court sustained demurrers filed by the State on the grounds that appellant’s failure to file a government tort claim precluded his recovery of damages based on negligence and that appellant had not stated a cause of action either under 42 United States Code section 1983 or for equitable relief. The County’s demurrer to appellant’s cause of action based on alleged misrepresentations made by County employees was sustained on the ground that appellant had not alleged facts sufficient to state a cause of action for fraud. Thereafter, summary judgment was granted in the County’s favor on the ground that the superior court clerks were not employed by the County.
Appellant contends that, due to the inadequate prison law library and other conduct on the part of prison officials, he was deprived of his state and federal due process rights to fundamentally fair proceedings. Appellant further argues that the Superior Court clerks applied hyper-technical and even incorrect filing standards for his pleadings when, because of the realities of his incarceration, some procedural rules should have given way. Accordingly, appellant asserts, he should be permitted a “do-over.” Moreover, appellant argues, his complaint was sufficient to withstand the demurrers and motion for summary judgment.
As discussed below, the trial court properly sustained the demurrers and granted summary judgment. Appellant is not entitled to special treatment by the court. Therefore, the judgments and orders appealed from will be affirmed.
BACKGROUND
Appellant is an inmate at the California State Prison at Corcoran (Corcoran) serving a term of life in prison without the possibility of parole. The basis for the underlying complaint is appellant’s claim that the Superior Court mishandled the following three earlier proceedings that appellant had attempted to prosecute.
The civil lawsuit.
In October 2001, appellant mailed an ex parte motion to the Superior Court seeking leave to file an accompanying complaint against the State regarding allegedly inadequate dental treatment without a filing fee and without a copy of the required inmate trust account records. According to appellant, one or more of the court clerks refused to file his complaint despite his motion and returned it to him on several occasions due to various procedural deficiencies. Following resubmission with the appropriate supporting documents, the Superior Court filed the complaint on December 11, 2001, and designated it as case No. 01CV7241.
The State demurred to the complaint on the ground that it was untimely. The demurrer was sustained and the complaint dismissed because appellant had not complied with the statute of limitations.
Appellant submitted a notice of appeal to the Superior Court. However, a court clerk refused to file the notice of appeal because it was untimely for a limited jurisdiction action, not having been filed within 30 days of the filing of the notice of entry of the order granting the demurrer and dismissing the case. In response, appellant filed a petition for writ of mandate in this court (F042283). This court granted appellant’s writ and issued a peremptory writ of mandate directing the clerk of the Superior Court to file the notice of appeal.
Appellant’s request that this court take judicial notice of appellant’s prior writ proceedings filed in this court, F042283, F043597, F045683, and F049907, is granted. Appellant’s remaining requests for judicial notice are denied on the grounds that the items are not proper subjects for judicial notice and/or are irrelevant.
However, upon real party in interest’s motion, the remittitur was recalled on the ground that the underlying action was in fact one of limited jurisdiction and thus the notice of appeal was untimely. Appellant then filed a second petition for writ of mandate in this court. This petition was denied (F045683).
The habeas petition.
In April 2003, appellant filed a habeas petition that included approximately 1,000 pages of “‘supporting lodgments’” in two volumes. Appellant also included extra copies of the first pages of his pleadings to be endorsed and returned to him in a self-addressed stamped envelope. However, the Superior Court informed appellant that only complete copies of a pleading would be endorsed and returned to him. According to appellant, the Superior Court also returned one volume of his supporting lodgments. Appellant thereafter returned that volume with an explanation that it was needed for a full and fair review of his habeas petition.
The Superior Court denied appellant’s petition. Appellant then filed a motion for reconsideration that was also denied.
Appellant filed a petition for writ of mandate in this court requesting an order directing the Superior Court to endorse and return single pages of pleadings and to vacate the denial of his habeas petition. This petition was denied (F043597).
The small claims action.
In May 2003, appellant attempted to file a small claims case shortly before the statute of limitations was to expire. However, appellant used an outdated form requesting a waiver of filing fees and did not include the necessary supporting financial documentation. Accordingly, appellant’s complaint was returned without being filed. The Superior Court filed the complaint when it was accompanied by the correct forms.
After appellant’s small claims action was dismissed, he filed a petition for writ of mandate in this court requesting an order directing the Superior Court to vacate the judgment and hold a new trial. This petition was denied (F049907).
The underlying proceeding.
a. The tort claim.
In June 2003, appellant filed a claim for damages with the County. Appellant alleged that currently unknown court clerks employed by the County “willfully, maliciously, and wrongfully” refused to file a civil lawsuit and to process a timely notice of appeal and refused to properly process a petition for a writ of habeas corpus resulting in the petition’s improper denial. According to appellant, this concerted decision by County employees to work to deprive incarcerated persons of their state and federal constitutional rights, as well as statutory rights, to meaningful access to the courts by creating false reasons for refusing to file pleadings, and creating policies that place an unfair and unnecessary burden on incarcerated litigants, caused much emotional and other harm. The claim was denied.
b. The original complaint.
