Filed 4/16/13 Johnson v. Cal. Dept. of Corrections CA4/2

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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

                                   FOURTH APPELLATE DISTRICT

                                                 DIVISION TWO



KENNETH WAYNE JOHNSON,

         Plaintiff and Appellant,                                        E055862

v.                                                                       (Super.Ct.No. BLC10000055)

CALIFORNIA DEPARTMENT OF                                                 OPINION
CORRECTIONS AND
REHABILITATION et al.,

         Defendants and Respondents.


         APPEAL from the Superior Court of Riverside County. B.J. Bjork, Retired judge

of the Riverside Superior Court assigned, by the Chief Justice pursuant to article VI,

section 6 of the California Constitution, and Sarah Adams Christian, Judge. Affirmed.

         Kenneth Wayne Plaintiff, in pro. per., for Plaintiff and Appellant.

         Nield Law Group, Edgar R. Nield, Gabrielle DeSantis Nield, and Jeffrey J. Stein

for Defendants and Respondents


             Judge Bjork granted the demurrer without leave to amend. Judge Christian
entered the judgment of dismissal.


                                                             1
       Plaintiff and appellant Kenneth Wayne Plaintiff is a prisoner at Ironwood State

Prison. On July 5, 2011, he filed a first amended complaint against the California

Department of Corrections (CDC) and certain named individuals. On August 21, 2011,

defendants CDC, Mathew Cates, Janet Rodriguez, David B. Long, and Loralee Murphy

(collectively, defendants) filed a demurrer to the first amended complaint. On September

9, 2011, the trial court sustained defendants‟ demurrer without leave to amend. On April

25, 2012, it entered a judgment of dismissal. Plaintiff appeals.

                                              I

                                STANDARD OF REVIEW

       A demurrer is used to test the sufficiency of the factual allegations of the

complaint to state a cause of action. (Code Civ. Proc., § 430.10, subd. (e).) The facts

pled are assumed to be true, and the only issue is whether they are legally sufficient to

state a cause of action.

       “In reviewing the sufficiency of a complaint against a general demurrer, we are

guided by long-settled rules. „We treat the demurrer as admitting all material facts

properly pleaded, but not contentions, deductions or conclusions of fact or law.

[Citation.] We also consider matters which may be judicially noticed.‟ [Citation.]

Further, we give the complaint a reasonable interpretation, reading it as a whole and its

parts in their context. [Citation.] When a demurrer is sustained, we determine whether

the complaint states facts sufficient to constitute a cause of action. [Citation.] And when

it is sustained without leave to amend, we decide whether there is a reasonable possibility



                                              2
that the defect can be cured by amendment: if it can be, the trial court has abused its

discretion and we reverse; if not, there has been no abuse of discretion and we affirm.

[Citations.] The burden of proving such reasonable possibility is squarely on the

plaintiff. [Citation.]” (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)

       Our standard of review is de novo: “Treating as true all material facts properly

pleaded, we determine de novo whether the factual allegations of the complaint are

adequate to state a cause of action under any legal theory, regardless of the title under

which the factual basis for relief is stated. [Citation.]” (Burns v. Neiman Marcus Group,

Inc. (2009) 173 Cal.App.4th 479, 486.)

                                             II

                         THE FIRST AMENDED COMPLAINT

       Plaintiff‟s primary argument is that “upon arrival at the prison reception center (in

Chino, Ca.) DOES 1-5 turned all new arrivals from Los Angeles County Jail (LACJ) over

to and into the control of DOES 6-10 [other inmates] to fingerprint, photograph and

collect other personal information reported and recorded onto official records.” The

collection of this information by other inmates is alleged to be a violation of the

Information Practices Act of 1977 and other laws.1 (Civ. Code, §1798 et seq.)




       1      In a letter to Plaintiff dated September 28, 2009, CDC advised him that
“[a]lthough, there was a past practice of utilizing inmate workers in certain institution
processes, the practice of utilizing inmates in the fingerprinting and photographing of
inmates no longer exists.”


