Judge: Carolyn M. Caietti, Case: 37-2020-00043959-CU-WM-CTL, Date: 2024-07-03 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - July 02, 2024

07/03/2024  10:30:00 AM  C-70 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Carolyn Caietti

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Civil - Unlimited  Writ of Mandate Hearing on Petition 37-2020-00043959-CU-WM-CTL LATHAM VS CA DEPT OF CORRECTIONS AND REHABILITATION AND WARDEN MARCUS POLLARD RJ DONOVAN [IMAGED] CAUSAL DOCUMENT/DATE FILED:

Petitioner Joshua Latham's Consolidated Petition for Writ of Mandate (Case Nos. 2020-43959, 2021-11151, 2022-11493) is DENIED.

Preliminary Matter Petitioner's late request for judicial notice of an order granting in part and denying in part a motion for summary judgment in a separate federal case is granted and notice will be taken to the extent permitted.

(ROA 212-215.) Pertinent Background At issue are three separate petitions for writ of mandate that the Court consolidated on January 13, 2023. (ROA 113.) Case No. 2020-43959

Generally, the 2020 case alleges, on March 20, 2020, Respondent California Department of Corrections and Rehabilitation (CDCR or the Department) held a hearing and approved Petitioner's involuntary psychiatric transfer to the Department of State Hospitals and the decision is invalid because it was based on: (i) 'multiple urgent requests/mental health referrals submitted by various staff to see inmate Latham due to him exhibiting bizarre behavior, delusional behavior, his recent hunger strike, his multiple cell moves in a short amount of time since 2020 and the pending RVR for sexual disorderly conduct'; (ii) Respondent refused to hear Petitioner's testimonial evidence; and (iii) the hearing officer admitted unsupported hearsay evidence. Petitioner seeks a writ of mandate directing Respondent to set aside its order dated March 20, 2020, to 'force Petitioner into an involuntary psychiatric transfer to the Department of State Hospitals.' Further, Petitioner alleges staff 'falsified a serious mental illness or disorder and delusions against Petitioner in a conspiracy to cover up the officers misconduct with the illegal microwave weapon' that he alleges is operated 'covertly from computers.' Case No. 2021-11151

Generally, in the 2021 case, Petitioner seeks a writ of mandate directing CDCR to set aside its order dated September 15, 2020 for 'the involuntary medication of the Petitioner.' Calendar No.: Event ID:  TENTATIVE RULINGS

3082187  43 CASE NUMBER: CASE TITLE:  LATHAM VS CA DEPT OF CORRECTIONS AND  37-2020-00043959-CU-WM-CTL Case No. 2022-11493

Generally, the 2022 case concerns a renewal of the involuntary medication order and alleges certain evidence was not presented at a hearing. Petitioner seeks a writ of mandate directing Respondent to set aside its order of September 14, 2021 for 'the involuntary medication of Petitioner from 08/17/2021 to 08/17/2022.' Demurrers On May 12, 2023, the Court heard Respondent's demurrers to each First Amended Petition. (ROA 143.) The Court overruled the demurrers in the 2020-43959 and 2022-11493 cases and sustained the demurrer without leave to amend in the 2021-11151 as time-barred.

Following the Court's ruling on the demurrers, Petitioner unilaterally filed a 'Second Amended Petition for Writ of Mandate, CCP § 1094.5, Exhibits in Consolidated Case No. 37-2021-00011151.' As best the Court understands this unpermitted Second Amended Petition, it seeks a writ of mandate regarding the September 15, 2020 involuntary medication order and attempts to revive the 2021-11151 case. (See, ROA 176 – Second Amended Petition, at p. 8.) To the extent Petitioner maintains he is entitled to writ relief in the 2021-11151 case, the petition is DENIED as the Court already resolved this petition in favor of Respondent.

Discussion The Two Remaining Petitions are Moot A case becomes moot when a court ruling can have no practical effect or cannot provide the parties with effective relief. (D.K. v. Office of Administrative Hearings (2024) 101 Cal.App.5th 1206, 1213.) In D.K., the petitioner appealed from a short-term order authorizing that she be involuntarily medicated. The court concluded the appeal was moot because the order expired and no meaningful relief could be effectuated through review of that order, but exercised its discretion to address whether the statutory scheme of Penal Code section 1370 precluded her from filing a writ of administrative mandate to challenge the medication order. (Id., at p. 1210.) With regard to mootness and the petitioner's specific order, the court recognized future proceedings would be based on updated medical reports and testimony and declined to exercise its discretion whether substantial evidence supported the petitioner's temporary involuntary medication order as it was unlikely to recur in the same manner at future proceedings and did not qualify as an important issue of public interest capable of repetition. (Id., at p. 1213.) Notwithstanding, the court addressed the broader issue of whether she was entitled to writ review of the temporary involuntary medication order, found that she was and still held the trial court's finding that substantial evidence supported the involuntary medication order was moot. (Id., at p. 1218; see also, Giraldo v. Dept. of Corrections and Rehabilitation (2008) 168 Cal.App.4th 231, 257-58 (ruling counts for declaratory and injunctive relief became moot when the prisoner was paroled).) Here, Petitioner does not dispute that the psychiatric transfer order dated March 20, 2020, and involuntary medication renewal order dated September 14, 2021, orders are no longer in effect.

