Filed 6/29/15 DuRoss v. Brown 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                                           NOT TO BE PUBLISHED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 This opinion has not been certified for publication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.



                                                       COPY

              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                      THIRD APPELLATE DISTRICT
                                                     (Sacramento)
                                                            ----




MARK ANTHONY DUROSS,                                                                         C071387

                   Plaintiff and Respondent,                                            (Super. Ct. No.
                                                                                       34200900066129)
         v.

EDMUND G. BROWN, JR., AS GOVERNOR, ETC.,
et al.,

                   Defendants and Appellants.




         Plaintiff Mark Anthony DuRoss appeals from a judgment of dismissal following
the sustaining of a demurrer without leave to amend in favor of former Governor Arnold
Schwarzenegger and State Controller John Chiang (Defendants). DuRoss contends the
trial court should have overruled the demurrer and considered the merits of his claims.
We conclude that DuRoss has failed to demonstrate any error. Accordingly, we affirm
the judgment.


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                                FACTS AND PROCEEDINGS

       Because this appeal follows the sustaining of a demurrer without leave to amend,
we summarize the underlying facts as alleged in the operative (first amended) complaint.
(Landmark Screens, LLC v. Morgan, Lewis & Bockius, LLP (2010) 183 Cal.App.4th 238,
240.) Our summary also includes facts subject to judicial notice. (Evans v. City of
Berkeley (2006) 38 Cal.4th 1, 6.)
       We take judicial notice of our unpublished opinion in People v. DuRoss (Nov. 24,
2010, C065427), in which we noted that DuRoss was sentenced to 69 years to life in
1999 after a jury convicted him of felony sexual battery, felony child endangerment,
infliction of corporal punishment on a child, forcible penetration with a foreign object,
and rape.
       DuRoss, now an inmate at the California Medical Facility in Vacaville,
commenced this action (DuRoss 1) by filing a complaint against former Governor Arnold
Schwarzenegger and State Controller John Chiang (Defendants) in Sacramento County
Superior Court on December 7, 2009.
       The complaint challenged the restitution fine imposed upon him at the time of his
conviction noted above. Among other things, the complaint alleged that the restitution
fine was barred by the constitutional prohibitions against double jeopardy and excessive
fines. The complaint also alleged that Penal Code sections 1205 and 2900.5 required
Defendants to credit DuRoss in the amount of $30 per day for each day he has served in
prison. The complaint asserted causes of action for general negligence and intentional
tort based on Defendants’ allegedly wrongful failure to credit DuRoss against his
$9,773.50 restitution fine. By way of relief, DuRoss sought a discharge of his restitution
balance and unspecified compensatory and exemplary damages.
       Defendants removed DuRoss 1 to federal court on August 19, 2010. On
August 31, 2010, DuRoss filed a second civil case in Sacramento County Superior Court



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(Case No. 34-2010-00086559) (DuRoss 2) asserting the same claims against the same
defendants. Once again, DuRoss alleged that Defendants wrongfully failed to give him
credit against his restitution fine based on his time served in violation of Penal Code
sections 1205 and 2900.5. DuRoss 2 also sought the same relief as DuRoss 1: discharge
of DuRoss’s restitution balance and unspecified compensatory and exemplary damages.
       The trial court construed the complaint in DuRoss 2 as a petition for writ of habeas
corpus, noting that “construing the complaint as a petition for writ of habeas corpus will
not alter the disposition of the merits of the complaint and will not prejudice either party.
Rather, it will allow the complaint to be resolved on the merits without requiring plaintiff
to comply with the numerous procedural requirements of a civil action.” The trial court
also assigned DuRoss 2 a new number (case No. 10F07404).
       The trial court denied the petition in DuRoss 2 by order dated November 18, 2010.
In its order, the trial court explained, “More than nine years after the judgment became
final in [the underlying criminal case], petitioner has filed yet a 23rd habeas corpus
petition to challenge that judgment. [¶] . . . [¶] Petitioner again makes a challenge to the
restitution ordered in the case, this time claiming that he should be deemed to have paid
the restitution ordered in full due to the number of days he has served on his sentence,
pursuant to Penal Code § 1205(a). [¶] As with petitioner’s other petitions, the instant
pleading is successive and untimely, and therefore barred under In re Robbins (1998)
18 Cal.4th 770, 811-812, 812 fn. 32 and In re Clark (1993) 5 Cal.4th 750, 774-775 [(In re
Clark)]. Regardless, it is utterly devoid of merit, as Penal Code § 1205(a) is not meant to
apply when a defendant is sentenced to a term in state prison; nor does it apply to
restitution orders, unless the defendant has defaulted on payment of other fines (see Penal
Code, § 1205(e)). In any event, Penal Code § 1205(a) places the decision to convert a
fine to days of imprisonment in the discretion of a court, to be made at the time of
sentencing, which was not done in this matter.” Accordingly, the trial court denied the
petition, adding with emphasis: “As the court has repeatedly informed petitioner, in