In March 2004, appellant filed a form complaint against the State, the County, County employees Susan R. Ladd and Peter Moock, and Superior Court executive officer Todd Barton. Appellant alleged causes of action for general negligence, intentional tort, and fraud. The underlying premise of this complaint is that appellant’s attempts to prosecute three separate actions in the Superior Court “were completely frustrated by the policies, procedures, and actions of the Defendants in this matter so that Plaintiff’s civil and constitutional rights to have meaningful access to the courts and equal protection, were, and continue to be, denied.” The complaint sought damages for “Emotional distress, denial of civil and constitutional rights to equal protection, meaningful access to the courts, etc.” and “Nonmonetary relief such as injunctive and declaratory relief, etc.”
c. Respondents’ demurrers to the complaint.
The County demurred to the complaint on the ground that appellant had failed to state a cause of action against it. The trial court sustained the demurrer without leave to amend to the third cause of action for fraud. This cause of action was based on appellant’s claim that letters written by both Ladd and Moock “falsely attempted to dissuade Plaintiff from filing this suit by claiming Defendant kings county was not liable.” The trial court ruled that appellant had not established that he was harmed. However, the court overruled the County’s demurrer to the negligence and intentional tort causes of action.
The State, named in the complaint both as the State and as its judicial branch entity, the Superior Court, demurred to the complaint. The State argued that appellant had not filed a government tort claim, had failed to state a statutory basis for his causes of action, and had failed to allege the elements of a negligence cause of action. The trial court sustained the demurrer with respect to any claim for damages or other monetary relief without leave to amend and sustained the demurrer with respect to claims for nonmonetary relief with leave to amend.
d. The first amended complaint.
Appellant filed a first amended complaint (FAC) that contained substantially the same allegations as the original complaint but omitted claims against Ladd and Moock. Causes of action for negligence and intentional tort were alleged. Despite the court’s ruling on the State’s demurrer, the FAC retained a prayer for monetary damages.
On appellant’s motion, he was permitted to amend his complaint to add a cause of action for violation of 42 United States Code section 1983 and to name “doe” defendants.
e. The State’s demurrer to the first amended complaint.
The State demurred to the 42 United States Code section 1983 cause of action on the grounds that the State is not a person within the meaning of, and thus cannot be sued under, that statute and that the FAC fails to allege any wrongful conduct creating liability by a named individual, i.e., Barton or J. E. Lewis, the Superior Court assistant executive officer. Regarding equitable relief, the State demurred on the grounds that appellant did not establish any ongoing acts that are contrary to law, appellant had an adequate remedy at law, and the acts alleged did not merit an extraordinary remedy.
The trial court sustained the demurrer without leave to amend and dismissed the action as to the State, Barton and Lewis. Appellant’s appeal of this order is part of F049376.
f. The County’s summary judgment motion.
The County moved for summary judgment on the ground that there was no employer-employee relationship between the County and the Superior Court employees at the time the acts and omissions were alleged to have occurred. Accordingly, no liability could be imputed to the County.
The trial court granted summary judgment in the County’s favor finding that the County established that it was neither the employer of, nor had control over, the alleged wrongdoers at any relevant time. The challenge to this order is also part of F049376.
g. Motions.
During these proceedings, appellant filed numerous motions. Two of these motions are the subject of F048011.
In July 2004, appellant filed a “motion for this honorable court’s order that he be given meaningful access to this honorable court.” In this motion, appellant requested the Superior Court to order the California Department of Corrections to provide a more extensive law library at Corcoran with longer hours of operation and to allow more law library time for appellant personally, even though the Department of Corrections was not a party to the action. The trial court denied the motion.
Appellant filed a second motion “that he be provided meaningful access to this court in this matter” in January 2005. This motion was also denied.
In March 2005, appellant filed a motion “for a preliminary injunction enjoining the defendants’ continuing refusal to process his notice of appeal in case # 01cv7241.” This is the same notice of appeal that was the subject of the two petitions for writ of mandate filed in this court regarding the civil action for inadequate dental treatment. The trial court denied the motion.
DISCUSSION
1. The demurrers were properly sustained.
a. Standard of review.
On appeal from a judgment dismissing an action after sustaining a demurrer without leave to amend, the reviewing court gives the complaint a reasonable interpretation and treats the demurrer as admitting all material facts properly pleaded. (Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 966-967.) However, the court does not assume the truth of contentions, deductions or conclusions of law. (Id. at p. 967.) The court then determines de novo whether the complaint states facts sufficient to state a cause of action under any possible legal theory. (Leonte v. ACS State & Local Solutions, Inc. (2004) 123 Cal.App.4th 521, 525.) However, the appellant bears the burden of demonstrating that the trial court erred in sustaining the demurrer. (Zelig v. County of Los Angeles (2002) 27 Cal.4th 1112, 1126.) The appellant must show how the defects in the complaint can be cured by amendment. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 349.)
b. The County’s demurrer.
