Filed 7/10/13 Yocum v. Howard 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                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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 This opinion has not been certified for publication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
                                     FIFTH APPELLATE DISTRICT

LESTER YOCUM,
                                                                                           F065716
         Plaintiff and Appellant,
                                                                                (Super. Ct. No. 12C0139)
                   v.

CORRECTIONAL OFFICER HOWARD et al.,                                                      OPINION
         Defendants and Respondents.



                                                   THE COURT*
         APPEAL from a judgment of the Superior Court of Kings County. Steven D.
Barnes and Robert S. Burns, Judges.†
         Lester Yocum, in pro. per., for Plaintiff and Appellant.
         No appearance for Defendants and Respondents.
                                                        -ooOoo-




*        Before Wiseman, Acting P.J., Cornell, J. and Kane, J.
†      Judge Barnes issued the denial order dated June 25, 2012; Judge Burns issued the
denial order dated July 13, 2012.
       This is an appeal by a state prisoner, in propria persona, from orders denying his
“Petition for Writ of Replevin (Claim and Delivery)” and his motion for reconsideration
of that denial. Plaintiff and appellant Lester Yocum contends he adequately stated a
claim for relief in his initial petition and that, in any event, he cured any defects by
submitting additional materials with the petition for reconsideration. We conclude the
trial court properly evaluated the sufficiency of the pleadings. Accordingly, we affirm
the judgment.
                        FACTS AND PROCEDURAL HISTORY
       The petition alleges appellant’s personal property was “illegally seized and
retained” by respondent Corrections Officer Howard. In supporting documents, it
appears the officer removed certain items from appellant’s locker in September 2011,
believing them to be contraband devices to recharge cell phones. (Appellant
acknowledges in these documents that the items were not unlawfully seized.) After
prison officials conducted an initial investigation, an officer told appellant the items
would be returned to him at the completion of the formal investigative process, and they
have not yet been returned. According to the supplemental documents, appellant filed
various administrative appeals, all of which eventually were dismissed or “cancelled” as
untimely.
       Appellant filed his petition on February 28, 2012. By order of June 25, 2012, the
court determined, pursuant to the authority of Escamilla v. Department of Corrections &
Rehabilitation (2006) 141 Cal.App.4th 498, 509, that appellant’s petition for writ relief
was appropriately characterized as a petition for writ of mandamus. Because the petition
did not allege defendant had fully exhausted his administrative appeals seeking return of
the property, the court determined the petition failed to state grounds for mandamus
relief. Appellant timely submitted additional materials with his “Notice of Motion in
Opposition of Order – Summarily Denied Petition of Replevin.” Those materials sought
to demonstrate that appellant had exhausted his administrative remedies. The court

                                              2.
treated the motion as one for reconsideration arising under Code of Civil Procedure
section 1008 (“section 1008”) and denied the motion for two alternate reasons. First, the
materials seeking to establish exhaustion of remedies were not submitted by affidavit, as
required by section 1008, subdivision (a). Second, the materials clearly showed that
appellant had failed to timely exhaust his administrative remedies, since each of his
efforts had resulted in a cancellation of the administrative appeal for untimeliness.1
                                       DISCUSSION
       There are two separate issues involved in this appeal. These issues are, first, the
right to possess non-contraband property in prison, and second, the right to a fair
procedure to challenge the seizure of such property. Appellant has failed to distinguish
between those issues and, as a result, views the proceedings as depriving him of his
constitutional right to due process. The first issue is the one that originally brought
appellant to court, namely, his contention that his belongings should be returned to him.
The second issue is whether he has complied with the requirements for administrative
review of the prison’s seizure of his property. The first issue was properly the subject of
the original petition, which failed for reasons we will briefly explain. The second issue
could have been, but was not, the subject of a separate writ petition; however, that second
issue was not properly presented by the motion for reconsideration, as we will also
briefly explain.
       If a petitioner contends an administrative agency, in this case the prison
authorities, made a mistake in ruling against the person in an administrative proceeding,
the person can obtain court review of the administrative decision by filing a petition for
writ of administrative mandate under Code of Civil Procedure section 1094.5 or by


1      There was never service of process or an order to show cause upon the
respondents in the trial court. There has been no appearance by respondents in this
appeal.