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denials of his previous habeas petitions, he has had his opportunity to present claims in a
habeas corpus petition, and it is a gross abuse of the writ process to file endless,
unsubstantiated, frivolous, piecemeal new petitions raising grounds either
completely devoid of merit or repeatedly denied in prior petitions, that are barred
under In re Robbins [supra] and In re Clark [supra].”
       After the trial court denied relief in DuRoss 2, the federal court remanded the
present case (DuRoss 1) back to Sacramento County Superior Court. Defendants filed a
demurrer to the complaint, arguing that (1) the case was barred by the doctrine of res
judicata; (2) the complaint failed to state a cause of action; and (3) the complaint failed to
allege compliance with the Government Claims Act. (Gov. Code, §§ 810 et seq., 945.4.)
Defendants also asked that the trial court declare DuRoss a vexatious litigant. (Code Civ.
Proc., § 391, et seq.)
       The trial court sustained the demurrer, stating, “In another action in this Court,
In re Mark DuRoss (Aug. 31, 2010), No. 34-2010-00086559/10F07404, Plaintiff filed a
complaint that was effectively identical to the complaint filed in this action. In both
complaints, Plaintiff Mark Anthony DuRoss appears to assert that Defendants committed
various statutory and constitutional violations by failing to credit the time he has served
on his prison sentence toward the restitution award imposed against him. The Court
construed the prior complaint as a writ of habeas corpus and referred it to the criminal
intake unit. [Citation.] On November 16, 2010, the Court ruled on Plaintiff’s petition,
finding that the habeas corpus petition, Plaintiff’s 23rd in the nine years since the
criminal judgment had become final, was devoid of merit. [Citation.] As Defendants
argue, this determination renders the substantially identical complaint in this action res
judicata.” The trial court further concluded that the complaint failed to state a cause of
action, “as Plaintiff is not entitled to any credit toward the restitution award as a result of
time served.” The trial court also found that the complaint failed to allege compliance
with the Government Claims Act. Finally, the trial court found that DuRoss failed to

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demonstrate that any of these defects could be cured by amendment. Accordingly, the
trial court sustained the demurrer without leave to amend. The trial court did not reach
the question whether DuRoss was a vexatious litigant.
        DuRoss filed a timely notice of appeal. To be precise, DuRoss filed two notices of
appeal. The first notice fails to identify the order or judgment appealed from. (CRC
8.100(a)(2).) The second notice clarifies that DuRoss appeals from the order sustaining
Defendants’ demurrer without leave to amend.

                                         DISCUSSION

        DuRoss contends the trial court erred in sustaining Defendants’ demurrer.
Although DuRoss generally challenges the trial court’s order, he does not address the
propriety of the court’s ruling that the complaint was barred by the doctrine of res
judicata.
        We conclude that DuRoss’s appeal fails in two respects. First, DuRoss fails to
carry his fundamental burden as an appellant to adequately address the issues before the
trial court in his opening brief. Second, the record before us reflects that the trial court
properly sustained the demurrer on res judicata grounds. Accordingly, we will affirm the
trial court’s ruling. Because we conclude that the operative complaint is barred by res
judicata, we do not reach the substantive merits of DuRoss’s challenge to the restitution
fine.

        A.    DuRoss Fails to Carry His Burden on Appeal

        On appeal, DuRoss offers a confusing hodgepodge of allegations and conclusions,
most of which appear to be directed to the trial court’s decision to construe the complaint
in DuRoss 2 as a petition for writ of habeas corpus and the court’s subsequent rejection of
the petition. DuRoss also challenges his underlying criminal conviction. None of these
claims are relevant to the question before us; namely, whether the trial court properly
sustained the demurrer to the complaint in the present case (DuRoss 1).


