Dickerson v. Dept. of Corrections and Rehabilitation CA5 ( 2021 )

Filed 4/19/21 Dickerson v. 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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
GREGORY DICKERSON,
F079047
Plaintiff and Appellant,
(Super. Ct. No. BCV-101885)
v.
DEPARTMENT OF CORRECTIONS AND OPINION
REHABILITATION et al.,
Defendants and Respondents.
THE COURT*
APPEAL from a judgment of the Superior Court of Kern County. David R.
Lampe, Judge.
Gregory Dickerson, in pro. per, for Plaintiff and Appellant.
Xavier Becerra, Attorney General, Monica N. Anderson, Assistant Attorney
General, Neah Huynh, Deputy Attorney General, for Defendants and Respondents.
-ooOoo-
* Before Poochigian, Acting P.J., Franson, J. and Smith, J.
Plaintiff, a prison inmate, brought this action against the Department of
Corrections and Rehabilitation (CDCR) and its personnel, alleging defendants failed to
initiate the process to have him considered by the trial court for a recall of his sentence
and resentencing under Penal Code section 1170, subdivision (d)(1). Defendants
demurred to the first amended complaint, and the trial court sustained the demurrer
without leave to amend, finding plaintiff’s claims were barred by governmental
immunity. We conclude plaintiff’s first amended complaint failed to state a viable cause
of action against any defendant, and plaintiff has not demonstrated his pleading could be
amended to cure the defects. Accordingly, we affirm the judgment against him.
FACTUAL AND PROCEDURAL BACKGROUND
Plaintiff, a state prisoner acting in propria persona, filed a complaint against the
CDCR and three of its employees. The complaint was served on the CDCR on
September 6, 2018. The CDCR filed a demurrer in response to the complaint on
October 9, 2018. The trial court sustained the CDCR’s unopposed demurrer with leave to
amend. Plaintiff also served the individual defendants with the original complaint; they
demurred to it and plaintiff opposed the demurrer. The trial court sustained the
individuals’ demurrer with leave to amend.
Plaintiff filed a first amended complaint. It contained causes of action labeled
breach of mandatory duty, negligence (against all defendants), negligence (against the
CDCR only), and willful misconduct. It alleged defendants had a duty, pursuant to
California Code of Regulations, title 15, section 3076.2, to request a recall of plaintiff’s
sentence when there was a discrepancy in the sentence. Defendants failed to do so, even
after plaintiff gave them definitive evidence that his sentence was illegal and that the
CDCR was aware of it since 1996. Plaintiff also alleged that, after his conviction in
Tulare County Superior Court, the CDCR asked the San Bernardino County Superior
Court for the records of plaintiff’s prior conviction in that court, but the San Bernardino
County Superior Court failed to provide them. The CDCR knowingly provided an
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incomplete record to the Tulare County Superior Court. Plaintiff alleged defendants’
failure to act to recall his sentence was at least negligent or was willful misconduct, and
resulted in his prolonged incarceration. Plaintiff prayed for compensatory and punitive
damages, and an injunction requiring defendants to immediately release him from
custody.
After filing the first amended complaint, plaintiff filed a request for entry of the
CDCR’s default on the original complaint. Entry of default was denied. All defendants
demurred to the first amended complaint, plaintiff opposed, and the trial court sustained
the demurrer without leave to amend; it found statutory immunity under the Government
Claims Act (Gov. Code, § 810 et seq.)1 precluded the liability of all defendants. Plaintiff
appeals from the denial of his request for the CDCR’s default on the original complaint
and from the order sustaining the demurrer to the first amended complaint without leave
to amend.
DISCUSSION
I. Appealability
“The existence of an appealable judgment is a jurisdictional prerequisite to an
appeal. A reviewing court must raise the issue on its own initiative whenever a doubt
exists as to whether the trial court has entered a final judgment or other order or judgment
made appealable by Code of Civil Procedure section 904.1.” (Jennings v. Marralle
(1994) 8 Cal.4th 121, 126.) Plaintiff purports to appeal from the February 11, 2019 order
denying entry of CDCR’s default and from the March 20, 2019 order sustaining the
demurrer of all defendants to the first amended complaint. Neither is a final, appealable
judgment. An order sustaining a demurrer without leave to amend is not an appealable
order; an appeal is proper only after entry of a dismissal based on that order. (Villery v.
