Wolfe v. Tilton

Filed 10/13/06 Wolfe v. Tilton CA3

NOT TO BE PUBLISHED

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Sacramento)

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Marion C. Wolfe, Jr., a state prison inmate, filed a civil action for injunctive relief and damages against employees of the Department of Corrections and Rehabilitation. The trial court struck the claim for damages because Wolfe failed to comply with the Tort Claims Act, and directed that the claim for injunctive relief be refiled as a petition for a writ of habeas corpus.

Wolfe appeals, but does not challenge the order that his claim for injunctive relief be refiled as a petition for writ of habeas corpus. He simply asserts that the trial court erred in striking the claim for damages, and contends that the Department of Corrections and Rehabilitation violated his rights. Defendants move to dismiss the appeal, arguing it is from a nonappealable order or, in the alternative, it is untimely.

We shall deny defendants’ motion to dismiss the appeal, and affirm the trial court’s order. As we will explain, (1) the order is an appealable order and Wolfe’s notice of appeal was timely, (2) the court properly struck the claim for damages and did not abuse its discretion in failing to allow Wolfe to amend his complaint, (3) because Wolfe does not challenge the order to the extent it directs that the claim for injunctive relief must be refiled as a petition for writ of habeas corpus, we do not address the propriety of that ruling, and (4) Wolfe’s other claims are not cognizable in this appeal.

BACKGROUND

The state prison in Folsom has had a program that allows inmates to receive, from family or friends, packages containing approved items such as food stuffs and clothing. The number of packages that may be received depends on the inmate’s privilege classification. Those inmates with full-time work or education assignments can receive the packages on a quarterly basis. (Cal. Code Regs., tit. 15, § 3044(d)(3)(G).)

An inmate’s family or friends had been allowed to personally purchase and pack the items to be delivered. However, effective January 1, 2004, the warden changed this aspect of the program. After that date, the prison would accept only packages prepared and sent by an approved provider. Family and friends could order a preselected package or could customize the package by choosing items for inclusion. In either event, family and friends could no longer personally handle and pack the items for the inmate. This change was made to reduce the burdens on staff in inspecting the packages and to reduce the contraband that was making its way into the prison.

Wolfe, an inmate at the old prison at Folsom, and a number of other inmates objected to the change. They unsuccessfully pursued administrative remedies within the prison. Wolfe, acting in propria persona, then filed a civil complaint for injunctive relief and damages. The complaint purports to be a class action on behalf of Wolfe and other affected prisoners.^[1]

Defendants demurred to the amended complaint on the ground that Wolfe failed to comply with the Tort Claims Act. The trial court’s minute order of December 2, 2004, sets forth the court’s tentative ruling. The court treated the demurrer as a motion to strike and granted it with respect to the claim for damages. Then, noting that a claim for injunctive relief does not require compliance with the Tort Claims Act, the ruling stated: “The court has reviewed the complaint for injunctive relief and determined that it raises an issue that could have been raised by a petition for writ of habeas corpus. The court has further determined that construing the petition as a petition for writ of habeas corpus would not alter the disposition of the merits of the complaint and would not prejudice either party. Rather, it would allow the petition to be resolved on the merits without requiring petitioner to comply with the numerous technical requirements for injunctive remedies. Accordingly, in order to adequately and efficiently resolve the complaint [for injunctive relief] on its merits, it is HEREBY ORDERED that the complaint shall be filed as a petition for writ of habeas corpus.” Because no appearance was requested by the parties, the minute order states the tentative ruling is “accepted” as the order of the court.

Wolfe requested a final order and asked for a 60-day extension of time to file an amended petition in the habeas corpus format or to appeal the final order. The trial court’s minute order of February 15, 2005, states the court ruling on December 2, 2004, was final on that date, and the “clerk shall mail a copy of this ruling to [Wolfe].” The minute order further states that it is “effective immediately. No formal order . . . or other notice is required.

At some time, Wolfe’s complaint was refiled as a petition for a writ of habeas corpus. It was given a new case number and was assigned to a different department. Apparently, Wolfe was not informed of this because on March 7, 2005, he filed a first amended petition for habeas corpus, stating his claims in a habeas corpus format but using the old case number and department.