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       We note that DuRoss’s appellate briefs fail to comply with the applicable rules of
court. (Cal. Rules of Court, rule 8.204(a)(1) (B) & (C).)
       We also note that DuRoss appears before us in propria persona. While DuRoss’s
self-represented status may explain the deficiencies in his briefs, it does not excuse them.
(Burnete v. La Casa Dana Apartments (2007) 148 Cal.App.4th 1262, 1267 [“ ‘ “[T]he in
propria persona litigant is held to the same restrictive rules of procedure as an
attorney” ’ ”].)
       Although DuRoss contends the trial court erred in sustaining the demurrer, he does
not address the court’s ruling that the complaint was barred by the doctrine of res
judicata. Instead, DuRoss argues in conclusory fashion that Defendants’ res judicata
defense was “underhanded” and “false.” DuRoss does not offer any authority, analysis or
reasoned argument to support these conclusions.
       DuRoss argues for the first time in his reply brief that the doctrine of res judicata
should not apply because the present action (DuRoss 1) was first-filed. “It is axiomatic
that arguments made for the first time in a reply brief will not be entertained because of
the unfairness to the other party.” (People v. Tully (2012) 54 Cal.4th 952, 1075.) In any
event, “ ‘Where two actions involving the same issue are pending at the same time, it is
not the final judgment in the first suit, but the first final judgment, although it may be
rendered in the second suit, that renders the issue res judicata in the other court.
[Citations.] Where the judgment in one suit becomes final through lapse of time or
affirmance on appeal while an appeal is still pending in another court from judgment in
the other action, the first final judgment may be brought to the attention of the court in
which an appeal is still pending and relied on as res judicata. [Citation.]’ ”
(Baughman v. State Farm Mut. Auto. Ins. Co., 148 Cal.App.3d 621, 624-625.)
       Elsewhere, DuRoss contends, “Res Judicata is not for a prisoners only access to be
a tool for the Attorney General and the Superior Court, to Violate a prisoners
Constitutional rights to be effected and to allow an unconstitutional Sentence to continue

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on some judgment that’s based on false and unproven accusations that the Attorney
General can only come up with to prohibit having to actually admit that this Enforcement
of a Restitution fine Is Wrongfully being enforced, And that the Superior Court has Made
illegal and improper Sentences for anyone who is in fact INDIGENT, And wrongfully
and maliciously Dogged by the Defendant’s.”
       DuRoss’s other arguments are similarly incomprehensible. For example, DuRoss
argues, “Documents have been taken from my cell, I do not know by whom. Also the
fact the Superior Court has not made a complete transcript in this Appeal is because I
don’t know when this problem was happening, This Court [of] Appeal has a better access
to obtain those documents, than myself. This information is due to the alleged Res
Judicata, that the Superior Court made it’s ruling against me, and why? I am Appealing
their court ruling to Sustain a Demurrer without Leave to Amend.”
       A fundamental rule of appellate review is that the appealed judgment or order is
presumed to be correct. On appeal, all intendments and presumptions are indulged in
favor of its correctness and error must be affirmatively shown. (Eisenberg, et al., Cal.
Practice Guide: Civil Appeals and Writs (The Rutter Group 2014) ¶ 8:15, p. 8-5;
Schnabel v. Superior Court (1993) 5 Cal.4th 704, 718; Denham v. Superior Court (1970)
2 Cal.3d 557, 564.)
       The appellant has the burden of overcoming the presumption of correctness. To
meet that burden, the appellant must provide the court with an adequate record that
demonstrates the alleged error and reasoned argument and legal authority on each point
raised. (Eisenberg, et al., Cal. Practice Guide: Civil Appeals and Writs, supra, ¶¶ 8:17,
8:17.1, pp. 8-5 to 8-6.) “This requires more than simply stating a bare assertion that the
judgment, or part of it, is erroneous and leaving it to the appellate court to figure out why;
it is not the appellate court’s role to construct theories or arguments that would
undermine the judgment and defeat the presumption of correctness.” (Id. at ¶ 8:17.1, p.
8-6.) “When [an] appellant asserts a point but fails to support it with reasoned argument