1 All further statutory references are to the Government Code, unless otherwise
indicated.
3.
Department of Corrections & Rehabilitation (2016) 246 Cal.App.4th 407, 412;
Thompson v. Ioane (2017) 11 Cal.App.5th 1180, 1189.) Likewise, an order denying
entry of default does not result in a final determination of all issues in the case or
constitute a final judgment. (See UAP-Columbus JV 326132 v. Nesbitt (1991) 234
Cal.App.3d 1028, 1034–1035.)
The California Rules of Court allow us to “treat a notice of appeal filed after the
superior court has announced its intended ruling, but before it has rendered judgment, as
filed immediately after entry of judgment.” (Cal. Rules of Court, rule 8.104(d)(2).)
Here, however, neither the record nor the register of actions reflects that a judgment of
dismissal was ever entered. Nonetheless, the substantive issues on appeal have been fully
briefed by both parties. In the interests of justice and to prevent unnecessary delay, we
deem the order sustaining the demurrer as incorporating a judgment of dismissal and treat
plaintiff’s notice of appeal as applying to the dismissal. (Nowlon v. Koram Ins. Center,
Inc. (1991) 1 Cal.App.4th 1437, 1440–1441.)
II. Denial of Entry of Default
Generally, if a defendant has been served, but has not filed a responsive pleading,
such as an answer or a demurrer, within 30 days after service, the clerk must enter the
default of the defendant on the written request of the plaintiff. (Code Civ. Proc.,
§§ 412.20, 585.) The CDCR was personally served with summons and complaint on
September 6, 2018. It filed its demurrer on October 9, 2018. Plaintiff contends CDCR’s
responsive pleading was filed 33 days after service, and therefore was untimely. He
concludes his request for entry of the CDCR’s default was improperly denied.
The CDCR demurrer was not untimely. “The time in which any act provided by
law is to be done is computed by excluding the first day, and including the last, unless the
last day is a holiday, and then it is also excluded.” (Code Civ. Proc., § 12.) “Holiday”
includes every Saturday and Sunday, and any holiday specified in Code of Civil
Procedure section 135. (Code Civ. Proc., §§ 10, 12a.) Columbus Day, the
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second Monday in October, is a judicial holiday. (Code Civ. Proc., § 135; § 6700,
subd. (a)(12).)
The CDCR was served on September 6, 2018. Thirty days later was Saturday,
October 6, 2018, a holiday. Sunday was also a holiday. Monday, October 8, 2018, was
Columbus Day, a judicial holiday. All three days were excluded from the calculation of
the 30-day period for the CDCR’s response to the complaint. Thus, the last day to file
the demurrer was Tuesday, October 9, 2018, which was the day it was filed. The
CDCR’s demurrer to the original complaint was timely, and the clerk had no grounds for
entering its default. There was no error in the denial of entry of default.
III. Demurrer2
A. Standard of Review
“On appeal from a dismissal after an order sustaining a demurrer, we review the
order de novo, exercising our independent judgment about whether the complaint states a
cause of action as a matter of law. [Citations.] We give the complaint a reasonable
interpretation, reading it as a whole and viewing its parts in context. [Citations.] We
deem to be true all material facts properly pled. [Citation.] We must also accept as true
those facts that may be implied or inferred from those expressly alleged.” (Traders
Sports v. City of San Leandro (2001) 93 Cal.App.4th 37, 43.) We do not, “however,
assume the truth of contentions, deductions or conclusions of law.” (Aubry v. Tri-City
Hospital Dist. (1992) 2 Cal.4th 962, 967.) “If no liability exists as a matter of law, we
must affirm that part of the judgment sustaining the demurrer.” (Traders Sports, supra,
at p. 43.) We must reverse if plaintiff has stated a cause of action under any possible
2 In his opening brief, plaintiff attempts to object to our consideration of documents
of which the trial court took judicial notice, asserting they are irrelevant. Failure to
timely object to the propriety of judicial notice is deemed a forfeiture of that objection.
(Shuster v. BAC Home Loans Servicing, LP (2012) 211 Cal.App.4th 505, 512, fn. 4.)
