Filed 11/13/13 Jones v. California CA2/4
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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

                                   SECOND APPELLATE DISTRICT

                                                DIVISION FOUR


JASON EARL JONES,                                                    B247752

         Plaintiff and Appellant,                                    (Los Angeles County
                                                                      Super. Ct. No. BC487259)
         v.

STATE OF CALIFORNIA,

         Defendant and Respondent.



         APPEAL from a judgment of the Superior Court of Los Angeles County,
Yvette M. Palazuelos, Judge. Affirmed.
         Jason Earl Jones, in pro. per., for Plaintiff and Appellant.
         Burke, Williams & Sorensen, Susan E. Coleman and Kristina Doan
Gruenberg for Defendant and Respondent.




         Plaintiff Jason Earl Jones is a prisoner incarcerated at the California
Substance Abuse Treatment Facility and State Prison in Corcoran, California. He
is serving a determinate term of 27 years, plus two consecutive terms of 25 years to
life.1 Acting in pro. per., he sued the State of California for breach of contract,
seeking $7.3 billion in damages and an injunction compelling his release from
custody. The trial court sustained the State’s demurrer to the complaint without
leave to amend. Jones appeals, and we affirm the judgment.2


                                   BACKGROUND
       Jones’ complaint alleged that on June 27, 2007, the State entered an
agreement whereby it agreed to release him from custody and pay damages for
“trespass upon plaintiff’s proprietary trade name in commerce.” According to the
complaint, the State committed a “private tort” by filing an allegedly “fraudulent”
felony complaint against Jones that resulted in his conviction of “shooting [and
killing] a known gang member who’d threatened and stalked plaintiff.” Moreover,
there was “gross misconduct by law enforcement and prosecutorial agents in
connection with the matter.” The complaint sought, inter alia, damages of $7.3
billion and an injunction ordering the State “to immediately release plaintiff from
custody and any purported interest in his person, in accord with the provisions of
the agreement ratified by the defendants.”


1
       The judgment of conviction is not part of the record on appeal. We glean the
information regarding Jones’ commitment from an order of the federal district court
deeming a prior civil complaint filed by Jones to be a petition for writ of habeas corpus
and denying the petition. According to the order, Jones was sentenced on February 7,
2000, following his conviction of murder with use of a firearm, attempted murder with
use of a firearm, and shooting at an inhabited dwelling. Also, three prior strikes were
found true.
2
      The record on appeal fails to contain a judgment of dismissal. In our discretion,
we elect to decide the case on the merits rather than dismiss it for failure to obtain an
appealable order.

                                             2
      Represented by private counsel retained by the California Department of
Corrections and Rehabilitation (CDCR), the State demurred to the complaint. As
here relevant, the State argued that: (1) Jones failed to allege that he had complied
with the Government Claims Act (Gov. Code, §§ 905.2, 911.2, 945.4, 950.2) as to
his claim for damages, and (2) Jones’ claim for an injunction releasing him from
prison failed because habeas corpus is the exclusive means to obtain a convicted
prisoner’s release from custody.
      Jones objected to the appearance of private counsel and moved to strike the
demurrer, on the ground that only the Attorney General could represent the State.
The State’s counsel filed a declaration stating that the CDCR Office of Legal
Affairs had informed counsel’s law firm that the Attorney General had forwarded
the case to the CDCR and given consent to employ counsel pursuant to
Government Code section 11040. After a conflict check, the retention was
confirmed. Counsel also submitted for in camera review by the court a letter from
the Attorney General authorizing the employment of outside counsel.3
      The trial court denied Jones’ motion to strike, and sustained the State’s
demurrer without leave to amend.


                                    DISCUSSION
      Jones argues that the trial court committed prejudicial error by allowing the
State to be represented by private counsel. However, Government Code section
12520, subdivision (b) grants the Attorney General the power “to employ counsel
to represent, or to assist in the representation of, a state agency.” In turn,
Government Code section 11040, permits any state agency to employ counsel after

3
     The letter was submitted in camera because it contains attorney-client
communications. A copy of the letter has been filed under seal with this court.