On April 8, 2005, Wolfe filed a notice of appeal from the order of December 2, 2004. In the notice of appeal, the only issue he raised with respect to that order was the striking of his claim for damages. He does not complain, in the notice of appeal or in his appellate brief, of the order to the extent that directed the complaint to be filed as a petition for writ of habeas corpus.

DISCUSSION

I

In their motion to dismiss the appeal, defendants assert that the order of December 2, 2004, is not an appealable order or, in the alternative, that the notice of appeal was not filed in a timely manner.

Generally, an appeal must be taken from one final judgment disposing of all the issues between the parties. (Morehart v. County of Santa Barbara (1994) 7 Cal.4th 725, 743.) This means that interim orders, such as an order sustaining a demurrer or an order striking a claim, must be entered as part of a final judgment before an appeal is appropriate. (Otworth v. Southern Pac. Transportation Co. (1985) 166 Cal.App.3d 452, 457; Shank v. Los Gatos Associates (1961) 193 Cal.App.2d 824, 828.)

Here, the trial court entered an order striking Wolfe’s claim for damages and directing that his claim for injunctive relief be filed as a petition for a writ of habeas corpus. It was entered as a tentative ruling which became the order of the court when no appearance was requested. The order did not specifically state that it was to be final immediately. When Wolfe asked for entry of a final order to facilitate an appeal, the court responded by stating that the order of December 2, 2004, was final when it was made. Hence, the order satisfies the finality requirement for an appeal. (Estate of Lock (1981) 122 Cal.App.3d 892, 896-897; Martino v. Concord Community Hosp. Dist. (1965) 233 Cal.App.2d 51, 55-56.)

A complaint for injunctive relief commences a civil action. (Code Civ. Proc., § 22.) A petition for writ of habeas corpus commences a special proceeding of a criminal nature. (Pen. Code, §§ 1473, 1562.) When the trial court ordered that Wolfe’s amended complaint be refiled as a petition for a writ of habeas corpus, it effectively terminated Wolfe’s civil action. The complaint was refiled as a petition for a writ of habeas corpus, with a new case number. The habeas corpus proceeding was not a mere continuation of the civil action; it was a new and different proceeding.

Wolfe does not challenge the order to the extent that it terminated his civil action and compelled him to proceed by way of a petition for writ of habeas corpus. Consequently, we need not address the correctness of this part of the order. We simply point out that it entirely disposed of the civil action and, thus, was an appealable final order notwithstanding the fact it was not labeled a judgment. (Estate of Lock, supra, 122 Cal.App.3d at p. 897.)

A notice of appeal must be filed on or before the earliest of “(1) 60 days after the superior court clerk mails the party filing the notice of appeal a document entitled ‘Notice of Entry’ of judgment or a file-stamped copy of the judgment, showing the date either was mailed; (2) 60 days after the party filing the notice of appeal serves or is served by a party with a document entitled ‘Notice of Entry’ of judgment or a file-stamped copy of the judgment, accompanied by proof of service; or (3) 180 days after entry of judgment.” (Cal. Rules of Court, rule 2(a).)

The order of December 2, 2004, did not expressly indicate that it was final immediately. The minute order reflects a “cc:” to Wolfe. However, nothing in the order or in the record indicates whether, or when, the clerk of the court mailed to Wolfe a notice of entry of the order or a file-stamped copy of the order. And there is nothing in the record to suggest that any party served a notice of entry or file-stamped copy of the order. Assuming the order of the December 2, 2004, was final when entered, Wolfe had 180 days to file his notice of appeal. (Cal. Rules of Court, rule 2(a)(3), (f).) Accordingly, his notice of appeal filed on April 8, 2005, was timely.

As we have noted, the December 2nd order did not specifically state that it was final immediately. On February 15, 2005, the trial court declared the December 2nd order to be final, directed the clerk to mail a copy of the order to Wolfe, and specified that it is effective immediately and that no formal order need be filed. The order bears the clerk’s declaration that a copy was mailed to Wolfe on February 17, 2005. Wolfe’s notice of appeal filed on April 8, 2005, was within 60 days of that date and was timely.

For these reasons, regardless of whether we view the order of December 2, 2004, as final when made, or conclude that it became final with the order of February 15, 2005, the notice of appeal was timely filed. Therefore, we deny defendants’ motion to dismiss the appeal.

