Holt v. Gardner CA5

Filed 6/6/23 Holt v. Gardner 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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
CALVIN HOLT,
F083001
Plaintiff and Appellant,
(Kings Super. Ct. No. 19C-0100)
v.
W. GARDNER, OPINION
Defendant and Respondent.
APPEAL from an order of the Superior Court of Kings County. Kathy Ciuffini,
Judge.
Calvin Holt, in pro. per., for Plaintiff and Appellant.
Rob Bonta, Attorney General, Monica N. Anderson, Neah Huynh, and Martha
Ehlenbach, Deputy Attorneys General, for Defendant and Respondent.
-ooOoo-
INTRODUCTION
Plaintiff and appellant Calvin Holt appeals from a judgment of dismissal entered
after the superior court sustained defendant and respondent W. Gardner’s demurrer to
plaintiff’s third amended complaint (TAC) without leave to amend. We construe the
notice of appeal as including an appeal from the order sustaining the demurrer.
In his TAC, plaintiff alleged claims involving several different incidents that
occurred in the period 2016 through 2019. In this opinion, we conclude the superior
court properly sustained the demurrer without leave to amend as to all claims except for
one which relates to an alleged incident that occurred in approximately July or August of
2019 (the “alleged July/August 2019, incident”). As to the latter claim, we conclude the
superior court properly sustained the demurrer but that leave to amend should have been
granted. Consequently, we reverse the judgment, and affirm, in part, and reverse, in part,
the court’s order sustaining the demurrer.
FACTUAL BACKGROUND
I. State Superior Court and Related U.S. District Court Proceedings
A. Plaintiff’s Original Complaint
During all times relevant, plaintiff was an inmate in the California Department of
Corrections and Rehabilitation (CDCR). On March 7, 2019, plaintiff, acting in propria
persona, filed a “COMPLAINT – Personal Injury, Property Damage, Wrongful Death
(Jud. Council Form PLD–PI–001)” (boldface type omitted) alleging causes of action for
“General Negligence” and “Constitutional Violations” against “W. Gardner, Correctional
Officer, et al.”1 in connection with the alleged mishandling of plaintiff’s mail.
Plaintiff’s original claims stemmed from his attempt to receive mail from the state
prison in Corcoran, California. Plaintiff alleged that on April 9, 2018, he was summoned
to his “Facility’s Package/Parcel Window” by Gardner. At Gardner’s instruction,
plaintiff signed for receipt of a package. Then, in plaintiff’s plain view, Gardner ripped
open the package, which plaintiff “immediately recognized” as containing legal
documents. Plaintiff confronted Gardner, told him the package was clearly marked
“Sheriff’s – Civil” so as to alert Gardner that its contents were legal in nature, and told
1 Although the term “et al.” which means “and others” was used by Holt in
identifying named defendants in the original complaint, Gardner was the only named
defendant in the original complaint. !(CT 6)!
2.
Gardner he violated California state regulations in opening the package. Gardner took
possession of the contents of the package and left. He returned to say the package would
be kept and then redistributed via “legal mail procedures.”
Plaintiff alleged that, after a “reasonable time” had passed, he still had not
received the legal documents that were mailed to him. As a result, plaintiff “filed an
appeal” with the CDCR’s Office of Appeals (“OOA”) and pursued relief through the
prison’s administrative process. He alleged he received the OOA’s “Final/Third Level of
Administrative Appeal Review” and was interviewed as part of the process. He was told
the alleged violations of mail protocols were due to “ ‘inadvertence.’ ” In response,
plaintiff alleged Gardner violated his obligations under California Code of Regulations,
title 15, section 3395, which provides: “Employees must not sleep or be less than alert
and in full possession of all faculties while on duty.” (Cal. Code. Regs, tit. 15, § 3395.)
Plaintiff also alleged that he filed a Government claim in connection with the
above events on September 7, 2018, which “was denied on or about [September]
21[, 20]18 or later”; that the OOA administrative appeal process concluded on or about
January 24, 2019; that he suffered mental anguish and distress as a result of the incident;
and that he “suffered a default judgment as the result of the mail violation.”
B. Removal of the Action to Federal Court, Plaintiff’s Amendments to the
Complaint and Subsequent Remand of the State Law Claims to State
Court
On May 31, 2019, the Attorney General of California (A.G.), on behalf of
Gardner, filed a Notice to Adverse Party of Removal to Federal Court (boldface type and
unnecessary capitalization omitted) indicating Gardner had removed the action to the
United States District Court for the Eastern District of California.
The district court screened the case and granted plaintiff leave on three occasions
to amend his pleadings in order state a cognizable claim for relief under federal law
resulting in plaintiff filing his TAC in the district court.
3.
The TAC alleged causes of action against Gardner and other correctional officers
(C.O.s) – i.e., J. Vanaman, C.O. Pano, and C. Gonzales. As described by the district
court, the TAC alleged “causes of action under 42 U.S.C. [section] 1983; 15 C.C.R.
sections 3084, et seq.; and what appear[ed] to be state law claims for negligence.” In
addition to the claims set forth in plaintiff’s original complaint, plaintiff alleged, without
limitation, that, on or about October 10, 2016, Officer Vanaman threw plaintiff’s mail in
the trash thereby depriving him of his mail; that plaintiff began subscribing to the
Bayview Newspaper in late 2017 or early 2018 and renewed his subscription in January
of 2019 for monthly distribution, but he had only received approximately eight
newspapers “for which CDCR John/Jane Does are culpable”; that in 2018, Officer Pano
deprived him of a “medical shower” to which he was entitled due to a medical ailment he
suffered, and that plaintiff was denied or hampered in his ability to obtain redress for the
violation due to various mail violations of CDCR personnel; and that “in approximately
July or August of 2019,” Gardner informed plaintiff that plaintiff had received a package
in the mail containing an extension cord but that plaintiff was not authorized to have the
extension cord. With regard to this latter alleged event, plaintiff alleged he informed
Gardner he wanted to return the extension cord, completed the necessary paperwork to
facilitate the return, provided Gardner with the cost of postage by providing him “10
prepaid indigent envelopes,” but that Gardner improperly disposed of plaintiff’s
extension cord, never processed the return, and never returned the cost of the postage that
plaintiff provided Gardener.
