CARLOS ESCAMILLA v. CALIFORNIA DEPARTMENT OF CORRECTIONS AND REHABILITATION

Filed 6/29/06; pub. order 7/19/06 (see end of opn.)

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from an order of the Superior Court of Imperial County, Raymond A. Cota, Judge. Affirmed as modified.

The State of California Department of Corrections and Rehabilitation (CDC) appeals an order granting inmate Carlos Escamilla's petition for a writ of habeas corpus and awarding him $225 for personal property CDC did not return to him. On appeal, CDC contends the order should be reversed because: (1) a writ of habeas corpus cannot be used for recovery of personal property or money damages; (2) Escamilla's claim is barred by his failure to comply with the claims presentation requirements of the California Tort Claims Act (the Act) (Gov. Code, §§ 810 et seq.);^[1] and (3) there is insufficient evidence to support the trial court's findings. We requested, and have received and considered, supplemental briefs submitted by the parties on the issue of whether Escamilla's petition for writ of habeas corpus should be treated as a petition for writ of mandamus seeking specific recovery of his personal property or its value and therefore is not a "claim for money or damages" pursuant to section 905.2.

FACTUAL AND PROCEDURAL BACKGROUND

On November 21, 2003, Escamilla was an inmate at the Calipatria State Prison. At 9:21 a.m., he purchased $70 worth of items at the prison's canteen that were then placed in canteen bags.^[2] He left the canteen and sat outside of the exercise yard with his canteen bags, waiting for an order to return to his assigned cell. He was wearing a pair of Levis jeans, a pair of Reebok tennis shoes, a Nike sweatshirt, and a Seiko wristwatch.

Shortly after 10:00 a.m., a prison riot began in the exercise yard between certain inmates and prison guards.^[3] After the riot ended, Escamilla was escorted from the exercise yard by a guard (apparently correctional officer J. Nava), who helped Escamilla carry his canteen bags. Escamilla was placed in an administrative segregated housing unit (AdSeg or SHU) pending an internal investigation regarding his participation in the riot. Sergeant Valenzuela stopped Escamilla en route to the SHU and told him he was going to the "hole." Escamilla requested that Valenzuela have his canteen items placed together with the rest of his personal property. Valenzuela replied: " 'No! That goes to the trash!' " On his arrival at the SHU, in view of the SHU's staff under Valenzuela's supervision, Escamilla placed his Levis jeans, Reebok shoes, Nike sweatshirt, and Seiko wristwatch inside his canteen bags, together with his canteen items, to protect his property from being thrown away in the trash.

On November 23, Escamilla signed an inmate property inventory form (CDC 1083) that, on its face, appeared to itemize personal property taken from cell A3-211L (apparently Escamilla's regular cell) after he had been placed in the SHU.^[4]

On March 19, 2004, Escamilla was released from the SHU, but the clothing, watch, and canteen items that he possessed on his person on his November 21, 2003 arrival at the SHU were not returned to him. Apparently on that date, a notation was added to the November 23, 2003 inventory form that "[inmate] claims to be missing approx. $80.00 of canteen items he had just received. Claims he still had canteen item[s] on the yard."

On or about March 28, 2004, Escamilla filed a "first level" inmate appeal form, substantially setting forth the facts as described, ante, and stating: "Whether the Items were thrown in 'The Trash' as ordered by Sergeant Valenzuela or [were lost] by Staff, I am hereby demanding a redress of the value of each Item above[-]mentioned. A Total amount of $255.00." He requested the following action: "I am hereby demanding a redress of the value of the following items that were confiscated: A pair of Levis valued at $40.00, A pair of Tennis Shoes ([Reeboks]) valued at $65.00, A Sweat shirt (NIKE) valued at $30.00, A Wrist-Watch (SEIKO) valued at $50.00, the loss of [the] (canteen) valued at $70.00. Total Amount of $255.00." Escamilla subsequently submitted a copy of his canteen receipt dated November 21, 2003, showing the items purchased and amounts he paid for those canteen items. In partially granting Escamilla's first level appeal, Sergeant Brown noted Nava stated that Escamilla "was in boxers. I never [saw] any clothes. He did have some canteen items. I don't know how much canteen he had. I don't remember if the canteen went to A-5 or with him." Brown also noted that Valenzuela stated: "I never saw any canteen. I was in and out of A-5 that day. [Escamilla] never said anything to me about his property that I recall." Brown concluded:

"You [Escamilla] provided receipts for $70 of canteen items purchased on November 21, 2003. Officer Nava verified that you had a bag of canteen items with you. It appears that your canteen never got put into your property and was misplaced and lost. You will be compensated for $70 of canteen. However, you provided no proof that the clothing items you claim were lost were on your person when you went to Ad Seg. Neither of the staff interviewed recall you having these clothing items with you on the yard. Therefore, you will not be compensated for those items."