As noted above, the trial court sustained the County’s demurrer without leave to amend to the third cause of action for fraud in the original complaint. In this cause of action, appellant alleged that both Ladd and Moock, who are County employees, wrote letters to appellant that “falsely attempted to dissuade [appellant] from filing this suit by claiming Defendant kings county was not liable.” Appellant further alleged that these representations were in fact false, that he was wrongly delayed in filing this suit, and that his rights to meaningful access to the courts and equal protection were denied.
The letters were attached to the complaint as exhibits. Ladd, the County risk analyst, wrote “The County of Kings does not have any jurisdiction over the Superior Court of California -- Kings County Division. Therefore, we cannot accept any liability in this matter whatsoever.” Similarly, Moock, the assistant county counsel, explained “At all times relevant to the incidents about which you complain, all persons who work for the Kings County Superior Court, including Todd Barton and the ‘Court Clerks’ to which you refer in your letter, are Court employees, not County employees. Your complaints and claims should be addressed to the Kings County Superior Court, not the County of Kings.”
In its demurrer, the County argued that there had been no misrepresentation of fact. Rather, Moock and Ladd were merely stating their legal opinions. Further, appellant had not alleged that he took any detrimental action in response to or in reliance on the alleged misrepresentations. The trial court sustained the demurrer on the ground that appellant had not stated a cause of action for fraud and concealment in that he did not establish that he was harmed by any actions of Ladd or Moock.
The necessary elements of fraud are (1) misrepresentation (false representation, concealment, or nondisclosure); (2) knowledge of falsity; (3) intent to defraud, i.e., to induce reliance; (4) justifiable reliance; and (5) resulting damage. (Lazar v. Superior Court (1996) 12 Cal.4th 631, 638.) Fraud must be pled specifically. Thus, the liberal construction policy will not be invoked to sustain a materially defective fraud cause of action. (Id. at p. 645.) Moreover, the omission of a single one of these elements will prevent recovery. (Watt v. Patterson (1954) 125 Cal.App.2d 788, 792.)
Justifiable reliance exists when the misrepresentation or nondisclosure was an immediate cause of the plaintiff’s conduct that altered his position, and such conduct would not, in all probability have occurred, without such misrepresentation or nondisclosure. (Molko v. Holy Spirit Assn. (1988) 46 Cal.3d 1092, 1108, overruled on another ground in Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 854, fn. 19.) Further, this reliance must have resulted in detriment to the plaintiff.
Here, even assuming that Ladd and Moock misrepresented a fact, as opposed to giving a legal opinion, appellant nevertheless failed to state a cause of action for fraud. Appellant did not claim that he took any detrimental action in response to, and in reliance on, the alleged misrepresentations. Rather, although appellant alleges that the letters “falsely attempted to dissuade” him from filing the complaint, and that he was wrongly delayed in filing this suit, appellant did in fact timely file the complaint against the County. Thus, the elements of justifiable reliance and resulting damage were absent from appellant’s complaint.
On appeal, appellant again argues that the alleged misrepresentations caused him to be “delayed in proceeding.” However, he neither explains how he was delayed nor how any such delay was detrimental. Appellant further argues that the “misinformation” provided in the County defendants’ letters was directly connected to his not filing a proper tort claim with the Superior Court. Yet, Moock specifically advised appellant to address his claim to the Superior Court.
Thus, appellant did not adequately plead either justifiable reliance or resulting damage and, on appeal, did not show how the defects in the complaint could be cured by amendment. Accordingly, based on our de novo review, the trial court’s sustaining of the County’s demurrer to the fraud cause of action will be affirmed.
c. The State’s demurrer to the complaint.
As discussed above, the State demurred to the original complaint on the ground that appellant had failed to state a cause of action against it. Regarding appellant’s claim for monetary damages, the State argued the complaint should be dismissed because appellant had not presented a government tort claim to the State before filing the lawsuit as required by the California Tort Claims Act. (Gov. Code, § 900, et seq.) Rather, the claim attached to the complaint had been filed with the County. The trial court sustained the demurrer to the claims for damages or other monetary relief without leave to amend.
The failure to allege facts demonstrating or excusing compliance with the claim presentation requirement subjects a claim against a public entity to a demurrer for failure to state a cause of action. (State of California v. Superior Court (2004) 32 Cal.4th 1234, 1239.) Such compliance is an element of the cause of action. (Id. at p. 1244.)
Here, the complaint did not allege that a tort claim had been presented to the State. Rather, appellant alleged that a claim had been presented to the County. However, the County claim does not satisfy the claim presentation requirement for the State claims. A government tort claim must be filed with the correct entity. (Life v. County of Los Angeles (1991) 227 Cal.App.3d 894, 901.)