                                              3
       The general allegations of the first amended complaint allege that plaintiff is

serving a life sentence under the three strikes law. (Pen. Code, §§ 667, subds. (b)–(i),

1170.12.) He was convicted in 1985, and this conviction was used at a subsequent trial

as a strike enhancement.2 The prior conviction was proven by records submitted under

Penal Code section 969b. Included in the Penal Code section 969b package were a

fingerprint card and a photograph. The fingerprints were taken by inmates at the CDC

reception center at Chino Institute for Men, as was the photograph. (See Pen. Code,

§ 2082.) Part of the relief sought is notification of persons receiving the Penal Code

section 969b package that the fingerprint and photographic records were prepared by

prisoners, not correctional officers.

       Although plaintiff has gone to elaborate lengths to submit evidence, including

numerous declarations of other inmates, to prove his contention that inmates performed

these functions at the reception center, we accept these factual allegations as true for

purposes of reviewing the demurrer.3




       2     Plaintiff does not specify when he was convicted under the three strikes
law. He does state that he was arrested for the present offense in February 1995 and has
been incarcerated 16 years.
       3       We note that the director‟s level appeal decision states that “during the mid
1980s Permanent Work Crew (PWC) inmates did in fact fingerprint incoming inmates.”
(See also fn. 1, ante, p. 3.)


                                              4
       After describing his extensive attempts to obtain his records and his various

appeals within the prison system, plaintiff describes various statutes that he believes were

violated by the use of inmates to perform duties at the prison reception centers.4

       Incorporating these general allegations into each cause of action, plaintiff then

attempts to allege eight causes of action.

       The first cause of action alleges that defendants intentionally failed to comply with

the Information Practices Act of 1977. (Civ. Code, § 1798 et seq.) Plaintiff specifically

alleges he “is suffering as a proximate result of each defendant‟s individual and collective

failures to comply with the provisions of the [Information Practices Act] and the rules

promulgated thereunder.”5 (Capitalization omitted.)

       The second cause of action is for “intentional failure and misrepresentation in

records maintained.” (Capitalization omitted.) Under this heading, plaintiff alleges

violations of various statutes arising from the use of inmates “to perform the official

business of the State by reporting and recording personal information in the records

created while processing new arrivals into prison.”




       4       As noted above, we disregard contentions, deductions, and conclusions of
fact or law in reviewing the sufficiency of the first amended complaint.
       5      California Code of Regulations, title 15, section 3041, subdivision (e)
states: “Inmates in assignments where they will type, file, or otherwise handle any
nonconfidential information pertaining to another inmate shall comply with all state
Information Practices Act (Civil Code § 1798, et seq.) requirements.” The section goes
on to designate such inmates as “special agents” of CDC as defined in Civil Code section
2297.


                                             5
       The third cause of action is for “willful misconduct.” (Capitalization omitted.)

The alleged misconduct includes the actions of defendants in refusing plaintiff‟s request

to “amend” the records.6 Plaintiff further alleges the defendants acted with “a malicious

intent to cause injury in the past, and a willful and conscious disregard for the substantive

rights of plaintiff” as established by the Constitution, statutes, and CDC rules.

       The fourth cause of action is for fraud. It alleges various acts, or failures to act, by

defendants in justifying reliance on the inmate-created records.

       The fifth cause of action is for negligent infliction of emotional distress. Plaintiff

alleges that he has suffered emotional distress and physical injuries as a result of

defendants‟ violation of his rights.

       The sixth cause of action is entitled “intentional failure by a state agency to

comply to [sic] the Administrative Procedures Act (APA)” under Government Code

section 11340 et seq. (Capitalization omitted.) Incorporating the previous 128

paragraphs, plaintiff alleges that the defendants have deprived him of various rights and

have refused to amend the records.