On or about August 8, Escamilla filed a "second level" appeal, asserting that the first level response was inadequate in that it did not award him compensation for his missing clothing and watch. Escamilla argued:

"[I]t appears that [CDC] fails to [realize] that a prisoner [is] require[d] to be fully clothed when going to [the] Canteen. Here, the evidence shows that minutes after I had picked-up my Canteen, the incident occurred and the yard went down. Therefore, the preponderance of the evidence demonstrates that: 1). When I went to pick-up my Canteen [items] I was fully clothed, as required by the Rules, and [did] not just [have] on my boxers; and, 2). That I remained fully clothed until I was escorted to Ad.-Seg. whereat I stripped and placed aforementioned items in the bag together with the Canteen [items] I had just bought to ensure myself that the personal property together with the Canteen [items] would be protected from being 'thrown in the trash.' "

In denying Escamilla's second level appeal, Chief Deputy Warden Ochoa stated:

"It is reasonable to assume you were fully clothed when you went to [the] canteen; however, you have not provided proof as to whether you were wearing personal clothing or state clothing. It is possible for an inmate to be fully dressed without wearing any personal property. Additionally, all the staff mentioned by you as having knowledge of this issue were interviewed, and none of them recall seeing any personal clothing items on you when they escorted you to Ad Seg.

"M. Jimenez, R&R Sergeant, was contacted and asked to review your property file to determine if you were ever issued, via R&R, any of the items you claim to be missing. After reviewing your property file, Sergeant Jimenez stated there is no documentation in your file that you have ever received a wristwatch or a pair of Reebok shoes. Sergeant Jimenez said you did have three pairs of Levi jeans and a gray sweatshirt, all of which were issued to you on March 19, 2004 with your property. Sergeant Jimenez also mentioned you had been brought to R&R to be compensated for the lost canteen items, at which time you refused to accept compensation, stating you were not willing to accept partial compensation and you still wanted to be reimbursed for the missing personal clothing items."^[5]

On or about September 26, Escamilla filed a "third level" appeal, asserting the second level response was without merit and based on prevarications. Escamilla argued that Ochoa did not substantiate Jimenez's statement with Escamilla's "Property Card File Record" (a copy of which Escamilla asserted he was not authorized to obtain). He asserted it was CDC's responsibility to obtain that property record in weighing the officer's word against his. In denying Escamilla's third level appeal, CDC Inmate Appeals Chief Grannis (by T. Surges) stated:

"Staff cannot be held responsible for the loss of items that they had no control over. There is no credible evidence presented by [Escamilla] to establish that he ever possessed the items he listed as missing or that he was wearing them at the time he was placed in ASU. Staff verified and [Escamilla] produced receipts for the canteen items noted by [Escamilla]. As a result, [Escamilla] was compensated for $70.00 worth of canteen items. Absent verifiable evidence that he was in authorized possession of the other items listed as missing, there is no negligence established and no compensation is due to [Escamilla]."^[6]

On January 28, 2005, Escamilla filed the instant petition for writ of habeas corpus against Stuart J. Ryan (apparently the acting warden of CDC's Calipatria State Prison), substantially alleging the facts as described ante and:

"[T]he fact that the CDC-1083, Inmate Property Inventory Form, is not to be found in file at R&R gives evidence that staff at SHU never filled it in [on November 21, 2003], but rather followed Sergeant Valenzuela's orders to 'Throw [Escamilla's] [p]ersonal property in the trash.' Had staff at SHU filled in the CDC-1083, Inmate Property Inventory Form, as they were compelled to do so by Rules, Regulations and Law, the Form would be filed in [Escamilla's] Property File; and there would be no question as to what [p]ersonal [p]roperty [Escamilla] had [on] his person when he entered SHU [on November 21, 2003]. As stated in [my] Appeal: [¶] 'I placed the items inside the bags of canteen I had just bought.' [Citation.]"

