Hardaway v. Superior Court

Filed 1/29/07 Hardaway v. Superior Court CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

FIFTH APPELLATE DISTRICT

THE COURT^*

APPEAL from a judgment of the Superior Court of Kings County. David L. Allen, Judge.

Sonny Ray Hardaway, in pro. per., for Plaintiff and Appellant.

Bill Lockyer, Attorney General, James M. Humes, Chief Assistant Attorney General, James S. Schiavenza, Assistant Attorney General, Marsha S. Miller and Christina Bull Arndt, Deputy Attorneys General, for Defendant and Respondent.

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This is an appeal by an incarcerated, pro se litigant from the trial courts dismissal of his complaint after sustaining a defense demurrer. The argument made by plaintiff is that the trial court erred when it denied [him] the right to be heard at his hearing on the demurrer. We will affirm.

Plaintiff filed a complaint against the Superior Court of Kings County on February 4, 2005. He named as Doe defendants a judge and a clerk and asserted that the defendants had refuse[d] to file plaintiffs civil lawsuit [in another matter], refuse[d] to sign [sic] [that] civil lawsuit a number, or return the civil lawsuit and the evidence to plaintiff and thus had violated his state and federal constitutional rights. After the judicial officers of Kings County recused themselves from hearing the matter, it was assigned to a visiting judge from another county.

On May 10, 2005, the California Attorney Generals Office, representing the Kings County Superior Court (defendant), filed a demurrer to plaintiffs complaint and noticed plaintiff of its request that the matter be set for hearing on June 16, 2005. The trial court set the hearing instead for July 29, 2005, however, and on May 26, 2005, the Attorney General gave plaintiff notice of that hearing date. The trial court also set a case management conference for July 29, at the time of the hearing on the demurrer, and on June 1, 2005, sent notice of that setting to plaintiff.

At the hearing on July 29, 2005, the Attorney General appeared by court call. Plaintiff made no appearance. He had filed no opposition to the demurrer. Neither does the record reflect any effort by plaintiff to arrange for or request an appearance by telephone. The trial court took the matter under submission and, on August 12, 2005, sustained defendants demurrer to plaintiffs complaint without leave to amend. Notice of the ruling on submitted issue was sent to plaintiff on August 12, 2005. On October 17, 2005, the trial court signed an Order Dismissing Complaint proposed by the Attorney General. It is from that order that plaintiff appeals.

DISCUSSION

1. Appearance by plaintiff

Plaintiffs contends in his opening brief that the trial court erred when it refuse[d] to make an order that black plaintiff be put on the telephone, on a certain date, at a certain time. To have the clerk to mail the order to the litigation coordinator at the prison. So black plaintiff could also participate in his hearing. Such error, he contends, was prejudicial and requires reversal.

Plaintiff is correct in his premise that an inmate-litigant has a right to meaningful access to the courts. (Payne v. Superior Court (1976) 17 Cal.3d 908, 923.) The record, however, does not support plaintiffs contention that the trial court refused to allow him a telephone appearance. There is nothing in the record to suggest that plaintiff made any request for a telephonic appearance. Indeed, there is nothing in the record to suggest that plaintiff responded in any way to the Attorney Generals filing of the demurrer for defendant. Plaintiff cites, and we are aware of, no authority to support the proposition that a trial court is required to take the initiative in making arrangements for inmate-litigant appearances at hearings.

In the statement of facts section of his opening brief, plaintiff asserts that, on July 7, 2005, he was moved from California State Prison, Corcoran to North Kern State Prison and all of his property was not given to him. He also acknowledges, however, that on May 12, 2005, he received notice of defendants demurrer and, on both June 1 and June 7, 2005, he received notice of the hearing scheduled for July 29, 2005. He states that, on July 26, 2005, he filed a, judicial intervention, in Kings County Superior Court. But the record before this court contains neither such a document, reference to such a document, nor any other indication that plaintiff attempted in any way to notify the trial courteither before or after the hearing on July 29of his desire to appear. Plaintiff, like any other litigant, must support his factual assertions on appeal with appropriate items or entries in the appellate record. (9 Witkin, Cal. Procedure (4th ed. 1997) Appeal,  328, pp. 369-370; see Payne v. Superior Court, supra, 17 Cal.3d at p. 923 [inmate-litigant has no greater privileges than those of ordinary litigant].) And, we note, plaintiff offers no description of any efforts made by him to notice the trial court of his desire to appear or of his desire to oppose the demurrer prior to the judicial intervention his says he filed on July 26, only three days before the hearing.