Ultimately, on July 17, 2020, the district court dismissed plaintiff’s federal law
claims for failure to state a cognizable claim, and remanded plaintiff’s state law claims to
the Kings County Superior Court. The superior court received the remand order on
July 20, 2020.
4.
C. Gardner’s Demurrer and Related State Court Filings, Plaintiff’s
Peremptory Challenge of the Superior Court Judge Under Section 170.6,
and the Court’s Judgment
On August 17, 2020, Gardner demurred to plaintiff’s TAC pursuant to
subdivision (e) of Code of Civil Procedure section 430.10.2 The grounds for the
demurrer were “that the federal claims are barred for lack of jurisdiction and by res
judicata”; that the TAC “does not state facts sufficient to constitute any cause of action”;
and that the TAC “does not include facts demonstrating compliance with the Government
Claims Act.” As part of his demurrer, Gardner requested the superior court take judicial
notice of various documents filed by plaintiff in the district court after it was removed to
federal court and before it was remanded back to the superior court. In addition, Gardner
requested the court take judicial notice of various documents filed in the matter Holt v.
Vanaman (Super. Ct. Kings Co., 2018, No. CV0082) (the “Vanaman lawsuit”) – i.e., the
lawsuit plaintiff claimed to have suffered a default judgment in as a result of alleged mail
violations committed by Gardner.
On August 20, 2020, the superior court received a proposed second amended
complaint (“proposed SAC”) from plaintiff despite the fact plaintiff had already filed a
third amended complaint (i.e., the TAC) in federal court. Among the exhibits to the
proposed SAC were (1) a Government Claims Act (Gov. Code, § 810 et seq.) claim
against Gardner signed and dated by plaintiff on September 7, 2018; and (2) a
Government Claims Act claim against “Gardner, C. Gonzales, et al.” signed and dated by
plaintiff on January 9, 2020. The proposed SAC bears a “RECEIVED” stamp from the
superior court. However, the Case Summary does not indicate it was filed with the court.
2 All statutory references are to the Code of Civil Procedure unless otherwise
noted.
Subdivision (e) of section 430.10 provides: “The party against whom a complaint
or cross-complaint has been filed may object, by demurrer …, to the pleading on any one
or more of the following grounds: [¶]…[¶] (e) The pleading does not state facts sufficient
to constitute a cause of action.” (§ 430.10, subd. (e).)
5.
The superior court’s Case Summary shows that the court issued an order on
August 28, 2020. A copy of the order was not included in the record on appeal, but the
case summary describes its provisions as “Directing the Clerk to Receive Pleading from
Plaintiff; Order Finding that the [TAC] received March 9, 2020 is the Operative
Complaint in This Case and That the Hearing on Demurrer Remains on Calendar” (italics
omitted).3 As described below, an order containing similar provisions was also filed by
the clerk of court on September 15, 2020.
On September 14, 2020, plaintiff filed his opposition to Gardner’s demurrer. In
his opposition, plaintiff argued, among other things, that the superior court implied his
first amended complaint (FAC) would be held in abeyance and/or filed; that, as a result,
Gardner’s demurrer was “moot/frivolous” and should have been directed toward the
FAC, and not the TAC that was filed in the federal district court; that plaintiff’s request
to file the proposed SAC was pending; and that plaintiff was being denied prison library
privileges to which he was entitled and which were necessary to the advancement of his
case. Plaintiff’s opposition to the demurrer made reference to a pleading entitled,
“Plaintiff’s Request to File Amended/Supplemental Complaint for Good Cause, that
Warrants Dismissal of Defendant[’]s Demurrer” (unnecessary capitalization omitted),
however no copy of the referenced pleading is included in the record on appeal. 4
3 The superior court’s Case Summary (i.e., register of actions) reflects the court
received a “Copy of Third Amended Civil Rights Complaint filed in the Eastern District
Court” (italics omitted) on March 9, 2020. !(CT 820)!
4 The record on appeal does contain a pleading bearing the same title, but it is
dated December 20, 2020, and was filed January 20, 2021, several months after
plaintiff’s opposition to Gardner’s demurrer was filed. Thus, based on its date, the later
filed pleading does not appear to be the same document referenced by plaintiff in his
September 14, 2020 opposition to Gardner’s demurrer. However, the later filed pleading
does recite: “Note: Be advised that the above referenced attachments are incorporated
herewith by reference, as the plaintiff continues to be deprived of access to the law
library. Thus, said copies are already within the court’s records, as part of plaintiff’s
‘September 03, 2020, 21 Pages Filing/Motion to Amend’ ” (boldface type and
unnecessary capitalization omitted). !(CT 283–284)!
6.
On September 15, 2020, the superior court entered its “Order Directing the Clerk
to Receive Pleading From Plaintiff[; and ¶] Order Finding that the Third Amended
Complaint Received March 9, 2020 Is the Operative Complaint in This Case and that the
Hearing on Demurrer Remains on Calendar.” The order provided, in part, “The court
reaffirms its order of August 28, 2020 … that the operative complaint is the [TAC]. The
hearing on demurrer to the [TAC] remains on calendar for September 21, 2020.