Escamilla requested that the trial court grant his petition and issue an order directing CDC or State Board of Control to "redress" him in the amount of $255 for his lost canteen and personal property listed in his petition.

On March 14, 2005, the trial court issued an order to show cause (OSC) why the relief in Escamilla's petition should not be granted. CDC filed a return to the OSC, arguing Escamilla had not exhausted his administrative remedies because he failed to fully comply with the Act's claims presentation requirements. It also argued that a petition for writ of habeas corpus was not the proper remedy for an inmate seeking monetary damages for a property claim. Finally, it argued there was insufficient evidence to support Escamilla's claim. Escamilla filed a traverse denying the arguments made in CDC's return.

On June 6, the trial court issued an order granting Escamilla's petition, stating:

"The Court is unpersuaded by CDC's return. This Court finds good cause to grant [Escamilla's petition for] writ of habeas corpus. Relief in the form of $225 is awarded to [Escamilla] which shall be placed in [his] trust account, or credited to a canteen account, as [he] may choose."^[7]

CDC timely filed a notice of appeal.

DISCUSSION

I

Escamilla's Petition as a Petition for Writ of Mandamus Seeking Specific

Recovery of His Personal Property or its Value and Application of the Act

We requested, and have received and considered, supplemental briefs on the issues of whether Escamilla's petition for writ of habeas corpus should be treated as a petition for writ of mandamus seeking recovery of personal property or its value and application of the Act.

A

The Act sets forth a claims presentation requirement for "all claims for money or damages against the state" (§ 905.2, subd. (b)) and generally provides that "no suit for money or damages may be brought against a public entity on a cause of action for which a claim is required to be presented [under the Act's provisions] until a written claim therefor has been presented to the public entity" and rejected by the Victim Compensation and Government Claims Board (the Board) (formerly the Board of Control). (§§ 945.4, 900.2, subd. (b).)

In Minsky v. City of Los Angeles (1974) 11 Cal.3d 113 (Minsky), the Supreme Court addressed the issue of whether the Act's claims presentation requirements "apply to an action by an arrestee for the return of property taken by local police officers at the time of arrest and wrongfully withheld following the disposition of criminal charges." (Id. at pp. 116-117.) In that case, police officers took $7,720 from Michael Joseph Marino on his arrest and allegedly wrongfully detained and converted it by transferring it to the policeman's and fireman's pension fund.^[8] (Minsky, supra, 11 Cal.3d at pp. 117-118.) Minsky stated:

"We do not think that the claims statutes were intended to cover a case in which the city takes the property of an arrested person, holds it as a bailee, and retains it for the city's own use. Hence plaintiff's failure to comply with those statutes erects no bar to a cause of action for the return of the property so seized and retained. In reaching this conclusion, we observe that the language of section 905 makes clear that the requirements for presentation of claims apply only to 'claims for money or damages' and not to claims for other forms of relief, such as specific recovery of property taken by the city as a bailee."^[9] (Minsky, supra, 11 Cal.3d at p. 117.)

Minsky reasoned:

"A claim for the specific recovery of property has never been considered a claim for 'money or damages' as used in section 905 and its predecessors. '[O]nly claimants seeking money or damages, as distinguished from other types of judicial relief, are required to conform to the claims procedure.' The claims statutes do not 'impose any . . . requirements for nonpecuniary actions, such as those seeking injunctive, specific, or declaratory relief.' [Citation.] (Italics added.) 'Where a wrongdoer has converted . . . personal property, the injured owner must elect between his right of ownership and possession (with the remedy of specific recovery) and his right to compensation (with the remedies of damages for conversion or quasi-contract recovery of value on theory of waiver of tort).' [Citation.]" (Minsky, at p. 121, fns. omitted.)

