Judge Mitchell L. Beckloff, Case Number: 23STCP01557, Date: 2024-02-02 Tentative Ruling

Judge: Mitchell L. Beckloff, Case: 23STCP01557, Date: 2024-02-02 Tentative Ruling

Respondent, California Department of Corrections and Rehabilitation, demurs to the petition for writ of mandate and complaint for declaratory relief filed by Petitioner, Nicky William Woodall. The demurrer is unopposed.[1]

The demurrer is sustained. The court cannot determine without input from Petitioner whether there is a reasonable likelihood Petitioner can amend the petition to state a claim.

A demurrer tests the sufficiency of a pleading, and the grounds for a demurrer must appear on the face of the pleading or from judicially noticeable matters. (Code Civil Proc., § 430.30, subd. (a); Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) “We assume the truth of the allegations in the complaint, but do not assume the truth of contentions, deductions, or conclusions of law.” (California Logistics, Inc. v. State of California (2008) 161 Cal.App.4th 242, 247.) “A demurrer tests the pleadings alone and not the evidence or other extrinsic matters.” (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.) “[T]he complaint ordinarily is sufficient if it alleges ultimate rather than evidentiary facts.” (Doe v. City of Los Angeles (2007) 42 Cal.4th 531, 550.) The allegations in the petition must be liberally construed in favor of a petitioner on demurrer. (See Mobil Oil Corp. v Exxon Corp. (1986) 177 Cal.App.3d 942, 947.) “A demurrer must dispose of an entire cause of action to be sustained.” (Poizner v. Fremont General Corp. (2007) 148 Cal.App.4th 97, 119.)

“At all relevant times, Petitioner is/was a parolee under the supervision of CDCR’s Division of Adult Parole Operations (‘DAPO’). Petitioner was released from custody and placed on parole November 14,2019, in Los Angeles County.” (Pet. ¶ 5.)

On December 9, 2021, Respondent’s Board of Parole Hearings (Board) initiated a Parole Discharge Review (DR) of Petitioner. (Pet. ¶ 7.) On April 4, 2022, the Board served Petitioner with a Discharge Review Decision Form reporting the Board concluded Petitioner “has not yet fully transitioned into the community” and discharge of parole “is not appropriate.” (Pet. ¶ 12, Exh. A.)

“Petitioner submitted a timely grievance to Respondent’s Office of Grievances with supporting documents contending that the reasons to retain on parole are clearly mistakes of fact requiring a change in the recommendation to retain on parole and a corrected DR with the recommendation to discharge.” (Pet. ¶ 13.)

“On 11/01/2022, the Office of Grievances issued its Decision denying Petitioner’s grievance

“On 11/7/2022, Petitioner submitted his written appeal of the grievance to CDCR’s Office of Appeals. Petitioner asserted that CCR, Title 15, section 3723 was not complied with as the Discharge Review (DR) Form, dated 3/24/2022, was based on mistakes of fact and provided ample supporting documentary evidence, including several emails to previously assigned parole agents with pay check stubs, tax returns, rental lease agreement, escrow closing title, vehicle registrations, and other miscellaneous achievements.” (Pet. ¶ 24, Exh. C.)

“On 1/16/2023, Respondent CDCR’s Office of Appeals granted said appeal, stating: ‘A Board of Parole Hearing lifetime parole decision would be outside of the California Department of Corrections and Rehabilitation’s jurisdiction. However, the information contained within the report was provided by California Department of Corrections and Rehabilitation’s staff, which appellant is challenging. This claim is granted.’ ” (Pet. ¶ 26, Exh. D.) As a remedy, the Office of Appeals directed the Office of Grievances to open a new matter to address the accuracy of the information being contested by Petitioner. (Pet. Exh. D.)

“On February 15, 2023, Petitioner wrote the Office of Appeals requesting information on the status of said appeal grant, to no avail. Petitioner has made several phone calls to the Office of Appeals leaving voice messages requesting the same, with his contact information. All to no avail.” (Pet. ¶ 29.)

