Opinion
A115354
4-21-2008
JORGE GALLEGOS, Plaintiff and Appellant, v. STATE OF CALIFORNIA, Defendant and Appellant.
NOT TO BE PUBLISHED
The State of California appeals from a judgment on a jury verdict finding in favor of plaintiff Jorge Gallegos on his claim for damages for false imprisonment. Gallegos cross-appeals the courts order directing a verdict on his claim under Civil Code section 52.1, and from the orders denying his motions for a new trial and for judgment notwithstanding the verdict. The State contends that Gallegos was not entitled to judicial relief because he failed to exhaust his administrative remedies and, alternatively, that the judgment should be reversed because the State is entitled to immunity under Government Code section 845.8. Gallegos argues that he made a sufficient showing to require that his Civil Code section 52.1 claim be submitted to the jury. We affirm.
I. FACTUAL BACKGROUND
On August 30, 1995, Gallegos pled no contest to continuing sexual molestation from July 7, 1993, to July 6, 1994, in violation of Penal Code section 288.5. On September 14, 1995, as part of the negotiated disposition, the trial court sentenced Gallegos to the midterm of 12 years on the offense.
Unless otherwise indicated, all further statutory references are to the Penal Code.
The California Department of Corrections and Rehabilitation (CDCR) set Gallegoss estimated parole release date (EPRD) as September 9, 2005, utilizing the 15 percent conduct credit limitations of section 2933.1. Gallegos, however, was not subject to section 2933.1 as that section did not become effective until September 21, 1994, and his offense was committed prior to that date.
In July 2002, Gallegoss attorney sent a letter to the CDCR enclosing Gallegoss sentencing transcript and pointing out the correct conviction offense dates. On July 31, 2002, the CDCR changed Gallegoss release date from October 27, 2005, to December 7, 2001. The United States Immigration and Naturalization Service (INS) had a hold on Gallegos. The CDCR released Gallegos to the INS on August 6, 2002. The INS deported Gallegos thereafter.
On July 31, 2003, Gallegos filed a complaint against the State alleging causes of action for false imprisonment and violations of his constitutional rights. Prior to trial, the State moved to dismiss based on Gallegoss failure to exhaust administrative remedies. The court denied the motion. The State also moved in limine to urge that it was immune from liability under Government Code section 845.8, subdivision (a). The trial court also denied this motion.
At trial, Gallegoss video deposition was played for the jury. Gallegos testified that at the time he pled guilty, his lawyer advised him that he would be sentenced to 12 years in prison but that he would serve only six years. He expected to be released in 2001. The CDCR informed him, however, that he had to serve 85 percent of his sentence. He was transferred to several prisons, and each time he informed the correctional counselor that he was only supposed to serve six years. He did not file an inmate appeal.
When he was released from prison, he was deported to Tijuana. He subsequently moved to Zamora, Michoacán, Mexico. He was unable to find work for a couple of months but found a job in approximately September 2002 earning 300 pesos per week or about $30 per week. In 2003, he found a new job earning 500 pesos per week. Gallegos further testified that since his release from prison, he suffered from stress, anxiety, panic attacks, fear and sleeplessness.
Marilyn Ouye, a case records administrator for the CDCR, testified that when Gallegos arrived at the North Kern State Prison Reception Center, his abstract of judgment indicated that his offense occurred in 1994 and that the trial court awarded him local conduct credit pursuant to section 4019, i.e., one day credit for every two days spent in local custody. Ouye also testified that the courts minute order for Gallegoss sentencing was in his file and that it showed that he was convicted of count 5 but did not reflect the date of the offense. She admitted that the CDCR had the responsibility for determining inmates conduct credits and that an error was made in computing Gallegoss credits. Further, she admitted that Gallegos was released about six months past the day he should have been released. The CDCR released him after reviewing the sentencing transcript and the felony complaint and recalculating his EPRD. Ouye also testified that CDCRs policy was to obtain additional information when the documents in an inmates file did not disclose when the crime occurred. CDCR failed to seek clarification of the date of Gallegoss offense before July 2002.
Prior to the case going to the jury, the State moved for a directed verdict on Gallegoss claim under Civil Code section 52.1, contending that he failed to show that the State attempted to interfere with his rights by threats, violence or coercion. The court granted the States motion, finding that the evidence did not support Gallegoss claim.
The jury found in favor of Gallegos on his claim of false imprisonment and awarded him $1,800 in lost wages and $20,000 for loss of time, physical discomfort and inconvenience.
On September 15, 2006, the court denied Gallegoss motion for a new trial and motion for a judgment notwithstanding the verdict.
II. THE STATES APPEAL
The State contends that Gallegos was required to exhaust administrative remedies before bringing his complaint for damages. We review the trial courts ruling on this legal issue de novo. (Evans v. City of San Jose (2005) 128 Cal.App.4th 1123, 1136.)