In the circumstances of Minsky, the court concluded: "[T]he government in effect occupies the position of a bailee when it seizes from an arrestee property that is not shown to be contraband. [Citation.] The arrestee retains his right to eventual specific recovery, whether he seeks to regain tangible property like an automobile, ring, wallet or camera, or whether he seeks to recover a specific sum of money which, under general constructive trust principles, is traceable to property within the possession of the defendant. [Citations.]" (Id. at p. 121, fn. omitted.) Minsky then noted:

"[E]ven if the money taken from arrestee Marino is no longer traceable to any property presently in defendant's possession and thus is not strictly available for specific recovery, we believe that plaintiff's cause of action would not be foreclosed by the claims statutes. As discussed above, after a local governmental entity wrongfully withholds an arrestee's property, the arrestee clearly can seek specific recovery of the property while it is still in the possession of the local entity without being limited to the relatively short period for filing claims set forth in the claims statutes. This initial exemption of the action from the claims statute is not lost simply because the city takes the further wrongful step of disposing of the bailed property. The city cannot be permitted to invoke the claims statute, originally not available to it, by virtue of a later wrongful dissipation of the property. To so hold would be in effect to allow the local entity to profit by its own wrong, penalizing a plaintiff who, in light of the specific recovery remedy apparently available to him, justifiably did not file a claim." (Minsky, supra, 11 Cal.3d at p. 121-122, fn. 17, italics added.)

Furthermore, Minsky concluded that a complaint's failure to expressly seek specific recovery of property does not preclude that theory of recovery if the facts alleged therein are sufficient to support a claim for specific recovery. (Id. at pp. 121-122.) Minsky also noted: "A defendant in a criminal proceeding clearly has the right to obtain mandamus to compel the return of personal property wrongfully withheld by the custodial officers. [Citations.] Mandamus lies in the criminal proceeding even after disposition of the criminal charges. [Citation.] No court has intimated or held that the claims statute applies to the arrestee directly seeking mandamus in a criminal proceeding to compel the return of property wrongfully in the possession of custodial officers. We perceive no reason why the plaintiff, as the arrestee's assignee, should be in any different position merely because he proceeds in a civil action." (Id. at p. 123.) Minsky concluded: "In sum, we hold that the instant complaint, seeking the recovery of property seized and wrongfully withheld by defendants, does not involve a claim for 'money or damages' within the meaning of section 905, and thus would not fall within the [Act's] presentation requirements . . . ." (Id. at p. 124.)

Subsequently, in Holt v. Kelly (1978) 20 Cal.3d 560 (Holt), the Supreme Court held that "an arrestee who seeks in good faith to specifically recover property taken from him at the time of his arrest is exempt from the claim filing provisions of the Government Code, even though some or all of the property may have been dissipated and respondent may be compelled to respond in damages in lieu of property." (Id. at p. 565, fn. omitted.) In Holt, the petitioner was arrested by a county sheriff's deputy and taken to a county jail, along with the petitioner's footlocker trunk, for overnight detention. (Id. at p. 563.) He was not given a receipt for his trunk or its contents. (Ibid.) The day after his arrest, the petitioner was transferred to another county's jail and its booking officer completed a jail arrest record which included a "property receipt" section. (Ibid.) That section described the petitioner's personal property, including the handwritten notation "1-Ft. Locker--Contents--(Clothes--tools, hand tools, . . .) . . . ." (Ibid.) The petitioner was not given that form or any other receipt for his property. (Ibid.) No inventory was taken of the trunk's contents. (Ibid.) When the petitioner's property was not returned after his release, he filed a petition for writ of mandate seeking return of 32 items of property (or the value of that property) taken by the county sheriff on his arrest. (Id. at p. 562.) A court-appointed referee found that all of the property claimed by petitioner had been taken by the county sheriff, but none of it was returned to him. (Ibid.) The value of the property was $500. (Ibid.) The Supreme Court independently reviewed the record and concluded the referee's findings were supported by and correctly interpreted the evidence. (Id. at p. 563.) Because the county sheriff had a duty to return the claimed property to the petitioner, the Supreme Court, citing Minsky, concluded a writ of mandate was appropriate to compel the return of that property. (Holt, at p. 564.) Holt quoted language from Minsky, including footnote 14, and concluded:

"For the foregoing reasons we hold that an arrestee who seeks in good faith to specifically recover property taken from him at the time of his arrest is exempt from the [Act's] claim filing provisions . . . , even though some or all of the property may have been dissipated and respondent may be compelled to respond in damages in lieu of property. . . . Respondent may not convert his wrongful dissipation of the property into an advantage by using it to support an essentially dilatory defense based on failure to comply with the claims statutes." (Holt, at p. 565, fn. omitted.)

