Flores
v. Cal.
Dept. of Corrections and Rehabilitation

 

Filed 1/29/14  Flores
v. Cal.
Dept. of Corrections and Rehabilitation CA5

NOT TO BE PUBLISHED IN THE OFFICIAL
REPORTS

 

 

 

California Rules of Court, rule 8.1115(a),
prohibits courts and parties from citing or relying on opinions not certified
for publication or ordered published, except as specified by rule
8.1115(b).  This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115.

 

 

IN THE COURT OF APPEAL OF THE STATE
OF CALIFORNIA>

FIFTH APPELLATE DISTRICT

 
>

MARK A. FLORES,   Plaintiff and Appellant,                           v.   CALIFORNIA DEPARTMENT OF CORRECTIONS AND REHABILITATION,   Defendants and Respondents.

F066036   (Super. Ct. No. 11C0346)     OPINION

 

THE COURThref="#_ftn1" name="_ftnref1" title="">*

            APPEAL from a judgment of the href="http://www.mcmillanlaw.us/">Superior Court of Kings County.  Thomas DeSantos, Judge.

            Mark A. Flores, in pro. per., for
Plaintiff and Appellant.

            Kamala D. Harris, href="http://www.fearnotlaw.com/">Attorney General, Jennifer A. Neill,
Assistant Attorney General, Jessica N. Blonien and Stanton W. Lee, Deputy
Attorneys General, for Defendants and Respondents.

 

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            Plaintiff appeals from the order
sustaining without leave to amend defendant’s demurrer to his petition for writ
of mandate.  The petition sought
replacement of or compensation for property seized by defendants from plaintiff,
an inmate of the California Department of
Corrections and Rehabilitation (CDCR). 
The demurrer asserted plaintiff had an adequate remedy at law and defendants
had no clear, present, and ministerial duty to return the property to plaintiff
or to compensate him for it.  We find no
error in the trial court’s ruling and affirm.

>FACTUAL AND PROCEDURAL BACKGROUND

            Plaintiff filed a petition for writ
of mandate against the CDCR, alleging that he was an inmate at Corcoran State
Prison and he acquired a television set on January
2, 2009.  On September
16, 2009,
correctional officers Leal and Garcia conducted a routine search of plaintiff’s
cell, during which correctional officer Uribe confiscated a television.  Plaintiff was not given a receipt for the
television.  Plaintiff pursued an inmate
appeal seeking return of the television, but it was denied at all levels.  Attached exhibits indicate the inmate appeal
was denied because plaintiff had been given a cell search receipt, and it
indicated Uribe confiscated the television as contraband, because it was a
“floater,” which did not have a name, CDCR identification number, or serial
number engraved on it for identification.  The exhibits to the petition indicated plaintiff
had a receipt and property card showing he received a television on January 2, 2009, but there was no identifying
information on the confiscated television or on the receipt to show the
confiscated television was the same television referred to in the receipt and
property card.  Without the
identification information
engraved on it, the television was contraband. 


            On May
6, 2010,
plaintiff filed a second inmate appeal, seeking compensation for the
television.  The appeal was denied on the
same grounds and because it duplicated the prior claim.  Plaintiff filed a government claim against
the CDCR and Uribe.  He alleged he had
not received a response to the claim as of the date of the petition.  

            On May
14, 2012,
plaintiff filed an amended petition for writ
of mandate against correctional officers Uribe, Garcia, Leal, and Bartz;
the only facts alleged were that his cell was searched and his television was
confiscated because it did not have his name, prison ID number, or serial number
engraved on it.  He sought replacement of
the television or compensation for its loss.  He again attached documents from his inmate appeals
as exhibits.  The trial court deemed the
CDCR dismissed because it was not named as a defendant in the amended
petition. 

            Defendants demurred to the amended
petition.  They asserted plaintiff had an
adequate remedy by way of civil action and had not demonstrated defendants had
any clear, present, and ministerial duty to return the confiscated contraband
to him; therefore, the petition failed to state a claim for relief in mandate.  On September
4, 2012,
the trial court sustained the demurrer without leave to amend.  Plaintiff appeals. 