Petitioner transferred out of the Department of State Hospitals (DSH) facility and back into Department custody on November 13, 2020. (Case No. 2022-11493 AR, p. 41.) There is no continuing effect on Petitioner's current incarceration. If the Department wanted to return Petitioner to DSH custody, a new psychiatric transfer order and psychiatric transfer hearing would be required. (Cal. Code Regs., tit. 15, § 3999.342.) Similarly, the involuntary medication order was only effective for one year and is no longer in effect.

(Pen. Code, § 2602(e); Case No. 2022-11493 AR, p. 10-12.) Petitioner also does not provide any legal Calendar No.: Event ID:  TENTATIVE RULINGS

3082187  43 CASE NUMBER: CASE TITLE:  LATHAM VS CA DEPT OF CORRECTIONS AND  37-2020-00043959-CU-WM-CTL authority or analysis that a writ would 'nullify the 'Active Atascadero State Hospital hold' against [him]' or invalidate the 'initial basis' to involuntarily medicate. (Reply, at p. 3:9-18; see, Pen. Code, § 2602(g).) Rather, as in D.K., supra, any 'future proceedings would be based on updated medical reports and testimony.' There is no controversy that could be resolved by the Court in a manner that would affect Petitioner.

Notwithstanding, the Court will review the substantive merits.

The Petitions Fail on the Merits As a preliminary matter, the Court has not relied on the exhibits attached to Petitioner's moving brief (ROA 208 – Ex. A-C) as the Court is limited to review of the administrative records and Petitioner has not met his burden that any exception applies. (C.C.P., § 1094.5(e).) An ongoing issue with Petitioner's briefing is his failure to support his arguments with citation to the administrative records. A person challenging in the trial court certain orders 'cannot simply present the court with the administrative record and assert, without analysis or specific citations to the record,' that orders are not factually supported. (See, Shenouda v. Veterinary Medical Bd. (2018) 27 Cal.App.5th 500, 513.) 'Instead, the challenger must identify (with citations to the record) the factual findings made by the board that he or she is challenging and demonstrate (with citations to the record) why those factual findings were against the weight of the evidence.' (Ibid.) Petitioner first argues he was denied a 'fair trial' at both the March 20, 2020, and September 14, 2021, hearings by being denied an opportunity to confront and cross-examine all adverse witnesses. He also argues a failure to disclose certain evidence prior to the March, 2020, hearing. The only citation to the administrative record is to AR 2020-00043959, Ex. A & D and these exhibits do not support Petitioner's position. Rather, Exhibit D makes clear Petitioner was allowed to present documentary evidence and/or testimony from witnesses to refute the benefit of transfer and '[a]ll due process protections were observed in the preparation and execution of the committee.' (AR 2020-00043959, Ex. A & D, at p. 69.) As to witnesses called by Petitioner, Exhibit A makes clear the reasons why those witnesses were determined to be unable to testify and Petitioner does not discuss nor dispute those reasons. (AR 2020-00043959, Ex. A, at p. 5-6.) For these same reasons, Petitioner's argument the Department 'failed to proceed in a manner required by law' also fails. (Memo., at p. 19-23.) Petitioner next argues the Court should 'exercise its independent judgment on the evidence and determine whether the findings of the final administrative adjudicatory orders are supported by the weight of the evidence...' (Memo., at p. 9:27-10:2 (capitalization omitted).) In this section of Petitioner's brief, there is no citation to the administrative records and Petitioner merely concludes the Court should exercise its independent judgment. (Id., at p. 11:22-25.) On this record, the Court declines.

Petitioner's third argument is that the 'real reason' for the orders were 'official dissatisfaction' with Petitioner's exercise of filing grievances. (Memo., at p. 11:26-12:3.) In addition, Petitioner maintains certain individuals 'committed perjury about CDCR's statewide microwave weapon being operated by CDCR's officers from computers in CDCR's investigative services unit offices...' (Id., at p. 12:14-22.) None of the evidence cited in support shows such perjury.

Finally, Petitioner argues the Department's findings he has a serious mental disorder and is a danger to others is not supported by the evidence. (Memo., at p. 13-19.) There are no citations to the administrative record in the 2020-43959 case except for Exhibits A and D discussed above. For the 2022-11493 petition, Petitioner cited to Exhibit K, which is a transcript of the hearing. Petitioner maintains the 'only evidence' that was presented were his 602 grievances and his lawsuits. The Court disagrees with Petitioner's interpretation of the evidence. First, there was evidence Petitioner continued to believe the Investigative Services Unit inserted a camera device into his eye to spy on him and used this technology to sexually abuse him. Second, it was not the fact Petitioner filed grievances, but what was said in those grievances (i.e., the illegal 'technology') that, in part, established Petitioner had a Calendar No.: Event ID:  TENTATIVE RULINGS

3082187  43 CASE NUMBER: CASE TITLE:  LATHAM VS CA DEPT OF CORRECTIONS AND  37-2020-00043959-CU-WM-CTL serious mental disorder. (Ex. K.) For these reasons, the remaining petitions are DENIED.

Concluding Orders The consolidated petitions for writ of mandate in all three cases are DENIED.

This ruling is dispositive of the case. All future hearing dates are ordered off calendar.

If the tentative ruling is confirmed without modification, the minute order will be the Court's final order.

Respondent is ordered to serve written notice of the Court's final order on all parties by July 8, 2024.

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