Filed 3/27/15 Wheeler v. Trimble 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                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                     FIFTH APPELLATE DISTRICT



REGINALD WHEELER,                                                                          F068696

         Plaintiff and Appellant,                                          (Super. Ct. No. 11CECG03585)

                   v.
                                                                                         OPINION
ROBERT TRIMBLE,

         Defendant and Respondent.



                                                   THE COURT*
         APPEAL from a judgment of the Superior Court of Fresno County. Debra J.
Kazanjian, Judge.
         Reginald Wheeler, in pro. per., for Plaintiff and Appellant.
         Kamala D. Harris, Attorney General, Jennifer A. Neill, Assistant Attorney
General, Julie A. Malone and Patricia Webber Heim, Deputy Attorneys General, for
Defendant and Respondent.


                                                    -ooOoo-



*        Before Hill, P. J., Cornell, J. and Gomes, J.
       Petitioner, a prison inmate, seeks a writ of mandate compelling respondent, the
prison warden, to have the disciplinary charges against him reheard due to an alleged
procedural violation in the prior hearing process. The trial court sustained respondent’s
demurrer to the amended petition and petitioner appeals. We affirm.
                   FACTUAL AND PROCEDURAL BACKGROUND
       The amended petition for writ of mandate, filed January 22, 2013, alleges
petitioner was issued a CDC form 115, rules violation report (RVR).1 Apparently, the
administrative hearing officer found him guilty of the charge. The RVR was ordered
reissued and reheard due to investigative employee error. The subsequent decision from
the second level administrative appeal, which is attached to the petition, indicates a
rehearing took place on May 4, 2009, and petitioner appeared and pled not guilty. The
hearing officer found petitioner guilty. The decision from the second level review,
however, found a due process violation had been made: petitioner had not been timely
served with the rewritten RVR. Because of the error, the second level decision concluded
the finding of guilt could stand, but the forfeiture of conduct credits could not be
imposed.
       The decision from the next level of appeal, the director’s level, denied petitioner’s
appeal. It concurred with the second level decision that the evidence the hearing officer
relied on was sufficient to sustain a finding of guilt. It rejected petitioner’s assignments
of error. The decision concluded: “As the appellant has not provided persuasive
evidence that he is innocent of the charge or that due process was unfulfilled in the
finding of guilt, relief at the [director’s level of review] is not warranted.”




1     The original petition alleges petitioner was an inmate with the Department of Corrections
and Rehabilitation (CDC) at Pleasant Valley State Prison at the time.
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       In his amended petition, petitioner alleged section 3084.5, subdivision (h)(2)(A) of
title 15 of the Code of Regulations,2 mandated that, in the event of a due process or
procedural violation in the disciplinary proceedings, prison officials had only two options
available to remedy the violation: dismiss the charges or order a rehearing. Prison
personnel did not adopt either of those options. Petitioner sought a writ of mandate,
compelling the prison to carry out what he contends to be the mandated remedy and
rehear the matter.
       Respondent demurred to the amended petition, asserting petitioner was not entitled
to the requested writ of mandate because respondent had no ministerial duty to dismiss or
rehear the charges and petitioner did not demonstrate he had no plain, speedy, and
adequate remedy in the ordinary course of law. The trial court sustained respondent’s
demurrer to the amended petition. It concluded habeas corpus was the appropriate
remedy for petitioner to pursue, but mislabeling his petition as one seeking mandate was
not fatal to his claim, if the petition was otherwise meritorious. The petition was not
meritorious, however, because it was based on an outdated version of the Code of
Regulations. The currently applicable regulation did not contain the language petitioner
cited as requiring reissuance and rehearing of the RVR. Petitioner appeals from the
judgment dismissing his writ petition.
                                         DISCUSSION
I.     Standard of Review
       “A demurrer tests the legal sufficiency of the complaint, and the granting of leave
to amend involves the trial court’s discretion. Therefore, an appellate court employs two
separate standards of review on appeal. [Citations.] First, the complaint is reviewed de


2       Although petitioner repeatedly refers to the section as “section 3084.6, subdivision
(h)(2)(A),” it is clear from the copies of the regulation attached to his original and amended
petitions that he is actually relying on section 3084.5, former subdivision (h)(2)(A).
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novo to determine whether it contains sufficient facts to state a cause of action.
[Citation.] In doing so, we accept as true the properly pleaded material factual
allegations of the complaint, together with facts that may be properly judicially noticed.
Reversible error exists only if facts were alleged showing entitlement to relief under any
possible legal theory. [Citations.] [¶] Second, where the demurrer is sustained without
leave to amend, reviewing courts determine whether the trial court abused its discretion
in doing so. [Citations.] On review of the trial court’s refusal to grant leave to amend,
we will only reverse for abuse of discretion if we determine there is a reasonable
possibility the pleading can be cured by amendment. Otherwise, the trial court’s decision
will be affirmed for lack of abuse. [Citations.]” (Hernandez v. City of Pomona (1996) 49
Cal.App.4th 1492, 1497-1498.)
II.    Petition for Writ of Mandate
       “Mandate will lie to compel performance of a clear, present and usually
ministerial duty in cases where a petitioner has a clear, present and beneficial right to
performance of that duty. [Citation.]” (County of Del Norte v. City of Crescent City
(1999) 71 Cal.App.4th 965, 972.) It “‘will not lie to control discretion within the area
lawfully entrusted to the administrative agency.’ [Citation.]” (Hilton v. Board of
Supervisors (1970) 7 Cal.App.3d 708, 713.) Mandate “may only direct that the officer
act, and must leave the matter as to what action he will take to his determination.
[Citation.]” (Patten v. County of San Diego (1951) 106 Cal.App.2d 467, 470.)
Generally, a writ of mandate will not be issued if another remedy is available to the
petitioner. (Phelan v. Superior Court (1950) 35 Cal.2d 363, 366.)
       Petitioner’s writ petition is based on the allegation that, having concluded there
was a due process or procedural error in the proceedings, respondent was required by
regulation to have the matter reheard. Petitioner relied on section 3084.5, former
subdivision (h)(2)(A), of Title 15 of the Code of Regulations (2009), as that section
                                              4
existed at the time of the alleged disciplinary violation and the hearing. At that time, the
regulation provided:

