Filed 12/19/17 Palomino v. Brazier CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
| JULIO PALOMINO et al.,
Plaintiffs and Appellants,
v.
S. BRAZIER et al.,
Defendants and Respondents.
|
F072292
(Super. Ct. No. 14CECG00320)
OPINION |
APPEAL from a judgment of the Superior Court of Fresno County. Alan M. Simpson, Judge.
Julio Palomino, in pro. per., and Jackie Robinson, in pro. per., for Plaintiffs and Appellants.
Kamala D. Harris, Attorney General, Julie Weng-Gutierrez, Assistant Attorney General, Niromi W. Pfeiffer and Karli Eisenberg, Deputy Attorneys General, for Defendants and Respondents.
-ooOoo-
INTRODUCTION
Plaintiffs Julio Palomino and Jackie Robinson are legally registered domestic partners who are civilly detained as sexually violent predators (SVP’s) at the Department of State Hospitals–Coalinga (DSH–C or the hospital) under California’s Sexually Violent Predator Act (SVPA) pursuant to Welfare and Institutions Code section 6600 et seq. Robinson was initially housed with Palomino in a residential recovery unit (RRU) at DSH–C, but was transferred to an intermediate care facility (ICF) within the hospital. Palomino and Robinson filed a civil complaint against defendants DSH–C and its employees, S. Brazier and P. Blevins. Plaintiffs allege they have an unfettered right to be housed together in the RRU, and defendants unlawfully interfered with their right to cohabitate when they transferred Robinson to the ICF. According to plaintiffs, Robinson was transferred because of his sexual orientation and race.
The trial court granted defendants’ motion for summary judgment, concluding the law does not provide plaintiffs with the right to cohabitate, and the undisputed evidence shows defendants transferred Robinson to the ICF unit due to his repeated rules violations. The court further found the right of patients to visit one another does not bar restrictions on the time, manner, or place of visitation, and noted Robinson has only been restricted from visiting Palomino in the RRU. Plaintiffs were permitted to visit one another in several other areas of DSH–C.
On appeal, plaintiffs contend: (1) in ruling on the parties’ motions for summary judgment, the court was bound by its prior interim orders, including an order granting plaintiffs’ motion for a preliminary injunction and an order denying defendants’ demurrer; (2) defendants’ claims are barred by collateral estoppel or res judicata; (3) the court erred in holding no state law provides plaintiffs with an unfettered right to be housed together in the RRU; (4) the court erred in granting defendants’ motion for summary judgment; and (5) the court erred by failing to order a continuance, sua sponte. We affirm.
FACTUAL AND PROCEDURAL HISTORY
Defendants’ Demurrer
On January 23, 2014, plaintiffs filed a civil complaint against defendants asserting three separate claims: (1) a claim under Civil Code section 52.1, (2) a claim for intentional infliction of emotional distress, and (3) a claim under 42 United States Code section 1983. Defendants demurred to the complaint.
On May 19, 2014, the court issued a tentative ruling denying defendants’ demurrer. The court explained, “We are required to take the facts pled as true for purposes of a demurrer,” and as a result, “we must assume at present that Brazier refused to permit the plaintiffs to have privileges of choosing to live together on the basis of their race.” Following oral argument, the court adopted its tentative ruling.
On June 12, 2014, defendants answered the complaint.
Plaintiffs’ Motion for a Preliminary Injunction
On April 14, 2014, plaintiffs moved for a preliminary injunction seeking to enjoin defendants to comply with section 73523, subdivision (a)(17) of title 22 of the California Code of Regulations.[1] This section provides patients at intermediate care facilities who are married or legally registered domestic partners with the right to share a room.
On May 8, 2014, defendants filed an opposition to plaintiffs’ motion. Defendants did not submit evidence in support of their opposition.
On June 11, 2014, the court issued a tentative ruling granting plaintiffs’ motion. Following oral argument, the court adopted its tentative ruling.
The Matter Is Reassigned
In February 2015, the matter was reassigned from Judge M. Bruce Smith to Judge Alan M. Simpson.
Motions for Summary Judgment
On March 16, 2015, plaintiffs moved for summary judgment or, alternatively, summary adjudication. Defendants opposed plaintiffs’ motion.
On April 29, 2015, defendants moved for summary judgment or, alternatively, summary adjudication. In support of their motion, defendants submitted several exhibits demonstrating Robinson had been transferred from the RRU to the ICF as a result of his repeated rules violations. Defendants asserted plaintiffs’ cause of action under Civil Code section 52.1 fails because no state law allows plaintiffs an unfettered right to be housed together in the RRU, and plaintiffs failed to demonstrate defendants had unlawfully interfered with plaintiffs’ alleged right to cohabitate in the RRU. Defendants further claimed, based on the evidence, plaintiffs were not patients in an ICF and, therefore, section 73523 of title 22 did not apply to them.
According to defendants, even if the title 22 patients’ rights regulation applied, those rights can be limited or denied if otherwise authorized by law. The law requires the DSH–C to provide a safe and secure environment to its patients, and Robinson was repeatedly violating DSH–C rules. Defendants claimed the DSH–C was authorized to transfer Robinson from the RRU to the ICF based on the hospital’s clinical determination of Robinson’s need for a higher level of care. Defendants further argued plaintiffs could not demonstrate a denial of equal protection in light of the undisputed evidence that Robinson was transferred to another unit as a result of his rules violations rather than because of his sexual orientation or race.
