Flores v. Department of Corrections & Rehabilitation

Opinion

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 California’s 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

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

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

“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 [ 104 Cal.Rptr.3d 545 ].) “[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.)

T

he judgment appealed from is presumed correct. (Benach v. County of Los Angeles (2007) 149 Cal.App.4th 836 , 852 [ 57 Cal.Rptr.3d 363 ] (Benach).) The appellant must challenge it by “raising] claims of reversible error or other defect [citation], and ‘presenting] argument and authority on each point made.’ ” (In re Sade C. (1996) 13 Cal.4th 952 , 994 [ 55 Cal.Rptr.2d 771 , 920 P.2d 716 ].) “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 [ 66 Cal.Rptr.3d 1 ].) “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

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. “[F]ailure of an appellant in a civil action to articulate any pertinent or intelligible legal argument in an opening brief may, in the discretion of the court, be deemed an abandonment of the appeal justifying dismissal.” (Berger v. Godden (1985) 163 Cal.App.3d 1113 , 1119 [ 210 Cal.Rptr. 109 ].) Even if we do not deem the appeal abandoned, we find it lacks merit.

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; see People ex rel. Younger v. County of El Dorado (1971) 5 Cal.3d 480 , 491 [ 96 Cal.Rptr. 553 , 487 P.2d 1193 ] (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 [citation].” (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 [ 32 Cal.Rptr.3d 384 ].)

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 [ 217 P.2d 951 ].)

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 [ 61 Cal.Rptr.2d 707 ].) Available remedies for conversion include specific recovery of property with damages for its detention and damages based on the value of the property. (Civ. Code, §§ 3336, 3379; Allstate Leasing Corp. v. Smith (1965) 238 Cal.App.2d 128 , 132-133 [ 47 Cal.Rptr. 636 ].) 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: “The 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.” “[Possession 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. (Cal. Code Regs., tit. 15, § 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.)

C. Escamilla v. Department of Corrections & Rehabilitation

Plaintiff relies on Escamilla v. Department of Corrections & Rehabilitation (2006) 141 Cal.App.4th 498 [ 46 Cal.Rptr.3d 408 ] (Escamilla) 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 the return of specific property held by a public entity as the 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 [ 113 Cal.Rptr. 102 , 520 P.2d 726 ], which stated: “ ‘[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.)

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 [ 49 Cal.Rptr. 805 , 411 P.2d 901 ].) 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 [ 114 Cal.Rptr. 106 , 522 P.2d 666 ]; County of Sacramento v. Loeb (1984) 160 Cal.App.3d 446 , 451-452 [ 206 Cal.Rptr. 626 ].)

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.

Denial of leave to amend is reviewed for abuse of discretion. (Blank v. Kirwan (1985) 39 Cal.3d 311 , 318 [ 216 Cal.Rptr. 718 , 703 P.2d 58 ].) 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.

Appellant’s petition for review by the Supreme Court was denied April 30, 2014, S217112.