Moore v. U.S. Government and Police Dept.

Filed 6/16/08 Moore v. U.S. Government and Police Dept. CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION FOUR

APPEAL from a judgment of the Superior Court of Los Angeles County, Joseph F. De Vanon, Judge. Affirmed.

Kathryn F. Moore, in pro. per., for Plaintiff and Appellant.

No appearance for Defendants and Respondents.

Plaintiff Kathryn F. Moore appeals from the judgment of dismissal entered in her civil action against parties she denominates as the U.S. Government and Police Department. We affirm.

BACKGROUND

The record on appeal is incomplete. From the documents provided, we piece together the following procedural and factual background.

Plaintiff filed a civil action, in pro. per., against the Government of the United States and the Pasadena Police Department. The record does not contain the complaint. From other documents filed by plaintiff, it appears that the action was based on allegations that these entities used drugs and psychiatric manipulation to control her mind and perpetrate sexual assault against her and her daughter.[1]

The trial court scheduled the matter for a case management conference on June 25, 2007. Plaintiff failed to appear, and the court continued the matter to July 27, 2007, for an order to show cause hearing re sanctions or dismissal. Plaintiff failed to appear on July 27, and the court dismissed the action under Code of Civil Procedure sections 575.2 and 583.410, subdivision (a). On August 2, 2007, plaintiff filed a notice of appeal.

A week later, on August 9, 2007, plaintiff filed in the trial court an untitled motion in which she made rambling allegations against the United States Government and the Pasadena Police Department. (See fn. 1, ante.) Besides alleging mind control and sexual abuse, she also alleged that the defendant has used its power to have me thrown in jail during the time of the conference hearing. Among the exhibits attached to the motion were documents showing that plaintiff had been involuntarily committed for psychiatric evaluation and treatment under the Lanterman-Petris-Short Act (Welf. & Inst. Code,  5000, et seq.) from June 20 to on or about August 6, 2007.

According to the documents, on June 20, 2007, Pasadena Police officers took plaintiff into custody after her mother reported that plaintiff had locked herself in the basement and was disoriented and yelling. Plaintiff was placed on a 72-hour hold for psychiatric observation under Welfare and Institutions Code section 5150.[2]

On June 21, 2007, plaintiffs mother applied for a restraining order against plaintiff seeking protection for other family members and herself. The mother alleged that plaintiff had made repeated threats, was mentally ill, and refused to take her medication. She further alleged that plaintiff had previously been involuntarily committed on separate occasions in April 2007 following arrest by Pasadena Police officers and May 2007 following arrest by Los Angeles County Sheriffs deputies. Following a second application, a restraining order was issued on July 13, 2007.

Meanwhile, upon expiration of plaintiffs initial 72-hour hold on June 23, 2007, plaintiff was certified as gravely disabled and committed for a 14-day period of intensive treatment under Welfare and Institutions Code section 5250.[3] The treating psychiatrist described her as paranoid and delusional. Upon order of the committing hearing officer, plaintiff was medicated against her will.

Subsequently, on July 7, 2007, plaintiff was certified for an additional 30 days intensive treatment under Welfare and Institutions Code section 5270.15.[4] That commitment period ended on or about August 6, 2007. On August 9, 2007, plaintiff filed the untitled motion to which the documents describing her commitment were attached.

Four days after that, on August 15, 2007, plaintiff filed a second untitled motion in the trial court complaining of harassment and sexual abuse by the police department. Plaintiff asserted that she had been hospitalized against her will and forced to take medication during the time of Mandatory conference date for this case. She added that she was now aware of sexual abuse committed by law enforcement officers at a 24 Hour Fitness facility and was concerned she would lose her membership if she reported it.

DISCUSSION

In her opening brief on appeal, as in the trial court, plaintiff asserts that she and her daughter have been sexually abused by the federal government and Pasadena police. She also complains that [t]he defendant through [sic] me in [the] hospital knowing the date of the conference. However, she makes no coherent legal argument challenging the trial courts dismissal of her action. For the following reasons, we affirm the trial courts order.

First, plaintiff has committed several fatal procedural errors. She filed her opening brief without a valid proof of service showing service on the ostensible opposing parties in the action: the United States government and the Pasadena Police Department. (See Cal. Rules of Court, rule 8.25(a)(2).)[5] The record on appeal is deficient, in that it fails to contain a copy of her complaint with proof of service in the trial court. (Gee v. American Realty & Construction, Inc. (2002) 99 Cal.App.4th 1412, 1416.) Indeed, one ostensible party, the Pasadena Police Department, has represented to this court that it has no knowledge of plaintiffs complaint. (See fn. 5, ante.) Further, plaintiffs opening brief fails to challenge the trial courts ruling by reasoned argument and citations to relevant authority. (See Badie v. Bank of America (1998) 67 Cal.App.4th 779, 784-785.) Because of these deficiencies, we deem any challenge to the trial courts ruling to be forfeited.

