Filed 12/30/13 Artanda v. Harris 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                                           NOT TO BE PUBLISHED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 This opinion has not been certified for publication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
                                                     (Sacramento)
                                                            ----




FERNANDO ARANDA,                                                                             C065940

                   Plaintiff and Appellant,                                       (Super. Ct. No. 34-2008-
                                                                                  00025877-CU-PO-GDS)
         v.

GERALD HARRIS et al.,

                   Defendants and Respondents.




         Plaintiff Fernando Aranda, a prison inmate appearing in propria persona, appeals
from a judgment of dismissal entered after the trial court sustained without leave to
amend the demurrer to the third amended complaint interposed by correctional officers
Gerald Harris, Francis Wong, and Veda McCray (defendants).
         Because Aranda has not met his burden as the appellant to demonstrate reversible
error, we affirm the judgment.



                                                             1
                                    BACKGROUND1
       Aranda filed his complaint on October 29, 2008, against the correctional officer
defendants, claiming personal injury and civil conspiracy.2 Defendants demurred, and
Aranda filed an amended complaint claiming personal injury and civil conspiracy.
Defendants’ demurrer to the first amended complaint was sustained with leave to amend
on the ground (among others) that Aranda failed to adequately allege a civil conspiracy.
Aranda filed a second amended complaint, claiming personal injury, civil conspiracy, and
misappropriation. Defendants’ demurrer to the second amended complaint was sustained
on the ground (among others) Aranda failed to allege facts sufficient to state a cause of
action for civil conspiracy and his cause of action for misappropriation “failed to allege
facts establishing some legally recognized misappropriation for which [Aranda] is
entitled to legal relief.”



1       This court’s review of this matter was not aided in the least by the state of the
appellate record. Both parties are to blame. Like documents Aranda submitted in the
trial court, his appellate briefs are handwritten in a distinctly slanted hand, rather than
typewritten as required by rule 8.204(b)(2), (3), and (4) of the California Rules of Court.
Sifting through hundreds of pages of barely legible handwritten documents was made
more complicated by the parties’ use of settled statements. Aranda received court
permission to use a settled statement in lieu of a reporters or clerk’s transcript and the
trial court certified the engrossed settled statement “in lieu of the reporter’s transcript”
submitted by Aranda, to which he attached a supporting declaration and close to 200
pages of documents from the trial court files. The Attorney General objected on
defendants’ behalf that Aranda’s settled statement is not adequate to establish the record,
and defendants submitted their own proposed settled statement. After several informal
requests and an order from this court, the Attorney General finally submitted to this court
the proposed settled statement defendants filed in the trial court and upon which they
relied in part in their respondents’ brief. Even so, the Attorney General’s respondent’s
brief does not distinguish between the settled statement submitted by Aranda and that
submitted by defendants, and the two do not contain the same documents.
2      Aranda also named Los Angeles County Sheriff Detective Elizabeth Meyers and
Does 1 through 5 as defendants; Meyers did not join in the demurrers at issue in this
appeal.

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       Aranda then filed the third (and operative) complaint. He alleged defendants
conspired with Meyers to observe and monitor him “via trade secret program device[s]
and methods,” including speakers, cameras and radios installed throughout the prison.
These devices “bombard [his] state of mind, alluring [him] to an unreality, unconsciously
mental abuse,” interfere with his “states of mind, thought processes and pattern of
mentation,” “creat[e] mental chemical imbalances,” and “deplet[e] oxygen to [his] mind
and body.” Aranda alleged defendants (and Meyers) use these devices to aid and abet
others to commit crimes, to update inmates and officers concerning Aranda’s conduct,
and to inflict cruel and unusual punishment “under the trade secret uniform act [citation].
By improper means misappropriation and reckless disregard in maintaining state secrets
using program, device, method, technique or process [citation].” Finally, he alleges these
devices affect his nerve cells, and thereby ultimately “restrict[] [his] freedom of action.”
       In addition to the conspiracy allegations, Aranda made the following allegations
against individual named defendants.
       Aranda alleged that, sometime prior to July 27, 2006, he saw officer McCray
“solicit” another inmate “for pecuniary gain” and McCray later advised Aranda that
several inmates were “time bombs waiting to go off.” Some inmates later tried to fight
with Aranda.
       As to Officer Harris, Aranda alleged that on July 27, 2006, Harris saw Aranda and
another inmate involved in a fight in the prison kitchen. Harris made a rules violation
report falsely describing the fight as mutual combat, as a part of defendants’ conspiracy
against Aranda. The rules violation report was subsequently dismissed.
       Approximately two weeks after the fight reported by Officer Harris, on August 12,
2006, Officer Wong yelled at Aranda, “Next time, that was a close one, I’ll make sure,”
from which Aranda concluded Wong was involved in the conspiracy to have Aranda
involved in a fight.