On appeal, appellant contends a letter he wrote to Barton on February 4, 2004, substantially complied with the claim presentation requirement. In that letter, appellant listed the problems he had been having filing civil pleadings, including the original complaint. Appellant explained that he therefore had “found it necessary to attempt to commence an action in the Kings County Superior Court naming you, your County, your agents, and others as defendants for denying me my constitutional right to meaningful access to the courts.” The Superior Court clerks had refused to accept the complaint. Appellant concluded with:
“Also, although I am more interested in changing policies and procedures, I also intend to seek damages. I filed a claim with Kings County but they state that they are not liable for the actions of the officials of the superior court. Although I disagree with this, I request that you send me information as to how and to whom I should file a tort claim regarding the actions of the officials of the Kings County Superior Court.”
The complaint was filed one month later.
The purpose behind the claim presentation requirement is to give the entity the opportunity to adequately investigate the claim, and settle it if appropriate, without the expense of litigation. (State of California v. Superior Court, supra, 32 Cal.4th at p. 1244.) Where this purpose has been satisfied, courts have refused to permit the claims statutes to become traps for the unwary. To that end, courts employ a test of substantial compliance rather than strict compliance in evaluating whether a plaintiff has met the demands of the claims statutes. (Life v. County of Los Angeles, supra, 227 Cal.App.3d at p. 899.)
Nevertheless, substantial compliance contemplates that there is at least some compliance with all of the statutory requirements. (Del Real v. City of Riverside (2002) 95 Cal.App.4th 761, 769.) Further, if the claim is not directed to the public entity, substantial compliance demands that it be “‘actually received’” by the appropriate person or board. (Life v. County of Los Angeles, supra, 227 Cal.App.3d at p. 901.) A claim that fails to substantially comply with the Tort Claims Act may still be considered a “‘claim as presented’” if it puts the public entity on notice both that the claimant is attempting to file a valid claim and that litigation will result if the matter is not resolved. (Del Real v. City of Riverside, supra, 95 Cal.App.4th at p. 769.)
Here, appellant’s February 4 letter to Barton did not meet the purposes of the claims statute, i.e., giving the public entity the opportunity to investigate and settle the claim before litigation. First, it was directed to an individual, not the public entity. More importantly, the letter did not purport to be a tort claim. Rather, appellant requested information from Barton regarding how to file a claim with the Superior Court in the future. Appellant then filed his lawsuit before presenting such a claim. Finally, appellant’s letter gave no indication of either the amount claimed or whether it would be a limited civil case as required by Government Code section 910, subdivision (f). Accordingly, appellant’s letter did not substantially comply with the claims filing requirement.
Appellant also argues that his letter of March 15, 2004, to Barton constitutes substantial compliance with the claims statute. However, this letter was written and mailed after the complaint was filed. The claim must be presented to the public entity and have been acted upon before the suit is brought. (State of California v. Superior Court, supra, 32 Cal.4th at p. 1239.)
Since appellant failed to comply with the Tort Claims Act requirements for his claim against the Superior Court, he is barred from bringing a suit for money or damages against that entity. Therefore, the trial court correctly sustained the demurrer to appellant’s claims for damages or monetary relief without leave to amend.
d. The State’s demurrer to the first amended complaint.
In the FAC appellant attempted to state causes of action for damages under 42 United States Code section 1983 and for intentional tort. Despite the trial court’s ruling on the demurrer to the complaint, appellant continued to seek monetary damages in the FAC. The State demurred on the grounds that appellant had not alleged any unlawful act of the Superior Court and had failed to set forth a cause of action for declaratory and/or injunctive relief. The trial court sustained the demurrer without leave to amend.
(i) The 42 United States Code section 1983 cause of action.
42 United States Code section 1983, provides, in part:
“Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State …, subjects, or causes to be subjected, any citizen of the United States … to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress .…”
Thus, in any section 1983 action the initial inquiry must focus on the presence of two essential elements: (1) whether the conduct complained of was committed by a person acting under color of state law; and (2) whether this conduct deprived a person of rights, privileges, or immunities secured by the Constitution or laws of the United States. (Parratt v. Taylor (1981) 451 U.S. 527, 535, overruled on other grounds in Daniels v. Williams (1986) 474 U.S. 327, 330-331.)
A state is not a “person” under 42 United States Code section 1983. (Will v. Michigan Dept. of State Police (1989) 491 U.S. 58, 71.) Therefore, appellant’s section 1983 cause of action against the State fails. Accordingly, to survive the State’s demurrer, appellant was required to sufficiently plead a section 1983 cause of action against the named individuals, Barton and Lewis.
In order for a person to be liable under 42 United States Code section 1983, there must be a showing of personal participation in the alleged rights deprivation. (Jones v. Williams (9th Cir. 2002) 297 F.3d 930, 934.) Such participation requires the person to perform an affirmative act, participate in another’s affirmative act, or omit to perform an act that he or she is legally required to do that causes the complained of deprivation. (Leer v. Murphy (9th Cir. 1988) 844 F.2d 628, 633.) “The inquiry into causation must be individualized and focus on the duties and responsibilities of each individual defendant whose acts or omissions are alleged to have caused a constitutional deprivation.” (Ibid.) There is no respondeat superior liability. (Jones v. Williams, supra, 297 F.3d at p. 934.) Moreover, mere negligence will not support a claim under section 1983. (Daniels v. Williams, supra, 474 U.S. at pp. 330-331.)