On July 17, 2015, the court issued a tentative ruling granting defendants’ motion for summary judgment, denying plaintiffs’ motion for summary judgment, and continuing oral argument to July 28th. Following argument by the parties, the court adopted its tentative ruling.
Plaintiffs Filed a Timely Notice of Appeal
Plaintiffs filed a timely notice of appeal on July 27, 2015.[2]
DISCUSSION
I. The Trial Court Was Not Bound by Its Prior Rulings
Plaintiffs contend the trial court erred in ruling on the parties’ motions for summary judgment as the court was bound by its prior orders granting plaintiffs’ motion for a preliminary injunction and its order denying defendants’ demurrer. Defendants reply the court was not bound by either order in ruling on the parties’ motions for summary judgment. We agree with defendants.
A. The Court’s Prior Rulings
1. Defendants’ Demurrer
On April 8, 2014, defendants filed a demurrer to plaintiffs’ complaint.
On May 19, 2014, the court issued a tentative ruling denying defendants’ demurrer. The court explained, “If (as alleged) there was a policy of permitting the patients to live with their domestic partners in the hospital, then denying these plaintiffs such a privilege on the basis that they were not of the same race would be a violation of their constitutional rights. Loving v. Virginia (1967) 388 U.S. 1.” The court further held because it must accept the truth of all allegations in the complaint, plaintiffs had sufficiently alleged their claims. According to the court, “we must assume at present that Brazier refused to permit the plaintiffs to have privileges of choosing to live together on the basis of their race.”
Following oral argument, the tentative ruling was adopted.
2. The Preliminary Injunction
On April 14, 2014, plaintiffs moved for a preliminary injunction seeking to enjoin defendants to comply with section 73523, subdivision (a)(17) of title 22.
On May 8, 2014, defendants filed an opposition to plaintiffs’ motion. Defendants argued plaintiffs, as civil detainees, did not demonstrate they had a constitutional right to cohabitate and failed to demonstrate title 22 applied to them. Defendants contend title 9 applies to plaintiffs, and under title 9, plaintiffs do not possess a right to cohabitate. Defendants did not submit evidence in support of their opposition.
On June 11, 2014, the court issued a tentative ruling granting plaintiffs’ motion. In its tentative ruling, the court found the title 22 patients’ rights regulation applied to defendants. The court did not evaluate the difference between the title 22 patients’ rights regulation and the title 9 patients’ rights regulation. Instead, the court concluded the title 22 patients’ rights regulation applied based on a letter attached to plaintiffs’ motion for a preliminary injunction.
Having established plaintiffs had a right to cohabitate while civilly detained at DSH–C, the court stated, “Surprisingly, defendants have presented no evidence to counter the contentions by plaintiffs of the basis for their separation, that being unlawful discrimination by hospital personnel on the basis of ethnicity and sexual orientation.” The court concluded, “for purposes of this motion, plaintiffs’ assertions of such discrimination are established, and the likelihood that they will prevail on the merits is also established.”
3. The Parties’ Motions for Summary Judgment
On July 17, 2015, the court issued a tentative ruling granting defendants’ motion for summary judgment, denying plaintiffs’ motion for summary judgment, and continuing oral argument to July 28th. The court explained although plaintiffs relied on former rulings by the court, those rulings were made “on motions which either did not permit, or did not include, evidence from the defendants. Such rulings are not binding in this proceeding, where evidence is permitted and has been offered.” Further, the court stated, plaintiffs’ failure to file a response to defendants’ separate statement of undisputed facts “‘may constitute a sufficient ground, in the court’s discretion, for granting the motion.’” The court explained, “While this is sufficient grounds for granting defendants’ motion alone, the Court also finds that the law does not provide a right to cohabitate for residents of California state hospitals.”
The court held title 22 does not apply to plaintiffs because DSH–C does not meet the definition of an intermediate care facility. Among other distinctions, the court noted, while title 22 patients cannot be involuntarily medicated, patients at DSH–C can be. Thus, the title 9 patients’ rights regulation applied to plaintiffs, not the title 22 patients’ rights regulation. The court further explained: “The rights to some benefits of marriage do not exist in State Hospitals. For example, in discussing visitation, Title 9 dictates that, ‘No conjugal visits shall be allowed.’ [(Cal. Code Regs., tit. 9, § 4300, subd. (d).)]” In addition, “The rights belonging to patients of intermediate care facilities are not rights which are bestowed on SVP patients detained in state hospitals.”
With respect to the issue of visitation, the court found “[t]he right of [SVP patients] to visit each other does not bar restrictions on time, manner, or place of visiting.” Inasmuch, the undisputed evidence showed Robinson was only restricted in his ability to visit Palomino in the RRU due to his undisputed rules violations. The court further noted the undisputed evidence showed Robinson and Palomino could visit one another at several locations outside of the RRU. The court concluded the undisputed evidence, in conjunction with the applicable law, required that defendants’ motion be granted.
B. Legal Analysis
Plaintiffs contend in ruling on the parties’ motions for summary judgment, the trial court was bound by its prior rulings on plaintiffs’ request for a preliminary injunction and on defendants’ demurrer. Their contention is without merit.