Opposition to the demurrer is required to be filed 9 court days before the hearing.” The
order also made reference to a pleading entitled, “Plaintiff’s request to file
amended/supplemental complaint for good cause, that warrants dismissal of defendants
demurrer,” which indicates it was received by the court and “served by mail on the
Deputy Attorney General on September 3, 2020.” Presumably, this reference is to the
same document referenced by plaintiff in his opposition to Gardner’s demurrer, but, as
mentioned, the record on appeal does not include a copy of the referenced pleading.5
The court’s Case Summary shows the hearing on the demurrer was continued on
Gardner’s motion.
On October 9, 2020, Gardner filed his reply in support of the demurrer. Among
other things, the reply noted that Gardner had opposed plaintiff’s motion to amend his
complaint and that no amended complaint was filed in the superior court. Gardner
requested the court reject plaintiff’s argument that the demurrer was moot.
On January 20, 2021, plaintiff filed “Plaintiff’s Request to File
Amended/Supplemental Complaint for Good Cause, that Warrants Dismissal of
Defendant[’]s Demurrer” (unnecessary capitalization omitted). In it, plaintiff requested
the court grant him leave to file a fourth amended complaint which he described as his
“formerly mailed/labeled [proposed SAC]” and “relabeled ‘FOURTH AMENDED
5 See footnote 4, ante.
7.
COMPLAINT.’ ” Attached to plaintiff’s request was a copy of his proposed fourth
amended complaint and related exhibits.
Also on January 20, 2021, the superior court issued its tentative ruling on
Gardener’s demurrer to the TAC. In its tentative ruling, the court noted plaintiff’s
attempt to file the proposed SAC and stated, “[I]t was never part of a properly noticed
motion to amend”;6 “[p]laintiff failed to comply with the requirements of attaching it to a
motion to amend[]”; “[p]laintiff failed to set forth in a declaration what new allegations
were proposed, when the facts underlying the new allegations were discovered, and why
the amendments were not made sooner. (Cal[.] Rules of Court[, rule] 3.1324[.])”; and
“[g]iven this deficiency, the court found that the operative pleading was the [TAC]. That
was pursuant to an Order filed by this [c]ourt on August 28, 2020.”
On February 1, 2021, plaintiff moved under section 170.6 to disqualify the
superior court judge. Plaintiff contended the judge should be disqualified because she
“was endorsed for office by CDCR’s Union”; plaintiff “believe[d the CDCR Union]
contributed funds to her campaign”; and the judge was previously a prosecutor who
“prosecuted inmates” incarcerated in the same prison as plaintiff. Plaintiff contended the
judge had a sua sponte duty to recuse herself from the case. Plaintiff also contended that
the judge’s “adverse tentative rulings” against him demonstrated her bias; that she failed
to liberally construe his pleadings as a pro se litigant and, instead, held him to the
standards of an attorney; and that she set court deadlines that he could not reasonably
meet. On February 16, 2021, the superior court denied plaintiff’s section 170.6 motion.
On March 8, 2021, plaintiff filed an objection to the superior court’s January 20,
2021, tentative ruling on Gardner’s demurrer. In it, plaintiff contended he “submitted
6 After the federal district court remanded the state law claims contained in
plaintiff’s TAC to the superior court, and after Gardner filed his demurrer to the TAC in
superior court, plaintiff attempted to file an amended complaint – identifying it as a –
second amended complaint.
8.
multiple amended” complaints “in moving papers” on September 3, 9, 12, and 20, 2020,
and on January 24 and 27, 2021 and made “ ‘numerous oral motions, with oral notices”
during prior hearings.7 Plaintiff contended the superior court erred in treating the TAC as
the operative complaint because plaintiff was required to modify his original complaint
“to satisfy the 42 U.S.C. [section] 1983 complaint requirements” (unnecessary
capitalization omitted) which differed from the complaint format set forth in Judicial
Council Form PLD-PI-001. Plaintiff further contended that the court misinterpreted the
federal district court’s order as a dismissal of his state claims with prejudice; that he has
been denied law library privileges; that CDCR personnel have refused to sign his proofs
of service which undermine his advancement of the case; and that he was entitled to one
free amendment of his complaint. Plaintiff also reiterated his claims of judicial bias
similar to the allegations of his disqualification motion of February 1, 2021.
On March 15, 2021, plaintiff moved again to disqualify the superior court judge
pursuant to section 170.6, subdivision (a)(6). The court’s Case Summary indicates the
latter motion was denied on March 26, 2021.
On April 21, 2021, the superior court issued its order to sustain Gardner’s
demurrer to the TAC. In the order, the court noted that, on April 6, 2021, the parties
appeared at the hearing telephonically (with Gardner appearing through his counsel) and
that plaintiff had “also appeared at demurrer hearings on November 19, 2020, January 20,
2021, and February 25, 2021,” and that “[t]he [c]ourt continued the hearing several
times” at plaintiff’s request to provide him with “additional time to respond to the
[c]ourt’s tentative [ruling] and file objections.” The court then indicated that it was
sustaining the demurrer without leave to amend; that plaintiff’s “federal claims … were
resolved and dismissed by the federal court,” which constituted “res judicata”; and that
the court did not have jurisdiction to reconsider those claims. The court sustained the
7 The record on appeal does not include a reporter’s transcript.
9.
demurrer to plaintiff’s negligence claim, which was premised, in part, on the allegation
that plaintiff suffered a default in the Vanaman lawsuit. The court took judicial notice of
the fact there was no default in the case, that it was decided on its merits, and that no
additional facts to support a claim for damages were alleged. Finally, the court noted the
TAC contained no allegation that plaintiff complied with the Government Claims Act.
The court determined “[a] further opportunity to amend would be futile[]” and sustained
the demurrer without leave to amend.
On April 21, 2021, the judgment of dismissal from which plaintiff appeals was
entered. Notice of entry of the judgment was served on May 13, 2021.