Plaintiff did not object to judicial notice in the trial court, and we deem any objection
forfeited.
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legal theory. (Aubry, supra, at p. 967.) “ ‘We do not review the reasons for the trial
court’s ruling; if it is correct on any theory, even one not mentioned by the court, and
even if the court made its ruling for the wrong reason, it will be affirmed.’ ” (Curcini v.
County of Alameda (2008) 164 Cal.App.4th 629, 637.)
On appeal, the judgment is presumed correct and the burden is on the appellant to
affirmatively demonstrate error. (Rayii v. Gatica (2013) 218 Cal.App.4th 1402, 1408.)
“On appeal, all intendments weigh in favor of the regularity of the trial court proceedings
and the correctness of the judgment. Unless clear error or abuse of discretion is
demonstrated, the judgment will be affirmed.” (Whitcombe v. County of Yolo (1977) 73
Cal.App.3d 698, 702.)
B. Breach of Mandatory Duty (First Cause of Action)
1. First cause of action
The trial court sustained defendants’ demurrer to the first amended complaint on
the ground immunity precluded the liability of defendants. However, “[s]ince
‘the applicability of a statutory immunity does not even arise until it is determined that a
defendant otherwise owes a duty of care to the plaintiff’ ” (Lopez v. Southern Cal. Rapid
Transit Dist. (1985) 40 Cal.3d 780, 785), we first consider whether defendants owed a
duty to plaintiff to request recall of his sentence and resentencing, as alleged in the
first amended complaint.
“[I]n California, ‘all government tort liability must be based on statute.’ ” (Hoff v.
Vacaville Unified School Dist. (1998) 19 Cal.4th 925, 932; see § 815.) “ ‘[S]overeign
immunity is the rule in California; governmental liability is limited to exceptions
specifically set forth by statute.’ ” (Zuniga v. Housing Authority (1995) 41 Cal.App.4th
82, 92.) “ ‘[B]ecause under the [Government] Claims Act all governmental tort liability
is based on statute, the general rule that statutory causes of action must be pleaded with
particularity is applicable. Thus, “to state a cause of action against a public entity, every
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fact material to the existence of its statutory liability must be pleaded with
particularity.” ’ ” (Soliz v. Williams (1999) 74 Cal.App.4th 577, 585.)
Plaintiff’s first cause of action is entitled breach of a mandatory duty. It does not
identify any statute on which liability is premised. Section 815.6, however, imposes
liability on a public entity for breach of a mandatory duty. It provides:
“Where a public entity is under a mandatory duty imposed by an enactment
that is designed to protect against the risk of a particular kind of injury, the
public entity is liable for an injury of that kind proximately caused by its
failure to discharge the duty unless the public entity establishes that it
exercised reasonable diligence to discharge the duty.” (§ 815.6.)
We note this section addresses liability of a public entity only; it does not mention
public employees. Thus, it may serve as the statutory basis for liability of the CDCR
only.
Under section 815.6, the mandatory duty sued upon must be one imposed by “an
enactment.” Enactments include constitutional provisions, statutes, charter provisions,
ordinances, and regulations. (§ 810.6.) The only enactment mentioned in plaintiff’s
first cause of action is section 3076.2 of title 15 of the California Code of Regulations.
The first cause of action alleges the regulation provides that, “when there is a discrepancy
in an inmate’s sentence, the process to recall a sentence should commence.” It alleges
defendants breached a mandatory duty “by failing to make the request to recall plaintiff’s
sentence after plaintiff provided defendants definitive evidence that his sentence is illegal
and that defendant CDCR knew about it since 1996.”