Appellant’s claim is based primarily on the alleged mishandling of his civil action, habeas petition, and small claims case by various Superior Court clerks. The FAC alleges that the unnamed clerks refused to file his civil complaint without the necessary documentation to waive the filing fee despite his explanation that the statute of limitations was about to expire and his inclusion of a pleading “seeking ‘leave of court.’” Thereafter, the clerks continued to reject the resubmitted complaint for various procedural defects. After the case was dismissed on statute of limitations grounds, a clerk refused to file appellant’s notice of appeal because it was designated a limited civil case. With respect to the habeas petition, appellant alleges that a clerk improperly returned one volume of the supporting “lodgments,” mishandled postage, and generally hindered his attempts to file and prosecute his action. Similarly, appellant alleges that the Superior Court clerks refused to file and process the small claims action based on his using an outdated form despite his explanation that the suit must be immediately filed because the statute of limitations was about to expire.
Regarding the two individually named defendants, Lewis and Barton, appellant alleges that they refused to take action to ensure that appellant was able to obtain “filing and full and fair consideration of his legal pleadings submitted” to the Superior Court. Appellant also alleges that Barton did not respond to all of his letters that set forth the problems he was having. Appellant states that, although Barton did respond to his letter dated February 4, 2004, and addressed and agreed to rectify many of appellant’s concerns, he did not address all of the concerns and some promised actions, as far as appellant can ascertain, never occurred.
To satisfy the “deprivation” element of a 42 United States Code section 1983 action, appellant alleges that the described acts and omissions directly worked to deny him “‘his state and federal constitutional and state statutory and regulatory rights to equal protection and meaningful access to the courts ….’” Specifically, appellant contends that he, “‘unlike others who are not incarcerated so that they are able to personally attend court hearings and contact the defendant court clerks themselves, was unable to obtain a full and fair review of his legitimate legal filings properly submitted to the court.’”
However, appellant did not allege facts establishing that either Barton or Lewis owed or breached any duty of care to him. Rather, appellant simply concluded that they failed to ensure his ability to file pleadings. An omission to act will not support a United States Code section 1983 cause of action unless it is an act that the defendant is legally required to do and the omission causes the complained of deprivation. (Leer v. Murphy, supra, 844 F.2d at p. 633.) Such is not pled here. Moreover, neither Barton nor Lewis could be held liable based on alleged improper acts on the part of the Superior Court clerks. (Jones v. Williams, supra, 297 F.3d at p. 934.) Thus, the demurrer was properly sustained on the section 1983 cause of action as to Barton and Lewis.
Further, even if the Superior Court clerks had been named, appellant would not have stated a United States Code section 1983 cause of action against those individuals. First, appellant does not allege any action by the court clerks that is contrary to law. The clerks’ alleged mishandlings of appellant’s pleadings were, at most, negligence. Negligence will not support a section 1983 action. (Daniels v. Williams, supra, 474 U.S. at pp. 330-331.)
Moreover, appellant has not established that these acts deprived him of meaningful access to the courts. Although it has been noted that special care should be taken to ensure that in propria persona litigants are given instructions and notices understandable to a lay person, such litigants are not entitled to any special treatment from the courts, i.e., exemptions from procedural rules and requirements. (Gamet v. Blanchard (2001) 91 Cal.App.4th 1276, 1285.) Here, the focus of appellant’s litany of complaints is that various court clerks failed to accept documents that he admits were incomplete. Despite his status, appellant was required to comply with the various procedural rules. He was not deprived of meaningful access to the courts due to the delays caused by his own nonconforming pleadings. Appellant’s additional complaints, i.e., that the clerks thoughtlessly used his postage, improperly changed the return addresses on the self-addressed stamped envelopes, unreasonably required that complete copies be submitted to be conformed, wrongly failed to recognize and correct appellant’s own error in designating his civil action as limited, and unnecessarily caused delays in his receiving notices, even if valid, certainly did not rise to the level of a constitutional violation.
(ii) The declaratory and/or injunctive relief cause of action.
The FAC alleges that Barton and Lewis refuse to take actions to ensure that appellant, as an incarcerated litigant who must rely on the mail to submit his legal filings, is able to obtain “filing and full and fair consideration of his legal pleadings submitted to” the Superior Court. Accordingly, appellant contends, “an actual and continuing controversy exists and declaratory and/or injunctive relief, as to what duty defendants owe Plaintiff and what Defendants must do to ensure the protection of Plaintiff’s rights, is requested and warranted.”
