Opinion
NOT TO BE PUBLISHED
Bamattre-Manoukian, Acting P.J.
I. INTRODUCTION
Appellant William Odessa Brown is a state prison inmate. Brown filed this tort action against three prison employees seeking damages due to the prison’s alleged failure to return some of his personal property after he was returned to his cell from administrative segregation. The trial court sustained defendant Evans’ demurrer without leave to amend on the ground that the action was barred because the complaint failed to allege compliance with the claims presentation requirement of the Tort Claims Act (Gov. Code, § 911.2, subd. (a)) and also because Brown had failed to exhaust his administrative remedies.
An “Administrative Segregation Unit is a placement for an inmate who presents an immediate threat to the safety of the inmate or others, endangers institution security or jeopardizes the integrity of an investigation of alleged serious misconduct or criminal activity. (Cal.Code Regs., tit. 15, § 3335.)” (Small v. Superior Court (2000) 79 Cal.App.4th 1000, 1005.)
On appeal, Brown argues that the judgment should be reversed because (1) the trial court denied him the right to oppose the demurrer by ruling without a hearing; (2) he satisfied the claims presentation requirement by timely filing a claim with the Government Claims Board; and (3) he exhausted his administrative remedies because his efforts to comply with the Department of Corrections’ administrative appeal process (Cal. Code Regs., tit. 15, § 3084.1 et seq.) were rejected.
For the reasons stated below, we find no merit in Brown’s contentions and therefore we will affirm the judgment.
II. FACTUAL AND PROCEDURAL BACKGROUND
A. Factual Background
In reviewing the propriety of the order sustaining Brown’s demurrer without leave to amend we accept as true all factual allegations properly pleaded in the complaint. (Construction Protective Services, Inc. v. TIG Specialty Ins. Co. (2002) 29 Cal.4th 189, 193.) Our summary of the facts is therefore drawn from the material allegations in the complaint and the documents subject to judicial notice. (City of Stockton v. Superior Court (2007) 42 Cal.4th 730, 734.)
The record on appeal consists of the appendix to respondent’s brief filed by respondent Evans and the documents attached to Evan’s request for judicial notice as exhibits A through I. This court granted the request for judicial notice on April 1, 2008. Brown did not provide an appellant’s appendix.
On August 2, 2004, Brown and his cellmate were removed from their cell at Salinas Valley State Prison, placed in handcuffs, and taken to a holding cell in the program office due to the accusations of a confidential informant. While Brown and his cellmate were being held, Correctional Officers Marroquinn and Ortiz removed their personal property from their cell and brought it to the program office. Officer Marroquinn and another officer inventoried Brown’s property, but did not give Brown copies of the seven property receipts. Officer Marroquinn signed the property receipts and was the last officer known to handle Brown’s property before it was secured in the hobby shop.
Brown was released from administrative segregation on August 13, 2004, due to the lack of evidence from the confidential informant, and rehoused in his cell. About one week later, a correctional officer issued Brown’s property to him. Brown informed the officer that several boxes of his property were missing. The missing property included, among other things, headphones, typewriter correction tape and replacement ribbons, hand lotion, a wedding ring, tweezers, clothing, a watch, a calculator, a mug, a radio, a fan, stamps, bowls, tumblers, pens, paper, a sewing kit, washcloths, and a toothbrush. When Brown complained about his missing property, which he valued at approximately $800, the officer advised him that all of his property had been returned and that he should file a“602.”
The regulations governing the grievance review process for state prison inmates provide a form requirement: “The appellant shall use a CDC Form 602 (rev. 12-87), Inmate/Parolee Appeal Form, to describe the problem and action requested.” (Cal. Code Regs., tit. 15, § 3084.2, subd. (a).)