Petitioner seeks a writ of mandate directing Respondent to, among other things, “to ‘order an appropriate remedy’ pursuant to California Code of Regulations (CCR), title 15, section 3485 (g)(2), as its decision regarding Petitioner’s written appeal (Log #301616) was ‘Granted,’ meaning that the Reviewing Authority found by a preponderance of the evidence that the decision by the Institutional or Regional Office of Grievances pursuant to CCR section 3483(g)(1) or (2) was not proper.” (Pet. ¶ 36; see also Prayer at pp. 9-10.)

The first cause of action is for ordinary mandate pursuant to Code of Civil Procedure section 1085. There are two essential requirements to the issuance of an ordinary writ of mandate under Code of Civil Procedure section 1085: (1) a clear, present, and ministerial duty on the part of the respondent, and (2) a clear, present, and beneficial right on the part of the petitioner to the performance of that duty. (California Ass’n for Health Services at Home v. Department of Health Services (2007) 148 Cal.App.4th 696, 704.) “An action in ordinary mandamus is proper where . . . the claim is that an agency has failed to act as required by law.” (Id. at 705.)

Petitioner Has Not Alleged that No Plain, Speedy, and Adequate Remedy Exists or Exhaustion of Administrative Remedies

Respondent contends Petitioner has not alleged facts demonstrating that no plain, speedy, and adequate remedy exists outside of mandate. Respondent also argues Petitioner has not alleged he exhausted his administrative remedies.

Mandamus relief is available only when “there is not a plain, speedy, and adequate remedy, in the ordinary course of the law.” (Code Civ. Proc., § 1086.) “Although the statute does not expressly forbid the issuance of the writ if another adequate remedy exists, it has long been established as a general rule that the writ will not be issued if another such remedy was available to the petitioner. [Citations.]” (Phelan v. Superior Court (1950) 35 Cal.2d 363, 366 [Phelan].) “The burden, of course, is on the petitioner to show that he did not have such a remedy.” (Ibid.)

Relatedly, exhaustion of administrative remedies is “a jurisdictional prerequisite to judicial review.” (California Water Impact Network v. Newhall County Water Dist. (2008) 161 Cal.App.4th 1464, 1489.) “The exhaustion requirement applies whether relief is sought by traditional (Code Civ. Proc., § 1085) or administrative (Code Civ. Proc., § 1094.5) mandamus.” (Eight Unnamed Physicians v. Medical Executive Com. (2007) 150 Cal.App.4th 503, 511.) “Before seeking judicial review a party must show that he has made a full presentation to the administrative agency upon all issues of the case and at all prescribed stages of the administrative proceedings.” (Edgren v. Regents of University of California (1984) 158 Cal.App.3d 515, 520.)

Petitioner alleges, generally, he exhausted all administrative remedies that he was required to exhaust, and that he lacks a plain, speedy, or adequate remedy at law. (Pet. ¶¶ 43-44.) However, as the Supreme Court observed, “such general allegations, without reference to any facts, are not sufficient to sustain [the] burden of showing that [an alternative] remedy . . . would be inadequate.” (Phelan, supra, 35 Cal.2d at 370.)

Petitioner alleges facts showing how he utilized the grievance and appeals process, as set out in the state regulations, leading up to the Office of Appeals’ decision. (Pet. ¶¶ 13-31.) Petitioner does not allege, however, he exhausted all available administrative remedies to implement the remedy ordered by the Office of Appeals. Specifically, California Code of Regulations, title 15, section 3485, subdivision (j) which provides:

(1) If the Office of Appeals grants a claim, then the Institutional or Regional Reviewing Authority shall ensure that the corresponding remedy is implemented no later than 30 calendar days after the decision was sent to the claimant. . . .

(2) If the remedy has not been implemented and the applicable time constraint has passed, then the claimant may submit a CDCR Form 602-3 directly to the Remedies Compliance Coordinator by regular mail sent to the “Remedies Compliance Coordinator, Department of Corrections and Rehabilitation, P.O. Box 942883, Sacramento, California 95811.” Correspondence directed to this address shall not be opened by any departmental staff other than those in the Office of Appeals. (Cal. Code Regs, tit. 15, § 3485, subd. (j)(1) and (2).)

