Filed 5/9/22 Foster v. Sexton 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THE COURT*

APPEAL from a judgment of the Superior Court of Kings County. Robert Shane Burns, Judge.

Ricky Tyrone Foster, in pro. per., for Plaintiff and Appellant.

No appearance for Defendant and Respondent.

-ooOoo-

Plaintiff Ricky Tyrone Foster, a self-represented inmate, appeals from an order sustaining a demurrer with leave to amend. Such an order is not appealable. (Code Civ. Proc., § 904.1)[1] As a general rule, appellate courts do not have jurisdiction to consider an appeal from a nonappealable order and, furthermore, have a duty to dismiss such an appeal on their own motion. (In re Mario C. (2004) 124 Cal.App.4th 1303, 1307.) As explained below, this general rule should be applied to the circumstances of this case.

We therefore dismiss the appeal on our own motion.

MEMORANDUM OPINION[2]

I. MATERIAL FACTS AND PROCEDURAL HISTORY

A. The First Appeal

In 2018, Foster filed a petition for a writ of replevin directing prison officials to return his personal property or pay its value, which he estimated at $500. The superior court granted its own motion for judgment on the pleadings without leave to amend on the ground Foster failed to allege he exhausted, or was excused from exhausting, administrative remedies. Foster appealed and we reversed, concluding that he had carried his burden of demonstrating the defect could be cured by an amendment alleging facts showing the administrative process was “unavailable to him because prison officials ha[d] thwarted his use of the inmate grievance procedure through misrepresentations and machinations.” (Foster v. Sexton (2021) 61 Cal.App.5th 998, 1007 (Foster I).)

In Foster I, we discussed whether Foster’s cause of action fell within the scope of the Government Claims Act (Gov. Code, § 810 et seq.). (Foster I, supra, 61 Cal.App.5th at pp. 1021–1023.) We concluded that his cause of action was the tort of conversion and, based on the allegations and prayer for relief, Foster was “pursuing an action for the recovery of specific personal property.” (Id. at p. 1020.) We noted the prayer for relief in Foster’s writ petition was “limited to the return of his personal property or its monetary equivalent, which he states is $500.” (Id. at p. 1022.) As a result of Foster’s narrowly crafted request for relief, we concluded his writ petition qualified “as the type of petition for writ of mandate discussed in Escamilla [v. Department of Corrections & Rehabilitation (2006)] 141 Cal.App.4th 498.” In that case, the appellate court concluded an “inmate could pursue a petition for writ of mandate seeking the return of specific personal property (or the value thereof) without first presenting a claim under the Government Claims Act.” (Foster I, supra, at p. 1022.)

Based on Escamilla and other cases, we concluded “Foster’s petition for writ of replevin with its narrow request for relief is not subject to the Government Claims Act’s claim[] presentation requirements. [Citations.] Therefore, Foster need not allege compliance, or an excuse from complying, with the claim presentation requirements of the Government Claims Act.” (Foster I, supra, 61 Cal.App.5th at p. 1023, italics added.) Our decision in Foster I implied that if Foster had included a broader request for relief seeking additional damages or had included additional claims addressing other alleged wrongful conduct, the claim presentation requirements of the Government Claims Act might have applied. This implication has a direct bearing on the issues presented in this appeal.

B. Proceedings After Remand

In Foster I, supra, 61 Cal.App.5th 998, we reversed and remanded with directions to grant Foster leave to amend to include allegations addressing his excuse or excuses for not exhausting the administrative grievance procedure. (Id. at p. 1038.)

In April 2021, Foster filed a first amended petition for writ of replevin. Despite the discussion in Foster I about how the narrowly tailored request for relief in the original writ petition caused it to fall outside the Government Claims Act’s claim presentation requirements, the first amended petition included a claim alleging another wrong and expanded the relief requested. Specifically, Foster alleged his missing personal property had “an approximate value of $2,000 (based upon being retaliated for filing grievance on prison official’s.)” The prayer for relief requested (1) an award of damages in the amount of $2,000 for retaliation against him for pursuing grievances against prison guards at Corcoran State Prison and (2) an order directing the replacement of the missing items. In comparison, Foster’s original writ petition did not include a separate and distinct claim for damages arising out of retaliatory conduct.[3]

In October 2021, six months after Foster filed the first amended petition, Warden filed a demurrer. The demurrer asserted the first amended petition for writ of replevin (1) was uncertain and ambiguous, (2) its claims had not been administratively exhausted, (3) failed to allege facts demonstrating compliance with Government Claims Act, and (4) failed to state a cause of action because Foster had a plain, speedy, and adequate remedy in the ordinary course of law.

