Faunce v. Cate , 166 Cal. Rptr. 3d 61 ( 2013 )

Filed 12/17/13
CERTIFIED FOR PUBLICATION
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
DAVID W. FAUNCE, D062130
Plaintiff and Appellant,
v. (Super. Ct. No. 37-2011-00092986-
CU-DF-CTL)
MATTHEW CATE et al.,
Defendants and Respondents.
APPEAL from an order and judgment of the Superior Court of San Diego County,
Randa Trapp, Judge. Judgment affirmed and appeal of order dismissed.
David W. Faunce, in pro. per., for Plaintiff and Appellant.
Kamala D. Harris, Attorney General, Jonathan L. Wolff, Assistant Attorney
General, Thomas S. Patterson and Christopher H. Findley, Deputy Attorneys General, for
Defendants and Respondent.
Penal Code section 636 makes it a crime to eavesdrop on a prisoner's conversation
with certain individuals in situations where the prisoner has a reasonable expectation of
privacy. (Undesignated statutory references are to the Penal Code.) In this case, we
conclude that David Faunce, a prisoner appearing in propria persona, failed to allege facts
showing he had a reasonable expectation of privacy. Accordingly, we affirm the
judgment dismissing his complaint. We also dismiss Faunce's appeal from an order
denying his request for a preliminary injunction.
FACTUAL AND PROCEDURAL BACKGROUND
Faunce, a prisoner at R.J. Donovan Correctional Facility, sued defendants
Matthew Cate, George Neotti, M. Glynn, D. Strayhorn, A. Canlas, M. Walker and M.
Akbari (collectively defendants) and moved for a preliminary injunction. In response to
defendants' demurrer, Faunce filed a first amended complaint. The trial court denied
Faunce's request for a preliminary injunction and later granted him leave to file an
amended complaint "to cure the pleading defects raised by defendants." Faunce filed a
second amended complaint (the operative complaint), which included for the first time, a
claim for retaliation.
The trial court sustained defendants' demurrer to the operative complaint without
leave to amend. The court concluded that Faunce's claims for violating section 636 and
the privacy provisions of the California Constitution failed because Faunce did not plead
a reasonable expectation of privacy. The court also concluded that Faunce failed to plead
outrageous conduct necessary to support a cause of action for intentional infliction of
emotional distress, that he failed to plead an underlying wrong to support his conspiracy
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claim and that his request for declaratory and injunctive relief failed with their supporting
causes of action. Finally, it ruled that Faunce's retaliation claim exceeded the bounds of
its amendment order and, on the merits, that Faunce had not pleaded exhaustion of
administrative remedies. Faunce appealed from the judgment. He also appealed from the
order denying his request for a preliminary injunction preventing defendants from
creating or enforcing any rule, regulation or practice that violates or evades compliance
with section 636.
DISCUSSION
I. Order Denying Preliminary Injunction
Although not raised by the respondents, we note that Faunce's notice of appeal
does not specify that he is appealing from the order denying his request for a preliminary
injunction. The notice of appeal is limited to the "[j]udgment of dismissal after an order
sustaining a demurrer." An order denying a preliminary injunction is an appealable
order. (Code Civ. Proc., § 904.1, subd. (a)(6).) "Our jurisdiction on appeal is limited in
scope to the notice of appeal and the judgment or order appealed from." (Polster, Inc. v.
Swing (1985) 164 Cal.App.3d 427, 436.) We have no jurisdiction over an order not
mentioned in the notice of appeal. (Norman I. Krug Real Estate Investments, Inc. v.
Praszker (1990) 220 Cal.App.3d 35, 46-47.) Because Faunce's notice of appeal did not
identify the trial court's order denying his request for a preliminary injunction, we lack
jurisdiction to consider this portion of the appeal.
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Faunce's purported appeal from the order denying his request for a preliminary
injunction also fails on the separate ground that it is untimely. A party has a maximum of
180 days to appeal from when an appealable order is entered into the minutes. (Cal.
Rules of Court, rule 8.104 (a)(1)(C), (c)(2) & (e).) An untimely notice of appeal is an
"absolute bar" to appellate jurisdiction. (Delmonico v. Laidlaw Waste Systems, Inc.
(1992) 5 Cal.App.4th 81, 83.) We have no jurisdiction to act on an untimely appeal and
must dismiss the appeal without reaching the merits. (Stratton v. First Nat. Life Ins. Co.
(1989) 210 Cal.App.3d 1071, 1078.)
Here, the trial court entered a minute order denying Faunce's request for a
preliminary injunction on October 27, 2011. Faunce untimely appealed from the order on
May 23, 2012. Accordingly, we must dismiss the appeal from the order denying the
preliminary injunction.
II. Demurrer
A. Standard of Review
We review an order sustaining a demurrer without leave to amend de novo (Blank
v. Kirwan (1985) 39 Cal.3d 311, 318), assuming the truth of all properly pleaded facts as
well as facts inferred from the pleadings, and give the complaint a reasonable
interpretation by reading it as a whole and its parts in context. (Palacin v. Allstate Ins.
Co. (2004) 119 Cal.App.4th 855, 861.) However, we give no credit to allegations that
merely set forth contentions or legal conclusions. (Financial Corp. of America v.
Wilburn (1987) 189 Cal.App.3d 764, 768-769.)
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B. Privacy Causes of Action
Here, Faunce alleged a violation of section 636 and the privacy provisions of the
California Constitution. Specifically, Faunce alleged that he had a reasonable
expectation of privacy while seeing a licensed physician in a treatment room and on
numerous occasions, a prison physician feigning concern for his safety, allowed a
correctional officer to be present in the treatment room over Faunce's objections. The
trial court sustained the demurrer to these claims on the ground Faunce did not have a
reasonable expectation of privacy. We agree.