       The seventh cause of action is for “intentional failure to report and record records”

under Penal Code sections 13100 et seq. (Capitalization omitted.) Plaintiff alleges that,

under the facts stated above, he has suffered enhancements under the three strikes law




       6       Plaintiff places the word “amendment” in quotes. Presumably, he wants his
fingerprint card and photograph deleted from his prison file, disregarding several statutes
that require such information to be kept in the file. (See, e.g., Pen. Code, § 2082.)


                                              6
because the official duties to photograph and fingerprint prisoners were not performed by

public officials.

        The eighth cause of action is titled “intentional disclosure of personal

information.” (Capitalization omitted.) Under this heading, plaintiff contends that

defendants wrongfully contend that CDC‟s records maintenance practices are lawful

under California Code of Regulations, Title 15, section 3041, subdivision (e) and Civil

Code section 1798 et seq. He alleges various physical and emotional injuries as a result

of defendant‟s actions.

        Finally, plaintiff includes “further allegations to all causes of action.”

(Capitalization omitted.) Under this heading, he includes quotes from case law,

allegations relating to his discovery of the use of inmates to create records, and his

contention that the prison records were materially falsified by the use of inmates to create

them.

        A large volume of evidentiary material is attached to the complaint, including

plaintiff‟s appeals through the correction system‟s appeal process; declarations of other

inmates; and copies of various statutes, rules, and regulations.7




        7     Plaintiff also submitted a lengthy request for judicial notice of various
documents. The register of actions does not show a trial court ruling on the request.
Nevertheless, since the request is in our record and most, if not all, of the request is
duplicative of other documents in our record, we will consider the request to have been
granted.


                                               7
                                              III

                                      THE DEMURRER

       On August 3, 2011, defendants filed a demurrer to the first amended complaint

and a separate motion to strike a punitive damages request. The accompanying

memorandum of points and authorities argued that (1) plaintiff failed to file his complaint

within the time limits established by the Tort Claims Act; (2) the claim against CDC was

barred by the statute of limitations; (3) plaintiff failed to exhaust his administrative

remedies with regard to the named individual defendants; (4) the complaint was

ambiguous, uncertain, and unintelligible; (5) plaintiff failed to state facts sufficient to

state a cause of action against defendants; and (6) defendants were entitled to qualified

immunity. The demurrer was sustained without leave to amend. Since a transcript of the

hearing on the demurrer is not in our record, we do not know the specific grounds upon

which the demurrer was sustained.

       On appeal, defendants argue that (1) plaintiff‟s complaint is barred by the statute

of limitations; (2) plaintiff failed to exhaust his administrative remedies; (3) plaintiff‟s

first amended complaint is ambiguous, uncertain, and unintelligible; and (4) defendants

are entitled to qualified immunity.

                                              IV

                                        DISCUSSION

       We first focus on the qualified immunity argument. Defendants argue that CDC

itself is not liable for injury to any prisoner under Government Code section 844.6. That



                                               8
section provides that, with some exceptions, a public entity is not liable for injury to a

prisoner. However, that section also provides that it does not exonerate a public

employee from liability for injury proximately caused by his negligent or wrongful act or

omission. (Gov. Code, § 844.6, subd. (d); Ne Casek v. Los Angeles (1965) 233

Cal.App.2d 131, 140-141.)

       The first amended complaint names 11 individual defendants. Specific allegations

are made against eight individuals. Apparently, not all individual defendants were

served, but it is not clear how many persons were served. Defendants‟ counsel represents

four individual defendants: Rodriguez, Cates, Long, and Murphy. We will therefore

confine our discussion to those four individuals.

       As defendants point out, there is no allegation that these four individual

defendants had anything to do with inmate intake procedures in 1985. Instead, they are

administrators who exercised their discretion in deciding plaintiff‟s administrative

appeals.

       Specifically, defendant Murphy is a correction case records supervisor at

Ironwood State Prison. Defendant Long is chief deputy warden at the prison. On April

6, 2009, they both signed a letter denying plaintiff‟s second level administrative appeal.

They also sent an amended decision letter that granted plaintiff‟s request to view his

fingerprint card and photograph and to obtain copies.