1. The Court Was Not Bound by Its Prior Order Granting Plaintiffs’ Request for a Preliminary Injunction
The hearing on a preliminary injunction occurs earlier in the proceedings. Because the parties are not often fully prepared to meet the issues raised as they would be at trial, the general rule is that a preliminary injunction should not determine the ultimate rights of the parties. (Continental Baking Co. v. Katz (1968) 68 Cal.2d 512, 528; State Bd. of Barber Examiners v. Star (1970) 8 Cal.App.3d 736, 740; Cohen v. Board of Supervisors (1985) 40 Cal.3d 277, 286.)
In ruling on a motion for a preliminary injunction, the court “‘“merely determines … balancing the respective equities of the parties, … [and] pending a trial on the merits, the defendant should or should not be restrained from exercising the rights claimed by him.”’” (Jomicra, Inc. v. Cal. Mobile Home Dealers Assn. (1970) 12 Cal.App.3d 396, 401.) An order granting a preliminary injunction is an interim order that “reflects nothing more than the superior court’s evaluation of the controversy on the record before it at the time of its ruling; it is not an adjudication of the ultimate merits of the dispute.” (People ex rel. Gallo v. Acuna (1997) 14 Cal.4th 1090, 1109.) “‘“Indeed, when the cause is finally tried it may be found that the facts require a decision against the party prevailing on the preliminary application.”’” (Jomicra, Inc., supra, at p. 401.)
Here, plaintiffs contend the court’s ruling on their motion for summary judgment failed to consider the court’s order granting plaintiffs’ request for an injunction. They assert “one trial court judge may not reconsider and overrule an interim ruling of another trial judge.” However, a ruling on a motion for summary judgment is not a reconsideration of a ruling on a motion seeking a preliminary injunction.
Plaintiffs direct us to a line of cases to support their argument. However, the authority they direct us to is inapposite. (Curtin v. Koskey (1991) 231 Cal.App.3d 873 [case reversed and remanded where trial court judge granted plaintiffs’ motion to set preferential trial date, but second judge granted defendants’ motion to dismiss for failure to bring action within three years]; Ziller Electronics Lab GmbH v. Superior Court (1988) 206 Cal.App.3d 1222, 1232 [“[a]n established exception to the general rule limiting reconsideration is that where the judge who made the initial ruling is unavailable to reconsider the motion, a different judge may entertain the reconsideration motion”]; Morite of California v. Superior Court (1993) 19 Cal.App.4th 485 [a judge, to whom a case had been assigned for eventual trial, may not set a trial date in the face of an order by another judge staying the action pending determination of a related suit].)
As discussed, a preliminary injunction is not an adjudication of the parties’ claims on the merits; it is a provisional remedy to preserve the status quo until judgment. (Upland Police Officers Assn. v. City of Upland (2003) 111 Cal.App.4th 1294, 1300.) We therefore reject plaintiffs’ claim that in ruling on the parties’ motions for summary judgment, the court was bound by its prior order granting plaintiffs’ request for a preliminary injunction.
2. The Court Was Not Bound by Its Ruling on Defendants’ Demurrer
A demurrer is an attack on the sufficiency of the pleading. (Kelly v. Liddicoat (1939) 35 Cal.App.2d 559, 563.) When ruling on a demurrer, the court must accept all allegations of fact contained in the complaint as true. (Ellis v County of Calaveras (2016) 245 Cal.App.4th 64, 70.) Because the sole function of a demurrer is to test the sufficiency of a challenged pleading, “‘t cannot, properly, be addressed to or based upon evidence or other extrinsic matters.’” ([i]Childs v. State of California (1983) 144 Cal.App.3d 155, 163, quoting Cravens v. Coghlan (1957) 154 Cal.App.2d 215, 217.)
A motion for summary judgment, on the other hand, requires the moving party to show there are no triable issues as to any material facts, and the movant is entitled to judgment as a matter of law. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) In ruling on a motion for summary judgment, “the court must ‘consider all of the evidence’ and ‘all’ of the ‘inferences’ reasonably drawn therefrom [citation], and must view such evidence [citations] and such inferences [citations], in the light most favorable to the opposing party.” (Ibid.)
Because of the distinct nature of a demurrer and a motion for summary judgment, a trial court’s ruling on the latter is not a reconsideration of the former.
“[A] motion for summary judgment or adjudication is not a reconsideration of a motion overruling a demurrer. They are two different motions. To hold that a trial court is prevented in a motion for summary judgment or adjudication from revisiting issues of law raised on demurrer is to condemn the parties to trial even where the trial court’s decision on demurrer was patently wrong.” (Community Memorial Hospital v. County of Ventura (1996) 50 Cal.App.4th 199, 205; see California Public Records Research, Inc. v. County of Yolo (2016) 4 Cal.App.5th 150, 189; Emerald Bay Community Assn. v. Golden Eagle Ins. Corp. (2005) 130 Cal.App.4th 1078, 1087.)
Accordingly, a trial court’s ruling on a demurrer “is not binding on subsequent summary judgment motions.” (Aerojet-General Corp. v. Commercial Union Ins. Co. (2007) 155 Cal.App.4th 132, 139, fn. 6.)
Plaintiffs contend “[a] trial court’s discretion to reconsider another judge’s prior ruling is necessarily narrow and usually only appropriate when the prior judge is unavailable.” Their argument misses the mark.