B. Procedural Background
1. Administrative Proceedings
According to the allegations in his complaint, Brown unsuccessfully attempted to file an administrative appeal concerning his missing property claim. He sent an administrative appeal three times but the appeals coordinator refused to process any of the appeals. The record reflects that on August 29, 2004, Brown submitted an “Inmate/Parolee Appeal Form,” also known as the 602 form, that included three claims: (1) the missing property; (2) he was wrongly placed in administrative segregation; and (3) he was placed in an unsafe cell that had not been cleaned after the use of pepper spray and tear gas on the previous occupants.
The appeals coordinator responded to Brown’s claims in a written response dated September 28, 2004. The written response stated that Brown had filed three appeals; the first appeal incorrectly included three issues (missing property; placement in administrative segregation; and the condition of the cell); the second appeal regarding funds had been previously completed and had been screened out as a duplicate; and the third appeal had been screened out because it was a duplicate of a previous appeal that was unclear and more than one page. The appeals coordinator’s written response also stated, “Submit only 1 602 per 7 days.”
Brown subsequently sent a letter dated November 21, 2004, to “J. Woodward” at the Department of Corrections in Sacramento. Brown enclosed “numerous issues of Appeals” and stated, “I have submitted my issues several times and the Appeals Coordinator continuously refuses to accept my Appeals and to resolve the matters. I have complied with all of the request[s] from the Appeals Coordinator, and yet my issues are still being REJECTED! [¶] I am asking the Director of Corrections [to] please look into my Appeals and address them accordingly. I have tried every avenue to resolve the matters without proceeding to the Director of Corrections Office Personally. All of my efforts, to NO avail the issues still remain at LARGE and Unsolved [¶] I am requesting that you please send a Representative to address the enclosed issues and resolve them.”
In a letter dated February 9, 2005, the Chief of the Inmate Appeals Branch of the Department of Corrections responded to Brown’s letter of November 21, 2004. Brown’s documents were returned to him because “[t]his office provides the Director’s Level Review of inmate/parolee appeals. The form must be completed through the Second Level of Review on behalf of the Warden . . . . This appeal issue should be submitted directly to the Appeals Coordinator for review and appropriate action. . . . [¶] Your assigned counselor, the Appeals Coordinator, or your Parole Agent can answer any questions you may have regarding the appeals process.”
The record also includes a January 19, 2006 order of the United States District Court regarding Brown’s claim against Salinas Valley State Prison, as set forth in his first amended complaint, for damages due to being placed in administrative segregation without cause, lost property, physical suffering due to exposure to pepper spray, and the “failure of the appeals system.” The federal court ruled, among other things, that Brown’s “false charges, property and administrative appeals process claims” were dismissed with prejudice and without leave to amend. In so ruling, the federal court stated, “[Brown] attempted to file administrative appeals on the matters of his missing property and exposure to the pepper spray but the appeals coordinator repeatedly returned his appeals to him for technical reasons and would not send them to the next level for review. Thus, [Brown] concedes that he has not exhausted his administrative remedies but faults the Defendants for his failure to do so.”
2. Trial Court Proceedings
On January 10, 2007, Brown filed a complaint in propia persona in the superior court. He asserted causes of action for negligence and “intentional tort,” based on his claim of missing property, against defendants M.S. Evans, the warden; D.M. Mantel, the appeals coordinator; and Officers Marroquinn and Ortiz. The record reflects that Evans is the only defendant who has appeared in this matter. Brown alleges that Evans is liable for his failure to process Brown’s administrative appeal and for the destruction or loss of Brown’s personal property. Brown seeks both compensatory and punitive damages.
According to the Attorney General, only defendant Evans has been served and the Attorney General makes no appearance on behalf of the unserved defendants.
The documents attached to the complaint include two letters to Brown from the Victim Compensation and Government Claims Board (Government Claims Board). The letter dated March 14, 2005, states that the Government Claims Board received Brown’s claim on February 24, 2005. The letter also included the staff recommendation that the claim be denied and notified Brown that the Board would act on his claim at the April 21, 2005 hearing. The second letter, dated April 21, 2005, advised Brown that the hearing on his claim had been rescheduled to May 2, 2005. A handwritten note on the letter states, “No written notice August 18 2005[.] [¶] Never received an answer to claim.”