II

The trial court struck the claim for damages because Wolfe did not comply with the Tort Claims Act, which states that a civil action for damages against a public agency or its employees cannot be commenced until a claim has been presented to, and rejected by, the public agency. (Gov. Code, §§ 905.2, 945.4, 950.2.)

Wolfe contends he should have been given leave to amend his complaint to assert compliance with the Tort Claims Act. However, the record shows that he cannot do so.

In support of his assertion that the complaint can be amended to cure the defect, Wolfe submitted an inmate claim on a form of the former State Board of Control, now known as the California Victim Compensation and Government Claims Board. As we will explain, that claim does not satisfy the requirements of the Tort Claims Act.

First, the inmate claim form plainly demonstrates it is not a claim under the Tort Claims Act. Instead, through the use of the form, the State Board of Control would exercise “its equity powers” to address a claim of loss of or damage to the personal property of an inmate; in doing so, the State Board of Control would not apply the limitations of the Tort Claims Act. However, “if [the inmate] wishes to file a claim under the . . . Tort Claims Act, all procedural and substantive requirements [of the act] will be strictly applied,” and the proper forms would be required.

Second, the copy of the inmate claim form that Wolfe submitted to the trial court does not indicate that it was actually submitted to, or acted upon by, the State Board of Control. There is nothing else in the record that would so indicate.

Third and finally, in the inmate claim form, Wolfe alleged damages occurring on April 1, July 1, and October 1, of 2004, and on January 1, 2005. These dates were all well after Wolfe commenced the civil action for damages. A claim for such subsequent damages does not demonstrate compliance with the Tort Claims Act before commencing litigation and does not cure the defect in the complaint.

With his notice of appeal, Wolfe submitted a letter from the California Victim Compensation and Government Claims Board. The letter indicates that the board had received a tort claim from Wolfe on October 15, 2004, and had scheduled action on the claim for March 17, 2005. These dates were long after Wolfe commenced the civil action and, thus, cannot demonstrate compliance with the Tort Claims Act before the action was commenced.

When a plaintiff claims a trial court abused its discretion in not allowing leave to amend a complaint, the burden is squarely on the plaintiff to prove a reasonable possibility that amendment will cure defects in the complaint. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) Because the documents to which Wolfe points in support of his assertion that he can cure the defect by amendment actually establish that he cannot, and since he has not otherwise suggested he can cure the defect by amendment, we find no abuse of discretion in failing to accord him leave to amend the complaint. (B & P Development Corp. v. City of Saratoga (1986) 185 Cal.App.3d 949, 962.)

III

The remaining assertions in Wolfe’s brief present issues that are not cognizable in this appeal. The order on appeal did not resolve the merits of Wolfe’s claims regarding the propriety of the change in the prison package program, and Wolfe must address those issues to the trial court in the habeas corpus proceeding. The remaining assertions, such as retaliation by defendants and inhibited access to legal files, were not before the trial court when it entered the order on appeal. Indeed, in some instances, they appear to be matters subsequent to the entry of the order on appeal. Consequently, they cannot be raised in this appeal. (In re Marriage of Folb (1975) 53 Cal.App.3d 862, 877, disapproved on another ground in In re Marriage of Fonstein (1976) 17 Cal.3d 738, 749, fn. 5; Oldenkott v. American Electric, Inc. (1971) 14 Cal.App.3d 198, 207.)

DISPOSITION

The motion to dismiss the appeal is denied. The order of the trial court is affirmed.

SCOTLAND , P.J.

We concur:

HULL , J.

ROBIE , J.

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^[1] Wolfe can properly pursue his own interests in litigation. However, because he is not an attorney, he cannot represent any other person in the litigation. (Drake v. Superior Court (1994) 21 Cal.App.4th 1826, 1830-1831; J.W. v. Superior Court (1993) 17 Cal.App.4th 958, 965-968.) Thus, he cannot pursue this litigation as a class action. The complaint was later amended to add Joseph E. Lister as a named plaintiff. Lister, acting in propria persona, signed the first amended complaint, but subsequent matters were presented by Wolfe alone. Hence, Lister effectively withdrew from the litigation. The notice of appeal was filed by Wolfe alone; it does not purport to be on behalf of Lister. Accordingly, Lister is not a party to this appeal.