Judge Mitchell L. Beckloff, Case Number: 23STCP02378, Date: 2023-12-13 Tentative Ruling

Judge: Mitchell L. Beckloff, Case: 23STCP02378, Date: 2023-12-13 Tentative Ruling

Respondent, Jeff Macomber, Secretary of the California Department of Corrections and Rehabilitation (CDCR), demurs to the petition for writ of mandate filed by Petitioners, Alliance for Constitutional Sex Offense Laws, Inc., Christopher Sandahl, Joshua Morales, Alexander Flores, John Doe # 1, and John Doe # 2 (collectively, Petitioners).

Petitioners’ unopposed Request for Judicial Notice (RJN) of Exhibits A and B is granted.

The five individual Petitioners are parolees subject to the jurisdiction of the CDCR. Petitioner, Alliance for Constitutional Sex Offense Laws, Inc., is a non-profit organization. (Pet. ¶¶ 9-17.)

Petitioners contend “CDCR’s regulations, policies, and practices are inconsistent with and in conflict with the statutory requirements of the ‘Containment Model’ of parole supervision codified in Penal Code section 3008, subds. (d)(1)-(d)(4), and related statutes.” (Pet. ¶ 1.)

The petition alleges Penal Code section 3008, subdivision (d) and related statutes codify the Containment Model. (Pet. ¶¶ 20-24.) The petition explains Penal Code “Section 3008(d) requires each Registrant on parole to ‘successfully complete a sex offender management program . . . as a condition of parole.’ (Cal. Penal Code § 3008, subd. (d)(2), emphasis added.)” (Pet. ¶ 2.) “[T]he Legislature declared that ‘the length of the period in the program shall be not less than one year, up to the entire period of parole, as determined by the certified sex offender management professional in consultation with the parole officer and as approved by the court.’ (Cal. Penal Code § 3008, subd. (d)(2), emphasis added.) In other words, Section 3008(d) requires CDCR to provide Registrants the opportunity to ‘complete,’ and thereby terminate their participation in, the management program as early as one year after placement on parole.” (Pet. ¶ 3.)[1]

As relevant to this demurer, the petition alleges, in conflict with Penal Code section 3008, subdivision (d), CDCR regulations, policy, and practice do not allow registrants to complete and discontinue the management program prior to discharge from parole. (Pet. ¶¶ 31-55, 57-60.) Among others, relevant allegations in support of this claim include the following:

The only CDCR regulation that expressly implements Section 3008 and the management program it requires as a condition of parole is Title 15, Section 3573, of the Code of Regulations. . . . Notably, no provision of Section 3573 or any other regulation allows for the ‘completion’ of the management program. Nor does Section 3573 or any other regulation allow for termination of a Registrant’s participation in the management program prior to discharge from parole, as Section 3008(d) contemplates. (Pet. ¶ 32.)

Notably, the Operations Manual for CDCR’s Division of Adult Parole Operations confirms that Registrants are retained in the management program for the duration of their parole term, regardless of whether continued participation is necessary. . . . (Pet. ¶ 33.)

[U]pon information and belief, as a matter of policy and practice, CDCR does not permit any Registrant to ‘complete’ the management program prior to discharge from parole, as Section 3008(d) contemplates. Nor does CDCR otherwise allow a Registrant’s participation in the management program to be terminated, as Section 3008(d) contemplates. Rather, CDCR and CDCR, as a matter of policy, retain all Registrants in a management program until their discharge date, regardless of whether they have completed the treatment curriculum, and regardless of the Registrant’s individual treatment needs, supervision level, or risk of re-offense. (Pet. ¶ 34.)

CDCR recently confirmed its policy in the habeas corpus proceeding captioned In re Frederick Dwyer (See Exh. A, Order dated March 20, 2023 in San Mateo Co. Super. Ct. Case No. SC-080355A, HC-3020). (Pet. ¶ 35 and Exh. A.)

The Registrant challenged the requirement to repeat the treatment curriculum in a petition for writ of habeas corpus, invoking the Court’s discretionary authority to terminate a sex offender management program after one year pursuant to Section 3008. The Court held an evidentiary hearing at which it found that the sole basis for retaining the Registrant in the management program was CDCR’s policy of requiring all Registrants to participate in the program for the duration of parole, regardless of their individual treatment needs. (Exh. A, at p. 10.) CDCR agents including the Registrant’s individual parole agent, as well the parole administrator for the East Bay District (Alameda and Contra Costa County), confirmed that policy in response to the Court’s inquiry:

[THE COURT:] Have you ever during the time that you have been in the positions that you have described were responsible to 290 registrants seen a participant in a sex offender management program complete such a program prior to[] termination or discharge from parole?