“[T]here are three elements necessary to establish the liability of a public entity
under section 815.6: (1) A mandatory duty imposed on the public entity by an
enactment; (2) the enactment was designed to protect against the particular kind of injury
that the plaintiff suffered; and (3) the plaintiff’s injury was proximately caused by the
public entity’s failure to discharge its mandatory duty.” (All Angels Preschool/Daycare
v. County of Merced (2011) 197 Cal.App.4th 394, 400.) The first element “requires that
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the enactment at issue be obligatory, rather than merely discretionary or permissive, in its
directions to the public entity; it must require, rather than merely authorize or permit, that
a particular action be taken or not taken. [Citation.] It is not enough, moreover, that the
public entity or officer have been under an obligation to perform a function if the
function itself involves the exercise of discretion.” (Haggis v. City of Los Angeles (2000)
22 Cal.4th 490, 498.)
The first cause of action does not allege a duty imposed by section 3076.2 of
title 15 of the California Code of Regulations in mandatory terms. It alleges the
regulation provides that, “when there is a discrepancy in an inmate’s sentence, the
process to recall a sentence should commence.” (Italics added.) Section 3076.2 of
title 15 of the California Code of Regulations implements Penal Code section 1170,
subdivision (d)(1), which provides that, “the court may, within 120 days of the date of
commitment on its own motion, or at any time upon the recommendation of the secretary
or the Board of Parole Hearings … recall the sentence and commitment previously
ordered and resentence [a prison inmate] .… The court resentencing under this
subdivision shall apply the sentencing rules of the Judicial Council so as to eliminate
disparity of sentences and to promote uniformity of sentencing.” (Pen. Code, § 1170,
subd. (d)(1).)3 Thus, the statute authorizes, but does not require (“may”), the trial court
to recall an inmate’s sentence and resentence the inmate. It may do so on the
recommendation of the secretary of the CDCR or the Board of Parole Hearings, or on its
own motion. The statute does not require the secretary or the Board of Parole Hearings
3 The version of Penal Code section 1170, subdivision (d)(1), in effect on August 1,
2018, when plaintiff filed his complaint, contained the same provisions. (Stats. 2018,
ch. 36, § 17.) After that date, amendments to the statute made only minor changes to
subdivision (d)(1), which do not affect this case. (See Stats. 2018, ch. 1001, § 1,
Stats. 2020, ch. 29, § 14.)
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to recommend recalling an inmate’s sentence and resentencing the inmate, or set out any
circumstances under which such a recommendation is required to be made.
“[I]n order to impose a mandatory duty on a public entity [citation], ‘ “the
mandatory nature of the duty must be phrased in explicit and forceful language.” ’ ”
(Guzman v. County of Monterey (2009) 46 Cal.4th 887, 894.) “ ‘It is not enough,
moreover, that the public entity or officer have been under an obligation to perform a
function if the function itself involves the exercise of discretion.’ ” (Id. at p. 898.)
“ ‘Whether a particular statute is intended to impose a mandatory duty, rather than a mere
obligation to perform a discretionary function, is a question of statutory interpretation for
the courts.’ ” (Ibid.) Even when the term “shall” is used, “there may be ‘other factors
[that] indicate that apparent obligatory language was not intended to foreclose a
governmental entity’s or officer’s exercise of discretion.’ ” (Id. at p. 899.)
At the time plaintiff filed this action, section 3076 of title 15 of the California
Code of Regulations provided that “the Secretary, or designee, may recommend” to the
sentencing court that it recall an inmate’s sentence pursuant to Penal Code section 1170,
subdivision (d), for specified reasons. (Cal. Code Regs, tit. 15, former § 3076, Register
2011, No. 27 (July 7, 2011), italics added.) The three reasons listed were:
“(1) It is evident from the inmate’s exceptional behavior that is so
extraordinary beyond simply complying with all regulations and procedures
during incarceration that they have changed as a person and would be a
positive asset to the community.
“(2) Information which was not made available to the court in pronouncing
the inmate’s sentence is brought to the attention of the Secretary, who
deems the information would have influenced the sentence imposed by the
court.
“(3) The Secretary deems that circumstances have changed to the extent
that the inmate’s continued incarceration is not in the interest of justice.”
(Cal. Code Regs, tit. 15, former § 3076, subd. (a), Register 2011, No. 27
(July 7, 2011).)
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Plaintiff invokes the second reason and argues the Tulare County Superior Court,
when it sentenced him, did not have the sentencing transcript from his prior
San Bernardino County conviction. He asserts the CDCR requested a copy of plaintiff’s
sentencing transcript from the San Bernardino County Superior Court in 1996, but the
court responded that it had not prepared a transcript of sentencing proceedings for several
years. Plaintiff has not alleged or explained what information was included in the absent
sentencing transcript that he believes should have caused the secretary to deem that the
information would have influenced the sentence imposed by the Tulare County Superior
Court. He also does not allege that any such information was ever brought to the
secretary’s attention.