On June 25, 2021, plaintiff filed a timely notice of appeal from the judgment of
dismissal.
D. State Court Filings Postjudgment
On April 22, 2021, the superior court received a document entitled “Plaintiff’s
Dispute of Defendants’ Inaccurate Proposed Order Timely Filed From His Receipt
Thereof on April 16, 2021” (unnecessary capitalization omitted). Plaintiff contended the
proposed order should have (1) indicated the court, at one point in the oral argument,
ordered him “not say another word”; and (2) that the aforementioned statement prevented
him from exercising his right to request a stay from the court pending a decision from this
court on a writ petition to seek disqualification of the judge, and from objecting to the
court’s exercise of jurisdiction over the matter.
On May 17, 2021, plaintiff filed a “Declaration of Pro Se Plaintiff in Response to
‘Declaration of Counsel Regarding Receipt of Plaintiff’s Objections to the Proposed
Order Sustaining Defendant’s Demurrer’, Received by Plaintiff on May 7, 2021”
(unnecessary capitalization omitted). In the declaration, plaintiff stated that he received
the A.G.’s declaration concerning plaintiff’s objections to the proposed order sustaining
Gardner’s demurrer on May 7, 2021; that he received two “ ‘APPROVED
DECISIONS’ ” through CDCR administrative procedures relating to another nonparty
10.
C.O., which plaintiff contended confirms his prior allegations that his efforts at
advancing and prosecuting his case were hampered and/or prevented by, for example,
him being denied library privileges, access to mail, and related mailing privileges; that
his disqualification motion(s) against the judge should have been granted; and that, based
on the latter contention, the court was without jurisdiction to hear his case.
On May 25, 2021, the superior court received a document entitled “Plaintiff’s Oral
Notice of Motion, Motion and Application to Amend Complaint Pursuant to CCP
§§ 426.50; and 472, et seq.; Declaration in Support Thereof; and Memorandum of Points
and Authorities” (unnecessary capitalization omitted). In it, plaintiff again argued the
TAC should not have been deemed the operative complaint. He likewise contended that
his prior proposed amended complaints contained his “Exhausted Administrative
Remedies” and “Government Claims [Act claim]” (unnecessary capitalization omitted).
Plaintiff contended he “intentionally removed the administrative remedies exhaustions,
and government claim, to both downsize his submission of documents for compliance
with” federal rules (underlining omitted). Plaintiff included a copy of the proposed
fourth amended complaint he previously submitted to the court on January 20, 2021, in
connection with his request to file an amended complaint. Among the attachments to the
proposed fourth amended complaint was the Government Claims Act claim dated
September 7, 2018, against Gardner. Another attachment included the Government
Claims Act claim dated January 9, 2020, against “Gardner; C. Gonzales, et al.”
Also on May 25, 2021, the superior court issued an order directing the clerk of
court to receive but not calendar plaintiff’s May 25, 2021 motion to amend. The court
noted that the judgment had already issued and notice of entry of the judgment had been
mailed to plaintiff; and that “[a] motion to amend a pleading is not an appropriate post
judgment pleading.” The court further noted it was in receipt of plaintiff’s fourth
amended complaint, which had “already been received (but not acted upon) by order filed
on January 20, 2021.”
11.
On July 16, 2021, the superior court issued an “Order Re: Untimely Filing of
Motion to Vacate …” (unnecessary capitalization omitted) in which it noted its receipt of
plaintiff’s motion to vacate the judgment dated June 17, 2021, together with a proof of
service showing service of the motion to vacate on Gardner’s counsel on an unspecified
date in June of 2021. Noting a motion to vacate must be filed 15 days after service of
notice of entry of judgment, the court denied the motion as untimely.
II. Prior Appellate Court Proceedings
On April 9, 2021, plaintiff filed with this court a “Petition for Writ of
Mandate/Prohibition” (unnecessary capitalization omitted) to challenge the superior
court’s denial of his motions to disqualify the superior court judge pursuant to
section 170.6. The petition was denied.8
DISCUSSION
I. Plaintiff’s Contentions on Appeal
Plaintiff’s contentions on appeal are (1) the superior court judge who sustained
Gardner’s demurrer and rendered judgment in favor of Gardner was without jurisdiction
to adjudicate plaintiff’s case due to her refusal to recuse herself following plaintiff’s
section 170.6 peremptory challenge to her presiding over the matter; and (2) the superior
court failed to apply appropriate federal law in adjudicating plaintiff’s 42 U.S.C.
section 1983 claim. In addition, plaintiff references the court’s refusal to allow plaintiff
to file an amended complaint and notes that “otherwise there would have been an
Amended State Complaint.”
8 Gardner has requested this court judicially notice its May 20, 2021 denial of
plaintiff’s Petition for Writ of Mandate. We deferred ruling on Gardner’s request
pending consideration of the appeal on its merits. We now grant the request. Judicial
notice of the document is appropriate in that it is decisional authority of this court (Evid.
Code § 452, subd. (a)) and relevant to Gardner’s argument on appeal.
12.
II. The Judge Sitting by Way of Assignment for All Purposes Was Not
Disqualified and Had Jurisdiction to Hear and Determine a Demurrer
Following Plaintiff’s Peremptory Challenge
Plaintiff contends the judge that ruled on the demurrer was biased, effectively
disqualified from the case by way of plaintiff’s section 170.6 motion(s), and without
jurisdiction to hear and determine the demurrer. We disagree.
A. Standard of Review
“[T]rial courts have no discretion to deny a section 170.6 motion filed in
compliance with the statute’s procedures. [Citation.] Because the trial court exercises no
discretion when considering a section 170.6 motion, it is ‘appropriate to review a
decision granting or denying a peremptory challenge under section 170.6 as an error of
law. Therefore we review under the … de novo standard.’ ” (Bontilao v. Superior Court
(2019) 37 Cal.App.5th 980, 987–988.)
