Filed 8/5/16 Russell v. Superior Court CA3
                                           NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
                                      THIRD APPELLATE DISTRICT
                                                    (San Joaquin)
                                                            ----



STEVEN E. RUSSELL, SR., et al.                                                               C080911

                   Petitioners,                                                   (Super. Ct. No. 39-2013-
                                                                                  00300469-CU-PO-STK)
         v.

THE SUPERIOR COURT OF SAN JOAQUIN                                                   MODIFICATION OF
COUNTY,                                                                                OPINION

                   Respondent;                                                         [NO CHANGE IN
                                                                                         JUDGMENT]
STATE OF CALIFORNIA et al.,

                   Real Parties in Interest.




         THE COURT:
         It is ordered that the opinion filed herein on August 3, 2016, be modified as
follows:




                                                             1
       1.          On page 11, the last sentence of the Disposition paragraph should be
deleted and replaced with a sentence reading: “The parties shall bear their own costs.
(Cal. Rules of Court, rule 8.493(a)(1)(B).)” The paragraph shall now read:
       The petition for writ of mandate is denied. The parties shall bear their own costs.
(Cal. Rules of Court, rule 8.493(a)(1)(B).)
       This modification does not change the judgment.


FOR THE COURT:




          /s/
Nicholson, Acting P. J.



             /s/
Butz, J.




             /s/
Duarte, J.




                                                 2
Filed 8/3/16 Russell v. Superior Court CA3 (unmodified version)
                                           NOT TO BE PUBLISHED
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
                                      THIRD APPELLATE DISTRICT
                                                    (San Joaquin)
                                                            ----




STEVEN E. RUSSELL, SR., et al.                                                               C080911

                   Petitioners,                                                   (Super. Ct. No. 39-2013-
                                                                                  00300469-CU-PO-STK)
         v.

THE SUPERIOR COURT OF SAN JOAQUIN
COUNTY,

                   Respondent;

STATE OF CALIFORNIA et al.,

                   Real Parties in Interest.




         Petitioners Steven E. Russell, Sr., and Sandra Reece petition this court for a writ of
mandate ordering the superior court to issue an order compelling the California
Department of Corrections and Rehabilitation (CDCR) to extract material witness and
inmate, Jerome Sidney DeAvila, from his cell so petitioners can depose him. The trial



                                                             1
court denied petitioners’ request for such an order, finding there was no authority for it
and that the risks of injury and disruption weighed against the order. Although we do not
condone CDCR’s refusal to make DeAvila available for deposition by whatever means
legally available to it, we conclude the trial court had discretion to decline to order
extraction, and accordingly deny the writ.
                                     BACKGROUND
       In 2013, DeAvila raped and murdered his grandmother Racheal Russell. The
following year, he was convicted of these crimes and sentenced to 25 years to life in
prison. Petitioners are the son and daughter of Racheal Russell, the victim; and petitioner
Sandra Reece is also DeAvila’s mother. After the murder, petitioners brought a wrongful
death lawsuit against the State of California, the CDCR, and the County of San Joaquin,
alleging negligence in the failure to warn of DeAvila’s release from state custody before
the murder and the failure to affix an ankle bracelet GPS monitoring device before his
release.
       The first amended complaint alleged that DeAvila had a lengthy criminal history
of sex crimes, drugs, and violence, and was on parole at the time of the murder. One
requirement of his parole was that he wear a GPS tracking device around his ankle. Due
to a sex crime conviction, DeAvila was not allowed to go near a school; his
grandmother’s house was near a school. The year before the murder, the police arrested
DeAvila 16 times for violations of parole or other criminal activity; each time they
released him.
       The complaint alleged that both the state parole officers and the county jail
personnel knew, or should have known, that DeAvila often went to his grandmother’s
house. They also knew DeAvila had threatened his grandmother. Three days before the
murder, the police arrested DeAvila for violation of parole. He was under the influence
of drugs or alcohol and had removed his GPS device. County officials again released



                                              2
DeAvila, without notifying his grandmother or reaffixing the GPS device; state parole
officials concurred in the decision.
       Petitioners gave notice that they would take DeAvila’s deposition, first scheduled
for January 8, 2015, then for March 2, at the California Health Care Facility in Stockton
where he was housed. On March 2, arrangements were made to take DeAvila’s
deposition in a meeting room to accommodate the court reporter, but DeAvila refused to
participate. He refused to come out of his cell. DeAvila had previously told prison
officials he would not permit a videotaped deposition.
       Petitioners believed DeAvila was an “important witness” and “necessary and
material” to their case. They wanted to question him about what he had told parole and
County officials about his relationship with his grandmother and his feelings and anger
towards her. Pursuant to Penal Code section 2623, they obtained a court order requiring
DeAvila to participate in the deposition and answer all questions.1 Again, De Avila
refused to come out of his cell. CDCR declined to forcibly extract him.
       Petitioners moved to compel CDCR to forcibly extract DeAvila from his cell at
the California Health Care Facility. The motion was supported by the declaration of
Gerry Garcia. Garcia had worked at the California Youth Authority for over 25 years,
retiring as Captain, Chief of Security. He understood DeAvila had a history of refusing
to come out of his cell and Garcia believed that he had probably been extracted many
times. In Garcia’s experience, 70 percent of the time, an inmate will voluntarily come
out of the cell when faced with forcible extraction. He saw no reason why DeAvila could




