Washington v. Dept. of Corrections and Rehabilitation CA5

Filed 3/4/21 Washington 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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
STEPHEN WASHINGTON,
F079957
Plaintiff and Appellant,
(Super. Ct. No. MCV078367)
v.
CALIFORNIA DEPARTMENT OF OPINION
CORRECTIONS AND REHABILITATION et
al.,
Defendants and Respondents.
THE COURT*
APPEAL from an order of the Superior Court of Madera County. James E.
Oakley, Judge.
Stephen Washington, in pro. per., for Plaintiff and Appellant.
Xavier Becerra, Attorney General, Monica N. Anderson, Assistant Attorney
General, Neah Huynh and Arthur B. Mark III, Deputy Attorneys General, for Defendants
and Respondents.
No appearance for Defendant and Respondent Jeff Brandon.
-ooOoo-
* Before Franson, Acting P.J., Peña, J. and Snauffer, J.
Plaintiff Stephen D. Washington, a self-represented inmate, brought this lawsuit
against the California Department of Corrections and Rehabilitation (CDCR) and its
officials, alleging state and federal causes of action related to sexual harassment. The
CDCR and individual defendants represented by the Attorney General’s Office filed a
demurrer, arguing they were immune from liability, the state law claims were barred
because plaintiffs did not comply with the claim presentation requirements in the
Government Claims Act (Gov. Code, § 810 et seq.),1 and the verbal harassment alleged
did not state a cognizable federal civil rights cause of action. The trial court filed a
written order sustaining the demurrer and the action proceeded in the superior court
against one individual defendant who was represented by separate counsel. No judgment
has been filed. Plaintiff filed an appeal from the order sustaining the demurrer.
“Orders sustaining demurrers are not appealable.” (Hill v. City of Long Beach
(1995) 33 Cal.App.4th 1684, 1695.) Generally, “a reviewing court is ‘without
jurisdiction to consider an appeal from a nonappealable order, and has the duty to dismiss
such an appeal upon its own motion.’ ” (In re Mario C. (2004) 124 Cal.App.4th 1303,
1307.) We conclude this general principle should be applied here because a final
judgment has yet to be entered, the action is proceeding against a remaining defendant,
and the appellate briefing has not addressed all issues. (See Gov. Code, § 68081
[supplemental briefing of omitted issues]; Code Civ. Proc., § 472c [leave to amend as an
issue on appeal].)
We therefore dismiss the appeal.
BACKGROUND
Plaintiff’s complaint was filed by the Madera County Superior Court in July 2018.
In February 2019, plaintiff filed his first amended complaint, which is the operative
pleading for purposes of this appeal. Plaintiff labeled his causes of action (1) violation of
1 Subsequent unlabeled statutory references are to the Government Code.
2.
the Eighth Amendment, (2) violation of 42 U.S.C. section 1983, (3) intentional infliction
of emotional distress, and (4) violation of the Ralph Civil Rights Act (Civ. Code, §
51.7).2 The defendants named in the first amended complaint included CDCR; Jeff
Brandon, a plumber who was employed by CDCR at Valley State Prison in Plant
Operations-Plumbing; Scott Kernan, Secretary of CDCR; R. Fisher, Warden of Valley
State Prison; Dr. Lawrence; Dr. Virk; Dr. Shoji; Lieutenant Perry; Sergeant B.
Rodriguez; Sergeant R. Chavez; N. Gonzalez; C. Guerrero; and S. Torres. In this
opinion, the term “Defendants” refers to CDCR and the foregoing individuals, except for
Jeff Brandon. Defendants are represented in this action by the Attorney General’s Office.
Brandon is represented by separate counsel.
In April 2019, Defendants filed a demurrer supported by a request for judicial
notice. Defendants contended the state law claims must be dismissed because they were
immune from liability and plaintiff failed to timely present a claim under the Government
Claims Act. Defendants also contended the federal civil rights causes of action failed to
allege sufficient facts to state a cognizable claim and, in addition, were barred by
immunity.