                                              3
       In Aranda’s view, defendants’ actions constitute an intentional tort, entitling him
to general and punitive damages. Aranda also sought an order prohibiting Meyers “from
entering Mule Creek State Prison” and prohibiting the Doe defendants from “using trade
secrets to commit illegal acts against [him]. Inhumanity in mental abuse and schemes.”
       Defendants demurred to the third amended complaint on the ground the complaint
failed to state facts sufficient to state any cause of action against them. In support of the
demurrer, they also argued Aranda failed to timely file his complaint under the applicable
government claims statutes, and was not excused from doing so.
       Aranda opposed the demurer. He argued he is exempt from complying with the
tort claims timetable because he suffers from severe mental illness inflicted by
defendants; alternatively, he argued the complaint was timely filed, because the filing
deadline was tolled by his first having filed an action in federal court. Aranda also
argued he alleged sufficient evidence to allow the inference that defendants either
expressly or impliedly agreed to take joint action against him.
       The trial court sustained defendants’ demurrer without leave to amend. The court
agreed both that plaintiff’s complaint failed to comport with the government claims
statutes,3 and that the complaint fails to state a cause of action. On the second point, the
trial court stated: “As best the Court can decipher the allegations, plaintiff is claiming
that defendants conspired to misappropriate the former’s thoughts, etc. However, since
civil conspiracy is not itself a cause of action but merely a legal doctrine by which
liability may be imposed against those who, while not committing the underlying tort,
agreed to a common plan to effect the tort [citation], the conspiracy allegations are of no
significance unless the ‘misappropriation’ theory has potential merit. Because plaintiff’s
allegations relating to ‘misappropriation’ have no basis in law or fact, the conspiracy




3      On appeal, the parties agree this finding was error. See footnote 4, post.

                                              4
allegations cannot overcome the present demurrer. As plaintiff has already had three
opportunities to amend his complaint to state a valid cause of action against the
demurring defendants, the demurrer to the intentional tort cause of action is also
sustained without leave to amend.”
                                        DISCUSSION
                                               I
                          Applicable Rules Governing this Appeal
        On appeal from a judgment of dismissal after an order sustaining a demurrer
without leave to amend, we examine the complaint de novo to determine whether it
alleges facts sufficient to state a cause of action under any legal theory. (McCall v.
PacifiCare of Cal., Inc. (2001) 25 Cal.4th 412, 415.) In our de novo review of an order
sustaining a demurrer, we assume the truth of all facts properly pleaded in the complaint
or reasonably inferred from the pleading, but not mere contentions, deductions, or
conclusions of law. (Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 966-967;
Buller v. Sutter Health (2008) 160 Cal.App.4th 981, 985-986.) We then determine if
those facts are sufficient, as a matter of law, to state a cause of action under any legal
theory. (Aguilera v. Heiman (2009) 174 Cal.App.4th 590, 595.)
        In order to prevail on appeal, Aranda must affirmatively demonstrate error.
Specifically, he must show that the facts he pleaded are sufficient to establish every
element of a cause of action and overcome all legal grounds on which the trial court
sustained the demurrer. (Cantu v. Resolution Trust Corp. (1992) 4 Cal.App.4th 857, 879-
880.) We will affirm the ruling if there is any ground on which the demurrer could have
been properly sustained. (Debro v. Los Angeles Raiders (2001) 92 Cal.App.4th 940,
946.)
        As mentioned, the trial court ruled in sustaining defendant’s demurrer to the third
amended complaint that Aranda’s complaint was untimely under government tort claims
principles, and that he failed to allege facts sufficient to state the elements of the