       Matthew Cates is named as the director of corrections. Defendant Rodriguez is

chief of correctional record services. On September 28, 2009, Rodriguez wrote a letter to



                                              9
plaintiff in response to a letter he had written to Director Cates. She denied plaintiff‟s

requests and pointed out that Penal Code section 2081.5 requires the director to keep

complete case records, including fingerprint records and inmate photographs. She also

noted that the contents of the prior conviction packet are prescribed by Penal Code

section 969b.

       These four individuals were only involved in the appeal process, and their

discretionary decisions in that process are immune from liability under Government Code

section 820.2. (Rubino v. Lolli (1970) 10 Cal.App.3d 1059, 1063-1064.)

       In addition, as defendants point out, the only completed administrative review was

of plaintiff‟s request to obtain copies of his fingerprint record and photograph from 1985.

By the time of the director‟s level appeal, those documents had been provided to plaintiff.

Plaintiff‟s other requests for CDC action were denied on grounds that Penal Code section

969b required the inclusion of the fingerprint card and photograph in the prior conviction

records.8 Although the letter concludes by stating that plaintiff had exhausted his

administrative remedies, the reference must be taken to refer to the remedies requested of

CDC, the subject of the letter.




       8       The relevant portion of the director‟s level appeal decision states, “[It was]
confirmed that during the mid 1980s Permanent Work Crew . . . inmates did in fact
fingerprint incoming inmates. However, the inmates were under the constant supervision
of correctional staff and the institution did not violated departmental policy or procedure
in doing so.”


                                             10
       Plaintiff did not pursue any administrative level actions against any of the four

individual respondents. The failure to exhaust remedies prevents any action against the

individual defendants. (Wright v. State of California (2004) 122 Cal.App.4th 659.) And,

as noted above, these individuals are not alleged to have been involved in the gravamen

of the action, i.e., the use of inmates to roll fingerprints and take photographs under 1985

intake procedures. There are also no factual allegations to connect any of plaintiff‟s

alleged injuries to any action taken by any of the four named individuals.

       The statute of limitations also provides a defense to allegations that the 1985

procedures violated constitutional, statutory law, or CDC rules. (Code Civ. Proc.,

§§ 335.1, 338.) We therefore agree with defendants that plaintiff has not pled any facts

to overcome these hurdles and cannot do so.

       But even if the defenses raised by defendants could be overcome and we reached

the merits of the case, the striking feature about plaintiff‟s lengthy complaint is that he

does not allege that the fingerprint record is incorrect or inaccurate in any way or that the

photograph is not his photograph.

       As the director‟s level decision points out, the fingerprint card bears plaintiff‟s

signature. Thus the inclusion of the two documents in any Penal Code section 969b

package to identify plaintiff and prove that he had suffered a prior conviction under the

three strikes law could not have prejudiced him. Although there is a presumption that

official duty was regularly performed, plaintiff‟s trial attorney could have submitted any

evidence or argument to attempt to rebut the presumption by persuading the court or jury



                                              11
that the CDC had violated the Constitution, statutory law, or CDC rules in the manner in

which it obtained or kept the records in the section 969b packet.9

       In effect, plaintiff is seeking to make an end run around a very old determination

that he suffered a prior conviction by attempting to void a three strike law prior

conviction enhancement. Such collateral attacks on long-decided issues are not generally

permissible. (See, e.g., Todhunter v. Smith (1934) 219 Cal. 690, 694-695; Younan v.

Caruso (1996) 51 Cal.App.4th 401, 406-407.)

       Plaintiff also alleges various mental and physical injuries allegedly caused by the

use of inmates to roll finger prints and take a picture of him. But he alleges no facts to

establish a causal relationship between the inmates‟ actions and his mental or physical

condition. It merely appears that he is distressed by his three strikes sentence.