1  Penal Code section 2623 provides in part: “If in a civil action or special proceeding a
witness be a prisoner, confined in a state prison within this state, an order for the
prisoner's examination in the prison by deposition may be made.” This procedure is in
lieu of the usual deposition subpoena to a non-party witness. (See Code Civ. Proc.,
§§ 2020.210, 2020.310.)

                                             3
not be extracted from his cell. Garcia stated, “Inmates are extracted all the time for
different reasons.”
       The Warden of Mule Creek State Prison, where DeAvila was then housed,
opposed the motion, contending there was no authority for compelling an extraction. The
warden argued, among other things, that DeAvila was no longer at the California Health
Care Facility; he was in the general population at Mule Creek State Prison, with minimal
restrictions on his movement. This placement made a cell extraction more problematic.
Further, there was no guarantee that DeAvila would answer deposition questions after the
extraction, and any use of force or chemical agents would likely make him less
cooperative.
       The opposition was supported by the declaration of R. Roy, a facility captain at
Mule Creek State Prison. Roy detailed the procedure for the involuntary removal of an
inmate from his cell. Absent an imminent threat to the inmate or staff, any cell extraction
would be “controlled” and would require extensive tactical planning, a large amount of
equipment, and a large number of staff. Before the extraction, staff would assess
DeAvila’s mental health, medical history, and disciplinary history. A controlled
extraction is time consuming and could take all day. First, there would be a cool down
period to permit the inmate to comply with the order. This period includes clinical
intervention by a licensed mental health practitioner and may include dialogue with
religious leaders, correctional counselors, or other staff who have developed a rapport
with DeAvila. Because DeAvila was in the general population rather than a segregated
unit, the cell extraction would be more difficult. Because he was receiving mental health
services, certain tools such as chemical agents may be prohibited. The actual
confrontation could result in harm to DeAvila or staff. A cell extraction disrupts the
prison environment and may lead to other violence.




                                             4
       The trial court denied the motion to compel a cell extraction. It found no authority
for such an order and found that balancing the risk of injury and disruption weighed
against ordering extraction.
       Petitioners petitioned this court for a writ of mandate directing the trial court to
vacate its order and to enter a new order granting the motion to compel the cell
extraction. We issued an order to show cause.
                                       DISCUSSION
                                               I
                         Writ of Mandate and Standard of Review
       “A writ of mandate will lie to ‘compel the performance of an act which the law
specifically enjoins, as a duty resulting from an office, trust, or station’ (Code Civ. Proc.,
§ 1085) ‘upon the verified petition of the party beneficially interested,’ in cases ‘where
there is not a plain, speedy, and adequate remedy, in the ordinary course of law.’ (Code
Civ. Proc., § 1086.) The writ will issue against a county, city or other public body or
against a public officer. [Citations.] However, the writ will not lie to control discretion
conferred upon a public officer or agency. [Citations.] Two basic requirements are
essential to the issuance of the writ: (1) A clear, present and usually ministerial duty upon
the part of the respondent [citations]; and (2) a clear, present and beneficial right in the
petitioner to the performance of that duty [citations].” (People ex rel. Younger v. County
of El Dorado (1971) 5 Cal.3d 480, 490-491.)
       Ordinarily, writ review of discovery orders is disfavored and the aggrieved party
must raise the issue on direct appeal from a final judgment. (Sav-On Drugs, Inc. v.
Superior Court (1975) 15 Cal.3d 1, 5.) “As a result, writ review of discovery rulings are
limited to situations where (1) the issues presented are of first impression and of general
importance to the trial courts and to the profession [citation], (2) the order denying
discovery prevents a party from having a fair opportunity to litigate his or her case