DISCUSSION

>I.          Appealability

We
first address an issue not discussed by the parties.  Plaintiff purports to appeal from a judgment
of dismissal entered after the sustaining of a demurrer without leave to
amend.  The record contains no such
judgment.  It contains only an unsigned
minute order sustaining the demurrer without leave to amend.  “It is well settled law that an
order sustaining a demurrer without leave to amend is nonappealable, and a
formal judgment must be entered against the unsuccessful party from which the
appeal can be taken.”  (>Schisler
v. Mitchell (1959)
174 Cal.App.2d 27, 28-29.)  A
dismissal by the court must be in the form of a signed, written order in order
to constitute a judgment.  (Code Civ.
Proc., § 581d.)  In view of the
requirement that the clerk’s transcript include the judgment appealed from,
whether or not designated by the parties (Cal. Rules of Court, rule 8.832(a)(1)(B)),
we must assume no signed judgment was entered. 
Plaintiff’s attempt to appeal from a nonexistent judgment does not
require dismissal of the appeal, however. 
The minute order includes an order that “no further action [is]
necessary,” implying that the court deemed the matter fully disposed of.  To promote the orderly administration of
justice, and to avoid the useless waste of judicial and litigant time that
would result from dismissing the appeal merely to have a judgment formally
entered in the trial court and a new appeal filed, we order the trial court to
enter a judgment of dismissal nunc pro tunc as of the date of the order
sustaining the demurrer without leave to amend, and we will construe the notice
of appeal to refer to that judgment.  (>Donohue v. State of California (1986)
178 Cal.App.3d 795, 800.)

II.        Standard of Review

“When
a demurrer is sustained, we must determine de novo whether the [pleading]
alleges facts sufficient to state a cause of action under any legal
theory.”  (Arce v. Kaiser Foundation Health Plan, Inc. (2010) 181 Cal.App.4th
471, 482.)  “[W]e ‘treat[] the demurrer
as admitting all material facts properly pleaded,’ but we do not ‘assume the
truth of contentions, deductions or conclusions
of law.’  [Citation.]”  (Id.
at p. 481.)  When the demurrer is
sustained without leave to amend, we review the denial of leave to amend for
abuse of discretion.  (>Id. at p. 482.)

III.       Establishing
Error in Trial Court’s Action

            The judgment appealed from is
presumed correct.  (Benach v. >County> of >Los Angeles> (2007) 149
Cal.App.4th 836, 852 (Benach).)  The appellant must challenge it by “rais[ing]
claims of reversible error or other defect [citation], and ‘present[ing]
argument and authority on each point made.’” 
(In re Sade C. (1996) 13 Cal.4th 952, 994.)  “This
means that an appellant must do more than assert error and leave it to the appellate court to search the record and the law books to test his
claim.”  (Yield Dynamics, Inc. v. TEA
Systems Corp. (2007) 154
Cal.App.4th 547, 557.)  “It is not our place to construct
theories or arguments to undermine the judgment and defeat the presumption of
correctness.”  (Benach, supra, at p. 852.) 
The appellant’s claims of error must be presented in his or her opening
brief; “points raised for the first
time in a reply brief on appeal will not be considered, absent good cause for
failure to present them earlier [citation].” 
(Nordstrom Commission Cases
(2010) 186 Cal.App.4th 576, 583.)  The
same rules apply to a party appearing in propria persona as to any other
party.  (First American Title Co. v.
Mirzaian (2003) 108
Cal.App.4th 956, 958, fn. 1.)

            Nothing in plaintiff’s brief
identifies any error in the trial court’s decision.  While plaintiff sets out many legal
propositions and cites authority for them, he does not relate them to the facts
of this case or show how they apply to demonstrate error in the trial court’s
actions.  “Failure of an appellant in a
civil action to articulate any pertinent or intelligible legal argument in an href="http://www.mcmillanlaw.us/">opening brief may, in the discretion of
the court, be deemed an abandonment of the appeal justifying dismissal.  [Citation.]” 
(Berger v. Godden
(1985) 163 Cal.App.3d 1113, 1119.)  Even if
we do not deem the appeal abandoned, we find it lacks merit.

IV.       Adequacy
of Pleading

            A writ of mandate may be issued
against a public body or public officer “to compel the performance of an act
which the law specially enjoins, as a duty resulting from an office, trust, or
station” in cases “where there is not a
plain, speedy, and adequate remedy, in the ordinary course of law.”  (Code Civ. Proc. §§ 1085, 1086; >People ex rel. Younger v. County of El
Dorado (1971) 5 Cal.3d 480, 491 (El Dorado).)  “Two basic
requirements are essential to the issuance of the writ:  (1) A clear, present and usually ministerial
duty upon the part of the respondent [citations]; and (2) a clear, present and
beneficial right in the petitioner to the performance of that duty [citations].”  (El
Dorado, supra, 5 Cal.3d at p. 491.)  “A ‘ministerial duty’ is one generally imposed
upon a person in public office who, by virtue of that position, is obligated
‘to perform in a prescribed manner required by law when a given state of facts
exists.  [Citation.]’  [Citations.]” 
(City of >King> >City> v. Community Bank of >Central California (2005) 131
Cal.App.4th 913, 926.)