On June 28, 2019, the trial court held a hearing on the demurrer. The court stated
it would sustain the demurrer as to all causes of action against CDCR and the
individually named Defendants, except it would allow the intentional infliction of
emotional distress claim against Brandon to go forward. On August 27, 2019, the court
signed and filed a written order sustaining the demurrer without leave to amend as to
Defendants.
2 Although the first amended complaint’s caption refers to the Ralph Civil Rights
Act, its allegations cite Civil Code section 52.1, the Tom Bane Civil Rights Act, which
creates a cause of action against a person who interferes by threat, intimidation or
coercion with the exercises of an individual’s constitutional or other legal rights. (Civ.
Code, § 52.1, subd. (b).)
3.
The Appeal
On September 10, 2019, plaintiff filed a notice of appeal from the order of
dismissal using optional Judicial Council form APP-002. Plaintiff marked the box for a
“Judgment of dismissal after an order sustaining a demurrer” and wrote that the judgment
had been entered on “8-27-19.” That date was when the written order sustaining the
demurrer was signed and filed.
In December 2019, plaintiff filed his appellant’s opening brief arguing, among
other things, that timely compliance with the Government Claims Act should be excused.
(See 1 California Government Tort Liability Practice (Cont.Ed.Bar 4th ed. 2020) § 5.81,
p. 5-64 [in a proper case, estoppel may excuse even complete lack of compliance].)
Plaintiff asserted that continuing intimidation, including threats of retaliation, by Brandon
and CDCR staff prevented him from filing a timely claim.
In May 2020, Defendants filed a respondents’ brief reiterating the arguments made
in their demurrer. Plaintiff did not file an optional appellant’s reply brief within the time
specified in the rules of court. (See Cal. Rules of Court, rules 8.25(b)(5) [prison delivery
rule] & 8.212(a)(3) [20 days to file an appellant’s reply brief].)
In February 2021, this court sent the parties a letter directing them to answer
questions about whether a judgment had been filed by the trial court, whether the appeal
had been taken from an appealable order, and whether plaintiff intended to continue to
pursue the appeal. On February 22, 2021, this court received and filed plaintiff’s letter,
which indicated (1) a final judgment had not been filed in the superior court, (2) he did
not contend the appeal had been taken from an appealable judgment, and (3) he did not
intend to pursue the appeal any longer. Plaintiff asked this court to dismiss this appeal
with the proviso that he be given the opportunity to appeal as to all the named defendants
upon the conclusion of the case in the superior court.
On February 25, 2021, a deputy attorney general filed a letter on behalf of
Defendants. The letter stated a judgment of dismissal or other final judgment had not
4.
been entered in the superior court and Defendants “no longer contend there is appellate
jurisdiction.” The letter argued “the exception to the ‘one final judgment’ rule does not
apply and this Court lacks jurisdiction of Appellant’s appeal.”
DISCUSSION
In Zipperer v. County of Santa Clara (2005) 133 Cal.App.4th 1013, the Sixth
District addressed the threshold procedural question of the appealability of the challenged
order by stating:
“Although plaintiffs’ form notice of appeal refers to a judgment of
dismissal, the appellate record contains no judgment. This appeal thus
appears to have been taken from the order sustaining defendant’s demurrer
to plaintiffs’ first amended complaint, without leave to amend. ‘Orders
sustaining demurrers are not appealable.’ (Hill v. City of Long Beach
(1995) 33 Cal.App.4th 1684, 1695.) But ‘an appellate court may deem an
order sustaining a demurrer to incorporate a judgment of dismissal.’
(Molien v. Kaiser Foundation Hospitals (1980) 27 Cal.3d 916, 920.) It is
particularly appropriate to do so when the absence of a final judgment
results from inadvertence or mistake. (Id. at p. 921.)