B. Section 170.6
“Section 170.6 guarantees ‘to litigants an extraordinary right to disqualify a judge.
The right is “automatic” in the sense that a good faith belief in prejudice is alone
sufficient, proof of facts showing actual prejudice not being required. [Citations.]’
[Citations.] The object of this section is to provide the party and attorney with a
substitution of judge to safeguard the right to a fair trial or hearing. [Citation.] This
section is intended to ensure confidence in the judiciary and avoid the suspicion which
might arise from the belief of a litigant that the judge is biased where such belief is
difficult, if not impossible, to prove. [Citation.] The section is liberally construed and
the trend is to grant relief unless absolutely forbidden by statute.” (People v. Superior
Court (Maloy) (2001) 91 Cal.App.4th 391, 394–395 (Maloy).)
Section 170.6 provides, in relevant part: “A judge … of a superior court of the
State of California shall not try a civil … action … of any kind or character nor hear any
matter therein that involves a contested issue of law or fact when it is established as
provided in this section that the judge or court commissioner is prejudiced against a party
13.
or attorney or the interest of a party or attorney appearing in the action or proceeding.”
(§ 170.6, subd. (a)(1).) “A party … may establish this prejudice by an oral or written
motion without prior notice supported by affidavit or declaration under penalty of
perjury, or an oral statement under oath, that the judge … to whom it is assigned, is
prejudiced against a party … or the interest of the party …, so that the party … cannot, or
believes that he or she cannot, have a fair and impartial trial or hearing before the
judge ….” (Id. at subd. (a)(2).)
“The peremptory challenge right is not absolute and unlimited. [Citation.]
‘Inherent in its exercise is the requirement of conformance to certain reasonable
procedures invoked for the benefit of … all … litigants.’ [Citation.] ‘The courts of this
state have been vigilant to enforce the statutory restrictions on the number and timing of
motions permitted.’ ” (Maloy, supra, 91 Cal.App. 4th at p. 395.)
A section 170.6 motion, “[i]f directed to the trial of a civil cause that has been
assigned to a judge for all purposes, … shall be made … within 15 days after notice of
the all purpose assignment, or if the party has not yet appeared in the action, then within
15 days after the appearance. (§ 170.6, subd. (a)(2).) Section 170.6 requires that the
affidavit in support of the motion, or any oral statement or declaration under penalty of
perjury, substantially follow the form set forth in the statute. (Id. at subd. (6).)
If the motion is timely made and substantially follows the prescribed form,
disqualification is mandatory and automatic. (Grant v. Superior Court (2001)
90 Cal.App.4th 518, 524 [“ ‘where a disqualification motion is timely filed and in proper
form, the trial court is bound to accept it without further inquiry’ ”].)
C. Plaintiff’s Claims of Error with Regard to the Superior Court’s Denial of
His Section 170.6 Motion Are Not Cognizable on Appeal
Section 170.3 provides, in part: “The determination of the question of the
disqualification of a judge is not an appealable order and may be reviewed only by a writ
14.
of mandate from the appropriate court of appeal sought only by the parties to the
proceeding.” (§ 170.3, subd. (d).)
In People v. Panah (2005) 35 Cal.4th 395 (Panah), the “defendant filed a writ
petition in the Court of Appeal seeking review of the denial of [his] disqualification
motion, which the Court of Appeal summarily denied.” (Id. at p. 445.) On review by the
California Supreme Court, the Court held the defendant’s claim of error was “not
cognizable on appeal.” (Id. a p. 444.) The high Court wrote: “As we have repeatedly
held, the statute means what it says: … section 170.3, subdivision (d) provides the
exclusive means for seeking review of a ruling on a challenge to a judge, whether the
challenge is for cause or peremptory.” (Ibid.) Noting the Court of Appeal had denied the
defendant’s writ petition, the high Court stated, the “[d]efendant thus received the
appellate review of his statutory claim to which he was entitled.” (Id. at p. 445.) The
high Court rejected the defendant’s claim that writ review was “merely a procedural step
that must be followed before he [could] raise the disqualification issue on appeal….”
(Ibid.)
Here, plaintiff filed a petition for writ of mandate/prohibition by which he sought
review of the superior court’s orders denying his 170.6 motions. This court summarily
denied the petition. Plaintiff is precluded from raising the issue again on appeal. (Panah,
supra, 35 Cal.4th at p. 444.)
D. The Superior Court Did Not Err in Denying Plaintiff’s Section 170.6
Motion
In any event, the superior court did not err in denying plaintiff’s section 170.6
motion. The judge was assigned to plaintiff’s case for all purposes on April 26, 2019,
and plaintiff was served notice of the assignment, by mail service, on said date.
Plaintiff’s first section 170.6 motion was not filed until February 1, 2021 – more than one
year and nine months after the judge was assigned to the case. In the interim, plaintiff
had appeared before the judge on several occasions, both telephonically and in written
15.
briefing. It was not until after the court issued its tentative ruling on defendant’s
demurrer to the TAC on January 20, 2021– which plaintiff was privy to by virtue of his
having attended the hearing at which the tentative ruling was announced – that plaintiff
then sought to disqualify the judge.
In order to have been timely, plaintiff would have had to have made his
section 170.6 motion no later than “15 days after notice of the all purpose assignment” of
the judge. (§ 170.6, subd. (a)(2).) Plaintiff’s failure to bring a peremptory challenge to
the judge’s assignment within said period of time was fatal to his section 170.6 motions.
The superior court did not err in denying plaintiff’s 170.6 motions.