Evans demurred to the complaint on April 23, 2007, on the grounds that the complaint was barred due to (1) failure to demonstrate compliance with the claims presentation requirement of the Government Claims Act (Gov. Code, § 911.2); (2) failure to allege exhaustion of the administrative remedy provided by the prison grievance process (Cal. Code Regs., tit. 15, § 3084.1 et seq.); and (3) the affirmative defense of qualified immunity for a government official performing a discretionary function (Gov. Code, § 820.2). Evans also filed a notice of hearing and nonappearance on April 23, 2007, which stated that the hearing on the demurrer would be held on May 18, 2007, and also stated that defendant would submit the matter without an appearance unless the court ordered otherwise. The demurrer, its supporting documents and the notice of hearing and nonappearance were served by mail on Brown on April 19, 2007.
Following the direction of the California Supreme Court, “we will refer to title 1, division 3.6, parts 1 through 7 of the Government Code (§ 810 et seq.) as the Government Claims Act.” (City of Stockton v. Superior Court, supra, 42 Cal.4th at p. 742.)
Brown did not file opposition to the demurrer. The trial court sustained Evans’ demurrer without leave to amend in its order of May 22, 2007. The order states, “The complaint fails to allege facts demonstrating compliance with the filing requirements of the Tort Claims Act. [Brown] failed to show that he filed his claim with the Government Claims Board within six months of the accrual of the cause of action. (Gov. Code, § 911.2 (a)[.]) Furthermore, [Brown] concedes he did not file his initial grievance with the prison administration pursuant to Cal. Code Regs., tit. 15, § 3084.1(a) because the claim was repeatedly rejected. ‘An inmate who has not completed the review process provided under section 3084.1, subdivision (a) has not exhausted the available remedies.’ [Citation.]”
The record includes a request for entry of default that Brown executed on April 23, 2007, and a proof of service by mail on April 23, 2007.
In a subsequent letter to Brown, dated June 7, 2007, the superior court returned two motions that Brown had attempted to file, which were captioned “Motion for Ex Parte” and “Motion to Strike,” because the motions were moot in light of the May 22, 2007 order granting the demurrer without leave to amend. In the “Motion for Ex Parte,” which Brown mailed on May 17, 2007, he advised the trial court that he had refused to accept mail from defendant that enclosed defendant’s response to the complaint because the mail had been opened by prison staff in violation of the requirement that confidential mail be opened only in the presence of the addressee. The record also includes a “Motion to Strike Order,” dated May 27, 2007, in which Brown asserted that he was entitled to a hearing on the demurrer, that he had not received the demurrer or an answer to the complaint, and therefore the court’s order of May 22, 2007, should be struck. Brown additionally asserted that he had timely filed a claim with the Government Claims Board on February 24, 2005.
Judgment in favor of defendant Evans was entered on January 9, 2008. The judgment also includes the trial court’s order finding Brown to be a vexatious litigant and requiring him to pay security in the amount of $1,113.50 to continue the action.
III. DISCUSSION
A. Standard of Review
Our analysis of Brown’s contentions on appeal begins with the applicable standard of review: “When reviewing a judgment dismissing a complaint after a successful demurrer, we assume the complaint’s properly pleaded or implied factual allegations are true, and we give the complaint a reasonable interpretation, reading it in context. Citation. We also consider judicially noticeable matters. Citation. If we see a reasonable possibility that the plaintiff could cure the defect by amendment, then we conclude that the trial court abused its discretion in denying leave to amend. If we determine otherwise, then we conclude it did not. [Citation.] The plaintiff has the burden of proving that an amendment would cure the defect. [Citation.]” (Campbell v. Regents of University of California (2005) 35 Cal.4th 311, 320.)