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and citations to authority, the court may treat it as [forfeited] and pass it without
consideration.” (Id. at ¶ 8:17.1, p. 8-6; People v. Stanley (1995) 10 Cal.4th 764, 793.)
       This latter rule applies even when the appellate court is required to conduct an
independent or de novo review, as we are required to do here. Although the trial court’s
decision is reviewed independently, the scope of review is limited to those issues that
have been adequately raised and supported in the appellant’s brief. (Eisenberg et al., Cal.
Practice Guide: Civil Appeals and Writs, supra, ¶ 8:17.2, p. 8-6, citing Reyes v. Kosha
(1998) 65 Cal.App.4th 451, 466, fn. 6 & Kim v. Sumitomo Bank (1993) 17 Cal.App.4th
974, 978-979.)
       Here, DuRoss’s rambling, conclusory and frequently unintelligible briefs do not
tell this court how the trial court erred in sustaining the demurrer based on the affirmative
defense of res judicata. Absent any argument by DuRoss or citations to authority that
support the conclusion that the trial court erred in sustaining the demurrer, we deem the
issue forfeited. (People v. Stanley, supra, 10 Cal.4th at p. 793.) Consequently, the
presumption that the judgment is correct must prevail.
       B.     The Trial Court Properly Sustained Defendants’ Demurrer
       Even if DuRoss had not forfeited his challenge to the trial court’s order, his appeal
would still fail. As we shall explain, the record before us establishes that the complaint
was barred by the doctrine of res judicata. Thus, even assuming a proper presentation of
the issues on appeal, we would affirm the trial court’s order and resulting judgment.
       Res judicata may be raised by demurrer where, as here, the judgment and
pleadings from the prior action are presented to the court by a request for judicial notice.
(Code Civ. Proc., § 430.30, subd. (a); Estate of Dito (2011) 198 Cal.App.4th 791, 795;
Carroll v. Puritan Leasing Co. (1978) 77 Cal.App.3d 481, 486.) Whether the defense
applies is a question of law, which we review de novo. (Louie v. BFS Retail &
Commercial Operations, LLC (2009) 178 Cal.App.4th 1544, 1553; Nicholson v. Fazeli
(2003) 113 Cal.App.4th 1091, 1100.)

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       “ ‘Res judicata’ describes the preclusive effect of a final judgment on the merits.
Res judicata, or claim preclusion, prevents relitigation of the same cause of action in a
second suit between the parties or parties in privity with them. Collateral estoppel, or
issue preclusion, ‘precludes relitigation of issues argued and decided in prior
proceedings.’ ” (Mycogen Corp. v. Monsanto Co. (2002) 28 Cal.4th 888, 896-897.) The
present case concerns the claim preclusion aspect of the res judicata doctrine.
       “Claim preclusion applies when ‘(1) the decision in the prior proceeding is final
and on the merits; (2) the present proceeding is on the same cause of action as the prior
proceeding; and (3) the parties in the present proceeding or parties in privity with them
were parties to the prior proceeding.’ [Citation.]” (Planning & Conservation League v.
Castaic Lake Water Agency (2009) 180 Cal.App.4th 210, 226.) We consider these
elements in reverse order.
       First, we consider whether the present case involves the same parties or their
privies as DuRoss 2. DuRoss is the named plaintiff in both cases. Both complaints name
former Governor Schwarzenegger, Controller Chiang, the “California State Prison –
Warden,” and the California Department of Corrections and Rehabilitation as defendants.
Thus, the parties in the present proceeding or parties in privity with them are the same as
the parties in the prior proceeding.
       Next, we consider whether the present case involves the same cause of action as
DuRoss 2. “California law approaches the issue by focusing on the ‘primary right’ at
stake: If two actions involve the same injury to the plaintiff and the same wrong by the
defendant then the same primary right is at stake even if in the second suit the plaintiff
pleads different theories of recovery, seeks different forms of relief and/or adds new facts
supporting recovery.” (Eichman v. Fotomat Corp. (1983) 147 Cal.App.3d 1170, 1174.)
Here, the complaint in the instant action asserts the same causes of action as the
complaint in DuRoss 2. Indeed, the pleadings are largely identical. Both complaints
purport to vindicate the same primary right; namely, DuRoss’s purported right to credit

                                              9
against his restitution fine for time served. Thus, the present case involves the same
causes of action as DuRoss 2 for purposes of res judicata.
       Finally, we consider whether the decision in DuRoss 2 was final and on the merits.
Defendants contend that “DuRoss 2 resulted in a final judgment on the merits.”
Defendants do not address the question whether the denial of the habeas petition in
DuRoss 2 (1) amounts to a final judgment on the merits; and (2) constitutes an actual
litigation of DuRoss’s claims comporting with due process so as to warrant application of
res judicata principles. Nevertheless, we conclude, under the circumstances of this case,
that these requirements have been satisfied.
       A habeas petition may be resolved by a summary denial of the petition when the
court determines the petitioner has not presented a prima facie case for relief. (People v.
Duvall (1995) 9 Cal.4th 464, 474-475; Younan v. Caruso (1996) 51 Cal.App.4th 401,
407-408 (Younan).) If a prima facie case is presented, the court issues an order to show
cause which permits both parties to submit pleadings and, if needed, allows for an
evidentiary hearing. (Younan, at pp. 407-408.) Once an order to show cause is issued,
the court is required to issue a written opinion when ruling on the petition. (Id. at p. 408.)
       A court’s denial of a petition for writ of habeas corpus is not given res judicata
effect on a subsequent petition for a writ of habeas corpus. (See In re Clark, supra,
5 Cal.4th at p. 773; In re Crow (1971) 4 Cal.3d 613, 621, fn. 8.) This rule is based on
such considerations as the petitioner’s inability to seek review of a denial of a habeas
petition and the summary procedures that may be used in habeas proceedings. (Ibid.)
       Nevertheless, to prevent abuse of the habeas writ and preserve the finality of
judgments, the courts have developed the rule that a defendant is not permitted to bring a
successive habeas petition before the same court based on a claim that was, or could have
been, presented in a previous petition, unless there are new facts or law that could not
have been previously presented or a fundamental miscarriage of justice has occurred. (In
re Clark, supra, 5 Cal.4th at pp. 774-775, 797; Younan, supra, 51 Cal.App.4th at pp. 410-