Under the regulations, if an inmate met one or more of the eligibility requirements
(i.e., the listed reasons) in California Code of Regulations, title 15, former section 3076,
subdivision (a), “the Classification and Parole Representative, shall consider the
following factors as may be applicable when recommending recall of commitment
consideration for an inmate.” (Cal. Code Regs, tit. 15, former § 3076.1, Register 2011,
No. 27 (July 7, 2011).) Further, “[r]equests for consideration which are initiated by the
facility at any time or by the sentencing court more than 120 days after the date of the
inmate’s commitment shall be referred to the Classification and Parole Representative
(C&PR).” (Cal. Code Regs, tit. 15, former § 3076.2, subd. (a), Register 2011, No. 27
(July 7, 2011).) “If the inmate is not sentenced to death, the C&PR shall submit the
request to the inmate’s caseworker,” who “shall … prepare an evaluation report,” noting
the factors set out in former section 3076.1 of title 15 of the California Code of
Regulations and including specified information about the inmate. (Cal. Code Regs,
tit. 15, former § 3076.2, subd. (b)(2), Register 2011, No. 27 (July 7, 2011).) The C&PR
“shall review and forward” the report to the warden or chief deputy warden, who “shall
review and sign” the report and forward it to CDCR headquarters. (Cal. Code Regs,
tit. 15, former § 3076.2, subds. (c), (d), Register 2011, No. 27 (July 7, 2011).) The
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evaluation report “shall be referred to the Secretary, or designee, for review and
consideration.” (Cal. Code Regs, tit. 15, former § 3076.2, subd. (e), Register 2011,
No. 27 (July 7, 2011).) “If the inmate is sentenced to an indeterminate term, the
Secretary or designee’s recommendation, whether positive or negative, shall be referred
to the Board of Parole Hearings for review and consideration.” (Cal. Code Regs, tit. 15,
former § 3076.2, subd. (e)(2), Register 2011, No. 27 (July 7, 2011).)
The procedure for considering an inmate for a recall of sentencing applied to
“inmates meeting one or more of the recall eligibility requirements of section 3076(a)”
(Cal. Code Regs, tit. 15, former § 3076.1, Register 2011, No. 27 (July 7, 2011), when the
facility or the sentencing court initiated a request for recall of sentence and resentencing
(Cal. Code Regs, tit. 15, former § 3076.2, subd. (a), Register 2011, No. 27 (July 7,
2011)). Because of the nature of the three reasons listed as the grounds for a recall, they
all required an exercise of judgment or discretion to determine whether they applied:
(1) whether the inmate displayed exceptional or extraordinary behavior, (2) whether the
secretary would deem information the sentencing court lacked sufficient that it would
have influenced the court’s sentence, and (3) whether the circumstances had changed
sufficiently that the inmate’s continued incarceration would not serve the interest of
justice. Thus, to the extent Penal Code section 1170, subdivision (d)(1), and the
regulations implementing it imposed an obligation on CDCR, they imposed an obligation
to perform a function involving the exercise of discretion. They did not impose a
mandatory duty for purposes of section 815.6 liability.
All of the “shall” provisions in former section 3076.2 of title 15 of the California
Code of Regulations came into play only after the facility or the sentencing court
requested consideration of an inmate for recall of sentence. Plaintiff’s first amended
complaint does not allege that the sentencing court or a CDCR facility requested
consideration of a recall of plaintiff’s sentence and resentencing. Therefore, the “shall”
provisions were not triggered. Plaintiff has not identified anything in this regulation that
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imposed a mandatory duty on the CDCR to initiate the process to recommend a recall of
plaintiff’s sentence and resentencing.