Section 636 makes it unlawful for a person, "without permission from all parties to
the conversation," to nonelectronically eavesdrop upon "a conversation, or any portion
thereof, that occurs between a person who is in the physical custody of a law enforcement
officer or other public officer and that person's attorney, religious adviser, or licensed
physician." (§ 636, subd. (b).) Although Faunce argues that his right to patient-physician
privacy is "absolute," the protection of section 636 is limited to eavesdropping on
conversations occurring where there is a "reasonable expectation of privacy, including a
custody holding area, holding area, or anteroom." (Ibid.) Similarly, the right to privacy
under the California Constitution (art. I, § 1) protects an individual's reasonable
expectation of privacy against a serious invasion. (Pioneer Electronics (USA), Inc. v.
Superior Court (2007) 40 Cal.4th 360, 370.)
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Thus, to allege an actionable violation of his right to privacy under either section
636 or the California Constitution, Faunce must show he had a reasonable expectation of
privacy when he met with prison medical staff. "Whether plaintiff has a reasonable
expectation of privacy in the circumstances and whether defendant's conduct constitutes a
serious invasion of privacy are mixed questions of law and fact. If the undisputed
material facts show no reasonable expectation of privacy or an insubstantial impact on
privacy interests, the question of invasion may be adjudicated as a matter of law." (Hill
v. National Collegiate Athletic Assn. (1994) 7 Cal.4th 1, 40.)
Faunce alleged he had knowledge of a prison policy, dating back to 2007, that
limited an inmate's right to confidentially in furtherance of the safety and security of the
institution. Faunce acknowledges that defendants' policies or procedures were based on
safety concerns, although he characterized the safety concerns as "feigned." He admitted
that defendants acted based on their policies or procedures as he specifically sought an
injunction preventing defendants and their successors from enforcing any policy or
practice that violated a prisoner's rights under section 636. Faunce's pleading shows that
whatever expectation of privacy he had in this setting was not reasonable as defendants'
actions were based on prison policy to further the safety and security of the institution.
Moreover, we take judicial notice of Faunce's abstract of judgment showing he was
convicted of first degree murder and is serving a life sentence without the possibility of
parole.
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While the propriety of the prison policy tempering an inmate's right to privacy
with the security of the institution is not before us, we note that in cases such as this
involving prison security measures, section 2600 provides: "A person sentenced to
imprisonment in a state prison . . . may during that period of confinement be deprived of
such rights, and only such rights, as is reasonably related to legitimate penological
interests." Additionally, the California Code of Regulations provides that "[c]onsistent
effort will be made to insure the security of the institution and the effectiveness of the
treatment programs within the framework of security and safety." (Cal. Code Regs., tit.
15, § 3270.)
C. Remaining Causes of Action
Faunce also alleged a claim for intentional infliction of emotional distress. To
state a cause of action for intentional infliction of emotional distress, a plaintiff must
allege the following elements: " ' "(1) extreme and outrageous conduct by the defendant
with the intention of causing, or reckless disregard of the probability of causing,
emotional distress; (2) the plaintiff's suffering severe or extreme emotional distress; and
(3) actual and proximate causation of the emotional distress by the defendant's
outrageous conduct." ' " (Christensen v. Superior Court (1991) 54 Cal.3d 868, 903.) For
conduct to be outrageous, it " 'must be so extreme as to exceed all bounds of that usually
tolerated by a civilized community.' " (Ibid., quoting Davidson v. City of Westminster
(1982) 32 Cal.3d 197, 209.) Whether behavior is extreme and outrageous is a legal
determination to be made by the court, in the first instance. (Fowler v. Varian
Associates, Inc. (1987) 196 Cal.App.3d 34, 44.)
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Here, Faunce's intentional infliction of emotional distress claim is premised on
defendants' practice of acting based on institutional policies and procedures. In essence,
he claims that defendants' practice of acting based on institutional policies and
procedures amounted to outrageous conduct. However, we agree with the trial court's
implied conclusion that a policy requiring a convicted murderer be examined by a prison
physician, that has expressed safety concerns, in the presence of a correctional officer
does not amount to outrageous conduct. Accordingly, Faunce has not stated a valid claim
for intentional infliction of emotional distress.
Faunce alleged that defendants' actions of enforcing institutional policies and
practices amounted to a conspiracy to violate section 636. Faunce also sought
declaratory and injunctive relief to prevent defendants and their successors from
enforcing any policy or practice that violated a prisoner's rights under section 636.
Conspiracy, however, is not an independent cause of action. (Okun v. Superior Court
(1981) 29 Cal.3d 442, 454.) When a plaintiff otherwise states a cognizable cause of
action for a civil wrong, he or she may allege conspiracy as a basis of liability as to more
than one defendant. (Ibid.) Additionally, injunctive and declaratory relief are equitable
remedies, not causes of action. (Wong v. Tai Jing (2010) 189 Cal.App.4th 1354, 1361,
fn. 2.) Thus, the trial court properly sustained the demurrer as to these claims because
they were "wholly derivative of" other nonviable causes of action. (Ochs v. PacifiCare of
California (2004) 115 Cal.App.4th 782, 794.)
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Finally, Faunce alleged a claim for retaliation for the first time in his second
amended complaint. Faunce did not obtain leave of the trial court to add this new cause
of action and the trial court correctly sustained the demurrer to this claim without leave to
amend. (Harris v. Wachovia Mortg., FSB (2010) 185 Cal.App.4th 1018, 1023.)
DISPOSITION
The appeal is dismissed as to the order denying the preliminary injunction. The
judgment dismissing the action is affirmed. Defendants are entitled to their costs on
appeal.
MCINTYRE, J.
WE CONCUR:
MCCONNELL, P. J.
NARES, J.
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