A cause of action for declaratory relief must demonstrate (1) a proper subject of declaratory relief, and (2) an actual controversy involving justiciable questions relating to the rights or obligations of a party. (Brownfield v. Daniel Freeman Marina Hospital (1989) 208 Cal.App.3d 405, 410.) The “actual controversy” requirement concerns the existence of a present controversy relating to the legal rights and duties of the respective parties pursuant to contract, statute or order. (Ibid.) However, “‘a request for declaratory relief will not create a cause of action that otherwise does not exist.’” (City of Cotati v. Cashman (2002) 29 Cal.4th 69, 80.) Rather, the actual, present controversy must be pleaded specifically and the facts of the respective claims must be given. (Ibid.)
The gravamen of the FAC is that appellant’s procedurally defective pleadings should have been filed when they were received because appellant is an incarcerated in propria persona litigant. However, as discussed above, appellant is not entitled to any special treatment from the courts. Rather, as any litigant, appellant must comply with the various procedural rules. (Gamet v. Blanchard, supra, 91 Cal.App.4th at pp. 1284-1285.) Further, appellant has not alleged facts establishing the existence of any statutory or constitutional duty owed to him by Barton or Lewis. Instead, appellant is attempting to create a cause of action simply by requesting declaratory relief. Accordingly, the trial court did not err in sustaining the demurrer for failure to state a cause of action for declaratory relief.
Similarly, appellant has not stated a cause of action for injunctive relief. The elements of such a cause of action are (1) a tort or other wrongful act constituting a cause of action and (2) irreparable injury, i.e., a factual showing that the wrongful act constitutes an actual or threatened injury to property or personal rights that cannot be compensated by an ordinary damage award. (Brownfield v. Daniel Freeman Marina Hospital, supra, 208 Cal.App.3d at p. 410.) The right to be protected must be clear and the injury so immediately likely as only to be avoided by issuance of the injunction. (East Bay Mun. Utility Dist v. Department of Forestry & Fire Protection (1996) 43 Cal.App.4th 1113, 1126.) Moreover, an injunction is the product of an extraordinary power and should not issue as a remedy for past acts that are not likely to recur. (Mallon v. City of Long Beach (1958) 164 Cal.App.2d 178, 190.)
As discussed above, appellant has not set forth facts sufficient to constitute a tort cause of action, i.e., established that any party committed a legal wrong. Except for general conclusions that he is entitled to injunctive relief, appellant has not specified what relief he is requesting. Further, appellant has not shown irreparable injury. Appellant states that he is “seeking nonmonetary equitable relief” because some of the defendants “enjoy statutory immunity protecting them from financial damages.” He further claims that, without declaratory/injunctive relief he will not be able to obtain resolution of the merits of his “[justiciable] claims, just as occurred with the first civil suit.” This is not a clear and immediately likely injury. Accordingly, the trial court’s sustaining of the State’s demurrer to the FAC will be affirmed.
2. The trial court properly granted summary judgment in the County’s favor.
a. Standard of review.
A defendant who moves for summary judgment under Code of Civil Procedure section 437c, must either negate a necessary element of the plaintiff’s cause of action or establish a complete defense to that cause of action. The moving party must demonstrate that a material question of fact requiring examination by the trial court does not exist under any possible hypothesis within the reasonable purview of the allegations of the complaint. If the moving defendant satisfies this obligation, the burden shifts to the plaintiff to produce evidence creating a triable issue of material fact. (Code Civ. Proc., § 437c, subd. (o)(2); Brantley v. Pisaro (1996) 42 Cal.App.4th 1591, 1594.)
In evaluating the ruling under Code of Civil Procedure section 437c, the appellate court must assume the role of the trial court and reassess the merits of the motion. (Brantley v. Pisaro, supra, 42 Cal.App.4th at p. 1601.) In carrying out this function, the court applies the same three-step analysis required of the trial court. The appellate court first identifies the issues framed by the pleadings, since it is these allegations to which the motion must respond. Second, the court determines whether the moving party’s showing has satisfied its burden of proof and justifies a judgment in movant’s favor. When a summary judgment motion prima facie justifies a judgment, the third step is to determine whether the opposition demonstrates the existence of a triable, material fact. (Id. at p. 1602.)
b. Appellant could not establish an employer-employee relationship between the Superior Court clerks and the County.
In the FAC, appellant alleged that the complained of acts and omissions of the Superior Court clerks commenced on October 5, 2001. The County moved for summary judgment on the ground that, as of the unification of the Kings County superior and municipal courts on February 8, 2001, the County did not employ or exercise any control over the Superior Court clerks. The trial court granted the County’s motion on the ground that liability for the acts and omissions of the Superior Court employees could not be imputed to the County under the doctrine of respondeat superior because the County established that it did not employ or have control over the alleged wrongdoers.
In determining whether an employer-employee relationship exists, several factors must be considered. These factors include: (1) the right to control the duties of employees; (2) the power to discharge employees; (3) payment of salary; (4) the nature of the services; and (5) the parties’ belief as to the employment relationship. (Sacramento County Employees Organization v. County of Sacramento (1988) 201 Cal.App.3d 845, 850.) Nevertheless, the most important factor is the right to control the manner and means by which the work is to be performed. (Id. at p. 852.)