                                              V

                 DENIAL OF LEAVE TO AMEND THE COMPLAINT

       Plaintiff argues that the trial court abused its discretion in sustaining the demurrer

without leave to amend. He cites Cantu v. Resolution Trust Corp. (1992) 4 Cal.App.4th

857. The court said: “When a trial court sustains a demurrer without leave to amend, the

appellate court also reviews that ruling for abuse of discretion. [Citation.] A trial court

does not abuse its discretion when it sustains a demurrer without leave to amend if either


       9     In a letter to Plaintiff dated September 28, 2009, CDC specifically advised
him that “You, or an attorney representing you, have the right to challenge the use of
these documents in any court proceedings where proof of a prior prison term is
introduced.”


                                             12
(a) the facts and the nature of the claims are clear and no liability exists, or (b) it is

probable from the nature of the defects and previous unsuccessful attempts to plead that

the plaintiff cannot state a claim. [Citation.] [¶] Again, the burden falls squarely on

[plaintiff] to show what facts he could plead to state a cause of action if allowed the

opportunity to replead. [Citation.] To meet this burden, a plaintiff must submit a

proposed amended complaint or, on appeal, enumerate the facts and demonstrate how

those facts establish a cause of action. [Citations.]” (Id. at pp. 889-890, italics added.)

       Accordingly, plaintiff has submitted a 28-page supplement stating the

“enumerated facts” which he contends establish his alleged causes of action.

(Capitalization omitted.) Although the supplement contains an exceedingly thorough list

of statutes and rules allegedly violated by CDC, it does not allege any new facts. Nor

does it demonstrate how plaintiff would amend the complaint to overcome the procedural

and substantive hurdles discussed above.

       Plaintiff does propose a new cause of action, entitled “Unfair Competition in

Violation of Business and Professions Code section 17200 et seq.” Section 17200 is the

beginning of the chapter containing the Unfair Practices Act. The section defines “unfair

competition” as “any unlawful, unfair or fraudulent business act or practice . . . .” The

purpose of the law is to extend to consumers protections formerly available to business

competitors. (Bank of the West v. Superior Court (1992) 2 Cal.4th 1254, 1264.) An

action under the Unfair Practices Act treats violations of other laws in a business context




                                               13
as unlawful business practices. (Farmers Ins. Exchange v. Superior Court (1992) 2

Cal.4th 377, 383.)

       Plaintiff has not alleged, nor proposed to allege, any facts showing that such

business activity is involved in this case. Nor has he alleged any new facts which would

support this or any other alleged cause of action. Even if he were able to do so, he clearly

cannot overcome the procedural and substantive difficulties that led the trial court to

sustain the demurrer.

       “Leave to amend is properly denied when the facts are not in dispute and the

nature of the claim is clear, but there is no liability under substantive law. [Citation.]

„[All] intendments weigh in favor of the regularity of the trial court proceedings and the

correctness of the judgment. Unless clear error [or] abuse of discretion is demonstrated,

the trial court‟s judgment of dismissal following the sustaining of defendants‟ demurrer

will be affirmed on appeal [citation].‟ [Citation.]” (Wilhelm v. Pray (1986) 186

Cal.App.3d 1324, 1330.)10

       Plaintiff has not met his burden of demonstrating that he can allege additional

facts sufficient to overcome the procedural and substantive obstacles to his case.

Accordingly, the trial court did not abuse its discretion in sustaining defendants‟

demurrer to the first amended complaint without leave to amend.




       10   The quote in Wilhelm is from Owens v. Foundation for Ocean Research
(1990) 107 Cal.App.3d 179, 185. Owens was disapproved on other grounds in Applied
Equipment Corp. v. Litton Saudi Arabia Ltd. (1994) 7 Cal.4th 503, 521, fn. 10.


                                              14
                                          VI

                                    DISPOSITION

       The judgment is affirmed. Defendants are awarded costs on appeal.

       NOT TO BE PUBLISHED IN OFFICIAL REPORTS


                                                           RICHLI
                                                                           J.

We concur:


McKINSTER
               Acting P. J.


KING
                         J.




                                          15