                                               5
purported cause of action for the intentional tort of misappropriation, and hence, cannot
maintain a cause of action for civil conspiracy. On appeal, the parties agree the trial court
erred in its first conclusion that Aranda’s complaint was untimely.4 We agree:
accordingly, we concern ourselves with whether the trial court otherwise properly
sustained the demurrer.
       When, as here, a court sustains a demurrer without leave to amend, our task on
review is to “decide whether there is a reasonable possibility the plaintiff could cure the
defect with an amendment. [Citation.] If we find that an amendment could cure the
defect, we conclude that the trial court abused its discretion and we reverse; if not, no
abuse of discretion has occurred. [Citation.] The plaintiff has the burden of proving that
an amendment would cure the defect. [Citation.]” (Schifando v. City of Los Angeles
(2003) 31 Cal.4th 1074, 1081.)
       Lack of legal counsel does not entitle an appellant to special treatment. (Harding
v. Collazo (1986) 177 Cal.App.3d 1044, 1055; Doran v. Dreyer (1956) 143 Cal.App.2d
289, 290.) A pro se litigant is held to the same restrictive rules of procedure as an
attorney. (Nelson v. Gaunt (1981) 125 Cal.App.3d 623, 638-639.) “A doctrine generally
requiring or permitting exceptional treatment of parties who represent themselves would
lead to a quagmire in the trial courts, and would be unfair to the other parties to
litigation.” (Rappleyea v. Campbell (1994) 8 Cal.4th 975, 985.)




4       In response to our request for supplemental briefing, defendants concede the trial
court erred in sustaining their demurrer on the alternative ground that Aranda’s lawsuit
was untimely. Aranda’s action was in fact timely, defendants admit, and their argument
to the contrary on demurrer failed to take into account that the limitations period for
Aranda to file his civil action in state court was tolled an additional 30 days after the
dismissal of Aranda’s initial federal court action. (28 U.S.C. § 1367(d).)

                                              6
                                              II
                               Aranda’s Appeal Lacks Merit
A.     The Demurrer Was Properly Sustained Without Leave to Amend
       The trial court sustained defendants’ demurrer on the ground Aranda’s
misappropriation allegations “have no basis in law or fact,” thus, he cannot state a cause
of action for civil conspiracy to commit that misappropriation.
       After giving the complaint a reasonable reading, we agree with the trial court that
Aranda fails to state a cause of action for misappropriation of trade secrets. Indeed, we
cannot discern what Aranda intends when he uses the phrase “trade secrets” or the word
“misappropriation.” A trade secret is defined in the Uniform Trade Secrets Act (upon
which Aranda relies) as information, “including a formula, pattern, compilation, program,
device, method, technique, or process, that: [¶] (1) Derives independent economic value,
actual or potential, from not being generally known to the public or to other persons who
can obtain economic value from its disclosure or use; and [¶] (2) Is the subject of efforts
that are reasonable under the circumstances to maintain its secrecy.” (Civ. Code,
§ 3426.1, subd. (d).) “Misappropriation” of a trade secret means “(1) Acquisition of a
trade secret of another by a person who knows or has reason to know that the trade secret
was acquired by improper means; or [¶] (2) Disclosure or use of a trade secret of another
without express or implied consent by a person who: [¶] (A) Used improper means to
acquire knowledge of the trade secret; or [¶] (B) At the time of disclosure or use, knew or
had reason to know that his or her knowledge of the trade secret was: [¶] (i) Derived
from or through a person who had utilized improper means to acquire it; [¶] (ii) Acquired
under circumstances giving rise to a duty to maintain its secrecy or limit its use; or [¶]
(iii) Derived from or through a person who owed a duty to the person seeking relief to
maintain its secrecy or limit its use; or [¶] (C) Before a material change of his or her
position, knew or had reason to know that it was a trade secret and that knowledge of it
had been acquired by accident or mistake.” (Civ. Code, § 3426.1, subd. (b).) Aranda