While a trial court assigned to a case prosecuted by an incarcerated, pro se litigant may have some duty to take measures to secure the litigants meaningful access to court (see Hoversten v. Superior Court (1999) 74 Cal.App.4th 636, 642), and a trial court has discretion to select from various remedies to ensure meaningful access (see Wantuch v. Davis (1995) 32 Cal.App.4th 786, 792-793), we note that a prisoner does not have the right to any particular remedy. Nor may a prisoner ordinarily compel his or her appearance in court. (Ibid., fn. omitted.) Here, so far as the record shows, the trial court had received no request from plaintiff to appear at the hearing scheduled for July 29, 2005, or any other hearing, either in person or by telephone. Neither had plaintiff filed or otherwise registered any opposition to defendants demurrer. The hearing concerned pure issues of law. No testimony was required. Under all of these circumstances, we conclude that even if the trial court ordinarily has some duty to be proactive in protecting a prisoner-litigants meaningful access to court, neither a violation of that duty nor any abuse of discretion occurred here.

While prisoner-litigants are entitled to meaningful access to the courts, they are not entitled to greater rights than those possessed by other civil litigants. (Payne v. Superior Court, supra, 17 Cal.3d at p. 923.) Prisoner-litigants have no absolute right to a personal appearance. (Ibid.) Finally, a trial court is permitted to rule on the merits of a demurrer even where no party appears and, unless good cause for a continuance exists, must rule on the merits where one party appears and requests a ruling. (Cal. Rules of Court, rule 3.1320(f).)

We conclude that plaintiff has failed to demonstrate that the error he asserts did occur.

2. Substance of the demurrer

Defendant contends that, in any event, the demurrer was properly granted because plaintiff has no legal ground for relief.

First, according to defendant,

[t]he only vehicle to remedy violation of the United States Constitution in a civil lawsuit is 42 U.S.C.  1983. (Azul-Pacifico v. City of Los Angeles (9th Cir. 1992) 973 F.2d 704, 705.) Section 1983 provides that [e]very person who, under color of [law] subjects or causes to be subjected any person to the deprivation of rights under the Constitution shall be liable. However, the State is not considered a person for the purposes of section 1983 and, therefore, is not subject to suit under the section. (Hafer v. Melo (1991) 502 U.S. 21, 26; Will v. Michigan Dept. of State Police (1989) 491 U.S. 58, 71.) The Superior Court is an arm of the State. (Greater Los Angeles Council on Deafness v. Zolin (9th Cir. 1987) 812 F.2d 1103, 1110; Sacramento & San Joaquin Drainage Dist. v. Superior Court (1925) 196 Cal. 414, 432.) Therefore, the trial court properly sustained the demurrer because the Superior Court cannot be sued for alleged violations of the United States Constitution.

Second, according to defendant, plaintiff

cannot state a cause of action for damages under the California Constitution. There is no private right of action for damages under the California Constitution, other than inverse condemnation. (See, e.g., Katzberg v. Regents (2002) 29 Cal.4th 300, 329 [no private right of action for damages under the due process clause of the California Constitution]; DeGrassi v Cook (2002) 29 Cal.4th 333, 335 [no private right of action for damages under the free speech clause of the California Constitution].)

Finally, according to defendant, the trial court did not err in granting the demurrer without leave to amend because: (1) plaintiffs complaint was hopelessly flawed; and (2) plaintiff never requested leave to amend or suggested that the complaint could be amended to state a viable cause of action.

In reply, plaintiff does not argue with defendants first two assertions but instead addresses immunity from suit and suggests that neither a judge nor a clerk would be immune for the acts he alleges against them. Then he suggests that he should have been allowed to amend, though he does not specify the way in which he would have done so.

Presumably, plaintiff means to suggest that, had he been given the opportunity to do so, he would have amended to name or more specifically address the alleged liability of Doe 1 (a judge) and Doe 2 (a clerk). Again, however, plaintiff acts too late. There is nothing in the record to suggest that plaintiff was denied the opportunity to notify the court of his desire to amend his complaint in response to the demurrer. The burden is on the plaintiff to show, in response to a demurrer, that defects in his or her complaint can be cured by amendment. (Hendy v. Losse (1991) 54 Cal.3d 723, 742.) Plaintiff never attempted to do so.

DISPOSITION

For all of the reasons discussed above, the judgment of dismissal is affirmed. Each party shall bear its own costs on appeal.

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^*Before Harris, Acting P.J., Cornell, J. and Dawson, J.

Retired judge of the Tulare Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.