In support of its summary judgment motion, the County presented a declaration from the County’s director of human resources, Allison Picard. Picard explained that before February 8, 2001, court clerks were County employees. However, upon unification of the trial courts effective in Kings County on February 8, court clerks were no longer County employees but, rather were employed by the Superior Court.
As part of its documentary support, the County presented the trial court unification certificate dated February 8, 2001. Under Government Code section 7012, subdivision (a), upon unification, employees and other personnel who serve the court become employees of the superior court. Further, as of July 1, 1997, the State assumed sole responsibility for the funding of court operations. (Gov. Code, § 77200.) These court operations include the salary, benefits, and public agency retirement contributions for court staff. (Gov. Code, § 77003, subd. (a)(2).)
The County also submitted the February 1, 2001, memorandum of understanding (MOU) between the Superior Court and the Superior Court employees. This MOU provides that the Superior Court “have and retain the sole and exclusive rights and functions of management.” These rights include: hiring, assigning, promoting, demoting, or transferring any employee; reprimanding, suspending, discharging or otherwise disciplining employees; scheduling work hours and assigning work; and determining the policy and procedures affecting the selection or training of employees; and taking “such other and further action as may be necessary to organize and operate the Courts in the most efficient and economical manner and in the best interest of the public it serves.”
Thus, the County provided evidence establishing that, at the time the Superior Court clerks committed the first allegedly wrongful act, an employer-employee relationship did not exist between the County and the Superior Court clerks. Rather, the Superior Court had exclusive control over the court clerks. The County did not have the right to control or discharge the Superior Court clerks. Further, the State paid the Superior Court clerks’ salaries. Finally, as evidenced by the MOU, the Superior Court clerks understood that the Superior Court was their employer. Thus, the burden shifted to appellant to demonstrate the existence of a triable issue of material fact.
Appellant did not produce any evidence to support his claim that the County was the employer of the Superior Court clerks. On appeal, he argues that there is a question as to whether the County and the Superior Court were “dual” or “joint” employers of the Superior Court clerks. However, there is no evidence to support this claim. Rather, the evidence demonstrates the opposite.
Appellant further contends that his motion to compel responses to his discovery request for the names of the Superior Court clerks should have been granted. According to appellant, with this discovery he might have been able to show that the County exercised some control over the Superior Court clerks in October 2001. He also objects to the trial court’s denial of his request for a continuance of the summary judgment motion in order to conduct such further discovery.
However, as noted by the trial court, appellant’s discovery request was based purely on speculation. In contrast, the County’s evidence was definitive. The proof of both the date of court unification and the control the Superior Court exercised over the court clerks as outlined in the February 2001 MOU, leave no doubt that the County and the Superior Court clerks did not have an employer-employee relationship. Accordingly, the trial court properly denied appellant’s motions and entered summary judgment in the County’s favor.
Appellant’s claims of other procedural errors, i.e., the resolution of various motions, the conduct of certain hearings, etc., are also unavailing. In light of this court’s de novo review of respondents’ demurrers and summary judgment motion, these alleged errors were not prejudicial. An error must be prejudicial to warrant reversal of the judgment. (Soule v. General Motors Corp. (1994) 8 Cal.4th 548, 574.) The burden is on the appellant to show that the error complained of is substantial and affected the result. (Santina v. General Petroleum Corp. (1940) 41 Cal.App.2d 74, 76-77.)
3. The trial court properly denied appellant’s preliminary injunction motions.
The trial court considers two related factors in determining whether to issue a preliminary injunction: (1) the likelihood that the plaintiff will prevail on the merits of the case at trial and (2) the interim harm that the plaintiff is likely to sustain if the injunction is denied as compared to the harm that the defendant is likely to suffer if the preliminary injunction is granted. (14859 Moorpark Homeowner's Assn v. VRT Corp. (1998) 63 Cal.App.4th 1396, 1402.) “When a trial court denies an application for a preliminary injunction, it implicitly determines that the plaintiffs have failed to satisfy either or both of the ‘interim harm’ and ‘likelihood of prevailing on the merits’ factors. On appeal, the question becomes whether the trial court abused its discretion in ruling on both factors.” (Cohen v. Board of Supervisors (1985) 40 Cal.3d 277, 286-287.)
a. Preliminary injunction re notice of appeal.
As outlined above, after appellant’s civil case for inadequate dental treatment was dismissed, appellant submitted a notice of appeal to the Superior Court. However, a court clerk refused to file the notice of appeal on the ground that it was untimely. In response, appellant filed a petition for writ of mandate in this court (F042283).
This court granted appellant’s petition and issued a peremptory writ of mandate in March 2003 directing the clerk of the Superior Court to file the notice of appeal. Nevertheless, upon real party in interest’s motion, the remittitur was recalled on the ground that the notice of appeal from this limited civil case was in fact untimely. Appellant then filed a second petition for writ of mandate in this court in June 2004. This petition was denied (F045683).