                                               10
411.) Furthermore, when a party brings a civil suit raising the same issues as were
previously raised and determined in a proceeding denying habeas relief, res judicata
principles may, in proper circumstances, apply. (Younan, supra, 51 Cal.App.4th at pp.
412-413.) For example, in Younan, the court gave collateral estoppel effect to an issue
decided in the denial of a habeas petition where an order to show cause was issued and an
evidentiary hearing held in the habeas petition. (Id. at pp. 413-414 & fn. 7 [habeas
finding that defense counsel was not ineffective barred civil suit against defense counsel
for professional negligence].) Following Younan, we assume without deciding that the
summary denial of a habeas petition may be considered a final judgment on the merits for
res judicata purposes in appropriate circumstances.
       There is nothing in the record to suggest that the trial court issued an order to show
cause or held an evidentiary hearing when ruling on the habeas petition in DuRoss 2.
Even so, the trial court clearly rejected the petition on the merits. (See In re Clark, supra,
5 Cal.4th at pp. 769-770 & fn. 9 [“The denial of a habeas corpus petition without
issuance of an order to show cause, often referred to as a ‘summary denial,’ does not
mean that the court has not considered the merits of the claims. Unless a procedural bar
is apparent, the court will determine whether the petition states a prima facie case for
relief, i.e., whether it states facts which, if true, entitle the petitioner to relief.
[Citation.]”.) The trial court’s written order specifically addressed the merits of
DuRoss’s claims, finding them to be “utterly devoid of merit.” The trial court’s order
also confirms that the court adjudicated the same claims presented here. As a matter of
judicial policy, DuRoss could not have pursued another habeas petition on the same
grounds, nor could he have pursued a belated habeas petition before the California
Supreme Court. (In re Reno (2012) 55 Cal.4th 428, 461.) The record therefore reflects
that the trial court’s ruling on the habeas petition in DuRoss 2 constituted a final
determination on the merits that DuRoss was not entitled to relief based on his claim that
Defendants wrongfully failed to credit him against his restitution fine for time served.

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       Although DuRoss’s habeas petition appears to have been denied without an order
to show cause or evidentiary hearing, this summary procedure was utilized because of the
interplay between appellate and habeas proceedings in criminal cases. The primary
means to challenge a criminal conviction is by appeal, and only limited collateral attack
is permitted in a subsequent habeas proceeding. (In re Clark, supra, 5 Cal.4th at pp. 765-
767.) DuRoss had the opportunity to challenge his restitution fine by means of the
appellate process, and was given additional opportunities to challenge the fine through a
seemingly endless succession of habeas petitions. Thus, DuRoss has had a full
opportunity to litigate his challenge to the restitution fine. Given the right to a full review
of the criminal trial on appeal, and the ancillary role played by the habeas process, the
trial court’s denial of the habeas petition in DuRoss 2 may be properly deemed an actual
litigation of the issues for res judicata purposes. Accordingly, the trial court could
properly conclude that the decision in DuRoss 2 was final and on the merits for purposes
of res judicata.
       To summarize, we conclude that DuRoss has forfeited his challenge to the trial
court’s order sustaining Defendants’ demurrer to his complaint. Even if DuRoss had not
forfeited his challenge to the trial court’s order, we would affirm the trial court’s order on
the grounds that the complaint was barred by the doctrine of res judicata. In light of the
foregoing, we need not address the other grounds for the trial court’s ruling.




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                                      DISPOSITION

       The judgment is affirmed. Parties are to bear their own costs on appeal. (Cal.
Rules of Court, rule 8.278 (a)(5).)



                                                      HULL                  , Acting P. J.



We concur:



      ROBIE                 , J.



      DUARTE                , J.




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