B. Entitlement to a Hearing on a Demurrer
As a threshold matter, we address Brown’s contention that he was denied the right to oppose the demurrer because the trial court sustained the demurrer without holding a hearing. Evans argues that Brown was not entitled to a hearing on the demurrer, because Evans complied with the requirement that a party filing a demurrer serve and file a notice of hearing not more than 35 days following the filing on the demurrer (Cal. Rules of Court, rule 3.1320(d)) and Brown’s failure to receive notice of the hearing was due to his improper refusal to accept service of the demurrer papers.
The general rule is that a party is “entitled to oral argument in ‘critical pretrial matters’ where there is a ‘real and genuine dispute.’ [Citations.]” (Medix Ambulance Service, Inc. v. Superior Court (2002) 97 Cal.App.4th 109, 114; In re Marriage of Dunn (2002) 103 Cal.App.4th 345, 348.) Regarding demurrers, California Rules of Court, rule 3.1320(c) provides, “A party filing a demurrer must serve and file therewith a notice of hearing that must specify a hearing date in accordance with the provisions of Code of Civil Procedure section 1005.” Subdivision (f) of rule 3.1320 provides that if neither party appears at the hearing, “the demurrer may be disposed of on its merits or dropped from the calendar, to be restored on notice or on terms as the court may deem proper, or the hearing may be continued to such time as the court orders.”
The general rule regarding the entitlement to oral argument in pretrial matters does not apply to prisoners, because a prisoner does not ordinarily “have the right to appear personally in court on civil matters. [Citations.]” (Hoversten v. Superior Court (1999) 74 Cal.App.4th 636, 642; Payne v. Superior Court (1976) 17 Cal.3d 908, 926-927.) Nevertheless, an indigent prisoner who has initiated “a bona fide civil action” has “a right of meaningful access to the courts to prosecute the action.” (Wantuch v. Davis (1995) 32 Cal.App.4th 786792. “Meaningful access to the courts by an indigent prisoner ‘does not necessarily mandate a particular remedy’ to secure access. [Citations.]” (Ibid.) Therefore, “courts are encouraged to devise alternative means to secure prisoners ‘meaningful’ access to the courts. [Citation.]” (Hoversten v. Superior Court, supra, 74 Cal.App.4th at p. 642.)
Penal Code section 2625 sets forth the circumstances under which a prisoner has a right to appear in court in a proceeding where his or her parental or marital rights are subject to adjudication.
In the present case, the record reflects that on April 19, 2007, Evans filed and served by mail a notice of the May 18, 2007 hearing on the demurrer together with the demurrer, the supporting papers, and a notice of nonappearance at the hearing. The record also reflects, as stated in Brown’s “Motion for Ex Parte,” that he refused to accept mail service of the notice of the hearing on the demurrer, the demurrer and the supporting documents because the mail had been opened by prison staff in violation of the requirement that confidential mail be opened only in the presence of the addressee. Evans asserts that it is well established that a party cannot defeat service by deliberately avoiding it. We agree.
The general rule is that “[a] person may not deny personal service on the grounds of lack of delivery where the delivery was deliberately prevented by the action of the person to be served.” (Hankla v. Governing Bd. (1975) 46 Cal.App.3d 644, 655 (Hankla).) Pursuant to Code of Civil Procedure section 1013, service by mail is effective upon deposit with the post office. (Hankla, supra, 46 Cal.App.3d at p. 655.) Thus, in Hankla, the court ruled that “[w]here a statute provides for service by registered or certified mail, the addressee cannot assert failure of service when he [or she] willfully disregards a notice of certified mail delivered to his address under circumstances where it can be reasonably inferred that the addressee was aware of the nature of the correspondence.” (Ibid.)
In Baca v. State Bar (1990) 52 Cal.3d 294 (Baca), an attorney claimed that he had never received notice of entry of default in disciplinary proceedings before the State Bar. The California Supreme Court determined that the attorney had “continually refused to accept service of the notice” by refusing to pick up the envelope containing the notice after three deliveries by the post office. (Baca, supra, 52 Cal.3d at p. 302.) The court also ruled that the attorney could not “defeat service by refusing to accept his mail, and he cannot now come before this court and argue that his own dereliction caused the notice to be defective.” (Ibid.)