Thereafter, in March 2005, appellant filed a motion for a “preliminary injunction enjoining the defendants’ continuing refusal to process his notice of appeal in case # 01cv7241.” Instead of requesting an order from this court directing the Superior Court clerk to file his notice of appeal as he had done in the two previous writ petitions, appellant sought an order from the Superior Court directing the Superior Court clerk to file his notice of appeal in the inadequate dental treatment action.
Under these circumstances, the trial court properly denied appellant’s motion. The Superior Court did not have jurisdiction to issue this preliminary injunction. One department of a superior court cannot review and restrain the judicial act of another department of the superior court. A judgment rendered in the superior court is binding on that matter until such time as the judgment is overturned by the appropriate appellate court. (Slone v. Inyo County Juvenile Court (1991) 230 Cal.App.3d 263, 269.) Jurisdiction to review limited civil actions, such as this one, is vested in the appellate department of the superior court. (Cal. Rules of Court, rule 8.750 et seq.; People v. Gonzalez (1996) 12 Cal.4th 804, 824-825.)
b. Preliminary injunction re meaningful access to the courts.
Appellant sought an order from the Superior Court in the underlying action directing the California Department of Corrections to provide him with adequate access to a sufficient law library. According to appellant, the Corcoran law library did not meet the required federal standards and thus he was being denied his state and constitutional rights to meaningful access to the court. Appellant attributes his procedural errors in the trial court to this allegedly inadequate law library. The trial court denied this motion.
When the trial court denied appellant’s motion, it was in the form of a motion for reconsideration. Nevertheless, we will construe this motion as a request for a preliminary injunction. As such, the denial is an appealable order. (Code Civ. Proc., § 904.1, subd. (a)(6).)
However, appellant neither stated a cause of action against the Department of Corrections nor even named it as a defendant. Rather, his claims are directed toward the actions of Barton, Lewis and the Superior Court clerks.
A cause of action must exist before injunctive relief may be granted. (Shell Oil Co. v. Richter (1943) 52 Cal.App.2d 164, 168.) The request for injunctive relief is not, in itself, a cause of action. It is a remedy. (Shamsian v. Atlantic Richfield Co. (2003) 107 Cal.App.4th 967, 984.) Thus, without a cause of action stated against the Department of Corrections, the trial court could not issue the preliminary injunction.
Moreover, this issue is now moot. In his reply brief, appellant describes the Corcoran law library as “vastly improved” and notes that he is “now able to present extensive argument in support of his claims on appeal.” For this reason, this court permitted appellant to present his arguments and citations to authority in his reply brief, contrary to normal appellate practice. Accordingly, appellant has already received the relief he requested in his motion for meaningful access to the courts.
4. Appellant was not entitled to a free copy of the reporter’s transcript.
Appellant moved the trial court to have a copy of the reporter’s transcript provided to him at no cost. The court denied the motion. Appellant contends this ruling was error and constituted a denial of equal protection.
However, no indigent litigant is entitled to a waiver of reporter’s transcript costs on appeal. (City of Rohnert Park v. Superior Court (1983) 146 Cal.App.3d 420, 430-431.) Although California Rules of Court, rule 3.61(9), requires the court to waive clerk’s fees for preparing, certifying, and transmitting the clerk’s transcript on appeal for indigent applicants, there is no such requirement for reporter’s transcript fees.
A procedure for obtaining a free reporter’s transcript through the Transcript Reimbursement Fund does exist under Business and Professions Code section 8030.2. This fund provides shorthand reporting services to low-income litigants in civil actions if the applicant is entitled and funds are available. (Bus. & Prof. Code, § 8030.6, subd. (d).) Applications for reimbursement from the fund are filled on a first-come basis. (Bus. & Prof. Code, § 8030.6, subd. (g).) Further, not all indigent applicants are qualified. Reimbursement from the fund is permitted only where the applicant is a “qualified legal services project, qualified support center, other qualified project, or pro bono attorney” and does not include “persons appearing pro se to represent themselves at any stage of the case.” (Bus. & Prof. Code, § 8030.4, subd. (e).) This suggests a legislative preference for appeals that have been evaluated for merit by qualified attorneys. (City of Rohnert Park v. Superior Court, supra, 146 Cal.App.3d at p. 429.)
Appellant contends that denying reimbursement of reporter’s transcript fees on the ground that a litigant has appeared pro se constitutes a denial of equal protection. However, as noted above, there is no entitlement for any indigent litigant. If funds are not available, there is no reimbursement. Also, the legislative preference for appeals that have been evaluated by qualified attorneys is reasonable.
Thus, the trial court did not err in refusing to order a waiver of the reporter’s transcript fees. Moreover, appellant has not suffered any prejudice from this order. This court has conducted a de novo review of the pleadings and reached the merits of appellant’s claims. The absence of a reporter’s transcript did not hinder this review.
DISPOSITION
The judgments and orders are affirmed. In the interests of justice, costs are not awarded. (Cal. Rules of Court, rule 8.276(a)(4).)
WE CONCUR: Vartabedian, Acting P.J., Wiseman, J.