“In this case, defendant does not argue for dismissal of the appeal, and the
issues are fully briefed. (See Gu v. BMW of North America, LLC [(2005)]
132 Cal.App.4th 195.) Under the circumstances, we will decide this case
on its merits by treating the order as incorporating a judgment of
dismissal.” (Zipperer, supra, at p. 1019.)
Like Zipperer, the appellate record contains no judgment and plaintiff’s form
notice of appeal incorrectly refers to a judgment of dismissal. Furthermore, the register
of actions included in the clerk’s transcript contains no entry for a judgment. Thus, it
appears that a final judgment has not been entered. This reading of the record is
consistent with the letters filed by the parties, which agree a final judgment has not been
entered in the superior court.
Unlike Zipperer, it appears the action is still proceeding in the superior court
against a single remaining defendant (namely, Jeff Brandon). Thus, the present appeal
5.
can be distinguished from Zipperer, where the absence of a final judgment was simply
the result of inadvertence or mistake.
We recognize our discretionary authority to treat the order sustaining the demurrer
as containing a judgment of dismissal as to Defendants. However, in this case, we
conclude it is inappropriate to treat the order as incorporating a judgment of dismissal.
First, the trial court is still conducting proceedings on plaintiff’s claim against Brandon.
Thus, the trial court may have decided not to issue multiple judgments and, instead, wait
until one final judgment could be entered. (See generally, Morehart v. County of Santa
Barbara (1994) 7 Cal.4th 725, 743 [“ ‘one final judgment’ rule”].) Second, we do not
regard the merits of this appeal as having been fully briefed. For instance, the “issue of
leave to amend is always open on appeal” and has not been fully addressed. (City of
Stockton v. Superior Court (2007) 42 Cal.4th 730, 746; see Code Civ. Proc., § 472c.) In
particular, there may be a reasonable probability of plaintiff curing the defects involving
the immunity defense and the failure to comply with the claim presentation requirement
by making more detailed allegations about the intimidation and threats of retaliation that
prevented him from submitting a timely claim—details that would satisfy the elements of
estoppel.
In John R. v. Oakland Unified School Dist. (1989) 48 Cal.3d 438, our Supreme
Court stated: “It is well settled that a public entity may be estopped from asserting the
limitations of the claims statute where its agents or employees have prevented or deterred
the filing of a timely claim by some affirmative act.” (Id. at p. 445.) “[E]stoppel may
certainly be invoked when there are acts of violence or intimidation that are intended to
prevent the filing of a claim.” (Ibid.; see 1 California Government Tort Liability
Practice, supra, §§ 5.78 [estoppel as excuse for noncompliance], 5.85 [estoppel based on
intimidating conduct], pp. 5-61, 5-70; J.P. v. Carlsbad Unified School Dist. (2014) 232
Cal.App.4th 323, 337 [“equitable estoppel is available in circumstances … where a
public entity or its agents effectively make threats against a prospective claimant”].)
6.
Under the circumstances presented in this appeal, we will not exercise our
discretionary authority to deem the order sustaining the demurrer incorporates a judgment
of dismissal. (See Molien v. Kaiser Foundation Hospitals, supra, 27 Cal.3d at p. 920.)
As a result, we conclude plaintiff’s appeal was taken from a nonappealable order—a
conclusion that agrees with the views expressed in the parties’ letters.3
DISPOSITION
The appeal from the order sustaining Defendants’ demurrer is dismissed. The
parties shall bear their own costs on appeal.
3 To avoid a possible misinterpretation of this opinion, we make express what is
necessarily implied by the foregoing conclusion—that is, once a final judgment in favor
of Defendants has been entered, the authority granted by Code of Civil Procedure section
904.1, subdivision (a)(1) will allow plaintiff to take an appeal from that judgment and
assert the trial court erred in sustaining Defendants’ demurrer without leave to amend.
7.