Three and a half months later, in February 2022, the superior court filed an order sustaining the demurrer with leave to amend. The court concluded that the new retaliation claim, which sought $2,000 in damages, was not incidental to the original claim for the return of specific property or its value and, therefore, Foster was required to allege he timely filed a government claim with respect to that claim. The court did not discuss the possibility that the retaliation claim was brought under federal law and, therefore, was not subject to the claim presentation requirements applicable to claims brought under California law.[4] Also, the court did not explain why the demurrer was sustained to the entire petition instead of just the retaliation cause of action.

The superior court’s order allowed Foster 30 days to amend. Foster chose not to file a second amended petition. Instead, before the 30 days to amend expired, he submitted a notice of appeal on Judicial Council form APP-002. The notice of appeal was signed and dated February 17, 2022.[5] On February 28, 2022, the superior court filed the notice of appeal.

On March 22, 2022, this court issued an order (1) stating it was considering dismissing the appeal on the ground it was taken from a nonappealable order; (2) noting that an order sustaining a demurrer with leave to amend is not among the appealable orders listed in Code of Civil Procedure section 904.1; and (3) quoting case law stating an order sustaining a demurrer is not a final judgment and is not itself appealable. The order directed Foster to file a letter brief setting forth the jurisdictional basis for the appeal and directed him to state whether a dismissal order or a judgment of dismissal had been filed by the superior court.

On April 19, 2022, this court filed Foster’s letter brief, which referred to the collateral order doctrine set forth by the United States Supreme Court in Cohen v. Beneficial Industrial Loan Corp. (1949) 337 U.S. 541. In addition, the letter brief asserted the superior court’s order was immediately appealable because it conclusively determined the first amended petition failed to state a cause of action and failed to demonstrate compliance with the Government Claims Act.

II. LACK OF JURISDICTION OVER A NONAPPEALABLE ORDER

As a general rule, appellate courts do not have jurisdiction to consider an appeal from a nonappealable order. (Griset v. Fair Political Practices Commission (2001) 25 Cal.4th 688, 697.) When an appeal is taken from a nonappealable order, the appellate court has a duty to dismiss the appeal. (In re Mario C., supra, 124 Cal.App.4th at p. 1307.)

A. An Order Sustaining a Demurrer is Not Appealable

Section 904.1 contains a list of appealable orders. An order sustaining a demurrer (either with or without leave to amend) is not on the list. Accordingly, “[a]n order sustaining a demurrer with leave to amend is not a final judgment and therefore not itself appealable.” (Otworth v. Southern Pac. Transportation Co. (1985) 166 Cal.App.3d 452, 457.)

When a plaintiff fails or refuses to amend his or her pleading and the time for an amendment has expired, “the court will enter a judgment of dismissal from which an appeal to review the correctness of the ruling on the demurrer may be taken.” (Otworth v. Southern Pac. Transportation Co., supra, 166 Cal.App.3d at p. 457.) “When a plaintiff elects not to amend the complaint, it is presumed that the complaint states as strong a case as is possible [citation]; and the judgment of dismissal must be affirmed if the unamended complaint is objectionable on any ground raised by the demurrer.” (Ibid.; see Jeffers v. Screen Extras Guild, Inc. (1951) 107 Cal.App.2d 253, 254.)

Similarly, in County of Santa Clara v. Atlantic Richfield Co. (2006) 137 Cal.App.4th 292, the court stated that when a plaintiff chooses to stand on his or her pleading and not amend after a demurrer is sustained with leave to amend, “an appeal from the ensuing dismissal order may challenge the validity of the intermediate ruling sustaining the demurrer. [Citation.] On the other hand, where the plaintiff chooses to amend, any error in the sustaining of the demurrer is ordinarily waived.” (Id. at p. 312, italics added.)

The foregoing cases demonstrate that, after a plaintiff fails or refuses to amend his or her pleading within the time granted by the superior court, the next procedural step is the entry of an order of dismissal (§ 581d) or a judgment of dismissal. (See Otworth v. Southern Pac. Transportation Co., supra, 166 Cal.App.3d at p. 457.)