                                            3
obtaining the written consent of the Attorney General. (See People ex rel. Dept. of
Fish & Game v. Attransco, Inc. (1996) 50 Cal.App.4th 1926, 1928 [Department of
Fish and Game not forbidden from employing outside counsel after receiving
written permission of the Attorney General].) Here, the evidence submitted to the
trial court showed that the Attorney General forwarded the case to the Office of
Legal Counsel of the CDCR and gave written permission to the CDCR to employ
private counsel. Thus, the procedure for retention of private counsel was followed.
      Jones argues that he sued the State and the CDCR is not a party. However,
Jones is in the custody the CDCR. His lawsuit sought his release from custody
and, as best we can tell, payment of damages resulting from a contract
compensating him for custody. The CDCR was the proper state agency to appear
in the case, and, although Jones purported to name the State as the defendant, the
Attorney General properly delegated to the CDCR the authority to employ special
counsel on behalf the State.
      We further conclude that the trial court properly sustained the State’s
demurrer to Jones’ breach of contract claim without leave to amend. Under the
Government Claims Statute, with exceptions not here applicable, no public entity
(including the State and any state agency (Gov. Code, § 811.2)) can be sued for
money or damages unless a timely claim has been presented to the entity and either
been acted upon or denied by operation of law. (Gov. Code, § 945.4.) This
requirement applies to both contracts and torts. (City of Stockton v. Superior Court
(2007) 42 Cal.4th 730, 740.) The claim must be filed within six months of the
accrual of the cause of action. (Gov. Code, § 911.2.) Compliance with the Claims
Statute, or excusal from compliance, must be alleged in the complaint. (State v.
Superior Court (2004) 32 Cal.4th 1234, 1243.) Otherwise, the complaint is subject
to demurrer. (Ibid.)

                                         4
      Here, as to his breach of contract claim, Jones failed to allege that he
complied with, or was excused from complying with, the Claims Statute. Nor has
he shown that he can amend the complaint to allege compliance or excusal from
compliance. Jones argues that he was excused from compliance because “the very
terms of the contract and the . . . commercial affidavit prohibit the foreclosing of
any remedy in the matter, as there continues to be debt accruing thereunder.” But
such terms of his purported contract with the State are not pled in the complaint,
and in any event his argument is supported by no legal authority and is
nonsensical. In short, the trial court properly sustained the demurrer to the breach
of contract claim without leave to amend.
      Further, the court properly sustained the demurrer without leave to amend to
Jones’ claim for an injunction releasing him from custody. As best we understand
his claim, Jones purports to challenge the validity of his judgment of conviction by
alleging the State violated his rights by committing fraud and gross misconduct in
securing his conviction. To remedy that situation, the State agreed to release him.
He therefore claims he is entitled to an injunction ordering his release. However,
this civil suit is not the proper vehicle to mount an attack on the validity of Jones’
conviction. In the first instance, the proper avenue was direct appeal from the
judgment. The record does not reflect whether an appeal was taken. At this point,
if such a challenge can be mounted at all, it must be by collateral attack on the
judgment by a petition for writ of habeas corpus. (See In re Harris (1993) 5
Cal.4th 813, 828 [[“h]abeas corpus may . . . provide an avenue of relief to those
unjustly incarcerated when the normal method of relief -- i.e., direct appeal -- is




                                           5
inadequate”].)4 We express no opinion on whether a petition can be properly filed
at this late date.


                                      DISPOSITON
              The judgment is affirmed. The State shall recover its costs on appeal.
              NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS




                                                  WILLHITE, J.




              We concur:




              EPSTEIN, P. J.




              SUZUKAWA, J.




4
       Jones filed a request for judicial notice of a “search certificate” from the California
Secretary of State purporting to verify his filing of a financial statement to perfect a
security interest against the State, and two ex parte applications he filed in the superior
court for an order to show cause why he should not be released from custody. The
documents are not relevant to this appeal, and the motion for judicial notice is denied.
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