                                              7
alleges that speakers, cameras, and radios installed throughout the prison are trade
secrets, but the complaint does not claim defendants misappropriated these devices, or
describe how they did so.
       Moreover, it is uncertain from the allegations of the complaint what, exactly,
defendants are meant to have misappropriated: Aranda alleges he was “under cruel and
unusual punishment inflicted by [defendants and Los Angeles County Sheriff Detective
Meyers] under the trade secret uniform act [citation]. By improper means
misappropriation and reckless disregard in maintaining state secrets using program,
device, method, technique or process [citation].” Defendants interpret these (and similar)
allegations to mean Aranda accuses them of “misappropriating” his state of mind,
“thought processes and pattern of mentation,” an interpretation with which the trial court
apparently agreed. We do not agree with this interpretation. But we can offer no
alternative, because the allegations of the third amended complaint are simply
nonsensical: they are a lengthy mélange of legal definitions, phrases copied from prior
pleadings, argument, and documents from his prison appeal of the rules violation report
filed by Officer Harris.
       Aranda asserts that “no matter how unlikely or improbable [his] allegations are,
they should be accepted as true for the purpose of ruling on the demurrer [citation].”
(See Dell E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604.)
But this argument assumes the nature of his allegations can be ascertained from the face
of the complaint. Here, they cannot.
       Aranda’s brief on appeal adds nothing to the analysis. He concedes his conspiracy
claim rests on the allegations “that defendants conspired to ‘misappropriate’ state trade
secret devices, program, technique, and processes [citation]. Specifically, speakers,
cameras and radios in electronic surveillance system, to create an atmosphere targeting
[him]. Defendants collaborated with prison inmates” to assault Aranda, and “this is the
theory of liability asserted in this cause of action for intentional tort.” This explanation of

                                              8
the complaint does not explain how Aranda has alleged that defendants have
misappropriated trade secrets. In view of these allegations, we also agree with the trial
court and the defendants that Aranda fails to allege facts sufficient to state any cause of
action against defendants.
        Aranda asserts the trial court abused its discretion in sustaining the demurrer
without leave to amend, but we discern no such abuse. After four attempts, Aranda has
been unable to state a claim based upon conspiracy, or misappropriation of trade secrets,
i.e., the allegations upon which his personal injury action is based. Under such
circumstances, the trial court did not abuse its discretion in denying leave to amend.
(Oddone v. Superior Court (2009) 179 Cal.App.4th 813, 823; see also 5 Witkin, Cal.
Procedure (5th ed. 2008) Pleading, § 992, p. 403 [“A general demurrer may be sustained
without leave to amend where it is probable from the nature of the defects and previous
unsuccessful attempts to plead that the plaintiff cannot state a cause of action.”].)
        Aranda argues in his reply brief that it is “premature” for him to identify any
manner in which he may amend his complaint to defeat a demurrer, “because the trial
court did not reach the potential merit of his ‘personal injury’ and ‘misappropriation’
theory, a valid cause of action.” Accordingly, he argues, the burden ordinarily imposed
upon a plaintiff who appeals from an order sustaining a demurrer without leave to amend
to show how the defects identified in the complaint could be cured by amendment is
“inapplicable” to him. Aranda is mistaken. (See Schifando v. City of Los Angeles, supra,
31 Cal.4th at p. 1081.) The “merits” of a cause of action are not determined by any court
considering a demurrer; rather, courts generally examine whether “ ‘ “the complaint
shows on its face” ’ ” that its allegations are sufficient to state a cause of action. (See
Van de Kamps Coalition v. Board of Trustees of Los Angeles Community College Dist.
(2012) 206 Cal.App.4th 1036, 1044; Aguilera v. Heiman, supra, 174 Cal.App.4th at p.
595.)