                                              3.
ordinary mandamus. (See Escamilla v. Department of Corrections & Rehabilitation,
supra, 141 Cal.App.4th at p. 509 [mandamus].) The issue in such a writ proceeding is
whether the agency “has proceeded without, or in excess of jurisdiction; whether there
was a fair trial; and whether there was any prejudicial abuse of discretion. Abuse of
discretion is established if the respondent has not proceeded in the manner required by
law, the order or decision is not supported by the findings, or the findings are not
supported by the evidence.” (Code Civ. Proc., § 1094.5, subd. (b).)
       In this case, appellant’s petition contended, in effect, that prison officials had
made a determination they would not return to appellant the property seized from him.
Accordingly, appellant was required to establish that the prison officials actually made a
formal determination not to return the property. In order to establish that there was an
official decision not to return appellant’s property, appellant was required to plead the
legal requirement of “exhaustion of administrative remedies”: He was required to plead
that there has been an unfavorable administrative decision by the highest level of
decisionmaker available in the agency, in order to show that court intervention is now
necessary to order restoration of appellant’s property. Accordingly, the trial court here
correctly concluded that appellant had failed to allege this necessary condition for court
intervention, namely, that appellant had sought return of the property through a
completed administrative hearing process.
       Entirely separate, from a legal standpoint, is the situation of a person who
contends the administrative agency would not let him or her have a full administrative
resolution of a complaint, even though the complaining party has tried to use the
available appeal process and has done what was requested in that process. A petition for
writ of administrative mandate in this situation would not seek, for example, actual return
of the property, but would seek enforcement of the right to ask for the property back in
administrative proceedings. Thus, an appellant in this situation might seek to challenge
the agency’s determination that the appellant did not file a hearing request on time or did

                                              4.
not file sufficient supporting information to merit a full administrative hearing. Those are
the kinds of procedural grounds at issue in Civil Service Com. v. Velez (1993) 14
Cal.App.4th 115. There, a civil service employee received a notice of termination for
“committing dozens of incompetent, inefficient and dishonest acts.” (Id. at p. 117.) She
had 10 days to file an appeal. Because of miscommunication with her union
representative, she was a few days late in filing the appeal. The commission refused to
accept the appeal. (Ibid.) On the employee’s petition for writ of mandate, the trial court
directed the commission to accept the untimely appeal; the court of appeal affirmed. (Id.
at pp. 122-123.) The important point, for purposes of this appeal, is that the petition for
writ of mandamus separately challenged the procedural denial of a right to administrative
hearing, and did not challenge the underlying administrative decision to terminate the
appellant’s employment in Velez, or the deprivation of appellant’s property in the present
case. In other words, a petition can seek review of an administrative decision that an
appellant failed to comply with appeal requirements, but that must be the basis for the
petition, which it was not in this case.
       In this case, on the motion for reconsideration, the issue before the court was not
whether prison officials correctly or incorrectly determined that appellant had filed timely
administrative appeals, because the original petition for writ of administrative mandate
did not challenge that aspect of the prison decision – it sought review of the decision not
to return appellant’s property. The trial court correctly concluded that appellant’s
supplemental documentation, even if it had been presented through a proper affidavit,
conclusively showed that appellant had not filed timely administrative appeals about the
seizure of his property. On appeal, appellant tries to show that these timeliness decisions
were wrong but, once again, that is not the issue upon “reconsideration” of the summary
denial of the original petition for writ of mandate, because that is not what appellant
challenged in the original petition – which challenged only the refusal to return the
property.

                                             5.
       Appellant also contends the trial court abused its discretion in recharacterizing his
petition as one for administrative mandate instead of replevin. Appellant implies,
although he does not expressly argue, that the recharacterization prejudiced him because
a writ of replevin would not require exhaustion of administrative remedies. Exhaustion,
however, is a requirement imposed by the courts as a matter of judicial policy, as relevant
here, to promote “administrative autonomy,” clarify factual issues, and promote judicial
economy. (Jonathan Neil & Assoc., Inc. v. Jones (2004) 33 Cal.4th 917, 930-931.) In
the context of this case, a prison system with a detailed system for reviewing the issues
involved in appellant’s claims, exhaustion is required regardless of the form of the action
filed in court. Requiring a prisoner to use the administrative system does not, in itself,
deprive the prisoner of the constitutional right of due process. Instead, the administrative
appeal system provides the process that is due, and is intended to provide prisoners with
expeditious and available mechanisms to resolve this type of dispute much more quickly
than it would be resolved in a civil action or proceeding. In this particular case, appellant
alleged in the rehearing motion and in his brief that his access to the administrative
system was wrongfully or erroneously barred – that he had been deprived of that
expeditious remedy. Once again, however, that was not the claim made in appellant’s
original petition, and it is not a claim that was properly before the trial court on the
reconsideration motion.
       Finally, appellant contends his motion for reconsideration was in proper form. As
we have discussed above, regardless of the form of the motion, the substance of the
documentation attached to the motion showed that appellant had not exhausted
administrative remedies so as to be entitled to relief in court. Accordingly, the form of
appellant’s showing is not the determinative factor.
       In summary, the allegations of the original petition were insufficient insofar as the
petition failed to show exhaustion of remedies. The supplemental allegations of the
motion for reconsideration did not correct this insufficiency because the supplemental

                                              6.
allegations affirmatively showed appellant did not exhaust his administrative remedies in
a timely manner. The trial court did not err.
                                     DISPOSITION
       The order summarily dismissing the petition and the order denying reconsideration
are affirmed. Respondents are awarded their costs on appeal.




                                            7.