Rejecting the respondent's argument that the petitioner's claim was for damages, Holt stated:

"Respondent contends that since some or all of the property is now unavailable he is responsible only by means of a proper claim for money damages and not in mandamus. This position is without merit, especially in light of the fact that any property now missing is the result of respondent's own misconduct. We have heretofore held that mandamus may be brought to start the chain of action designed to compel a ministerial duty by a public officer, even if the ultimate goal may be recovery of a sum of money. [Citations.] It is also clear that mandamus will lie where the recovery of money is merely ancillary to an underlying proceeding which seeks performance of a ministerial duty. [Citations.]" (Holt, at p. 565, fn. 5.)

Accordingly, the Supreme Court in Holt disposed of the appeal as follows: "Let a writ of mandate issue directing respondent to return to petitioner the property found by the referee to have been withheld from him, and if respondent is unable to do so, to deliver to petitioner the value thereof, i.e., the sum of $500." (Holt, at p. 566.)

In Long v. City of Los Angeles (1998) 68 Cal.App.4th 782, the court applied the Supreme Court's holdings in Minsky and Holt in reversing a summary judgment against a plaintiff in his action for specific recovery of personal property. (Long, at pp. 784, 786-787.) In Long, the City of Los Angeles seized 525 birds, along with their cages and related items, the plaintiff had kept at his home. (Id. at p. 784.) The plaintiff filed an action seeking return of his birds and other personal property, alleging the original seizure was unlawful and some of the birds had died or been injured while wrongfully detained by the city. (Ibid.) The city moved for summary judgment, asserting the plaintiff had not complied with the Act's claims presentation requirements. (Id. at p. 785.) The trial court granted the motion and entered summary judgment for the city. (Ibid.) On appeal, Long stated: "Significantly, the Supreme Court in Holt held that where confiscated property is lost and cannot be returned due to the government's own negligence, the government may not benefit from its own wrongdoing by contending the resulting action, necessarily limited to monetary damages, is subject to the [Act]." (Id. at p. 786, italics added.) Long concluded:

"This case is governed by Holt and Minsky. Although plaintiff sought relief via injunction rather than writ of mandate, the procedural distinction is meaningless for our purposes. As in Holt, plaintiff swiftly and in good faith pursued the return of his personal property, thus fulfilling '[t]he policy of providing prompt notice of claims to governmental entities which underlies the claims statute [citation] . . . .' (Holt v. Kelly, supra, 20 Cal.3d at p. 565.) Having allegedly wrongfully destroyed plaintiff's property, the city may not cite the claims filing statute as a defense to what has become, by virtue of the city's purported misconduct, a damages action. We conclude, as a matter of law, the city is not entitled to summary judgment based upon plaintiff's failure to comply with the claims filing statutes." (Long, at p. 787, italics added.)

Accordingly, the court reversed the summary judgment in the city's favor. (Id. at p. 788.)

B

Because the circumstances in this case are substantially apposite to those in Minsky, Holt, and Long, we conclude Escamilla's petition for writ of habeas corpus should be treated as a petition for writ of mandamus seeking specific recovery of his personal property or its value and therefore is not a "claim for money or damages" pursuant to section 905.2. Although Escamilla asserts a writ of habeas corpus is an appropriate writ to remedy the loss of his personal property, we need not decide that question because he alternatively argues his petition could be treated as a petition for a writ of mandate. Under Minsky and Holt, the most appropriate writ to direct the government to return personal property or its value in a bailment or bailment-like situation is a writ of mandamus. (Minsky, supra, 11 Cal.3d at p. 123; Holt, supra, 20 Cal.3d at pp. 564, 565, fn. 5.) As quoted ante, Minsky stated: "A defendant in a criminal proceeding clearly has the right to obtain mandamus to compel the return of personal property wrongfully withheld by the custodial officers. [Citations.] Mandamus lies in the criminal proceeding even after disposition of the criminal charges. [Citation.] No court has intimated or held that the claims statute applies to the arrestee directly seeking mandamus in a criminal proceeding to compel the return of property wrongfully in the possession of custodial officers." (Minsky, at p. 123.) Likewise, citing Minsky as authority, Holt stated:

"Petitioner seeks to recover either the property or its value by means of a writ of mandate. The availability of the mandamus remedy is governed by section 1085 of the Code of Civil Procedure, which provides in relevant part that the writ may issue 'to compel the performance of an act which the law specifically enjoins, as a duty resulting from an office, trust, or station.' Since respondent is under a duty to return the claimed property to petitioner [citation], a writ of mandate is appropriate to compel its return. [Citation.]" (Holt, at p. 564.)