            A.        Adequate remedy at law

“Section 1086 of the Code of Civil Procedure
provides that the writ of mandate ‘must be issued in all cases where there is
not a plain, speedy, and adequate remedy, in the ordinary course of law.’  Although the statute does not expressly
forbid the issuance of the writ if another adequate remedy exists, it has long
been established as a general rule that the writ will not be issued if another
such remedy was available to the petitioner. 
[Citations.]  The burden, of
course, is on the petitioner to show that he did not have such a remedy.”  (Phelan
v. Superior Court of San Francisco (1950) 35 Cal.2d 363, 366.) 

“‘“The question whether there is a ‘plain, speedy
and adequate remedy in the ordinary course of law,’ within the meaning of the
statute, is one of fact, depending upon the circumstances of each particular
case, and the determination of it is a matter largely within the sound
discretion of the court….”’ 
[Citation.]”  (>Barnard v. Municipal Court of San Francisco
(1956) 142 Cal.App.2d 324, 327-328.) 
If it is clear, however, that mandate is the only remedy that can
furnish the relief to which the petitioner is entitled, the discretion
disappears and the petitioner is entitled to the writ.  (May v.
Board of Directors of El Camino Irrigation Dist. (1949) 34 Cal.2d 125,
133.)

A civil action for conversion lies where a person
has been wrongfully dispossessed of his or her personal property.  (Farmers
Ins. Exchange v. Zerin (1997) 53 Cal.App.4th 445, 451-452.)  Available remedies for conversion include
specific recovery of property with damages for its detention and damages based
on the value of the property.  (Civil
Code, §§ 3336, 3379; Allstate Leasing
Corp. v. Smith (1965) 238 Cal.App.2d 128, 132-133.)  Plaintiff has not shown that the remedies by
way of an action for conversion were unavailable to him or inadequate.

            B.        Clear, present, and ministerial duty

            The
amended petition does not allege that defendants had a clear, present, and
ministerial duty to replace the television or compensate him for it.  It seeks compensation for or replacement of plaintiff’s
confiscated television pursuant to California Code of Regulations, title 15,
section 3193.  That section provides, in
part:  â€œThe department shall accept
liability for the loss or destruction of inmate personal property when it is
established that such loss or destruction results from employee action.”  (Cal. Code Regs, tit. 15, § 3193, subd.
(b).) 

The California Code of Regulations sets out the
items of property inmates are permitted to possess.  (Cal. Code Regs, tit. 15, § 3190.)  It requires that registerable property be
registered in the inmate’s name and number in the institution’s inmate property
records.  (>Id.>, § 3191,
subd. (a).)  The prison’s operational procedure
No. 806 requires that “[a]ll appliances shall have the inmate’s name and number
engraved on the back.”  “[P]ossession of
property which is not registered in the inmate’s name and number will be cause
for disciplinary action, including confiscation of the unregistered
property.  In all instances of
confiscation, every reasonable effort will be made to determine the rightful
owner of the property” and return it to him. 
(Id., § 3191, subd. (b).)  Contraband is defined as “anything which is
not permitted, in excess of the maximum quantity permitted, or received or
obtained from an unauthorized source.”  (>Id.>, §
3000.)      

The exhibits to the petition indicate the television
was confiscated from plaintiff’s cell by prison officials because it was not
engraved with his name or CDCR number; further, neither the television nor the
receipt plaintiff offered to show his purchase of it bore a serial number that
could be used to link the confiscated television to the receipt to prove his
ownership.  The regulations provide that
“every reasonable effort will be made to determine the rightful owner of”
confiscated property.  This provision
does not impose a mandatory duty to determine a particular person to be the
owner, or to return the property to that owner, when a given state of facts
exists.  California Code of Regulations,
title 15, section 3193, does not impose on defendants a clear, present, and
ministerial duty to return, replace, or compensate an inmate for property
confiscated as contraband.

            C.        Escamilla
v. Department of Corrections & Rehabilitation

Plaintiff relies on Escamilla v. Department of Corrections & Rehabilitation (2006)
141 Cal.App.4th 498, in support of his use of a writ of mandate proceeding to
redress his grievance.  In >Escamilla, after a prison riot,
Escamilla was placed in an administrative segregated housing unit (SHU); he
placed his personal clothing, watch, and items he had just purchased from the
canteen in bags to be preserved until his release from the SHU.  When he was released from the SHU months
later, however, these items were not returned to him.  His inmate appeals seeking $255 compensation
for the lost items were denied.  The
trial court granted Escamilla’s petition for a writ of habeas corpus and
awarded him $225. 