Petitioner has not alleged that he submitted CDCR Form 602-3 directly to the Remedies Compliance Coordinator to determine if, and ensure that, the remedy granted by the Office of Appeals has been implemented. Petitioner has not opposed the demurrer and has not identified any excuse from exhausting this administrative remedy. Accordingly, because Petitioner has an adequate administrative remedy that he has not exhausted, he has not stated a cause of action for mandate.

Petitioner Has Not Alleged Respondent Failed to Perform a Ministerial Duty Owed to Petitioner

Respondent also contends Petitioner has not alleged that Respondent failed to perform a ministerial duty owed to Petitioner.

“Generally, mandamus is available to compel a public agency's performance or to correct an agency's abuse of discretion when the action being compelled or corrected is ministerial.” (AIDS Healthcare Foundation v. Los Angeles County Dept. of Public Health (2011) 197 Cal.App.4th 693, 700.) “A ministerial act is an act that a public officer is required to perform in a prescribed manner in obedience to the mandate of legal authority and without regard to his own judgment or opinion concerning such act’s propriety or impropriety, when a given state of facts exists.” (Kavanaugh v. West Sonoma County Union High School Dist. (2003) 29 Cal.4th 911, 916.)

Petitioner alleges Respondent failed to perform its mandatory duty, pursuant to California Code of Regulations, title 15, section 3485, subdivision (g)(2), to order an appropriate remedy. (Pet. ¶¶ 36, 47.) The exhibits to the petition reveal the Office of Appeals ordered the Office of Grievances to “open a new Offender Grievance Tracking system number to review this matter. The review shall address the accuracy of the information being contested.” (Pet., Exh. D.) Petitioner does not allege the remedy is inadequate, only that it has not been implemented. (Pet. ¶¶ 29-30.) However, as discussed, Petitioner has not alleged exhaustion of administrative remedies as to the implementation of the remedy ordered by the Office of Appeals.

In his prayer for relief, Petitioner also seeks a writ directing Respondent to comply with section 3723 of the regulations. (Pet. pp. 9-10, Prayer.) California Code of Regulations, title 15, section 3723 provides:

The parolee shall receive a copy of the discharge review decision, including the reasons for a decision not to discharge the parolee, if applicable. The parolee may file a grievance regarding any mistake of fact contained in the discharge review report pursuant to the administrative remedies procedures provided in section 3480, et seq. If a mistake of fact is substantiated and that mistake results in a change in the recommendation to retain on parole, the corrected discharge review report with the recommendation to discharge shall be corrected and submitted to the Board of Parole Hearings with a request to reconsider the decision to retain. (Cal. Code Regs., tit. 15, § 3723.)

Since Petitioner has not alleged exhaustion of his administrative remedies to implement the order of the Office of Appeals, Petitioner also has not alleged Respondent has currently failed to comply with California Code of Regulations, title 15, section 3723. Until Petitioner has exhausted his administrative remedies and requested implementation of the order of the Office of Appeals, his contention Respondent failed to comply with the regulation is premature.

The second cause of action for declaratory relief is derivative of the first cause of action. Accordingly, the demurrer to the second cause of action is SUSTAINED.

A demurrer may be sustained without leave to amend when there is no reasonable possibility the defect can be cured by amendment. (Blank v. Kirwan, supra, 39 Cal.3d at 318.) Courts generally allow at least one time to amend a complaint after sustaining a demurrer. (McDonald v. Superior Court (1986) 180 Cal.App.3d 297, 303.) In assessing whether leave to amend should be granted, the burden is on the complainant to show the court that a pleading can be amended successfully. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 348-349.)

This is the court’s first ruling on demurrer, which generally weighs in favor of granting leave to amend. Nonetheless, Petitioner has not opposed the demurrer, requested leave to amend, or explained how he could amend to correct the identified defects.

The court will discuss with the parties at the hearing whether leave to amend should be granted.

[1] The court has considered the petition, the demurrer, and Respondent’s meet and confer declaration. The court has not considered Exhibits 1 and 2 attached to the demurrer. The documents have not been authenticated and their admissibility is unclear.