                                               5
[citations], or (3) the ruling compelling discovery would violate a privilege [citations].”
(Johnson v. Superior Court (2000) 80 Cal.App.4th 1050, 1061 (Johnson).)
       Here, we review whether the trial court must compel prison authorities to forcibly
extract DeAvila from his cell to attend a deposition in a civil case to which he is not a
party. We issued an order to show cause and proceed to analyze whether CDCR’s refusal
to forcibly remove DeAvila from his cell for deposition, and the trial court’s subsequent
refusal to order CDCR to do so, constituted a violation of the trial court’s clear duty to
enter the order. We conclude the trial court does not have a clear duty to make the order
at issue here.
       We recognize that CDCR is declining to forcibly produce a witness, over which it
alone has physical control, for deposition in a case in which CDCR is the defendant.
Further, CDCR stands accused of misconduct in its failure to monitor defendant, and to
take any steps to prevent him from doing harm to his grandmother and to warn her that he
posed a threat. Despite these compelling facts and circumstances, and CDCR’s apparent
conflict of interest as it plays the dual roles of defendant’s custodian as well as the entity
about whose conduct the plaintiffs seek information, the issue presented--compelling
defendant’s custodian to force him to attend a deposition which he has refused to attend--
boils down to a civil discovery issue.
       “Management of discovery lies within the sound discretion of the trial court.
Consequently, appellate review of discovery rulings is governed by the abuse of
discretion standard. [Citation.] Where there is a basis for the trial court’s ruling and the
evidence supports it, a reviewing court will not substitute its opinion for that of the trial
court. [Citation.] The trial court’s determination will be set aside only when it has been
demonstrated that there was ‘ “no legal justification” ’ for the order granting or denying
the discovery in question. [Citations.]” (Johnson, supra, 80 Cal.App.4th at p. 1061.)




                                               6
                                              II
                   No Abuse of Discretion in Denying Plaintiffs’ Motion
        Petitioners contend the trial court abused its discretion in denying their motion to
compel the cell extraction of DeAvila and force him to attend the deposition. Because a
trial court has broad discretion in discovery matters, the issue before us is whether on
these facts the trial court was required to order DeAvila’s extraction.
        Under CDCR policy, controlled force may be used “to gain compliance with a
lawful order.” (Cal. Code Regs., tit. 15, § 3268(a)(4).) Thus, the regulations permit a
cell extraction for purposes of gaining compliance with a court order. These regulations,
however, do not address who may order that use of force.
        Petitioners contend the trial judge could order extraction under Penal Code section
2623 and Code of Civil Procedure section 128. As noted, the trial court had previously
issued the order for DeAvila to participate in the deposition pursuant to Penal Code
section 2623. That section, however, does not provide that the court may also order that
the inmate witness be extracted from his cell and brought to the deposition against his
will.
        A trial court may hold a noncompliant witness in contempt for failing to attend a
deposition. (Code Civ. Proc., § 2020.240.) The remedy is the same for noncompliance
with a grand jury subpoena. “There can be no question that courts have inherent power
to enforce compliance with their lawful orders through civil contempt. [Citations.] And
it is essential that courts be able to compel the appearance and testimony of witnesses.
[Citation.] A grand jury subpoena must command the same respect. [Citation.] Where
contempt consists of a refusal to obey a court order to testify at any stage in judicial
proceedings, the witness may be confined until compliance. [Citations.]” (Shillitani v.
United States (1966) 384 U.S. 364, 370-371 [16 L.Ed.2d 622].) While contempt may
include conditional confinement, we are aware of no authority--and petitioners provide



                                              7
none-- that permits a court to order the recalcitrant witness be forcibly brought to the
place of the deposition (instead of to jail to serve time for contempt).
       Petitioners contend the extraordinary remedy of compelled cell extraction is
necessary in this case because the usual remedy of contempt is ineffectual. The trial
court acknowledged the uselessness of contempt in this case, stating at the hearing that it
does no good to hold in contempt a prisoner serving a 25-year-to-life sentence.
       Code of Civil Procedure section 128, subdivision (a)(4) provides that every court
shall have the power to “compel obedience to its judgments, orders, and process.” “This
statute has codified the principle of ‘[t]he inherent power of the trial court to exercise
reasonable control over litigation before it, as well as the inherent and equitable power to
achieve justice and prevent misuse of processes lawfully issued . . . .’ [Citation.]”
(Blueberry Properties, LLC v. Chow (2014) 230 Cal.App.4th 1017, 1021.) The court
may exercise this power by punishing the failure to appear and participate in a deposition
as a contempt. (Lund v. Superior Court (1964) 61 Cal.2d 698, 714; Code Civ. Proc.,
§§ 2023.010, subd. (d), 2023.030, subd. (e).) In such circumstances, “the court has no
power to proceed in any manner other than as in a contempt.” (Lund, at p. 713.)
       But assuming Code of Civil Procedure section 128, or the court’s inherent
authority to administer judicial proceedings (see People v. Engram (2010) 50 Cal.4th
1131, 1146), can be construed as granting the court the authority to order prison officials
to extract DeAvila from his cell to attend the deposition, the question here is whether the
trial court abused its discretion by not making that order. We conclude the answer is no.
       Petitioners contend the order of extraction is necessary to protect their due process
rights in the civil action. We recognize that due process rights are implicated. “One of
the elements of a fair trial is the right to offer relevant and competent evidence on a
material issue.” (3 Witkin, Cal. Evidence (5th ed. 2012) Presentation at Trial, § 3, p. 29.)
That due process is implicated, however, does not alone grant a trial court open-ended
authority to order prison officials to move inmates about. For example, a court cannot