Here, in considering the parties’ motions for summary judgment, the court was not reconsidering its prior ruling on defendants’ demurrer. Defendants’ demurrer called for the court to only consider the sufficiency of plaintiffs’ complaint, assuming all facts alleged therein were true. (National Automobile & Cas. Ins. Co. v. Payne (1968) 261 Cal.App.2d 403, 408 [“[t]he allegations of the complaint must be regarded as true. It must be assumed that [a] plaintiff can prove all of the facts as alleged”].) Whereas, a motion for summary judgment “‘permit[s] a party to show that material factual claims arising from the pleadings need not be tried because they are not in dispute.’” (Teselle v. McLoughlin (2009) 173 Cal.App.4th 156, 172, quoting Andalon v. Superior Court (1984) 162 Cal.App.3d 600, 605.) Thus, the court here was not reconsidering its ruling on defendants’ demurrer in ruling on the parties’ motions for summary judgment, nor was it bound by its prior ruling in granting defendants’ motion for summary judgment. (Aerojet-General Corp. v. Commercial Union Ins. Co., supra, 155 Cal.App.4th at p. 139, fn. 6.)
II. Collateral Estoppel and Res Judicata Do Not Apply Here
“Res judicata, or claim preclusion, prevents relitigation of the same cause of action in a second suit between the same parties or parties in privity with them. Collateral estoppel, or issue preclusion, ‘precludes relitigation of issues argued and decided in prior proceedings.’” (Mycogen Corp. v. Monsanto Co (2002) 28 Cal.4th 888, 896.) These doctrines apply only where there has been a final judgment on the merits. (Ibid.; Lucido v. Superior Court (1990) 51 Cal.3d 335, 341.)
Here, there was no final judgment on the merits resulting from the court’s ruling on defendants’ demurrer. An order overruling a demurrer is not directly appealable, but it may be reviewed on appeal from a final judgment. (Casterson v. Superior Court (2002) 101 Cal.App.4th 177, 182; San Diego Gas & Electric Co. v. Superior Court (1996) 13 Cal.4th 893, 913.) Final judgment occurred in the instant matter following the court’s ruling on the parties’ motions for summary judgment. (Stuart v. Lilves (1989) 210 Cal.App.3d 1215, 1219 [“[s]uch a judgment is as final and conclusive a determination of the merits as a judgment after trial”].) Thus, collateral estoppel and res judicata do not assist plaintiffs.
III. No State Law Provides Plaintiffs with the Unfettered Right to be Housed Together in the RRU
To bring a cause of action under Civil Code section 52.1, plaintiffs must demonstrate defendants “attempted or completed [an] act of interference with a legal right, accompanied by a form of coercion.” (Jones v. Kmart Corp. (1998) 17 Cal.4th 329, 334.) Plaintiffs contend under title 22, they have a legal right to cohabitate in the RRU, and defendants unlawfully interfered with that right when they transferred Robinson to an ICF. Plaintiffs specifically rely on title 22, section 73523, subdivision (a)(17), which states patients have the right, “f married or registered as a domestic partner, … to be permitted to share a room.”
Defendants assert title 9, not title 22, governs plaintiffs’ respective rights, and under title 9, plaintiffs have no legal right to be housed together in the RRU. We conclude title 9 applies to plaintiffs. Because title 9 does not provide spouses or registered domestic partners with the right to be housed together, we further conclude plaintiffs have failed to show they have a legal right to cohabitate in the RRU.
A. Title 9 Versus Title 22
Title 9, section 4105 defines a “state hospital” as “‘any hospital owned and operated by the Department of Mental Health.’” A “patient” under title 9 is “a person placed in or committed to a facility under authority of law for care and treatment.” (Tit. 9, § 881, subd. (r).) A patient’s rights as a civil detainee housed at a hospital owned and operated by the Department of Mental Health are set forth under section 883 of title 9.
In contrast, title 22 is a regulatory framework applicable to patients at “intermediate care facilities.” An “Intermediate Care Facility” is “a health facility, or a distinct part of a hospital or skilled nursing facility, which provides the following basic services: Inpatient care to patients who have need for skilled nursing supervision and need supportive care, but who do not require continuous nursing care.” (Tit. 22, § 73051.)
The patients’ rights outlined under title 22 are broader than the patients’ rights under title 9. For example, title 22 patients have a right to “have daily visiting hours,” whereas, title 9 patients have “[a] right to personal visits during regularly scheduled visiting days and hours.… The length and frequency of visits and the number of persons permitted to visit a patient at the same time may be limited.” (Compare tit. 22, § 73523, subd. (a)(18), with tit. 9, § 884, subd. (b)(4).) A title 22 patient has the right “to send and receive his or her personal mail unopened,” whereas title 9 patients have a right “to mail and receive correspondence[, but d]esignated facility employees shall open and inspect all incoming and outgoing mail addressed to and from patients for contraband.” (Compare tit. 22, § 73523, subd. (a)(14), with tit. 9, § 884, subd. (b)(6).)
Additionally, title 9 patients are subject to a contraband limitation. Under title 9, patients have “[a] right to keep and use personal possessions as space permits, except items and materials that are listed as contraband by the facility.” (Tit. 9, § 884, subd. (b)(1).) No such prohibition exists under title 22.