The current version of section 3076.2 of title 15 of the California Code of
Regulations, which has been in effect since January 1, 2020, also does not impose a
mandatory duty on the CDCR. It provides: “No more than 10 business days after
receiving a request from the head of a law enforcement agency, head of a prosecutorial
agency, or judicial officer asking that the Secretary consider recommending an inmate to
a sentencing court pursuant to subdivision (d) of Section 1170 of the Penal Code, the
Classification Services Unit shall prepare a Cumulative Case Summary … and forward
the request and the summary to the Secretary for consideration.” (Cal. Code Regs.,
tit. 15, § 3076.2, subd. (a).) The remainder of the regulation addresses what occurs
subsequently, “[i]f the Secretary elects to recommend the inmate for recall and
resentencing.” (Cal. Code Regs., tit. 15, § 3076.2, subds. (b), (c).) By its terms, the
current regulation applies only when it is triggered by a request from “the head of a law
enforcement agency, head of a prosecutorial agency, or judicial officer.” The first cause
of action does not allege any such request. It alleges defendants failed to act after
plaintiff provided them information that there was a discrepancy in his sentence and his
sentence was illegal. The current regulation does not mandate or direct any action based
on a request by the inmate.
Consequently, because plaintiff failed to allege any enactment that imposed on the
CDCR a mandatory duty to begin the process of requesting or recommending a recall of
plaintiff’s sentence and resentencing, plaintiff’s first cause of action for breach of a
mandatory duty fails to state a cause of action against the CDCR. Because the statute
authorizing public entity liability for breach of a mandatory duty (§ 815.6) applies only to
public entities, and not to public employees, the first cause of action also fails to state a
cause of action against the individual defendants. The demurrer to the first cause of
action was properly sustained.
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2. Third cause of action
The third cause of action attempts to allege a cause of action for negligence
against the CDCR only. It alleges that, “[a]fter plaintiff’s conviction in the Tulare
County Superior Court, defendant CDCR provided that court with subpar documents and
an incomplete record from the San Bernardino County Superior Court.” It alleges the
CDCR knew the record was incomplete because in 1996 it asked the San Bernardino
Superior Court the location of the “pertinent documents,” and the court did not provide
them “as mandated in Penal Code § 1203.01(a).”
To the extent this cause of action is premised on an alleged breach of a mandatory
duty, it fails because the statute identified does not impose a mandatory duty on the
CDCR. Penal Code section 1203.01, subdivision (a), provides, in relevant part:
“Immediately after judgment has been pronounced, the judge and the district attorney,
respectively, may cause to be filed with the clerk of the court a brief statement of their
views respecting the person convicted or sentenced and the crime committed, together
with any reports the probation officer may have filed relative to the prisoner. The judge
and district attorney shall cause those statements to be filed if no probation officer’s
report has been filed.” (Pen. Code, § 1203.01, subd. (a).) The criminal defendant’s
attorney and the law enforcement agency that investigated the case are also permitted to
file statements. (Ibid.) The court clerk must mail copies of the statements to the CDCR,
the inmate, and the inmate’s attorney. (Ibid.)
Subdivision (b) of Penal Code section 1203.01, which the first amended complaint
does not mention, also requires the court clerk to mail to the prison to which the
convicted person is delivered “a copy of the charging documents, a copy of waiver and
plea forms, if any, the transcript of the proceedings at the time of the defendant’s guilty
or nolo contendere plea, if the defendant pleaded guilty or nolo contendere, and the
transcript of the proceedings at the time of sentencing.” (Pen. Code, § 1203.01,
subd. (b)(1).)
13.
Penal Code section 1203.01 does not impose any mandatory duties on the CDCR.
It did not require the CDCR to provide documents concerning plaintiff’s San Bernardino
Superior Court conviction to the Tulare County Superior Court, in connection with his
sentencing in the latter court. The third cause of action fails to state a cause of action for
breach of a mandatory duty against the CDCR.
C. Public Employee Liability and Vicarious Liability of Employer
Another statute under which a public entity may incur tort liability is
section 815.2. It provides:
“(a) A public entity is liable for injury proximately caused by an act or
omission of an employee of the public entity within the scope of his
employment if the act or omission would, apart from this section, have
given rise to a cause of action against that employee or his personal
representative.
“(b) Except as otherwise provided by statute, a public entity is not liable for
an injury resulting from an act or omission of an employee of the public
entity where the employee is immune from liability.” (§ 815.2.)
In the absence of statutory immunity, “a public employee is liable for injury
caused by his act or omission to the same extent as a private person.” (§ 820, subd. (a).)