              “(h) Disciplinary appeals. When procedural or due process
       requirements provided inmates in disciplinary proceedings have been
       violated, one of the following remedies shall be considered:

              “(1) The original disposition shall be vacated and the charges
       dismissed if the reviewer determines that the ‘findings of the disciplinary
       hearing were not supported by the evidence presented at the hearing and
       any of the following circumstances are evident: [¶] … [¶]

             “(2) The original disposition shall be vacated and a new hearing
       ordered if the reviewer determines that any of the following requirements
       were not met:

              “(A) The accused was not given copies of required documents
       within specified time limits before the hearing and did not waive the time
       limits.…” (Cal. Code Regs., tit. 15, § 3084.5, former subd. (h).)
       This provision does not impose on respondent a mandatory duty to have the matter
reheard in the event of a procedural violation. Rather, it requires that, in the event of a
procedural violation, the remedies set out in former subdivision (h) be “considered.”
There is no allegation respondent failed to consider these remedies. If they were
considered and rejected, a writ of mandate may not be used to control that exercise of
discretion. The petition does not adequately allege a claim for a writ of mandate to
compel respondent to perform a mandatory or ministerial duty. Accordingly, the
demurrer was properly sustained.
III.   Writ of Habeas Corpus
       The trial court found the appropriate remedy for the wrong claimed by petitioner
was not a writ of mandate, but a writ of habeas corpus. It concluded “a petition for
extraordinary writ that mislabels the remedy will not be denied if the petition is otherwise
meritorious.” Construing petitioner’s petition as one for a writ of habeas corpus, the trial
court concluded the demurrer should be sustained because the petition was not
                                              5
meritorious as a petition for habeas corpus; it relied on an outdated version of the
regulation and the current version did not mandate the remedy petitioner sought.
Petitioner challenges the trial court’s decision, asserting the regulation in effect at the
time of the hearing of the charges against him applied to determine the appropriate
remedy for a procedural violation in the hearing process.
       “‘No rule of decision is better or more firmly established by authority, nor one
resting upon a sounder basis of reason and propriety, than that a ruling or decision, itself
correct in law, will not be disturbed on appeal merely because given for a wrong reason.
If right upon any theory of the law applicable to the case, it must be sustained regardless
of the considerations which may have moved the trial court to its conclusion.’
[Citation.]” (D’Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1, 19.)
       Even if the trial court erred in concluding the version of the regulation in effect in
2009, when the matter was heard by the hearing officer, was outdated and should not be
applied, the result was correct. “‘The writ of habeas corpus may be sought by one
lawfully in custody for the purpose of vindicating rights to which he is entitled even in
confinement. [Citation.]’ [Citation.]” (In re Harrell (1970) 2 Cal.3d 675, 682.) The
facts set out in the petition failed to allege a denial of petitioner’s rights.
       The only wrong petitioner alleges was respondent’s choice of remedy for a
procedural violation. Petitioner challenges only the refusal to have the charges alleged
against him in the RVR reheard a second time, based on the late delivery to him of the
reissued RVR for the first rehearing. He relies solely on the regulation discussed
previously, which does not mandate rehearing. Petitioner has not alleged any other
violation of his rights.
       We note that what the second level review decision and petitioner refer to as a
“due process violation” in the prior proceedings does not actually constitute a due process
violation. An agency’s violation of its own procedures does not necessarily amount to a
                                                6
denial of due process. (Tyler v. Children’s Home Society (1994) 29 Cal.App.4th 511,
546.) Due process fundamentally requires adequate notice and an opportunity to be
heard. (Laupheimer v. State of California (1988) 200 Cal.App.3d 440, 451.) The second
level and director’s level decisions in the record indicate that, when the RVR was ordered
reheard due to investigative employee error, the rewritten RVR was not delivered to
petitioner within 15 days, as required by the regulations. (See Cal. Code Regs., tit. 15,
§ 3320.) The RVR was, however, received by petitioner on April 22, 2009; the matter
was reheard on May 4, 2009, and petitioner appeared in his defense.
       The petition does not allege petitioner had insufficient notice of the charges
against him or insufficient time to prepare for the hearing. It does not allege that he
objected to the late notice at the time of the hearing or that it affected the outcome of the
hearing. Petitioner has not alleged there was any unfairness or violation of his rights in
the hearing procedures. He has not challenged the validity of the finding of guilt.
Consequently, petitioner has not adequately alleged a claim for relief by way of a writ of
habeas corpus.
IV.    Leave to Amend
       Denial of leave to amend is an abuse of discretion if there is a reasonable
possibility the pleading could be cured by amendment. (Lee v. Los Angeles County
Metropolitan Transportation Authority (2003) 107 Cal.App.4th 848, 854.) The burden is
on petitioner to demonstrate that his pleading can be amended to state a cause of action; it
is not up to the court to determine how the pleading can be amended. (Ibid.)
       Petitioner has not argued or demonstrated that the petition can be amended to state
a valid claim. Accordingly, he has not established any abuse of discretion in the trial
court’s denial of leave to amend.
                                      DISPOSITION
       The judgment is affirmed. Respondent is entitled to his costs on appeal.
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