Title 22 patients also have the right to “consent to or to refuse any treatment or procedure.” (Tit. 22, § 73523, subd. (a)(4).) Title 9 patients, on the other hand, may be subject to involuntary medication orders. Title 9, section 4210 specifically provides: “(a) The Department of State Hospitals may conduct administrative hearings on hospital grounds to determine the necessity to administer non-emergency interim involuntary antipsychotic medication to a patient committed under: [¶] … [¶] (4) Welfare and Institutions Code section 6000 et seq. (Sexually Violent Predator).” Further, under title 22, patients’ rights may “only be denied or limited if such denial or limitation is otherwise authorized by law.” (Tit. 22, § 73523, subd. (b).) Under title 9, however, patients’ rights can be denied for “good cause.” (Tit. 9, § 884, subd. (c).)
Finally, title 22 patients have the right to “retain and use his or her personal clothing.” (Tit. 22, § 73523, subd. (a)(16).) Welfare and Institutions Code section 7232, subdivision (a) directs the State Department of Mental Health to issue a state hospital administrative directive requiring patients within the secured perimeter of each state hospital “to wear clothing that enables these patients to be readily identified.” In accordance with this statute, section 890 of title 9 states: “The facility director shall specify the types of clothing that are authorized to be worn by non-LPS patients in the facility.” Thus, title 9 patients do not have the right to wear their personal clothing.
B. The Trial Court’s Ruling
The trial court concluded title 22 does not apply to state hospital patients. It noted that under section 73051 of title 22, an intermediate care facility is defined as “‘a health facility, or a distinct part of a hospital or skilled nursing facility, which provides the following basic services: Inpatient care to patients who have need for skilled nursing supervision and need supportive care, but who do not require continuous nursing care.’”
The court further observed patients at intermediate care facilities “can be admitted ‘only on orders of a licensed healthcare practitioner’” (tit. 22, § 73517, subd. (a)(1)), and under title 22, patients have the right “‘[t]o consent to or to refuse any treatment or procedure.’” (Tit. 22, § 73523, subd. (a)(4).) However, patients at DSH–C can be involuntarily medicated if appropriate legal measures are taken. Finding title 9 governed plaintiffs’ rights, rather than title 22, the court held “Title 9 does not contain any right to be housed with a spouse or domestic partner.”
C. Analysis
1. Title 9 Applies Here
Plaintiffs contend title 22 applies to the patients at DSH–C. We conclude title 9 governs plaintiffs’ rights, not title 22. Further, title 9 does not provide patients who are married or registered domestic partners with the right to cohabitate.
Plaintiffs were adjudicated SVP’s over whom the Department of State Hospitals has custody pursuant to the SVPA. The SVPA is a civil commitment statute that “narrowly targets ‘a small but extremely dangerous group of sexually violent predators that have diagnosable mental disorders [who] can be identified while they are incarcerated.’” ([i]Cooley v. Superior Court (2002) 29 Cal.4th 228, 253.)
In contrast to civil commitment under the SVPA are patients committed under the Lanterman–Petris–Short Act (LPS Act; Welf. & Inst. Code, § 5000 et seq.). “The LPS Act is a comprehensive scheme designed to address a variety of circumstances in which a member of the general population may need to be evaluated or treated for different lengths of time.” (Cooley v. Superior Court, supra, 29 Cal.4th at p. 253.) Such circumstances may involve a short-term emergency evaluation (Welf. & Inst. Code, § 5150), intensive 14-day treatment (id., § 5250), 180-day commitment for the imminently dangerous (id., § 5300), extended commitment for the suicidal (id., § 5260), or 30-day temporary conservatorship or one-year conservatorship for the gravely disabled (id., § 5350). (Cooley, at p. 253.) Unlike SVP’s, patients committed under the LPS Act “have not been definitively determined to have committed serious felonies.” (People v. McKee (2010) 47 Cal.4th 1172, 1209, fn. 11.)
Under title 9, “non-LPS” refers to placement in a facility pursuant to legal authority other than the LPS Act. (Tit. 9, § 881, subd. (o).) Title 9 therefore governs a non-LPS patient’s rights. (Tit. 9, § 884 [entitled “Non-LPS Patients’ Rights”].) Because plaintiffs are SVP’s detained under Welfare and Institutions Code section 6600 et seq., they are non-LPS patients whose rights are set forth under title 9.
Unlike title 22, title 9 does not provide patients who are married or are registered domestic partners with the right to reside together. As such, we conclude plaintiffs have failed to show they have the right to reside together in the RRU.
2. The 2005 Letter to the Executive Director for DSH–C
In 2005, defendants applied for and were granted a program flexibility waiver excusing them from complying with title 22, section 73523, subdivision (a)(17), which at that time required married couples to be permitted to share a room. The letter, sent by the Department of Health Services to the Executive Director of DSH–C, granted defendants an exemption from complying with title 22, section 73523, subdivision (a)(17). Plaintiffs attached a copy of the letter to their motion for a preliminary injunction to support their argument that title 22 applies to patients at DSH–C.