III. The Contention the Superior Court Erroneously Applied California Law in
Sustaining Gardner’s Demurrer Is Without Merit
Plaintiff contends “the [superior c]ourt had no jurisdiction to sustain [Gardner’s]
Demurrer to [plaintiff’s] 42 U.S.C. [section] 1983 Civil Rights Complaint, given that
Demurrers are not in the purview of federal statutes to dismiss/adjud icate a federal
42 U.S.C. [section] 1983 Complaint.” In support of its argument, plaintiff quotes
extensively from Bach v. County of Butte (1983) 147 Cal.App.3d 554 (Bach) in which the
court held “… California state courts should apply federal law to determine whether a
complaint sufficiently pleads a cause of action under the federal Civil Rights Act.” (Id. at
p. 558.)
Plaintiff is mistaken as to the claims that were remanded back to the superior
court. The only claims that were remanded back to the superior court were plaintiff’s
state law claims. Plaintiff’s federal claims had already been dismissed by the district
court. Thus, plaintiff had no pending federal claims before the superior court.
Consequently, Bach is inapposite. It involved the criteria by which a California state
court should assess the pleading of a complaint under 42 U.S.C. section 1983. (Bach,
supra, 147 Cal.App.3d at pp. 560–564.)
16.
The superior court had no jurisdiction to overrule the district court’s determination
of plaintiff’s federal claims. (Myles v. PennyMac Loan Services, LLC (2019)
40 Cal.App.5th 1072, 1075 (Myles) [where a defendant removes a case to federal court
and the district court dismisses the federal claims as invalid and remands state claims to
the superior court, review of the district court’s ruling is for the Ninth Circuit Court of
Appeals].)
The only issues before the superior court on demurrer were whether plaintiff had
stated valid claims under state law. It is axiomatic that the validity of a state law claim
pending in state court is determined according to state law. Any contention the court
should have applied federal law in assessing whether a valid state claim was stated is
without merit.
The superior court did not err by applying California law (rather than federal law)
in testing the sufficiency plaintiff’s state law claims.
IV. The Superior Court Erred in Concluding Plaintiff Had Not Adequately
Alleged Damages in Connection with One Claim Only and Abused Its
Discretion in Denying Plaintiff Leave to Allege Compliance with the
Government Claims Act as to That Claim
A. Standard of Review
“ ‘ “In reviewing an order sustaining a demurrer, we examine the operative
complaint de novo to determine whether it alleges facts sufficient to state a cause of
action under any legal theory.” ’ [Citation.] ‘We “adopt[] a liberal construction of the
pleading and draw[] all reasonable inferences in favor of the asserted claims.” [Citation.]
We are not bound by the trial court’s reasoning and may affirm the judgment if correct on
any theory.’ [Citation.] ‘We review the trial court’s refusal to grant leave to amend
under the abuse of discretion standard.’ ” (Manderson-Saleh v. Regents of University of
California (2021) 60 Cal.App.5th 674, 707.)
17.
B. Plaintiff’s Remaining Contentions on Appeal
In his opening brief, plaintiff complains that he attempted, on numerous occasions,
to file an amended complaint and impliedly contends the superior court should have
allowed the filing. To the extent plaintiff has raised the issue, he has done so in a
conclusory and relatively sparse fashion.9 He has provided no argument or authority to
demonstrate how his proposed SAC or proposed fourth amended complaint is sufficient
against demurrer or how he could otherwise amend his pleadings to state a viable cause
of action. Nor does he provide any argument to demonstrate that the court erroneously
sustained Gardner’s demurrer to the TAC beyond his statement that he attempted to
amend his pleading but was denied.
“ ‘Issues do not have a life of their own: if they are not raised or supported by
[substantive] argument or citation to authority, we [may] consider the issues waived.’ ”
(Holden v. City of San Diego (2019) 43 Cal.App.5th 404, 418.) A party that is in propria
9 The sum and substance of plaintiff’s discussion of the issue of amendment in his
opening brief is contained in two passages, as follows:
“Defendants[] filed a Demurrer [citation]; Which,
Appellant/Plaintiff, filed a 2nd Amended Complaint [citation]; Multiple
Oppositions [citation]; and Multiple Requests to File
Amended/Supplemental Complaints, the later bearing an attached Amended
Complaint therewith [citation] in response to. Yet a Demurrer was
subsequently conducted, and the Defendants’ Demurrer was sustained on
April 21, 2021 [citation].” [¶ … ¶]
“On September 15, 2020, the Court issued an Order that
Plaintiff’s/Appellant’s Third Amended Complaint (i.e., 42 U.S.C. § 1983Civil Rights Complaint) is the operative complaint [citation to record], and
despite Appellant’s/Plaintiff’s numerous attempts and requests to file an
Amended Complaint [citation to record] the Court denied Plaintiff’s
requests, and attempts; Moreover, the Court did not order the
Appellant/Plaintiff to file an amended complaint sua sponte, despite his
struggles with the procedure; in addition to the Defendants’ colleagues
interference with his access to the court [citation]; otherwise, there would
have been an Amended State Complaint [citation] before the court ….”
18.
persona is not exempt from the rules of appellate procedure and must still bear the burden
of demonstrating reversible error. (Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1246.)
“Under the law, a party may choose to act as his or her own attorney. [Citations.]
‘[S]uch a party is to be treated like any other party and is entitled to the same, but no
greater consideration than other litigants and attorneys.’ ” (Id. at pp. 1246–1247.)
Moreover, it is not the job of an appellate court to develop an appellant’s arguments for
him or her. (Dills v. Redwoods Associates, Ltd. (1994) 28 Cal.App.4th 888, 890, fn. 1.)