Here, no judgment of dismissal or order of dismissal has been filed. Instead, Foster has taken the appeal from the order sustaining Warden’s demurrer. Such an order is not appealable and, therefore, the general rule that appellate courts lack the jurisdiction to consider an appeal from a nonappealable order requires the dismissal of this appeal. Consequently, the next issue we consider is whether to apply an exception to the general rule.

B. Discretion to Treat an Order as If It Included a Judgment of Dismissal

Appellate courts have the discretion to deem an order sustaining a demurrer as incorporating a judgment of dismissal and to treat the plaintiff’s notice of appeal as applying to the fictional judgment of dismissal. (Nowlon v. Koram Ins. Center, Inc. (1991) 1 Cal.App.4th 1437, 1440–1441; Munoz v. Davis (1983) 141 Cal.App.3d 420, 431.) For example, in Estate of Dito (2011) 198 Cal.App.4th 791, the court exercised its discretionary authority and treated an order sustaining a demurrer without leave to amend as an appealable judgment of dismissal. (Id. at pp. 799–800.) The court explained its decision by stating:

“The order sustaining [respondent’s] demurrer was a final adjudication of all of the causes of action contained in the petition. No purpose would be served by dismissing the appeal and requiring appellants to file a new appeal after securing a judgment of dismissal in the trial court. [Respondent] has not been prejudiced or misled by the failure to secure a judgment of dismissal. Indeed, she has not challenged the appealability of the order but has instead responded to the appeal on its merits.” (Id. at p. 800.)

In Flores v. Department of Corrections & Rehabilitation (2014) 224 Cal.App.4th 199, this court exercised its discretionary authority where a self-represented inmate appealed an order sustaining a demurrer (without leave to amend) to his petition for writ of mandate. (Id. at pp. 203–204.) The underlying rationale was “[t]o promote the orderly administration of justice, and to avoid the useless waste of judicial and litigant time that would result from dismissing the appeal merely to have a judgment formally entered in the trial court and a new appeal filed.” (Id. at p. 204.)

The foregoing cases illustrate when it is appropriate for an appellate court to exercise its discretionary authority and treat a nonappealable order sustaining the demurrer as an appealable judgment of dismissal. In the circumstances presented by this case, we conclude it is inappropriate to treat the order as including an appealable judgment.

First, it appears that Foster’s decision to appeal rather than file a second amended petition was based on a misinterpretation of Foster I and of the ground on which the superior court sustained the demurrer. Foster did not limit the first amended petition to seeking a return of his personal property or payment of its value. Instead, he expanded his allegations to include a retaliation cause of action and expanded the relief sought to include $2,000 as damages for the retaliation. The inclusion of the retaliation claim and of the expanded request for damages provided the basis for the superior court’s decision to sustain the demurrer. Thus, dismissing this appeal would not be solely for the formality of entering a judgment of dismissal. It would also allow Foster to make an informed choice about whether or not to file another amendment to address the issues raised by his inclusion of the new retaliation claim in the first amended petition.

Second, the order sustaining the demurrer does not itself distinguish between Foster’s missing property cause of action and his retaliation cause of action. If Foster does not amend and a judgment of dismissal is entered, that judgment might distinguish between the two causes of action and clarify the reason for dismissing the property claim. In that event, the filing of a judgment of dismissal would serve a purpose and would not be merely a formality.

Third, this is not a case where the respondent has already briefed the merits of the decision to sustain the demurrer and foregone challenging its appealability. (See Estate of Dito, supra, 198 Cal.App.4th at p. 800.)

Consequently, we conclude this appeal should be dismissed to allow Foster to decide whether or not to file an amendment addressing the ground on which the demurrer was sustained and, if no amendment is filed, for the entry of an order or judgment of dismissal. (See Sisemore v. Master Financial, Inc. (2007) 151 Cal.App.4th 1386, 1396.)

C. Collateral Order Doctrine Does Not Apply

Foster’s letter brief asks this court to treat the order as appealable under the collateral order doctrine. We conclude that doctrine does not apply to the circumstances of this case.