                                               9
B.     Aranda’s Remaining Contentions Also Lack Merit5
              1. Preliminary injunction hearings
       While defendants’ demurrer was pending, Aranda filed two motions for
preliminary injunctions. The first motion was construed by the court as a petition for writ
of habeas corpus; the second motion was heard and denied. On appeal, Aranda contends
the trial court failed to conduct hearings on these motions. To the contrary, the minute
orders of the proceedings concerning his motions indicate hearings were conducted.
Further, we presume on this record, without reporters’ transcripts of those proceedings,
that the trial court properly exercised its discretion by correctly applying the law and
giving due consideration to the evidence before it, including written submissions by the
parties (cf. Olivia v. Suglio (1956) 139 Cal.App.2d 7, 9), and that the evidence was
sufficient to justify issuing the orders (Ehrler v. Ehrler (1981) 126 Cal.App.3d 147, 154).
              2. Continuance of the hearing on the demurrer
       Three days before the date of the scheduled hearing on defendants’ demurrer,
Aranda filed an ex parte request to extend the time for hearing defendants’ demurrer until
“the court hears [his pending] motion for preliminary injunction.” The hearing on
defendants’ demurrer proceeded as scheduled. Aranda contends on appeal the trial court
erred in not ruling on his ex parte application to extend the time for hearing defendants’
demurrer until “the court provides a hearing on [the] motion for preliminary injunction.”
       A trial court’s decision to deny a request for a continuance is reviewed for an
abuse of discretion. (Mahoney v. Southland Mental Health Associates Medical Group
(1990) 223 Cal.App.3d 167, 170.) Aranda does not attempt to show on appeal that the
trial court abused its discretion in denying his request for a continuance of the hearing on
defendants’ demurrer.



5      Defendants and their counsel, the Attorney General, make no response to any of
these contentions.

                                             10
              3. Aranda’s objections to the proposed order of dismissal
       After defense counsel submitted the proposed order of dismissal to Aranda,
Aranda objected to language in the proposed order stating he did not appear at the
hearing, on the grounds he was unable to appear by telephone on that date, and he had
asked the court to extend the time for hearing the demurrer until after his motion for a
preliminary injunction could be heard. Aranda also objected to the proposed order’s
dismissal of the action in its entirety, on the grounds he had attempted to serve Meyers
and the Doe defendants, all of whom “daily inflicted pain and suffering, that is[,] severe
emotional distress and physical discomfort via electronic speakers and cameras, verbally
abusing [him] day and night, fragmenting his mind, agitating his senses that depletes the
body’s vital forces and oxygen.” The trial court signed the judgment to which Aranda
objected.6
       Aranda contends the trial court erred in not ruling on his objections to the
proposed order of dismissal and judgment. Generally, when a party prepares a formal
order based on the court’s ruling on a motion, the California Rules of Court require that
the party submit the proposed order to the opposing party “for approval as conforming to
the court’s order” before submitting it to the court. (Cal. Rules of Court, rule 3.1312(a).)
The California Rules of Court do not require that the court conduct a hearing on the
objections, if any, to a proposed order by the opposing party, and Aranda identifies no
authority for a contrary conclusion.




6      On the same day, the court also signed a second judgment, apparently revised by
defense counsel based partly on Aranda’s objections, which states only: “On May 7,
2010, this Court sustained defendant’s demurrer, without leave to amend. In accordance
with that order, JUDGMENT IS ENTERED in favor of defendants Harris, Wong, and
McCray.” (Original capitalization.)

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                                      DISPOSITION
       The judgment is affirmed. The parties shall bear their own costs on appeal. (Cal.
Rules of Court, rule 8.278(a)(5).)




                                                      NICHOLSON            , J.



We concur:



      RAYE                  , P. J.



      BLEASE                , J.




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