Here, Brown implicitly concedes that he did not receive notice of the May 18, 2007 hearing on the demurrer because he had refused to accept service of the hearing notice and the other demurrer papers that had been opened by prison staff outside his presence. We understand Brown to contend that his refusal to accept service was proper because California prison regulations provide that confidential legal mail must be sealed and opened only in the presence of the addressee. We find no merit in this contention, although we recognize that California prison regulations govern the processing of an inmate’s mail, including confidential mail.
Under these regulations, nonconfidential mail may be opened by prison staff. “All nonconfidential inmate mail is subject to being read in its entirety or in part by designated employees of the facility before it is mailed for or delivered to an inmate.” (Cal. Code Regs., tit. 15, § 3138, subd. (a).) Further, “All incoming packages and mail addressed to an inmate will be opened and inspected before delivery to the inmate. The purpose of the inspection will be to receive or receipt any funds enclosed for deposit in the inmate’s trust account; to verify and record the receipt of permitted personal property; and to prevent the introduction of contraband.” (Cal. Code Regs., tit. 15, § 3138, subd. (b).)
The regulations also provide for different handling of incoming confidential mail. “Incoming letters bearing the name or title and a return address of persons and the office of persons listed in Section 3141 will be processed as confidential correspondence. This includes franked mail from governmental officials listed in Section 3141. A notice or request for confidentiality is not required on the envelope. Such incoming confidential mail will not be read by any staff member before or at the time the letter is delivered to the inmate, except as described in Sections 3138 and 3144(a). Incoming correspondence bearing only a department or agency return address without any reference to the name or title of the officials or persons listed in Section 3141 will be processed by designated employees as nonconfidential correspondence.” (Cal. Code Regs., tit. 15, § 3143.)
Once incoming mail is determined to be confidential, its inspection is governed by section 3144 of title 15 of the California Code of Regulations, which provides in pertinent part, “To determine the possible presence of contraband, all incoming confidential mail will be inspected prior to delivery to an inmate. Confidential mail will be opened and inspected for contraband only and only in the presence of the inmate addressee. Inspecting correctional officials will not read any of the contents of the confidential mail.”
The persons with whom an inmate may correspond confidentially include, among others, “All state and federal elected officials.” (Cal. Code Regs., tit. 15, § 3141, subd. (c)(1).) Thus, a letter addressed to an inmate that bears the name, title and return address of the state Attorney General, an elected official, would be processed as confidential mail. (Cal. Code Regs., tit. 15, § 3143.) However, even assuming in the present case that Evans’ notice of hearing on the demurrer was served by mail in an envelope bearing the name, title and address of the Attorney General, and therefore the notice should have been processed as confidential mail and not opened outside Brown’s presence, Brown’s refusal to accept the previously opened confidential mail does not defeat service of the notice. Similar to the attorney in Baca, Brown may not argue that his refusal to accept a mailed notice of the hearing on the demurrer deprived him of the opportunity to oppose the demurrer. (Baca, supra, 52 Cal.3d at p. 302.)
Having determined for these reasons that Brown was not deprived of the opportunity to oppose the demurrer because the trial court sustained the demurrer without a hearing, we turn to the issue we consider dispositive: whether Brown’s action is barred because he failed to exhaust his administrative remedies.
C. Exhaustion of Administration Remedies
The general rule is that “a litigant will not be afforded judicial relief unless he [or she] has exhausted available administrative remedies.” (In re Dexter (1979) 25 Cal.3d 921, 925; Rojo v. Kliger (1990) 52 Cal.3d 65, 83 [exhaustion of administrative remedies is required before initiating a private civil action].) The exhaustion requirement is jurisdictional. “[A] court cannot hear a case before a litigant exhausts administrative remedies.” (Wright v. State of California (2004) 122 Cal.App.4th 659, 664-665 (Wright).) The exhaustion requirement applies to prisoner grievances, even where the prisoner seeks money damages unavailable in the administrative process. (Wright, supra, 122 Cal.App.4th at p. 668; In re Dexter, supra, 25 Cal.3d at p. 925.) Accordingly, a demurrer is properly sustained without leave to amend where the prisoner concedes in his complaint that he or she has not exhausted the available administrative remedy. (Wright, supra, 122 Cal.App.4th at p. 671.)
