Opinion
NOT TO BE PUBLISHED
Del Norte County Super. Ct. No. CVPT09-1284
Dondero, J.
Plaintiff Henry Grandberry is presently incarcerated at Pelican Bay State Prison (PBSP). He appeals the trial court’s denial of his petition for writ of mandate and declaratory relief by which he sought to compel prison officials to return a radio that he had possessed prior to his transfer from another prison. We affirm.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
On July 15, 2008, plaintiff was transferred from Pleasant Valley State Prison to PBSP. At the time of his transfer, his personal property included an AM/FM radio, which he had possessed for nine years. Officials at PBSP initially refused to allow him to have the radio because it is a non-clear (opaque) appliance.
On August 29, 2008, plaintiff filed an inmate appeal form seeking the return of his radio. The appeal was denied. A response from the first-level reviewer at PBSP, dated September 23, 2008, states that the prison had submitted an exemption request in accordance with section 54030.17 of the Department Operations Manual (DOM) to require the removal of speakers from televisions and radios. Section 54030.17 states, in part: “In the case of a safety/security related request, the requesting institution may immediately implement the requested exemption pending approval/disapproval by the Deputy Director, Division of Adult Institutions (DAI).” The response further explains that plaintiff’s radio has a metal screen covering the speaker, and that the screen and speaker are considered security risks. Also, the radio could not be returned to plaintiff as removal of the speaker and screen “leaves a large hole in the front, creating a health and safety hazard” due to the danger of hazardous shock if the radio is plugged in.
On August 11, 2009, plaintiff filed a petition for writ of mandate and declaratory relief. While the petition is not contained in the record on appeal, the trial court’s order indicates that plaintiff asserted the rules pertaining to his radio were unenforceable because they were enacted in violation of the Administrative Procedures Act (APA).
On February 2, 2010, the trial court filed its order denying plaintiff’s petition. This appeal followed.
DISCUSSION
I. Appealable Orders and Standard of Review
Where a trial court’s denial of a petition for a writ of mandate effectively disposes of all issues raised in the action or pleading, by completely resolving all essential allegations, then it amounts to a final judgment that is appealable. (Griset v. Fair Political Practices Commission (2001) 25 Cal.4th 688, 698.) In a petition for ordinary mandamus under Code of Civil Procedure section 1085, the courts will examine whether the petition has made its prima facie case of entitlement to the relief requested, by adequately alleging the duties and the rights asserted. (9 Witkin, Cal. Procedure (5th ed. 2008) Administrative Proceedings, § 140, p. 1274.) Administrative rulemaking is subject to review in mandamus, and relief will be issued if the agency or official has a clear, present ministerial duty regarding the rule, and the petitioner has a clear, present and beneficial right to performance of the duty. (Ibid.) Where an agency has clearly abused its discretion, relief in mandamus is available. (Ibid.)
Likewise, a party may seek declaratory relief if a proper subject for such relief is pled, and there is an actual controversy about the rights and obligations of the party. (Code Civ. Proc., § 1060.) The validity of an administrative regulation is a proper subject of declaratory relief. (5 Witkin, Cal. Procedure, supra, Pleading, § 859, pp. 274–275; Chas. L. Harney, Inc. v. Contractors’ Bd. (1952) 39 Cal.2d 561, 564.)
II. Principles of Appellate Procedure
We note at the outset that “A judgment or order of a lower court is presumed to be correct on appeal, and all intendments and presumptions are indulged in favor of its correctness.” (In re Marriage of Arceneaux (1990) 51 Cal.3d 1130, 1133.) Because error is never presumed, it is every appellant’s duty to demonstrate error in the record the appellant produces before the reviewing court. (9 Witkin, Cal. Procedure, supra, Appeal, § 628, p. 704.) The responsibility for providing an adequate record on appeal thus lies with the appealing party.
Further, “it is fundamental that a reviewing court will ordinarily not consider claims made for the first time on appeal which could have been but were not presented to the trial court.” (Asbestos Claims Facility v. Berry & Berry (1990) 219 Cal.App.3d 9, 26.) Thus, “we ignore arguments, authority, and facts not presented and litigated in the trial court. Generally, issues raised for the first time on appeal which were not litigated in the trial court are waived.” (Bialo v. Western Mutual Ins. Co. (2002) 95 Cal.App.4th 68, 73.)