                                              8
compel the transfer of an inmate to a civil courtroom. (See Payne v. Superior Court
(1976) 17 Cal.3d 908, 924 [court “may attempt, through the Department of Corrections,
to arrange the presence of the prisoner. Except in a few specified circumstances, a court
has no statutory authority to command the Department of Corrections to transport a
prisoner to a civil courtroom”]; Swarthout v. Superior Court (2012) 208 Cal.App.4th 701,
706-707 [“our Supreme Court is of the opinion that trial courts lack the power to transfer
inmates outside of the situations specifically provided for by statute”]; Pen. Code, § 2621
[permitting removal of prisoner to court for criminal actions].)
       Further, here the trial court’s actions are not impeding petitioners’ due process
rights. It is DeAvila who is refusing to be deposed, and the CDCR is declining to
forcibly remove him from his cell to go to the location established for the deposition.
The court is not denying petitioners the right to depose DeAvila or to present his
testimony at trial. Instead, the trial court has already issued an order compelling DeAvila
to attend and answer questions at a deposition. The record shows he refused to come out
of his cell because he did not want to participate in the deposition; earlier, DeAvila said
he refused to be videotaped. The court cannot compel DeAvila to speak. Due process
requires only that a party be allowed the opportunity to be heard--not that he actually be
heard. (See 3 Witkin, Cal. Evidence (5th ed. 2012) Presentation at Trial, § 3, p. 31, citing
Goldstein v. Goldstein (1963) 220 Cal.App.2d 369 [no denial of due process to deny
continuance where party becomes insane].)
       Petitioners contend the trial court erred in relying on the risks to correctional
officers, DeAvila, and other inmates, as set forth in Roy’s declaration. They contend
such risks are speculative and an actual cell extraction may not be necessary once
DeAvila is informed it will occur. Petitioners rely on Garcia’s declaration that in his
experience 70 percent of inmates voluntarily comply when faced with the use of force.
       First, we note Garcia’s experience is only with juveniles. Further, we find no error
in deferring to prison officials on this matter. As the United States Supreme Court has

                                              9
stated: “Prison administrators therefore should be accorded wide-ranging deference in
the adoption and execution of policies and practices that in their judgment are needed to
preserve internal order and discipline and to maintain institutional security. [Citations.]
‘Such considerations are peculiarly within the province and professional expertise of
corrections officials, and, in the absence of substantial evidence in the record to indicate
that the officials have exaggerated their response to these considerations, courts should
ordinarily defer to their expert judgment in such matters.’ [Citation.] We further observe
that, on occasion, prison administrators may be ‘experts’ only by Act of Congress or of a
state legislature. But judicial deference is accorded not merely because the administrator
ordinarily will, as a matter of fact in a particular case, have a better grasp of his domain
than the reviewing judge, but also because the operation of our correctional facilities is
peculiarly the province of the Legislative and Executive Branches of our Government,
not the Judicial. [Citations.]” (Bell v. Wolfish (1979) 441 U.S. 520, 547-548 [60 L.Ed.2d
447].)
         Petitioners contend the trial court neglected to address CDCR’s self-interest in
whether DeAvila attends the deposition. CDCR is a defendant in the civil action and it is
refusing to procure a witness for the plaintiffs. We have recognized that CDCR does
have an apparent conflict of interest. Petitioners, however, have failed to show that
CDCR is in any manner preventing them from taking DeAvila’s deposition. In fact,
petitioners admit “[t]here is no evidence that CDCR has interfered with Mr. DeAvila’s
deposition.”
         The trial court did not abuse its discretion in declining to compel prison officials to
forcibly remove DeAvila from his cell to attend the deposition. Considerations of the
change in DeAvila’s circumstances and housing, the potential risk to his safety and the
safety of others, and the disruption to the prison environment all support the trial court’s
decision.



                                               10
                                     DISPOSITION
       The petition for writ of mandate is denied. Real Parties in Interest are awarded
costs. (Cal. Rules of Court, rule 8.493(a)(1)(A).)




                                                       /s/
                                                 Duarte, J.



We concur:



     /s/
Nicholson, Acting P. J.




      /s/
Butz, J.




                                            11