On appeal, plaintiffs contend the mere fact defendants were granted an exemption from complying with title 22, section 73523, subdivision (a)(17) shows title 22 is applicable to defendants. However, plaintiffs did not attach the letter to their motion for summary judgment or to their opposition to defendants’ motion for summary judgment. “Material not presented in opposition to the summary judgment motion itself is not properly considered by the court in ruling on the motion.” (Roman v. BRE Properties, Inc. (2015) 237 Cal.App.4th 1040, 1054.) Further, this letter was not authenticated. “Documents used in support of a motion for summary judgment must be properly authenticated or they may not be considered.” (Callahan v. Chatsworth Park, Inc. (1962) 204 Cal.App.2d 597, 606.) In any event, consideration of the letter would not compel a different outcome here. We conclude, as a matter of law, title 9 governs plaintiffs’ rights.
3. Family Code Section 297.5
Plaintiffs contend Family Code section 297.5 guarantees registered domestic partners the same rights as married couples. Defendants agree the chief goal of Family Code section 297.5 is to “‘equalize the status of registered domestic partners and married couples.’” However, they assert plaintiffs have failed to show defendants have treated registered domestic partners differently than married couples. We agree with defendants.
The record contains no evidence defendants have treated domestic partners differently than married couples. Plaintiffs have not shown, for example, that defendants permitted married couples to cohabitate while denying domestic registered partners that same right. Indeed, according to plaintiffs’ own admission and declarations, other same-sex couples have been permitted to reside together. As such, plaintiffs’ contention that defendants violated Family Code section 297.5 is not supported by the record.
IV. Plaintiffs Have Failed to Show the Court Erred in Granting Defendants’ Motion for Summary Judgment
Plaintiffs assert the evidence attached to their motion for summary judgment raised triable issues of material fact. Defendants reply the trial court properly granted their motion for summary judgment for the following reasons: (1) plaintiffs failed to provide any evidence demonstrating defendants interfered or attempted to interfere by “threat, intimidation, or coercion” with plaintiffs’ alleged right to cohabitate (Civ. Code, § 52.1, subd. (a)); (2) the undisputed evidence shows Robinson was transferred from the RRU for clinical, nondiscriminatory reasons; (3) plaintiffs failed to demonstrate similarly situated SVP’s were treated differently than plaintiffs; (4) even considering plaintiffs’ inadmissible evidence, they failed to raise a triable issue of fact; (5) plaintiffs do not cite any authority showing defendants should have employed less restrictive alternatives rather than transferring Robinson; and (6) contrary to plaintiffs’ assertions, the court did not disregard evidence proffered by plaintiffs while heavily favoring the same evidence submitted by defendants.
We conclude plaintiffs have failed to show the trial court erred in denying their motion for summary judgment and in granting defendants’ motion. Our independent review of the record discloses no basis to conclude there are triable issues of material fact here.
A. Standard of Review
Summary judgment is properly granted when no triable issue exists as to any material fact and the moving party is entitled to judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c).) In moving for summary judgment, a “defendant … has met his or her burden of showing that a cause of action has no merit if the party has shown that one or more elements of the cause of action … cannot be established, or that there is a complete defense to the cause of action.” (Id., subd. (p)(2).) Once the moving defendant has met its initial burden, “the burden shifts to the plaintiff … to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto.” (Ibid.)
A grant of summary judgment is reviewed de novo. (Chavez v. Carpenter (2001) 91 Cal.App.4th 1433, 1438.) There is a triable issue of fact precluding summary judgment “if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof.” (Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at p. 850.) “A motion for summary judgment must be decided on admissible evidence in the form of affidavits, declarations, admissions, answers to interrogatories, depositions and matters of which judicial notice may be taken.” (Guthrey v. State of California (1998) 63 Cal.App.4th 1108, 1119–1120.) The evidence of the party opposing the motion must be liberally construed, and that of the moving party strictly construed. (Johnson v. Superior Court (2006) 143 Cal.App.4th 297, 308.)
B. Analysis
1. Plaintiffs Have Not Shown Defendants Interfered with a Legal Right by Threat, Intimidation, or Coercion
As discussed in part III, ante, plaintiffs have not shown they had a legal right to cohabitate. Assuming, arguendo, they did have such a right, plaintiffs have also failed to show defendants’ act of transferring Robinson constituted an act of interference or attempted interference with the exercise of that right by way of “threat, intimidation, or coercion.” (Civ. Code, § 52.1, subd. (a).)
Plaintiffs claim “the force Defendant Brazier used against them to separate them was carried out with reckless disregard and unnecessary force and use of threats ….” However, as defendants point out, Civil Code section 52.1 claims predicated solely on speech must be based on a threat of violence. “Speech alone is not sufficient to support an action … except upon a showing that the speech itself threatens violence against a specific person or group of persons” who have a reasonable fear of violence because “the person threatening violence had the apparent ability to carry out the threat.” (Id., subd. (j).) Here, plaintiffs do not allege defendants threatened them with violence. Nor do plaintiffs allege coercion or intimidation was employed by defendants pursuant to Robinson’s transfer to the ICF.
We recognize the burden of showing threats, intimidation or coercion is minimal. (See Venegas v. County of Los Angeles (2004) 32 Cal.4th 820, 851 (conc. opn. of Baxter, J.) [“it should not prove difficult to frame many, if not most, asserted violations of any state or federal statutory or constitutional right, including mere technical statutory violations, as incorporating a threatening, coercive, or intimidating verbal or written component”].) However, we are not persuaded plaintiffs have met this minimal burden based on the facts alleged in their complaint.
