Opinion
A150939
03-02-2018
MANUEL MARTINEZ, Plaintiff and Appellant, v. JEFFREY BEARD, Defendant and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Del Norte County Super. Ct. No. CVPT-15-1302)
Appellant Manuel Martinez is a prisoner, now at Centinela State Prison in Imperial. Earlier, while he was at Pelican Bay State Prison, Martinez ordered a book, Sword Song I: Sisterhood of Steel (2008) (the book). The prison officials confiscated it, on the basis it depicted nude paintings and violence.
In October 2015, Martinez filed a petition for writ of mandate, prohibition, or declaratory relief, naming two defendants: Jeffrey Beard, then the Secretary of the Department of Corrections and Rehabilitation (the Department), and C.E. Ducart, warden of Pelican Bay. The petition alleged that the book was confiscated based on an invalid regulation (Cal. Code Regs., tit. 15, § 3006, subd. (c)(17)), and that it was confiscated because it depicted nude and partially nude women and acts of violence. The petition also challenged the confiscation as "an infringement on his statutory rights" and "the overbroad policy of not allowing inmates to view confiscated items."
In December, the Department filed a demurrer to the petition, asserting three grounds, that: (1) Martinez had a plain, speedy, and adequate remedy at law; (2) the petition failed to state a claim for mandate; and (3) the petition was untimely under the 60-day limit.
By order of April 1, 2016, the superior court sustained the demurrer with leave to amend. The court first held Martinez failed to state a claim in mandate because confiscation of his mail was a discretionary act, and his requests for declarations granting him the right to view confiscated mail items and repealing the challenged regulations were denied because they implicated no ministerial duty. The court next held Martinez has a speedy and adequate remedy at law, a petition for writ of habeas corpus (and indeed that he had filed similar claims in habeas corpus). Third, the court held the petition was untimely. The court granted Martinez leave to amend the petition to state a claim in habeas corpus within 30 days.
The court thereafter granted Martinez's motion to set aside the April 1 order because he was not present at the hearing, and it permitted further briefing and scheduled a new hearing on the demurrer.
The new hearing occurred on August 5, 2016. Again, the court sustained the demurrer with leave to amend on the grounds that Martinez failed to state a prima facie claim for relief in mandate because he challenged a discretionary act, and he could amend his petition to state a claim in habeas corpus. The court also permitted Martinez leave to amend in the event mandate is appropriate to state a claim for bailment.
On August 26, Martinez filed a first amended petition for writ of mandate, prohibition, or declaratory relief, realleging that prison officials violated his due process and statutory rights when they confiscated the book without letting him see it. He also reasserted his challenge to the regulation prison officials relied on to confiscate the book, arguing it is invalid under Penal Code section 2601, subdivision (c)(1). Finally, Martinez argued for the first time that the book should be returned to him as a bailment.
The Department again demurred, on the grounds that mandate is not appropriate because Martinez has an adequate remedy available at law, and even assuming his factual allegations are true, they did not state a claim for mandate or bailment.
Martinez filed opposition, the Department a reply, and the matter came on for hearing on November 18, 2016, with both sides appearing telephonically. On December 9, the trial court entered its order, which held as follows:
"At the hearing, this Court found the petition is subject to dismissal on the basis that Martinez's claims are not properly brought in mandamus, and his petition shall be construed as a petition for writ of habeas corpus. But, the petition is subject to dismissal because it is unverified. Therefore, the Court sustained the demurrer without leave to amend.
"Having considered the petition and the demurrer:
"IT IS HEREBY ORDERED that respondent's demurrer is sustained without leave to amend. The petition for writ of mandate is dismissed with prejudice. The petition for writ of habeas corpus is summarily denied, without prejudice to a verification by petitioner."
As will be seen, the court's holding that "habeas corpus is summarily denied, without prejudice to a verification" by Martinez was based on a misapprehension of the record, as the petition was in fact verified. Regardless, by its ruling—and by its ruling in its original order in April granting leave to amend to state a claim in habeas corpus—the trial court recognized that a claim in habeas corpus could lie. As indeed it could, as we ourselves have held, in a situation similar, if not identical, to that present here.
In 2013, we published our opinion in In re Martinez (2013) 216 Cal.App.4th 1141. There, Pelican Bay prison authorities confiscated a book before it was delivered to inmate Edgar Martinez on the ground it was contraband. The trial court denied Martinez's petition for a writ requiring the warden to deliver the book. We granted Martinez's petition for writ of habeas corpus and ordered the warden to allow Martinez to receive the book. We concluded that the prison failed to comply with California Code of Regulations, title 15, section 3006, subdivision (c)(15)(A), in determining that the book was obscene contraband because the representatives of the Department of Corrections and Rehabilitation never applied the third prong (serious literary value) of the obscenity test. (In re Martinez, supra, at p. 1141.) In short, under the law a prisoner has a right to challenge the confiscation of a book by habeas corpus.