THE COURT: Is it essentially the policy of the Department of Corrections that completion of the program is not possible before the discharge from parole program . . . ?

(Transcript of Hearing on February 9, 2023 in In re Dwyer, (San Mateo Co. Super. Ct. Case No. SC080355A, HC-3020). See also Order, Exh. A, at pp. 6-7 [“[A former East Bay region supervisor from CDCR] testified that it is the policy of the California Department of Corrections and Rehabilitation and the Division of Adult Parole Operations that a sex offender management program as defined in Penal Code § 3008 cannot be completed short of discharge 3 from parole.”].) (Pet. ¶ 39.)

Based on these and other allegations, Petitioners seek a writ of mandate directing Respondent “to amend and revise its regulations implementing Penal Code section 3008(d), including its Regulations at Code of Regulations, Title 15, section 3573, to permit Penal Code section 290 Registrants supervised by CDCR on parole to complete and be terminated from the sex offender management program required by Penal Code section 3008(d) after one year in the program, and prior to discharge from parole.” (Pet. ¶¶ 56-61 and Prayer ¶ A.)

In the second cause of action for declaratory relief, Petitioners pray for “a judgment declaring that Penal Code section 3008(d) prohibits CDCR from retaining, as a matter of policy or practice, all Registrants in a sex offender management program for the entire term of parole.” (Pet. ¶¶ 63-68 and Prayer ¶ B.)

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.) 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.)

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:

(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.)

“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.)

“ ‘While, of course, it is the general rule that mandamus will not lie to control the discretion of a court or officer, meaning by that that it will not lie to force the exercise of discretion in a particular manner . . . [it] will lie to correct abuses of discretion, and will lie to force a particular action by the inferior tribunal or officer, when the law clearly establishes the petitioner's right to such action.’ ” (Flores v. Dept. of Corrections & Rehabilitation (2014) 224 Cal.App.4th 199, 208.)

Respondent argue Petitioners have not stated a cause of action for mandate because:

(1) Petitioners failed to exhaust their administrative remedies in CDCR’s “robust administrative grievance and appeal process (Memo 11:6-7); (2) the petition provides “no factual support” (Memo 12:18); (3) Petitioners “fail to establish a ministerial duty or valid rule making challenge” related to CDCR’s regulations (Memo 16:12); and (4) Petitioners have an adequate legal remedy in a petition for writ of habeas corpus. (Memo 16:16.)

Petitioners assert the demurrer misapprehends the nature of the petition and fails to address all pertinent allegations. The court agrees. Respondent’s demurrer does not persuasively address Petitioner’s specific legal claim or all pertinent allegations, including those based on evidence from In re Frederick Dwyer. For that reason, and the additional reasons outlined below, the demurrer is overruled.[2]

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.) There are exceptions to the exhaustion requirement, including “when the subject of the controversy lies outside the administrative agency's jurisdiction, when pursuit of an administrative remedy would result in irreparable harm, when the administrative agency cannot grant an adequate remedy, and when the aggrieved party can positively state what the administrative agency's decision in his particular case would be.” (Edgren v. Regents of University of California, supra, 158 Cal.App.3d at 520.)

Respondent contends CDCR’s governing regulations establish a “robust administrative grievance and appeal process for inmates and parolees . . . to challenge imposed parole conditions or seek modifications of the conditions imposed before seeking judicial relief.” (Memo 11:6-10 [citing Cal. Code Regs., tit. 15, § 3481, subd. (a).)[3] CDCR’s exhaustion argument might be persuasive if Petitioners were seeking writs to terminate their own participation in a treatment program or other relief specific to their individual parole conditions. However, Petitioners do not seek such relief. Instead, Petitioners challenge the legality of CDCR’s regulatory implementation of Penal Code section 3008 and the sex offender management and treatment program (SOMP) across the state. Petitioners “seek a writ of mandate directing CDCR to amend its regulations to authorize completion of and termination from the sex offender management program prior to discharge from parole.” (See Pet. ¶ 6; see also ¶¶ 34-41, 56-61, and Prayer.)