The present appeal is problematic because plaintiff chose not to include his original petition in the record. Accordingly, in determining which arguments he made to the trial court, we are limited to the description of his petition as stated in that court’s order. The order states: “[Plaintiff] filed this Petition for Writ of Mandate and Declaratory Relief complaining that the warden [at PBSP] failed to comply with the [APA] in adopting a rule regarding allowable property by inmates at the prison. [Plaintiff] alleges that the APA ‘provides that every proposed adoption or change in rules and regulations of the California Department of Corrections and Rehabilitation (C.D.C.R.) must provide for public input prior to its enactment.’ [Plaintiff] claims that an AM/FM radio that he was allowed to possess in another institution was retained or was confiscated upon his transfer to [PBSP] pursuant to what he claims are underground regulations propounded by the warden at [PBSP]. [Plaintiff] states that rules enacted by the warden require that such appliances have a clear plastic case, apparently to discourage secreting contraband.” (Italics added.) The trial court denied the petition, concluding: “The APA does not apply to rules applicable to individual prisons such as enacted in this case. The APA applies to rules of general application throughout the prison system. See Cal. Penal Code [section] 5058[, subdivision] (c)(1), Gov. Code [section] 11342.600. See In re Garcia (1998) 67 Cal.App.4th 841. This is known as the ‘local rule exemption’ to the APA.’ ”
From the trial court’s order, it appears plaintiff challenged a rule forbidding prisoners from possessing non-clear appliances on the ground that the rule was promulgated in contravention of the APA. On appeal, however, he asserts the rule requiring the removal of screens and speakers from televisions and radios does not fall within the local rules exemption to the APA. There is no indication in the trial court’s order that he raised this argument below. Of course, without the original petition, we cannot conclusively determine what rule or rules plaintiff challenged in the trial court. Again, it is plaintiff’s responsibility to provide an adequate record on appeal. Accordingly, the challenge to the screen/speaker removal regulation is deemed waived.
III. Whether the Rule Prohibiting Non-clear Appliances is Valid
As noted, plaintiff does not raise a direct challenge to the trial court’s conclusion that the rule requiring clear appliances is valid under the local rule exemption to the APA.
“The APA prohibits a state agency from issuing or enforcing a regulation unless it was adopted in accordance with the APA. [Citation.] A regulation is any rule of ‘general application’ or any modification to such a rule that has been adopted by an agency to implement, interpret or make specific the law enforced or administered by the agency or to govern the agency’s procedure. [Citation.] Department rules and regulations administering prisons are subject to APA requirements. [Citation.]
“The APA does not define ‘general application.’ Courts considering the term in the context of prison administration have found a rule is of ‘general application’ and the APA applicable where the rule has significantly affected a broad range of prisoners. [Citations.] In 1995, the Legislature amended Penal Code section 5058 to make it clear local rules which apply solely to a particular prison are not subject to the APA.” (In re Garcia, supra, 67 Cal.App.4th 841, 844–845.)
Penal Code section 5058, subdivision (c)(1) exempts rules “applying solely to a particular prison or other correctional facility, provided that the following conditions are met: [¶] (A) All rules that apply to prisons or other correctional facilities throughout the state are adopted by the director pursuant to Chapter 3.5 (commencing with Section 11340) of Part 1 of Division 3 of Title 2 of the Government Code [and] [¶] (B) All rules except those that are excluded from disclosure to the public pursuant to subdivision (f) of Section 6254 of the Government Code are made available to all inmates confined in the particular prison or other correctional facility to which the rules apply and to all members of the general public.”
On appeal, plaintiff’s sole challenge with respect to the rule requiring clear appliances is that the rule is unfair because some inmates at PBSP have been allowed to retain their non-clear appliances until they become non-operational, whereas he, as a recently transferred inmate, was not. Plaintiff has not demonstrated, nor does the record suggest, that he raised this argument in the trial court. Accordingly, we deem the argument waived.
We note this policy is reflected in the PBSP operational procedure manual.
In passing, we note we also do not find plaintiff’s challenge to the screen/speaker removal regulation to be persuasive. The first-level appeal response dated September 23, 2008, indicates that PBSP had submitted an exemption request for the removal of speakers from televisions and radios pursuant to section 54030.17 of the DOM. Plaintiff claims, without presenting any supporting evidence, that PBSP has been requiring the removal of screens and speakers for eight years and has never documented this practice in the operational procedure manual or made this rule available to all inmates in writing. Thus, he asserts the rule does not fall within the local rule exemption because the second condition of Penal Code section 5058, subdivision (c)(1) has not been satisfied. However, the documentation on inmate property that is contained in the record on appeal predates September 23, 2008, and thus does not refute the prison official’s representation that PBSP had, perhaps recently, asked for an exemption from inmate property regulations that would otherwise have allowed inmates to possess unmodified radios. In any event, even if a court were to find PBSP’s screen/speaker removal policy to be invalid, this would not alter the result in the present case as plaintiff’s radio still comes within the prohibition of opaque appliances. As noted, plaintiff does not challenge the court’s ruling sustaining that prohibition.
Because plaintiff has not demonstrated that the trial court abused its discretion in denying his petition, his appeal fails.
DISPOSITION
The order denying the petition for writ of mandate and declaratory relief is affirmed.
We concur: Margulies, Acting P. J.Banke, J.