In Cohen v. Beneficial Industrial Loan Corp., supra, 337 U.S. 541, the United States Supreme Court referred to a small class of decisions that “finally determine claims of right separable from, and collateral to, rights asserted in the action, too important to be denied review and too independent of the cause itself to require that appellate consideration be deferred until the whole case is adjudicated.” (Id. at p. 546.) The California Supreme Court also recognizes the collateral order doctrine:

“When a court renders an interlocutory order collateral to the main issue, dispositive of the rights of the parties in relation to the collateral matter, and directing payment of money or performance of an act, direct appeal may be taken. [Citations.] This constitutes a necessary exception to the one final judgment rule. Such a determination is substantially the same as a final judgment in an independent proceeding.” (In re Marriage of Skelley (1976) 18 Cal.3d 365, 368.)

At least two elements of the collateral order doctrine are missing in the present appeal. First, the order sustaining the demurrer is not collateral to the main issue. Whether the first amended petition states one or more causes of action is the primary issue at the pleading stage of this lawsuit. As a result, there is a way to obtain effective appellate review of the order without invoking the collateral order doctrine. Second, the order sustaining the demurrer does not direct the payment of money or the performance of an act. Consequently, the collateral order doctrine does not apply because of these missing elements.

If Foster elects not to amend and obtains a judgment of dismissal, he may file a timely notice of appeal from that judgment.[6] In designating the record in that appeal, he need not include documents in the clerk’s transcript filed in this case or case No. F078387, but may request this court to take judicial notice of the clerk’s transcripts filed in each of those cases.

DISPOSITION

The appeal from the order sustaining the demurrer with leave to amend is dismissed. The parties shall bear their own costs in this appeal.

* Before Franson, Acting P.J., Smith, J. and Snauffer, J.

[1] Subsequent unlabeled statutory references are to the Code of Civil Procedure.

[2] This matter is proper for disposition by a memorandum opinion in accordance with the California Standards of Judicial Administration, Standard 8.1. (See People v. Garcia (2002) 97 Cal.App.4th 847, 850–855 [use of memorandum opinions]; Cal. Const., art. VI, § 14 [appellate decisions “shall be in writing with reasons stated”].)

[3] We note that Foster’s first amended petition had other problems. It (1) did not identify the correctional officers he sought to hold liable for retaliation; (2) did not name any correctional officers as defendants; (3) did not allege the named defendant, Michael Sexton, the warden at Corcoran State Prison (Warden), engaged in any retaliatory conduct; (4) did not allege Foster complied with the claim presentation requirements with respect to the $2,000 retaliation claim; and (5) did not state the retaliation claim was brought under federal law and, therefore, was not subject to the claim presentation requirements of the Government Claims Act. (See California Correctional Peace Officers Assn. v. Virga (2010) 181 Cal.App.4th 30, 38 [civil rights claims under 42 U.S.C. § 1983 are not subject to the Government Claims Act].)

We also note that Warden’s demurrer did not challenge Foster’s new retaliation claim on the ground it did not allege facts sufficient to state a federal civil rights cause of action under 42 United States Code section 1983. (See Capp v. County of San Diego (9th Cir. 2019) 940 F.3d 1046, 1053 [elements of a First Amendment retaliation claim]; Adams v. DeLoria (N.D.Cal. 2020) 443 F.Supp.3d 1093, 1100 [general elements of a claim under 42 U.S.C. § 1983].)

[4] We note that a court considering a demurrer to a pleading must “determine whether [the pleading] alleges facts sufficient to state a cause of action under any legal theory.” (T.H. v. Novartis Pharmaceuticals Corp. (2017) 4 Cal.5th 145, 162, italics added.)

[5] The notice of appeal Foster incorrectly marked the box on the form stating the appeal was from a “[j]udgment of dismissal after an order sustaining a demurrer.” No judgment of dismissal has been filed in this case. Also, no order dismissing the writ petition has been filed. A dismissal order complying with the requirements of section 581d is considered an appealable judgment. The absence of any judgment or order of dismissal is significant to the decision reached in this opinion.

[6] The 30-day period for filing an amendment was tolled by Foster’s notice of appeal. Under the prison-mailbox rule, which deems a notice of appeal to be filed when received by prison officials, it appears the tolling started on February 17, 2022. Based on that date, 16 days remain for filing an amendment once jurisdiction is returned to the superior court by this court’s issuance of a remittitur.