The petition asserts certain CDCR promulgated regulations, in addition to its policies and practices for implementing such regulations, conflict with a controlling statute. Parties are “not required to exhaust administrative remedies” when they “attempt to enforce [an agency’s] compliance with . . . controlling statutes,” or when the challenged agency action “is based upon a regulation it promulgated.” (United Teachers-L.A. v. Los Angeles Unified School Dist. (1994) 24 Cal. App. 4th 1510, 1519 n.4; Sabatasso v. Superior Court (2008) 167 Cal. App. 4th 791, 795.) While the regulation (Cal. Code Regs., tit. 15, § 3481, subd. (a)) does authorize the claimant to submit a grievance disputing a “policy” of CDCR, Respondent fails to develop an argument the regulation provides an administrative remedy for a challenge to CDCR’s promulgated regulations and state-wide implementation of such regulations. Nor does Respondent cite any statutory authority or case law supporting its position.

Petitioners have sufficiently pleaded an excuse from the exhaustion requirement, including lack of adequate administrative remedy.

Petitioners Have Alleged Sufficient Facts to State a Cause of Action for Ordinary Mandate, including a Ministerial Duty

Respondent contends “[t]here is no factual support for the petitioners’ claim that all sex offenders must participate in all aspects of the SOMP [supervision, treatment, and polygraph] for the duration of their statutory parole term.” (Memo 12:18-20.) Citing allegations pertaining to the individual Petitioners, Respondent contends “the petitioners’ cherry-picked facts do not support their claim that sex offenders are always held to their statutory maximum parole period and required to participate in SOMP for that duration . . . .” (Memo 13:12-14.)

To be sure, Petitioners are not required to provide “factual support” at the pleading stage. “A pleading ‘is sufficient if it alleges ultimate rather than evidentiary facts.’ ” (Foster v. Sexton (2021) 61 Cal.App.5th 998, 1027.)

Petitioners have alleged the following ultimate facts, among others, in support of their traditional writ cause of action:

[A]s a matter of policy and practice, CDCR does not permit any Registrant to ‘complete’ the management program prior to discharge from parole, as Section 3008(d) contemplates. Nor does CDCR otherwise allow a Registrant’s participation in the management program to be terminated, as Section 3008(d) contemplates. Rather, CDCR and CDCR, as a matter of policy, retain all Registrants in a management program until their discharge date, regardless of whether they have completed the treatment curriculum, and regardless of the Registrant’s individual treatment needs, supervision level, or risk of re-offense. (Pet. ¶ 34.)

Although not required at the pleading stage, Petitioners have also pleaded certain evidentiary facts. For example, Petitioners allege in the In re Frederick Dwyer Dwyer habeas corpus proceeding, the trial court heard testimony from a CDCR regional supervisor reporting it is “essentially the policy of the Department of Corrections that completion of the program is not possible before the discharge from parole program.” (Pet. ¶ 39.)[4] The petition also provides information about how all five individual Petitioners have been “retained in the management program indefinitely rather than evaluated for termination from the program, as Section 3008(d) contemplates.” (Pet. ¶¶ 43-55.) These ultimate facts and factual allegations are sufficient to state a claim.

Relatedly, Respondent contends Petitioners have not alleged a ministerial duty owed by Respondent and enforceable by mandate. (Memo 14:8-16:12.) Although the argument is not well developed and is unclear, Respondent appears to contend section 3573 of title 15 of the California Code of Regulations (Section 3573) “does not amend, impair, or limit the scope of section 3008(d)(2) as nothing in Penal Code section 3008(d)(2) prohibits nor mandates that the Secretary exercise his discretion in any particular manner.” (Memo 15:26-28.) Respondent notes the “regulation does not exempt any sex offender parolees from requesting or being granted early discharge from their statutory parole period.” (Memo 15:28-16:2.) That a sex offender parolee may request early discharge does not appear to inform on the validity of the regulation.

The petition is partly based on an alleged conflict between Section 3573 and Penal Code section 3008, subdivision (d) (see Pet. ¶ 32), but the petition also alleges “CDCR, as a matter of policy, retain[s] all Registrants in a management program until their discharge date, regardless of whether they have completed the treatment curriculum, and regardless of the Registrant’s individual treatment needs, supervision level, or risk of re-offense.” (Pet. ¶ 34 [emphasis added].) Further, as to Section 3573, the petition alleges “no provision of Section 3573 or any other regulation allows for the ‘completion’ of the management program. Nor does Section 3573 or any other regulation allow for termination of a Registrant’s participation in the management program prior to discharge from parole, as Section 3008(d) contemplates.” (Pet.

Respondent does not demonstrate Petitioner’s allegations concerning Section 3573 are incorrect. Even if Section 3573 does not expressly prevent parolees from “requesting or being granted early discharge from their statutory parole period,” as argued by Respondent, the petition sufficiently alleges the regulation is interpreted and implemented by CDCR in a manner that conflicts with Penal Code section 3008, subdivision (d).