The California Department of Corrections (CDC) provides an administrative remedy that allows an inmate to appeal any decision, action, condition, or policy adversely affecting the inmate’s welfare. (Cal. Code Regs., tit. 15, § 3084.1; Pen. Code, § 5058.) The United States Supreme Court described the CDC’s administrative remedy in Woodford v. Ngo (2006) 548 U.S. 81 (Woodford): “California has a grievance system for prisoners who seek to challenge their conditions of confinement. To initiate the process, an inmate must fill out a simple form, Dept. of Corrections, Inmate/Parolee Appeal Form, CDC 602 (12/87) (hereinafter Form 602), that is made ‘readily available to all inmates.’ Cal.Code Regs., tit. 15, § 3084.1(c) (2004). The inmate must fill out two parts of the form: part A, which is labeled ‘Describe Problem,’ and part B, which is labeled ‘Action Requested.’ Then, as explained on Form 602 itself, the prisoner ‘must first informally seek relief through discussion with the appropriate staff member.’ [Citation.] The staff member fills in part C of Form 602 under the heading ‘Staff Response’ and then returns the form to the inmate.” (Woodford, supra, 548 U.S. at p. 85.)
“If the prisoner is dissatisfied with the result of the informal review, or if informal review is waived by the State, the inmate may pursue a three-step review process. See [Cal.Code Regs., tit. 15,] §§ 3084.5(b)-(d). Although California labels this ‘formal’ review (apparently to distinguish this process from the prior step), the three-step process is relatively simple. At the first level, the prisoner must fill in part D of Form 602, which states: ‘If you are dissatisfied, explain below.’ [Citation.] The inmate then must submit the form, together with a few other documents, to the Appeals Coordinator within 15 working days--three weeks--of the action taken. [Cal. Code Regs., tit. 15,] § 3084.6(c). This level may be bypassed by the Appeals Coordinator in certain circumstances. [Cal. Code Regs., tit. 15,] § 3084.5(b). Within 15 working days after an inmate submits an appeal, the reviewer must inform the inmate of the outcome by completing part E of Form 602 and returning the form to the inmate.” (Woodford, supra, 548 U.S. at p. 86.)
“If the prisoner receives an adverse determination at this first level, or if this level is bypassed, the inmate may proceed to the second level of review conducted by the warden [or designee]. [Cal. Code Regs., tit. 15,] §§ 3084.5(c), (e)(1). The inmate does this by filling in part F of Form 602 and submitting the form within 15 working days of the prior decision. Within 10 working days thereafter, the reviewer provides a decision on a letter that is attached to the form. If the prisoner’s claim is again denied or the prisoner otherwise is dissatisfied with the result, the prisoner must explain the basis for his or her dissatisfaction on part H of the form and mail the form to the Director of the California Department of Corrections and Rehabilitation within 15 working days. [Cal. Code Regs., tit. 15,] § 3084.5(e)(2). An inmate’s appeal may be rejected where ‘[t]ime limits for submitting the appeal are exceeded and the appellant had the opportunity to file within the prescribed time constraints.’ [Cal. Code Regs., tit. 15,] § 3084.3(c)(6).” (Woodford, supra, 548 U.S. at p. 86.)
The United States Supreme Court further established in Woodford that a prisoner must properly exhaust the administrative remedy by compliance with the remedy’s procedural requirements. (Woodford, supra, 548 U.S. at p. 90.) “[P]roper exhaustion of administrative remedies . . . ‘means using all the steps that the agency holds out, and doing so properly (so that the agency addresses the issues on the merits.’ [Citations.]” (Ibid.) In other words, “[p]roper exhaustion demands compliance with an agency’s deadlines and other critical procedural rules because no adjudicative system can function effectively without imposing some orderly structure on the course of its proceedings.” (Id. at pp. 90-91.)