Second, even were we to overlook these deficiencies, we would find no merit to any substantive challenge that plaintiff might make to the dismissal of her complaint. The trial court dismissed the complaint as a sanction for failing to appear at the case management conference. In order to facilitate the expeditious processing of civil cases, parties may be sanctioned for failure to comply with delay-reduction rules or court orders. [Citations.] These sanctions may include terminating sanctions, such as the striking of pleadings. [Citation.] In propria persona litigants are entitled to the same, but no greater, rights than represented litigants and are presumed to know the delay-reduction rules. (Wantuch v. Davis (1995) 32 Cal.App.4th 786, 794-795 (Wantuch).) Hence, the court had the authority, within its discretion, to dismiss plaintiffs action based on her failure to appear at the case management conference.

It is conceivable that plaintiff might have made a motion to vacate the dismissal (Code Civ. Proc.,  473, subd. (b)) on the ground that her failure to appear was not willful, because she had been involuntarily committed for mental health treatment. However, rather than making such a motion, she filed a notice of appeal, which deprived the trial court of jurisdiction. (Andrisani v. Saugus Colony Limited (1992) 8 Cal.App.4th 517, 523.) Thus, even if the two untitled motions she filed following the dismissal could be deemed motions to vacate, the trial court had no power to act upon them. Thus, plaintiff never effectively informed the trial court that her involuntary commitment prevented her from appearing.

Finally, we note that in determining what remedy, if any, is appropriate to protect an indigent, incarcerated prisoners right of meaningful access to the courts, a court must consider whether the lawsuit, on its face, is a bona fide action threatening the prisoners property interests. (Wantuch, supra, 32 Cal.App.4th at p. 796.) Here, plaintiffs action is not bona fide. To the extent she has alleged causes of action against the federal government, she cannot proceed. The United States government is immune from civil penalties absent express and unequivocal waiver of that immunity. (McGee v. Tucoemas Federal Credit Union (2007) 153 Cal.App.4th 1351, 1356.) Here, no such express and unequivocal waiver exists. Further, it is apparent from the record that the purported factual basis of plaintiffs claims against both the federal government and the Pasadena Police Department are the product plaintiffs long-standing mental illness, not any actionable conduct by the ostensible parties. Because plaintiffs action is not, on its face, bona fide, she was not prejudiced by the fact that her failure to appear at the case management conference and order-to-show-cause hearing was due to her involuntary commitment.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

WILLHITE, J.

We concur:

EPSTEIN, P. J.

MANELLA, J.

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[1] The record contains two untitled motions plaintiff filed in the trial court, one on August 9, 2007, and the other on August 15, 2007. The motions make rambling, nonsensical allegations of mind control, harassment and sexual assault by the federal government and the Pasadena police. A sample from the August 9th motion: This is a motion to show evidence of . . . sexual assault, child pornography used against my daughter . . . my daughters eyes were used in a film called 28 days latter. . . . Other children were violated also. My and [my] families [sic] civil rights have been violated by psychiatric, unwanted services, threw [sic] the use of government control devices. These devices have been used to sexually assault people to gain control of [us], to use us for there [sic] gain. . . . The United States Government allowed the Police Department to harass my daughter sexually and family [sic]. . . . [L]aw enforcement used doctors to say that it was not happening or tried and make the situation worse.

[2] Welfare and Institutions Code section 5150 permits a person to be held involuntarily in a county mental health facility for 72 hours when there is probable cause to believe the person, as a result of a mental disorder, is gravely disabled or a danger to herself or others.

[3] Following an initial 72-hour commitment, Welfare and Institutions Code section 5250 permits the certification of a gravely disabled person for 14-day intensive treatment if, inter alia, the person refuses or is unable to accept voluntary treatment.

[4] Under Welfare and Institutions Code section 5270.15, a person may be certified for an additional 30-day period of intensive treatment, if the treating staff determines that the person remains gravely disabled and will not accept voluntary treatment.

[5] The proof of service attached to the brief lists as served parties 24 Hour Fitness Sport and the Attorney Generals office. No respondents briefs have been filed. In response to notification from this court stating that the time for filing a respondents brief had passed, the Pasadena City Attorneys Office informed us by letter that [t]he Pasadena Police Department is unaware of any litigation let alone an appeal to the Second Appellate District.