“[M]andamus may issue to compel an official both to exercise his or her discretion (if he or she is required by law to do so) and to exercise it under a proper interpretation of the applicable law.” (California Assn. for Health Servs. at Home v. State Dept. of Health Care Servs. (2012) 204 Cal.App.4th 676, 683; see also Gov. Code, § 11342.2. [“Whenever by the express or implied terms of any statute a state agency has authority to adopt regulations to implement, interpret, make specific or otherwise carry out the provisions of the statute, no regulation adopted is valid or effective unless consistent and not in conflict with the statute and reasonably necessary to effectuate the purpose of the statute.”])

Because Petitioners have alleged CDCR’s regulations, policies, and practices conflict with the controlling statutes, including Penal Code section 3008, subdivision (d), Petitioners have alleged a cause of action for traditional mandate.

Petitioners Sufficiently Allege They Lack a Plain, Speedy, and Adequate Remedy in the Ordinary Course of Law

Respondent contends Petitioners have an adequate legal remedy through a petition for writ of habeas corpus “to challenge their parole condition that requires them to participate in the SOMP.” (Memo 17:6-7.)

The argument is unpersuasive for at least three reasons. First, it misapprehends the nature of Petitioners’ writ claim as a challenge to individual parole conditions, rather than a challenge to Respondent’s state-wide regulations, policies, and practices. Second, it ignores applicable case law, which held, in similar circumstances, that “[a] writ of habeas corpus . . . is not available ‘in the ordinary course of law’” because it is “an extraordinary remedy.” (Villery v. Department of Corrections & Rehabilitation (2016) 246 Cal. App. 4th 407, 415-16.) Finally, Respondent does not demonstrate, for purposes of a demurrer, that numerous habeas corpus petitions challenging CDCR’s regulations, policies, and practice would be more “speedy” or “adequate” than a single writ petition raising the same claim.

Respondent does not addressed Villery v. Department of Corrections & Rehabilitation or Petitioners’ other contentions regarding the inadequacy of habeas corpus petitions for the claim made in the petition. (Sehulster Tunnels/Pre-Con v. Traylor Brothers, Inc., supra, 111 Cal.App.4th at 1345, fn. 16 [failure to address point is “equivalent to a concession”].)

Petitioners have sufficiently alleged they lack a plain, speedy, and adequate remedy in the ordinary course of law.

Respondent contends “use of the fictitious names John Doe # 1 and John Doe # 2 render the petition uncertain and ambiguous providing additional grounds for the Court to sustain the demurrer.” (Memo 13:16-17.)

Demurrers for uncertainty are strictly construed. Discovery can be used for clarification. A demurrer for uncertainty is appropriate only where a defendant cannot reasonably determine what issues or claims are stated. (Khoury v. Maly’s of Cal., Inc. (1993) 14 Cal.App.4th 612, 616.) “[U]nder our liberal pleading rules, where the complaint contains substantive factual allegations sufficiently apprising defendant of the issues it is being asked to meet, a demurrer for uncertainty should be overruled or plaintiff given leave to amend.” (Williams v. Beechnut Nutrition Corp. (1986) 185 Cal.App.3d 135, 139, fn. 2.)

Here, even with the use of fictitious names for Petitioner Does 1 and 2, Respondent can reasonably determine the nature of Petitioners’ claims. Notably, Petitioners’ claims are also based on allegations concerning the In re Frederick Dwyer litigation and the other, named individual Petitioners. Further, as discussed earlier, the petition does not seek writ relief as to any individual’s parole conditions. Instead, Petitioners challenge Respondent’s statewide regulations, policies, and practices. In these circumstances, the use of fictitious names for two of the Petitioners does not render the pleading uncertain as asserted by Respondent.

Respondent has not demonstrated his demurrer for uncertainty should be sustained.

In reply, Respondent admittedly challenges the petition based on entirely new arguments not discussed in his demurrer. Specifically, Respondent contends: (1) Petitioners have not alleged sufficient facts to support a facial challenge to Section 3573 (Reply 3:5-6); (2) the petition allegations are insufficient because they are made on “information and belief” and “Petitioners do not rely on their own circumstances or experience in relation to th[e] alleged [unlawful] policy and practice” (Reply 6:9-11); (3) testimony from the In re Frederick Dwyer litigation is insufficient to state a cause of action for mandate (Reply 7:12-14); and (4) Petitioners have not alleged standing to make “as applied” challenges to CDCR’s regulations, policies, and practices based on a “hypothetically similar petitioner.” (Reply 7:14, fn. 3.)