Not only that, the trial court here properly assessed the matter, in recognizing a possible claim in habeas corpus despite that Martinez had not pled one—at least not by name. As noted, while Martinez styled his petition one for mandate, what he calls it is not dispositive on demurrer. The proper analysis is that set forth in the leading practical treatise: "[7:41] ANY valid cause of action overcomes demurrer: It is not necessary that the cause of action be the one intended by plaintiff. The test is whether the complaint states any valid claim entitling plaintiff to relief. Thus, plaintiff may be mistaken as to the nature of the case, or the legal theory on which he or she can prevail. But if the essential facts of some valid cause of action are alleged, the complaint is good against a general demurrer. [Quelimane Co., Inc. v. Stewart Title Guar. Co. (1998) 19 [Cal.4th] 26, 38-39; Adelman v. Associated Int'l Ins. Co. (2001) 90 [Cal.App.4th] 352, 359; see Sheehan v. San Francisco 49ers, Ltd. (2009) 45 [Cal.4th] 992, 998—general demurrer may be upheld 'only if the complaint fails to state a cause of action under any possible legal theory' (emphasis added)]." (Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2017) ¶ 7.41, p. 7(I)-21.)
As the Supreme Court put it in Gruenberg v. Aetna Ins. Co. (1973) 9 Cal.3d 566, 572: " 'In determining whether or not the complaint is sufficient, as against the demurrer, upon the ground that it does not state facts sufficient to constitute a cause of action, the rule is, that if upon a consideration of all the facts stated it appears that the plaintiff is entitled to any relief at the hands of the court against the defendants, the complaint will be held good, although the facts may not be clearly stated, or may be intermingled with a statement of other facts irrelevant to the cause of action shown, or although the plaintiff may demand relief to which he is not entitled under the facts alleged.' [Citation.] In other words, 'plaintiff need only plead facts showing that he may be entitled to some relief [citation].' [Citation.]"
Saunders v. Cariss (1990) 224 Cal.App.3d 905 illustrates the application of the rule. Saunders sued his insurance agent for "fraud" based on the agent's unauthorized signing of Saunders's name to some papers limiting his insurance coverage. The court held that the demurrer had to be overruled because the complaint stated a claim for malpractice. And so the court summed up: "Erroneous or confusing labels attached by the inept pleader are to be ignored if the complaint pleads facts which would entitle the plaintiff to relief." (Id. at p. 908.) In sum, the trial court here was right in all it did, except for one thing—failing to note the verification.
But rather than pointing out this error to the trial court, or resubmitting a verification, on January 17, 2017, Martinez filed an "Ex Parte application for an entry of judgment dismissing the petition for writ of mandate, and the case in its entirety," asserting that he "intends to stand by the 1st amended petition and appeal the order sustaining the demurrer." As defendant puts it—obviously admitting that Martinez might have a claim in habeas corpus—"[r]ather than submit the verification to pursue his claim in habeas corpus, Martinez asked the superior court to enter judgment to enable his appeal."
On March 20, 2017, Martinez filed his notice of appeal.
Martinez filed his opening brief in this court on October 10, 2017. The Department filed its respondent's brief on November 27, and Martinez his reply brief on December 21. While the bulk of Martinez's opening brief addresses the ruling on his claim for mandate, the brief concludes: "Seeking Mandate relief for the 3 issues presented is appropriate, even if its [sic] not the prefered [sic] method. Therefore, the court should not have sustained the demurrer. The petition was verified, the court errored [sic] in finding it was not. [¶] This Court should reverse the trial courts [sic] finding sustaining or denying the petition."
Similarly, the conclusion in his reply brief says: "[T]he court's mistake in finding the petition was not verified can easily be corrected by remnding [sic] the case back to the superior court with directions to overrule the demurrer on all grounds and to address the merits."
Perhaps even more significant is the Department's respondent's brief, which has this summary of argument: "This Court should affirm the order sustaining respondent's demurrer to the petition because Martinez has an adequate remedy at law, and he failed to state a prima facie claim for relief in mandate. Furthermore, the superior court did not abuse its discretion when it dismissed the petition for writ of mandate with prejudice because Martinez failed to restate his claims as valid claims in mandate in his first amended petition. Nor did the court abuse its discretion when it construed the petition as a writ of habeas corpus and dismissed it without prejudice to Martinez verifying the petition. Although the court incorrectly found the petition was not verified, Martinez was given leave to correct the mistaken finding but he instead chose to appeal the dismissal of the case in mandate. He declined to pursue the case in habeas corpus. Therefore, this Court should affirm the superior court's decision sustaining the demurrer to the petition for writ of mandate without leave to amend."
In sum, it appears that, as both the trial court and the Department recognized, Martinez can state a claim in habeas corpus. In light of that, and all the above, we remand the matter to the trial court with instructions to take whatever steps are necessary to allow Martinez to state a claim for habeas corpus—a claim, of course, about which we have no view of the merits.
/s/_________
Richman, J.
We concur:
/s/_________
Kline, P.J.
/s/_________
Miller, J.