On appeal, the court determined the appropriate writ
to address the situation was a writ of mandate, rather than habeas corpus.  It concluded a claim for return of specific
property held by a public entity as bailee did not require presentation of a
government claim prior to seeking judicial relief by way of mandate, because it
was not a claim for money or damages to which the claim filing requirement applied.  The court quoted Minsky v. City of Los Angeles (1974) 11 Cal.3d 113, which stated:  â€œâ€˜[T]he government in effect occupies the
position of a bailee when it seizes from an arrestee property >that is not shown to be contraband.  [Citation.] 
The arrestee retains his right to eventual specific recovery, whether he
seeks to regain tangible property like an automobile, ring, wallet or camera,
or whether he seeks to recover a specific sum of money which, under general
constructive trust principles, is traceable to property within the possession
of the defendant. [Citations.]’ 
[Citation.]”  (>Escamilla, supra, 141 Cal.App.4th at p.
506, italics added.)  Both >Escamilla and Minsky cited specific code sections imposing a duty on officers to
return an arrestee’s or prisoner’s property when the arrestee or prisoner is
discharged from custody.  (>Escamilla, at p. 510, fn. 10.) 

Escamilla did not
discuss the issue of an adequate remedy at law. 
“name=clsccl28>‘An opinion is not authority for a point not raised,
considered, or resolved therein.’ 
[Citation.]”  (>Apple Computer, Inc. v. Superior Court
(2005) 126 Cal.App.4th 1253, 1277.) 
Further, Escamilla is
distinguishable from plaintiff’s claim. 
In Escamilla, the property in
issue was not taken from the inmate as contraband; it was merely taken and held
for safekeeping.  Here, in contrast, plaintiff’s
property was not simply taken from him for safekeeping when he was arrested or
placed in segregated housing; it was seized as contraband.  Thus, in taking possession of plaintiff’s property,
defendants were not acting as bailees charged with an obligation to safely keep
and return the television.  Plaintiff
does not allege any statutory or other basis for a duty to return contraband to
him.  He does not allege facts showing
that the television was not contraband, for example, that it was properly
engraved with plaintiff’s name or CDCR number or that he had proof sufficient
to establish his ownership, such as a receipt for its purchase bearing a serial
number matching the serial number on the television.  Consequently, plaintiff has not demonstrated
that his claim is a proper one to pursue by petition for writ of mandate.

            D.        Abuse of discretion

The amended petition seems to allege defendants
abused their discretion when they refused to return the television to plaintiff.  “‘While, of course, it is the general rule
that mandamus will not lie to control the discretion of a court or officer,
meaning by that that it will not lie to force the exercise of discretion in a
particular manner … [it] will lie to correct abuses of discretion, and will lie
to force a particular action by the inferior tribunal or officer, when the law
clearly establishes the petitioner’s right to such action.’  [Citation.]” 
(Manjares v. Newton (1966) 64
Cal.2d 365, 370.)  This may occur only in
unusual circumstances, when the facts are stipulated or undisputed and
discretion can be exercised in only one way.  (Hurtado
v. Superior Court (1974) 11 Cal.3d 574, 579; County of Sacramento v. Loeb (1984) 160 Cal.App.3d 446, 451-452.)  

Although the facts alleged by plaintiff are
undisputed for purposes of ruling on defendant’s demurrer, plaintiff has not
established that, in light of those facts, defendant’s discretion had to be
exercised in only one way—by returning the seized contraband to him.  Rather, the law presented in support of the
demurrer indicated inmates were not permitted to possess contraband and prison
officials were authorized to seize it from inmates.  Accordingly, plaintiff has not established
that he may pursue his claim by way of writ of mandate.

V.        Denial
of Leave to Amend

Denial of leave to amend is reviewed for abuse of
discretion.  (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)  If there is a reasonable possibility the
defect in the pleading can be cured by amendment, denial of leave to amend is
an abuse of discretion.  (>Ibid.) 
It is the pleader’s burden to demonstrate the pleading can be amended to
state a cause of action.  (>Ibid.) 
There is nothing in the record or in plaintiff’s briefs to indicate he
has any further facts he may allege to show that he owned and properly
possessed the confiscated television and that it was not contraband.  Consequently, the trial court did not abuse
its discretion by denying leave to amend the petition.

>DISPOSITION

The
trial court is directed to enter a judgment of dismissal nunc pro tunc as of
the date of the order sustaining the demurrer without leave to amend.>  The
judgment is affirmed.  Defendants are
entitled to their costs on appeal.