Holt further stated: "We have heretofore held that mandamus may be brought to start the chain of action designed to compel a ministerial duty by a public officer, even if the ultimate goal may be recovery of a sum of money. [Citations.]" (Id. at p. 565, fn. 5.) In the circumstances of this case, Escamilla, like the plaintiff in Minsky and the petitioner in Holt, alleged that a custodial officer took personal property from him and wrongfully did not return it to him. Because that custodial officer (i.e., the prison warden on behalf of CDC) effectively acted as a bailee of Escamilla's personal property, a petition for writ of mandamus is the most appropriate writ for Escamilla to recover that property or its value from that custodial officer.^[10]

Story continue in Part II………

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^[1] All statutory references are to the Government Code unless otherwise specified.

^[2] His canteen receipt shows he bought over 100 items, consisting mostly of food items.

^[3] Several inmates and prison guards were injured during the riot.

^[4] During his four-month placement in the SHU, Escamilla's SHU unit apparently was A5-141L.

^[5] According to Escamilla, in exchange for his $70 worth of canteen items, Jimenez offered him property that had been confiscated from other inmates. Escamilla was not offered the same items he had purchased from the canteen or $70 in lieu thereof.

^[6] Contrary to the implication therein, Escamilla had not yet been compensated $70 for his missing canteen items.

^[7] Although the petition for writ of habeas corpus was filed against Ryan, as warden of CDC's prison in which Escamilla was incarcerated, because the trial court considered CDC to be the respondent to the petition, we shall assume CDC is the party subject to the trial court's order and to the instant appeal.

^[8] Marino later assigned his claim against the City of Los Angeles to his attorney, who then assigned that claim to plaintiff Bernard W. Minsky. (Minsky, supra, 11 Cal.3d at p. 118.)

^[9] Like section 905.2, subdivision (b), section 905 generally provides that "[t]here shall be presented in accordance with [the Act's provisions] all claims for money or damages against local public entities . . . ."

^[10] In Minsky and Holt, the courts cited a statute (§ 26640) that expressly imposes on a local law enforcement officer a duty to safely keep and return a prisoner's personal property. (Minsky, supra, 11 Cal.3d at p. 119, fn. 5; Holt, supra, 20 Cal.3d at p. 564.) Although that statute does not apply to a state officer, there are apposite statutory provisions that relate to a state prisoner's personal property and support our conclusion that a state custodial officer (e.g., CDC or state prison warden) generally has an equivalent duty to safely keep noncontraband personal property taken from a prisoner and return it to him or her on release from custody (or on termination of the reason the property was taken--e.g., release from the SHU). Penal Code section 2601, subdivision (a) generally provides that a state prisoner has a civil right to own personal property, although a prisoner may be deprived of that right during confinement "as is reasonably related to legitimate penological interests." (Pen. Code, § 2600.) More importantly, Penal Code section 2085, using language closely analogous to section 26640's language, provides: "The [CDC] shall keep a correct account of all money and valuables upon the prisoner when delivered at the prison, and shall pay the amount, or the proceeds thereof, or return the same to the prisoner when discharged." Although Penal Code section 2085 expressly requires return of a prisoner's valuables only "when discharged," we construe that statute's language and intent to be sufficiently broad as to create a duty for CDC to return Escamilla's personal property on his release from the SHU in the circumstances of this case. Furthermore, CDC's own regulations provide that it "shall accept liability for the loss or destruction of inmate personal property when it is established that such loss or destruction results from employee action." (Cal. Code Regs., tit. 15, § 3193(b).) Because Penal Code section 2085 is substantially apposite to section 26640, cited in Minsky and Holt, we conclude those cases are apposite and apply to this case to the extent they are based, in part, on a governmental officer's duty to safely keep and return personal property of an arrestee or prisoner.