Notwithstanding, we have compared the TAC to plaintiff’s proposed SAC, and to
its nearly identical counterpart, i.e., the proposed fourth amended complaint. We note
that the TAC, in substance and in nearly identical language, includes nearly all the
substantive allegations of the proposed amended complaints proffered by plaintiff. Thus,
in effect, the superior court addressed all the substantive allegations of the TAC and
nearly all the allegations in the proposed amended complaints.10 In addition, Gardner
addressed the issue of whether the court abused its discretion in denying plaintiff leave to
amend. Accordingly, we will consider the issue as having been sufficiently raised on
appeal.
10
In his reply brief, plaintiff contends for the first time on appeal that he was
entitled to amend his TAC pursuant to section 472 which provides, in part: “A party may
amend its pleading once without leave of the court … after a demurrer or motion to strike
is filed but before the demurrer or motion to strike is heard if the amended pleading is
filed and served no later than the date for filing an opposition to the demurrer or motion
to strike.” (§ 472, subd. (a).) Generally, appellate courts will not consider arguments
raised for the first time in a reply brief absent a showing of good cause. (Scott v. CIBA
Vision Corp. (1995) 38 Cal.App.4th 307, 322.) No good cause for the failure to raise the
argument in plaintiff’s opening brief has been presented. As a result, we consider the
argument forfeited. Moreover, given our comparison, review, and consideration of the
TAC, the SAC, and its nearly identical counterpart, i.e., the proposed fourth amended
complaint, the result reached herein would be unchanged regardless of which pleading
was considered.
19.
C. The Superior Court Did Not Err in Sustaining the Demurrer as to
Plaintiff’s Federal Law Claims
The superior court sustained Gardner’s demurrer to plaintiff’s federal claims on
grounds of res judicata. The court’s determination regarding plaintiff’s federal claims is
unassailable. The case was removed to federal court and plaintiff’s federal claims were
screened and dismissed by the district court pursuant to 28 U.S.C. 1915A
subdivision (b)(1) for failure to state a cognizable claim. As discussed in the preceding
section of this opinion, this court lacks jurisdiction to overrule the district court’s
determination as to plaintiff’s federal claims. (Myles, supra, 40 Cal.App.5th at p. 1075.)
“A dismissal under rule 12(b)(6) of the Federal Rules of Civil Procedure
(28 U.S.C.) for failure to state a claim is regarded by federal courts as a judgment on the
merits.” (Franceschi v. Franchise Tax Bd. (2016) 1 Cal.App.5th 247, 259.) “Dismissal
for failure to state a claim under [28 U.S.C. section] 1915A ‘incorporates the familiar
standard applied in the context of failure to state a claim under Federal Rule of Civil
Procedure 12(b)(6).’ ” (Nordstrom v. Ryan (2014) 762 F.3d 903, 908.) A dismissal
pursuant to subdivision (b)(1) of 28 U.S.C. section 1915A is considered a dismissal with
prejudice. (Gladney v. Pendleton Correctional Facility (2002) 302 F.3d 773, 775.)
Notably, the federal court provided plaintiff three opportunities to amend his
complaint to state a valid federal claim. Even under California law, a plaintiff is limited
in the number of times he may attempt to amend his complaint to survive a demurrer.
Section 430.41 provides, in relevant part: “In response to a demurrer and prior to the
case being at issue, a complaint or cross-complaint shall not be amended more than three
times, absent an offer to the trial court as to such additional facts to be pleaded that there
is a reasonable possibility the defect can be cured to state a cause of action.” (§ 430.41,
subd. (e)(1).) Thus, plaintiff was given ample opportunity to amend to state a viable
federal claim but was unable to do so.
20.
We conclude the superior court did not err in sustaining Gardner’s demurrer to
plaintiff’s federal claims.
D. The Superior Court Erred in Sustaining Gardener’s Demurrer Without
Leave to Amend as to One of Plaintiff’s State Law Claims
The district court, having found no cognizable federal claims, declined to exercise
supplemental jurisdiction over plaintiff’s state law claims. Instead, the district court
remanded those claims to the superior court.
Gardner demurred to plaintiff’s state law claims on grounds that plaintiff had
failed to allege compliance with the Government Claims Act and to allege harm as a
result of Gardner’s alleged negligence. The superior court sustained the demurrer.
1. Failure to Comply with the Government Claims Act
In demurring to the TAC, Gardner acknowledged plaintiff “included a government
claim about the alleged April 9, 2018 incident he described in his original Complaint” –
i.e., the alleged incident whereby Gardner opened plaintiff’s mail clearly marked as
containing legal documents. Our review of plaintiff’s original complaint confirms that a
Government Claims Act claim form signed dated September 7, 2018, provided notice to
the government of the incident. Similarly, plaintiff included the September 7, 2018,
claim form as part of the documents attached to his proposed SAC and proposed fourth
amended complaint. The claim form was served that same day. By all appearances, the
claim form was timely submitted within six months of the alleged incident. (See Gov.
Code § 911.2, subd. (a) [“A claim relating to a cause of action for death or for injury to a
person or to personal property or growing crops shall be presented … not later than six
months after the accrual of the cause of action. A claim relating to any other cause of
21.
action shall be presented … not later than one year after the accrual of the cause of
action”].)11
However, as to the other state law claims referenced in the TAC, our review of
plaintiff’s filings reveals that a Government Claims Act claim form was signed, dated,
and submitted to the government on January 9, 2020. This claim form would only be
timely as to causes of action accruing on or after July 9, 2019. (Gov. Code § 911.2,
subd. (a).) A review of plaintiff’s other state law claims reveals the majority of them
predate July 9, 2019. The sole possible exception relates to the alleged July/August
2019, incident.12 The allegations, read in part (and without limitation):
“In approximately July or August of 2019, defendant W. Gardener
summoned the plaintiff for a parcel distribution for a CDCR approved
vendor (i.e., Access Securepak®). During said distribution, defendant W.