“Thus, ‘the general rule is that an employee of a public entity is liable for his torts to the
same extent as a private person [citation] and the public entity is vicariously liable for
any injury which its employee causes [citation] to the same extent as a private
employer.’ ” (Hoff v. Vacaville Unified School Dist. (1998) 19 Cal.4th 925, 932.)
The second, third, and fourth causes of action attempt to allege claims of
negligence and willful misconduct against defendants. To allege a negligence cause of
action against the individual defendants, plaintiff must allege all the elements of
negligence; to allege a negligence cause of action against the CDCR based on vicarious
liability, plaintiff must allege the negligence of the individual defendants or other CDCR
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employees4 within the scope of their employment. “Ordinarily, negligence may be
pleaded in general terms and the plaintiff need not specify the precise act or omission
alleged to constitute the breach of duty. [Citation.] However, because under the
[Government] Claims Act all governmental tort liability is based on statute, the general
rule that statutory causes of action must be pleaded with particularity is applicable.”
(Lopez v. Southern Cal. Rapid Transit Dist., supra, 40 Cal.3d at p. 795.) A negligence
cause of action against a public entity or a public employee must be pleaded with
particularity. (Ibid.; Gates v. Superior Court (1995) 32 Cal.App.4th 481, 493–494.)
Further, “[i]t is a plaintiff’s responsibility to plead ‘ “facts sufficient to show [their] cause
of action lies outside the breadth of any applicable statutory immunity.” ’ ” (Soliz v.
Williams, supra, 74 Cal.App.4th at p. 585.)
The elements of a negligence cause of action are: “(1) the existence of a legal
duty to use due care; (2) a breach of that duty; and (3) the breach as a proximate cause of
the plaintiff’s injury.” (Federico v. Superior Court (1997) 59 Cal.App.4th 1207, 1210–
1211.) Willful misconduct is not a separate tort, but an aggravated form of negligence.
(Carlsen v. Koivumaki (2014) 227 Cal.App.4th 879, 895.) Three additional elements
must be present to raise negligence to the level of willful misconduct: “ ‘ “(1) actual or
constructive knowledge of the peril to be apprehended, (2) actual or constructive
knowledge that injury is a probable, as opposed to a possible, result of the danger, and
(3) conscious failure to act to avoid the peril.” ’ ” (Berkley v. Dowds (2007) 152
Cal.App.4th 518, 528.)
4 “Under [section 815.2], it will not be necessary in every case to identify the
particular employee upon whose act the liability of the public entity is to be predicated.
All that will be necessary will be to show that some employee of the public entity
tortiously inflicted the injury in the scope of his employment under circumstances where
he would be personally liable.” (Legis. Com. comment to § 815.2.)
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The individual defendants are identified as R.C. Johnson, chief deputy
warden, I. Garza, correctional counselor II, and J. Ward, correctional counselor II,
appeals coordinator. Johnson allegedly had responsibility for adhering to the mandates of
title 15 of the California Code of Regulations. Garza and Ward were allegedly
responsible for reading, researching, and answering inmate appeals. The individual
defendants allegedly owed a duty to plaintiff pursuant to section 3076.2 of title 15 of the
California Code of Regulations to commence the process to recall his sentence when they
knew there was “a discrepancy” in his sentence and his sentence was illegal. They
allegedly breached this duty by failing to make a request to recall his sentence, when they
knew the claims in his inmate appeal were meritorious and when plaintiff provided them
with definitive evidence that his sentence was illegal and that CDCR knew this since
1996. As a direct and proximate result of their breach of duty, plaintiff alleges he
sustained unnecessary prolonged incarceration.
The recall proceedings are authorized by statute and regulation, so the source of
any duty to initiate or participate in them must reside in the applicable statute and
regulations. The trial court concluded that immunity barred plaintiff’s claims against the
individual defendants. It found any duty of the individuals to initiate proceedings to
recall plaintiff’s sentence was a discretionary duty, as to which the individual defendants
held immunity from liability pursuant to section 820.2. That section provides: “Except
as otherwise provided by statute, a public employee is not liable for an injury resulting
from his act or omission where the act or omission was the result of the exercise of the
discretion vested in him, whether or not such discretion be abused.” (§ 820.2.) Under the
statute, discretionary immunity “is reserved for ‘basic policy decisions’ which have been
expressly committed to certain branches of the government, as to which judicial
interference would be ‘unseemly’ and interfere with that body’s decisionmaking
process. [Citation.] On the other hand, there is no immunity for lower level or
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ministerial decisions that merely implement the basic policy decisions.” (Zuniga v.