2. The Undisputed Evidence Shows Robinson Was Transferred as a Result of His Repeated Rules Violations
Plaintiffs further allege defendants deprived them of their civil rights in violation of title 42 United States Code section 1983 (section 1983). However, the undisputed evidence shows Robinson was transferred to the ICF as a result of his repeated rules violations rather than because of his sexual orientation or race.
“‘To state a claim under § 1983, a plaintiff must allege the violation of a right secured by the Constitution and laws of the United States, and must show that the alleged deprivation was committed by a person acting under color of state law.’” (Arce v. Childrens Hospital Los Angeles (2012) 211 Cal.App.4th 1455, 1472.)
“There are two essential elements of a claim under section 1983: (1) the conduct complained of was committed by a person acting under color of state law, and (2) the conduct deprived the plaintiff of a right, privilege or immunity secured by the Constitution or laws of the United States.” (McAllister v. Los Angeles Unified School District (2013) 216 Cal.App.4th 1198, 1207; see Arce v. Childrens Hospital Los Angeles, supra, 211 Cal.App.4th at p. 1472.) “‘The threshold inquiry [in analyzing a section 1983 claim] is whether the evidence establishes that [the plaintiffs] have been deprived of a constitutional right.’” (Arce, at pp. 1472–1473.)
Here, the undisputed evidence shows Robinson has incurred rules violations dating back to 2011. In 2012 and 2013, Robinson was involved in physical altercations. In 2013, Robinson was warned he was being considered for an ICF assignment after he was found to be in possession of a cell phone. Six days later, Robinson was found in possession of another cell phone. During this incident, Robinson attempted to resist the confiscation of the cell phone, resulting in injuries to DSH–C staff members and Robinson. DSH–C staff later confiscated additional contraband, including checkbooks, a laptop computer, SanDisk memory cards, altered USB adapters, and one-half gallon of “pruno.”
Following this last incident, a clinical recommendation was made to move Robinson into an ICF so he could receive a higher level of care. Robinson was told if he remained incident-free, he may be able to return to the RRU. However, Robinson subsequently committed several rules violations, including selling crushed aspirin to lower-functioning patients, engaging in sexual acts with a peer, possessing contraband, including alcohol, engaging in fights, and displaying aggression towards staff.
Robinson does not dispute any of this evidence, nor does he offer any evidence showing other SVP’s who committed similar rules violations were subject to disparate treatment. Because the undisputed evidence shows Robinson’s transfer was based on legitimate nondiscriminatory reasons, and plaintiffs were unable to produce evidence showing defendants’ reasons for Robinson’s transfer were pretextual, we conclude defendants’ motion for summary judgment was properly granted.
3. Plaintiffs Have Failed to Demonstrate Similarly Situated Persons Were Treated Differently
Plaintiffs contend they submitted evidence contradicting the trial court’s finding that “[n]either … Palomino nor … Robinson have displayed a basis for personal knowledge that others have engaged in the same violations as … Robinson, were married or domestic partners of other patients, and were not moved to a more restrictive unit.”
The first item of evidence proffered by plaintiffs is an excerpt from Palomino’s declaration. In his declaration, Palomino stated: “[O]n each occasion when my domestic partner would try to visit me he would be punished for doing so, and that I personally witnessed other patient’s [sic] whom I know or knew who were not gay or involved in a domestic partnership being allowed to visit with their friends on Unit 12 ….” The second item of evidence is an excerpt from Robinson’s declaration where he alleges defendants “discriminated against [him] and [his] domestic partner … Palomino based on [their] sexual orientation, specifically, by refusing to allow [him] to visit [his] partner, while allowing other non-gay patients to visit their friends and associates, according to their ‘Visiting Guidelines’ policy, which did not apply to [Robinson] and [Palomino].”
The evidence plaintiffs direct us to has no bearing on Robinson’s transfer to the ICF, which is what the trial court was referring to. Rather, this evidence relates to plaintiffs’ ability to visit one another following Robinson’s transfer.
Insofar as defendants’ visitation policies are concerned, we note that while Robinson was prevented from visiting Palomino in the RRU, there is no evidence showing Palomino was prevented from visiting Robinson. As the trial court explained, plaintiffs could visit each other in several areas outside of their respective units. The court stated “[t]he undisputed evidence adduced by the defendants, as well as several documents provided by plaintiffs, show only that … Robinson was prevented from visiting … Palomino in the unit where … Palomino resided.” (Italics added.) Plaintiffs have not directed this court to any authority showing they have the right to visit one another at the time and place of their choosing.
4. Plaintiffs Have Not Shown Triable Issues of Material Fact
Plaintiffs further contend the trial court abused its discretion by ruling all of their evidence was inadmissible. Plaintiffs are referring to exhibits J through M, and exhibits O through Q attached to their motion for summary judgment. These documents were proffered to show other patients at DSH–C had committed far more serious rules violations than Robinson, but received no punishment for their behavior.