In the present case, Evans argues that Brown’s action is barred because the complaint and the documents attached thereto fail to demonstrate that Brown has properly exhausted his administrative remedy, as set forth above. We observe that the complaint includes the following allegations regarding exhaustion of administrative remedies: “[Brown] tried, tried and tried again to file an Administrative Appeal on the issue of his missing property. For some odd reason the Appeals Coordinator D.M. MANTEL, refused to accep[t] Mr. Brown[’]s complaint and process it as policy set forth by the [California Code of Regulations.] The Appeals Coordinator acknowledge[d] the fact that the appeal was sent three time[s] but failed to honor/policy law for DUE PROCESS, therefore denying the Plaintiff the right to have his appeal addressed by the proper officials and exhaust his appeal remedies. [Citation.]”
Evans contends that these allegations fail to show that Brown has exhausted his administrative remedy because Brown concedes that he has not completed the review process provided by the California Code of Regulations, title 15, section 3084.1 et seq. This contention has merit. “An inmate who has not completed the review process . . . has not exhausted the available administrative remedies.” (Wright, supra, 122 Cal.App.4th at p. 667.)
We acknowledge Brown’s claim that the prison authorities have prevented him from exhausting his administrative remedy by rejecting his numerous appeals and for that reason he has been forced to seek judicial relief. However, the documents attached to the complaint indicate that Brown’s appeals were returned to him by the prison’s appeals coordinator due to his failure to comply with the procedures for submitting an appeal. According to the appeals coordinator’s written response, Brown had filed three appeals, but they were rejected because the first appeal incorrectly included three issues (missing property; placement in administrative segregation; and the condition of the cell); the second appeal regarding funds had been previously completed and had been screened out as a duplicate; and the third appeal had been screened out because it was a duplicate of a previous appeal that was unclear and more than one page. The appeals coordinator also advised Brown to submit only one 602 form in a seven-day period.
Therefore, under Woodford, Brown’s complaint fails to allege exhaustion of administrative remedies because he has not alleged proper compliance with the CDC’s procedures for the appeal of prisoner grievances, as set forth in the California Code of Regulations, title 15, section 3084.1 et seq. Accordingly, we determine that the action is barred because Brown effectively concedes in his complaint that he has not exhausted the available administrative remedy. (Wright, supra, 122 Cal.App.4th at p. 671.)
D. Denial of Leave to Amend
Finally, we address the question of whether the trial court properly sustained Evans’ demurrer without leave to amend. As the California Supreme Court instructed in Zelig v. County of Los Angeles (2002) 27 Cal.4th 1112, 1126, when a demurrer is sustained without leave to amend, “we decide whether there is a reasonable possibility that the defect can be cured by amendment: if it can be, the trial court 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.” To meet this burden, the plaintiff must show “ ‘in what manner he [or she] can amend the complaint abnd how that amendment will change the legal effect of his [or her] pleading.’ ” (Goodman v. Kennedy (1976) 18 Cal.3d 335, 349; Campbell v. Regents of University of California, supra, 35 Cal.4th at p. 320.) The showing “need not be made in the trial court so long as it is made to the reviewing court.” (Careau & Co. v. Security Pacific Business Credit, Inc. (1990) 222 Cal.App.3d 1371, 1386.)
Here, Brown has made no attempt to show that his failure to allege exhaustion of administrative remedies may be cured by amendment of the complaint. We therefore conclude that the trial court did not err in sustaining Evans’ demurrer without leave to amend on the ground of failure to exhaust administrative remedies, and for that reason we will affirm the judgment. Having reached this conclusion, we need not address the issue of whether the trial court properly sustained the demurrer on the alternative ground that Brown failed to comply with the claims presentation requirement of the Government Claims Act. (Gov. Code, § 911.2, subd. (a).)
IV. DISPOSITION
The judgment is affirmed.
WE CONCUR: MIHARA, J., duffy, J.