Housing Authority, supra, 41 Cal.App.4th at p. 97.)
Under Penal Code section 1170, subdivision (d)(1), the sentencing court has
discretion, “upon the recommendation of the secretary or the Board of Parole Hearings …
[to] recall the sentence and commitment previously ordered and resentence the defendant
… so as to eliminate disparity of sentences and to promote uniformity of sentencing.”
(Pen. Code, § 1170, subd. (d)(1).) At the time plaintiff’s complaint was filed, the
secretary or a designee had discretion to recommend to the sentencing court that it recall
an inmate’s sentence on any of three specified grounds. (Cal. Code Regs, tit. 15, former
§ 3076, subd. (a), Register 2011, No. 27 (July 7, 2011).) Each of the grounds involved
subjective, rather than objective, criteria and called for the use of judgment in
determining whether an inmate qualified. (Ibid.) Requests by a prison facility for
consideration of an inmate for a recall of sentence were referred to the C&PR. (Cal.
Code Regs, tit. 15, former § 3076.2, subd. (a), Register 2011, No. 27 (July 7, 2011).) For
inmates meeting one or more of the grounds specified in section 3076, subdivision (a), of
title 15 of the California Code of Regulations, the C&PR was required to consider the
seven factors listed in section 3076.1 of title 15 of the California Code of Regulations
before recommending that an inmate be considered for recall of sentence. (Cal. Code
Regs, tit. 15, former § 3076.1, Register 2011, No. 27 (July 7, 2011).)
Thus, initiation of the process for considering whether to recommend an inmate to
the court for recall of sentence and resentencing required exercising discretion regarding
whether the inmate fell within any of the categories of eligible inmates, and considering
various specified factors, as applicable to that inmate. That discretion was vested in
CDCR personnel by statute and regulation.
Plaintiff’s first amended complaint alleges that the CDCR and the individual
defendants failed to initiate the discretionary process of considering whether to
recommend to the court that plaintiff be considered for recall of sentence. It did not
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challenge subsequent ministerial acts implementing that decision. Accordingly, the first
amended complaint challenged only a discretionary decision assigned to the CDCR and
its personnel by statute and regulation. Imposing liability on defendants for the manner
in which they exercised their discretion would allow second-guessing of their decision by
a coordinate branch of government; it would “ ‘place the courts in the “unseemly
position” of making [a public entity or its employees] accountable in damages for a
“decision-making process” delegated to [them] by statute’ ” and regulation. (Jacqueline
T. v. Alameda County Child Protective Services (2007) 155 Cal.App.4th 456, 466.)
We conclude the trial court properly found plaintiff’s negligence and willful
misconduct causes of action against the individual defendants are barred by the immunity
provided by section 820.2, covering discretionary acts or decisions of public employees.
Further, because “a public entity is not liable for an injury resulting from an act or
omission of an employee of the public entity where the employee is immune from
liability” (§ 815.2, subd. (b)), plaintiff’s negligence and willful misconduct claims against
CDCR are also barred by immunity. The trial court properly sustained defendants’
demurrer to the second, third, and fourth causes of action of the first amended complaint.
IV. Leave to Amend
“We review the decision to deny leave to amend under the abuse of discretion
standard. [Citation.] In doing so, we decide whether there is a reasonable possibility that
the defect can be cured by amendment. [Citation.] ‘The burden of proving such
reasonable possibility is squarely on the plaintiff.’ ” (San Mateo Union High School Dist.
v. County of San Mateo (2013) 213 Cal.App.4th 418, 441.)
Plaintiff has not attempted to show how his first amended complaint can be
amended to state a cause of action against any of the defendants, and to avoid the effects
of the immunity statutes. He has not met his burden of demonstrating that the trial court
abused its discretion in denying leave to amend. Consequently, we find no error in that
denial.
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DISPOSITION
The judgment is affirmed. Defendants are entitled to their costs on appeal.
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