Gardner informed the plaintiff that he was not authorized to receive the
enclosed extension cord minus exchanging the one reflected on plaintiff’s
property card warranting a one for one exchange. The plaintiff informed
defendant W. Gardner that he would like to return the extension cord … to
facilitate a refund …; ... [P]laintiff forwarded 10 prepaid indigent envelopes
in compliance with CCR Tit[le] 15 [sections] 3313(a)(4), 3134(c)(1), and
3138(b) to cover the cost of postage. However, in blatant disregard for said
clearly established laws/regulations said official(s) insisted that the cost of
postage must derive from the plaintiff’s inmate trust account; although the
plaintiff’s account was bare, and the plaintiff was indigent and had no
outside source to make a deposit thereto …. … CSATF-SP officials
negligently, arbitrarily, capriciously, maliciously, and in concert …,
11 Although the superior court sustained the demurrer in part based upon a failure
to comply with the Government Claims Act, it appears the court may have done so only
in connection with alleged incidents occurring after the alleged April 9, 2018, incident.
12 We acknowledge plaintiff has alleged he subscribed to Bayview Newspaper, a
monthly publication, in late 2017 or early 2018, and has only received eight newspapers
between then and August 9, 2019. Although he contends “CDCR John/Jane Does are
culpable” for the newspapers he did not receive, he does not allege any facts to support
this allegation. Thus, no negligence cause of action is stated with regard to this issue.
Furthermore, the facts alleged are insufficient to demonstrate plaintiff presented a timely
Government Claims Act claim with regard to the issue.
22.
prematurely disposed of plaintiff’s property. … [And,] … plaintiff’s
10 prepaid indigent envelopes … have never been returned to him….”
Based on our review of the record on appeal, we conclude plaintiff could have
amended the TAC to allege compliance with the Government Claims Act – but only with
regard to the alleged April 9, 2018, incident, and potentially with respect to the alleged
July/August 2019, incident if plaintiff can sufficiently narrow down the date of the
incident. As to all other state law claims, we agree with the superior court that plaintiff
could not amend the TAC to allege compliance with the Government Claims Act.
2. Failure to Allege Damages
The superior court also sustained the demurrer on the grounds that plaintiff did
not, and could not, allege any damages with respect to his claims. We conclude the court
was correct that plaintiff could not allege cognizable damages with respect to the alleged
April 9, 2018 incident, but incorrect as to whether damages were sufficiently alleged in
connection with the alleged July/August 2019, incident.
Reviewing the TAC, plaintiff alleged he suffered a default in the Vanaman lawsuit
and “mental anguish” as a result of the alleged April 9, 2018, incident. However, the
superior court properly took judicial notice of the fact that plaintiff did not suffer a
default in the Vanaman lawsuit. Rather, the record demonstrates the Vanaman lawsuit
was adjudicated on its merits on grounds plaintiff failed to timely submit a Government
Claims Act claim in connection with the claim(s) in the lawsuit. On appeal, Plaintiff
does not contend that the alleged April 9, 2018 incident caused him to fail to timely
submit a Government Claims Act claim.13
13 Moreover, it appears such a contention is not possible. The superior court took
judicial notice of its own files in the Vanaman lawsuit at Gardner’s request including the
court’s “Order Denying Plaintiff’s Petition for Relief From Claim Filing Requirements
Under Government Code Section 946.6” (unnecessary capitalization omitted). In its
order, the court noted that plaintiff contended he filed his Government Claims Act claim
late because he was under a “mistaken belief that he was required to exhaust his
administrative remedies before filing his government claim under Government Code
section 911.2.”
23.
Plaintiff’s allegations of mental anguish are insufficient to survive demurrer.
Liability for emotional distress used to be conditioned upon the existence of additional
physical injury having been suffered by the complainant. (6 Witkin, Summary of Cal.
Law (11th ed. 2017) Torts, § 1160.) The requirement of additional physical injury was
abrogated in Molien v. Kaiser Foundation Hospitals (1980) 27 Cal.3d 916, 927–931.
However, after Molien was decided, our Supreme Court noted that “with rare exceptions,
a breach of … duty must threaten physical injury” in order for resulting emotional
distress to be compensable as damages. (Potter v. Firestone Tire & Rubber Co. (1993) 6
Cal.4th 965, 985; Erlich v. Menezes (1999) 21 Cal.4th 543, 555–557 [holding that mental
distress resulting solely from property damage caused by a defendant’s negligence is not
compensable].) Here, no physical injury resulted from, or was threatened by, the alleged
April 9, 2018 incident. As a result, the superior court did not err in determining plaintiff
did not allege compensable damages in connection with the alleged incident. We
conclude the court properly sustained Gardner’s demurrer in connection with the alleged
April 9, 2018, incident.
However, with regard to the alleged July/August 2019 incident, we note that
plaintiff alleged the destruction of his property and failure to return his property. Such
allegations of damages are sufficient to survive a challenge on demurrer. We conclude
the superior court erred in determining that plaintiff had not sufficiently alleged damages
in connection with the alleged July/August 2019 incident. And, as mentioned previously,
we have determined it may be possible for plaintiff to allege timely compliance with the
Government Claims Act in connection with the alleged July/August 2019 incident.
Consequently, the court’s failure to allow such an amendment was an abuse of discretion.
DISPOSITION
The judgment is reversed. The order sustaining Gardner’s demurrer is reversed in
part, and affirmed, in part. The order is reversed only as to the alleged July/August 2019
incident. Plaintiff shall have the opportunity to amend his complaint to allege
24.
compliance with the Government Claims Act as to that alleged incident. In all other
respects the order is affirmed. In the interests of justice, each party shall bear their own
costs on appeal.
POOCHIGIAN, Acting P. J.
WE CONCUR:
DETJEN, J.
SMITH, J.
25.