“The salutary rule is that points raised in a reply brief for the first time will not be considered unless good cause is shown for the failure to present them before.” (Balboa Ins. Co. v. Aguirre (1983) 149 Cal.App.3d 1002, 1010; see also Regency Outdoor Advertising v. Carolina Lances, Inc. (1995) 31 Cal.App.4th 1323, 1333.)

Respondent does not show good cause to raise new arguments in reply. The reply arguments are legal in nature and could have been raised in the demurrer. Respondent’s counsel’s meet and confer declaration states that on August 11, 2023 counsel for Respondent and Petitioner discussed “the Secretary’s position that claims raised in the petition failed as a matter of law.” (Heinisch Decl. ¶ 4.) Nonetheless, there is no explanation for failing to raise the Respondent’s reply arguments in the demurrer. Petitioners have not had a full and fair opportunity to respond in writing to the arguments initially raised in Respondent’s reply. Under the circumstances, the court declines to consider the new reply arguments summarized above.[5]

Respondent argues “Petitioners’ claim for declaratory relief is wholly and entirely dependent on their claim for mandamus relief” and should be sustained. (Memo 17:10-11.) However, as argued by Petitioners, the second cause of action is based on Government Code section 11350, subdivision (a), in the Administrative Procedures Act and, therefore, is not derivative of the writ cause of action.[6] Respondent does not address the argument in reply and thereby concedes it for purposes of this demurrer. (Sehulster Tunnels/Pre-Con, supra, 111 Cal.App.4th at 1345, fn. 16.)

[1] Specifically, Penal Code section 3008, subdivision (d)(2) provides: “(d) On or after July 1, 2012, the parole conditions of a person released on parole for an offense that requires registration pursuant to Sections 290 to 290.023, inclusive, shall include all of the following: . . . (2) Persons placed on parole on or after July 1, 2012, shall successfully complete a sex offender management program, following the standards developed pursuant to Section 9003, as a condition of parole. The length of the period in the program shall be not less than one year, up to the entire period of parole, as determined by the certified sex offender management professional in consultation with the parole officer and as approved by the court. Participation in this program applies to every person described without regard to when his or her crime or crimes were committed.”

[2] In reply, Respondent does not specifically defend the arguments he made in his demurrer. Instead, Respondent makes entirely new arguments which is procedurally improper. In a footnote, Respondent states he “does not abandon any arguments raised in the demurrer. Respondent relies on the arguments as presented in the demurrer in addition to those presented in this reply.” (Reply 3, fn. 1.) While Respondent may not have “abandoned” any legal arguments for purposes of this proceeding, he has not responded to many, if not all, of Petitioners’ opposition arguments concerning the sufficiency of the pleading. (See Sehulster Tunnels/Pre-Con v. Traylor Brothers, Inc. (2003) 111 Cal.App.4th 1328, 1345, fn. 16 [failure to address point is “equivalent to a concession”].)

[3] The regulation states in part: “A claimant has the ability to submit a written grievance to the department containing one or more claims, subject to the requirements in section 3482, to dispute a policy, decision, action, condition, or omission by the department or departmental staff. . . .” (Cal. Code Regs., tit. 15, § 3482, subd. (a).)

[4] Respondent wholly ignores the In re Frederick Dwyer allegations in the demurrer. In reply, Respondent argues the In re Frederick Dwyer allegations could only be relevant to a claim of collateral estoppel. (Reply 6:27-7:3.) The court disagrees. Whether the In re Frederick Dwyer decision has any collateral estoppel effect, testimony from that action may constitute judicial admissions or otherwise lead to evidence in support of Petitioner’s claim. As a result, the ultimate ruling of the San Mateo County Superior Court in In re Frederick Dwyer is not determinative here. (See Reply 7:4-14.)

[5] Alternatively, even if the court considers the new reply arguments, the court reaches the same result and overrules the demurrer for the reasons discussed above and in Petitioners’ opposition. Given the liberal pleading standard and the allegations that Respondent’s regulations, policies, and practices are unlawful, including based on testimony from a CDCR regional supervisor in the In re Frederick Dwyer litigation, the reply arguments do not persuade the court that the demurrer should be sustained. Of course, Respondent is not precluded from further developing its arguments for the trial on the writ petition.

[6] Government Code section 11350, subdivision (a) states in pertinent part: “Any interested person may obtain a judicial declaration as to the validity of any regulation or order of repeal by bringing an action for declaratory relief in the superior court in accordance with the Code of Civil Procedure. . . . The regulation or order of repeal may be declared to be invalid for a substantial failure to comply with this chapter. . . .”