As discussed, “[d]ocuments used in support of a motion for summary judgment must be properly authenticated or they may not be considered.” (Callahan v. Chatsworth Park, Inc., supra, 204 Cal.App.2d at p. 606; see Evid. Code, § 1401, subd. (a) [“[a]uthentication of a writing is required before it may be received in evidence”].) None of the documents presented by plaintiffs in support of their motion were authenticated. In any event, although the court noted this evidence was inadmissible, it nonetheless considered the evidence in ruling on the parties’ motions:
“Plaintiffs have offered various sheets from what appear to be hospital records, which are not authenticated and for which no foundation is laid. They appear to discuss persons who committed various violations of rules. The racial background of such persons is not disclosed. The names of such persons have been redacted. Neither … Palomino nor … Robinson have displayed a basis for personal knowledge that others have engaged in the same violations as … Robinson, were married or domestic partners of other patients, and were not moved to a more restrictive unit. The inadmissible evidence provided is insufficient to raise a triable issue of fact as to discriminatory treatment of … Robinson and … Palomino due to their differing ethnic heritage.”
The evidence showed DSH–C’s recommendation to move Robinson from the RRU to the ICF was based on his repeated rules violations. The exhibits plaintiffs have attached to the motion for summary judgment do not permit this court to ascertain whether other patients may have committed a similar pattern of rules violations but were not recommended for transfer to the ICF. Thus, this evidence does not assist plaintiffs.
5. Plaintiffs Have Not Shown the Availability of Less Restrictive Alternatives
Plaintiffs contend defendants could have exercised less restrictive alternatives in lieu of transferring Robinson to the ICF. They contend defendants could have moved both plaintiffs rather than separating them, or they could have required Robinson to enroll in a group class, rather than transferring him. Plaintiffs do not direct us to evidence showing these are feasible alternatives.
6. The Court’s Consideration of Defendants’ Evidence
Plaintiffs complain the trial court disregarded evidence proffered by plaintiffs, but at the same time, heavily favored the same evidence submitted by defendants. The overlapping evidence included a letter from the DSH–C Executive Director explaining the basis for Robinson’s transfer, and several declarations from other SVP’s at DSH–C. Defendants contend, and we agree, there is no support for plaintiffs’ assertion.
Although the court noted plaintiffs submitted records that were not authenticated and for which no foundation had been laid, it nonetheless considered this evidence in its decision. The court concluded “[t]he inadmissible evidence provided is insufficient to raise a triable issue of fact as to discriminatory treatment of … Robinson and … Palomino due to their differing ethnic heritage.” Thus, the record shows the court considered the evidence attached to plaintiffs’ motion for summary judgment in ruling on the merits of the motion.
V. The Trial Court Was Not Obligated to Order a Continuance Sua Sponte
In their final claim on appeal, plaintiffs assert the court should have continued the hearing on the parties’ motions for summary judgment so they could refile their response to defendants’ separate statement of material facts. In its July 17, 2015, tentative ruling, the court noted plaintiffs had failed to file a response to defendants’ separate statement of undisputed material facts. However, the court explained, “While this is sufficient grounds for granting defendants’ motion alone, the Court also finds that the law does not provide a right to cohabitate for residents of California state hospitals, whether they are married or registered domestic partners.”
We note the language of the trial court’s ruling indicates the parties’ motions were decided on the merits of the claims therein, and not based on the fact plaintiffs had failed to file a response to defendants’ separate statement of material facts. In addition, plaintiffs fail to direct us to authority showing a continuance should have been granted sua sponte. Code of Civil Procedure section 437c, subdivision (h) provides:
“If it appears from the affidavits submitted in opposition to a motion for summary judgment or summary adjudication, or both, that facts essential to justify opposition may exist but cannot, for reasons stated, be presented, the court shall deny the motion, order a continuance to permit affidavits to be obtained or discovery to be had or make any other order as may be just.”
“The statute mandates a continuance of a summary judgment hearing upon a good faith showing by affidavit that additional time is needed to obtain facts essential to justify opposition to the motion.” (Cooksey v. Alexakis (2004) 123 Cal.App.4th 246, 253–254.) In the absence of an affidavit, the court is not required to grant an appellant’s request for a continuance. (Ibid.)
Here, based on the nature of plaintiffs’ argument, it appears they never requested a continuance. Assuming they had, however, the record shows plaintiffs failed to submit an affidavit or declaration to the trial court showing a continuance was needed. We find no error as a result.[3]
DISPOSITION
The judgment is affirmed. The parties shall bear their own costs on appeal.
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PEÑA, J.
WE CONCUR:
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HILL, P.J.
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DETJEN, J.
[1]Further references to title 9 and title 22 are to the California Code of Regulations unless otherwise indicated.
[2]We note plaintiffs filed their notice of appeal following the trial court’s issuance of a tentative ruling, but prior to the entry of the judgment. Where there is a premature notice of appeal, “[t]he reviewing court may treat a notice of appeal filed after the superior court has announced its intended ruling, but before it has rendered judgment, as filed immediately after entry of judgment.” (Cal. Rules of Court, rule 8.104(d)(2).) We exercise our discretion to treat the notice of appeal as having been filed immediately after entry of judgment.
[3]On February 17, 2016, plaintiffs filed a motion with this court to consider additional evidence. The evidence attached to plaintiffs’ motion is plaintiffs’ response to defendants’ separate statement of undisputed material facts. Plaintiffs claim they mailed this document to the trial court but it was lost in transit. Having reached the merits of defendants’ claims and concluding plaintiffs have failed to show they had a right to cohabitate with one another or that Robinson was transferred to the ICF on the basis of his race or sexual orientation, the proffered evidence would not compel a contrary conclusion. Plaintiffs’ motion is denied.