In Wright v. State of California (2004) 122 Cal.App.4th 659, 664 (Wright), the court held that "a prisoner must exhaust available administrative remedies before seeking judicial relief." The court further held that prison inmates are required to exhaust administrative remedies even when seeking money damages that are unavailable in the administrative process. (Id. at p. 668.) Thus, the court concluded that a prison inmate seeking damages due to the States failure to provide him with timely medical care, was required to exhaust his administrative remedies before resorting to the courts. (Id. at pp. 663, 668.)
Here, the State argues that Gallegos was required to seek a parole period and term computation appeal pursuant to the California Code of Regulations, title 15, section 3084.7, subdivision (h) to challenge the computation of his term. The States argument misses the mark. Gallegoss action was not brought on statutory grounds. Gallegoss complaint does not allege a cause of action for computation of his parole release date but rather a claim of false imprisonment. "[E]xhaustion is not required before filing a civil action for damages alleging nonstatutory causes of action." (Rojo v. Kliger (1990) 52 Cal.3d 65, 88, fn. omitted.)
Further, Gallegos was not required to file an inmate appeal to gain his release. "The Board of Prison Terms has no discretion to grant or withhold parole to a prisoner who has served a determinate term. The prisoner neither applies for nor has the right to reject release on parole. Section 3000, subdivision (a), is a mandatory `kick-out providing that `[a]t the expiration of a term of imprisonment . . . imposed pursuant to Section 1170, or at the expiration of such term as reduced pursuant to Section 2931 . . . the inmate shall be released on parole for a period not exceeding three years, unless the board for good cause waives parole and discharges the inmate from custody of the department. " (People v. Burgener (1986) 41 Cal.3d 505, 529, fn. 12.) That the CDCR had no discretion in calculating Gallegoss release date is supported by the record. Gallegos was released within a week of confirmation from the sentencing court that his offense was not subject to the 15 percent limitation on conduct credits of section 2933.1.
Relying on Wright, supra, 122 Cal.App.4th at page 668, the State argues that a prison inmate is required to exhaust administrative remedies even when seeking money damages that are unavailable in the administrative process. "[B]y insisting upon exhaustion even in these circumstances, courts accord recognition to the `expertise of the organizations quasi-judicial tribunal, permitting it to adjudicate the merits of the plaintiffs claim in the first instance." (Westlake Community Hosp. v. Superior Court (1976) 17 Cal.3d 465, 476 (Westlake).) Here, however, Gallegoss claim before the court is not that the CDCR incorrectly calculated his release date, but that he was falsely imprisoned because he was not released upon completion of his determinative sentence. (See Endler v. Schutzbank (1968) 68 Cal.2d 162, 168 [party need not exhaust administrative review unless statute or regulation clearly provides procedures for evaluating and resolving the complaint].) The policy considerations for requiring a plaintiff to exhaust an administrative remedy are inapplicable when there is no internal damage remedy and the organization has already corrected the underlying error. (See Westlake, supra, 17 Cal.3d at pp. 474, 476 [organization may be able to minimize or eliminate any monetary injury in case involving revocation of doctors staff privileges at hospital].)
The State also contends that it is entitled to immunity under Government Code section 845.8 That statutory provision grants public entities and employees immunity from liability for any injury resulting from prisoner release or parole decisions. (Gov. Code, § 845.8, subd. (a).)
Government Code section 845.8 states: "Neither a public entity nor a public employee is liable for: [¶] (a) Any injury resulting from determining whether to parole or release a prisoner or from determining the terms and conditions of his parole or release or from determining whether to revoke his parole or release."
We conclude that the State was not immune from liability under Government Code section 845.8, subdivision (a). In Sullivan v. County of Los Angeles (1974) 12 Cal.3d 710, 717-718, the court held that the county was not immune from liability for false imprisonment when it knew or should have known that the plaintiff was entitled to be released from jail after all charges against him were dismissed. The court noted that the countys failure to perform its mandatory duty to release plaintiff under Penal Code section 1384 rendered it directly liable for damages. (Sullivan, at p. 715.) Further, in Perez-Torres v. State of California (2007) 42 Cal.4th 136, the court specifically addressed Government Code section 845.8, subdivision (a) immunity. There, the court held that the statutory immunity did not extend to the plaintiffs continued incarceration after the state knew or should have known that the plaintiff was the wrong man. (Perez-Torres, at pp. 141-142.) The court explained that after the state made the basic policy decision to revoke the plaintiffs parole based on the mistaken belief as to his identity, the states conduct in keeping him in jail after it knew or should have known that he was the wrong man was "an action implementing the basic policy decision and thus outside the statutory immunity, making it subject to legal redress on the question of negligence by the state." (Id. at p. 145.)
Section 1384 provides in relevant part, "If the judge or magistrate directs the action to be dismissed, the defendant must, if in custody, be discharged therefrom . . . ."
Both Sullivan and Perez-Torres dictate that the State lacks immunity under Government Code section 845.8, subdivision (a). Here, CDCR set Gallegoss parole date as September 9, 2005, when in fact his parole date should have been December 7, 2001, as mandated by Penal Code sections 1170 and 3000. As the State had a mandatory duty to release Gallegos in 2001, its mistake in keeping him in custody beyond that date when it should have known that his term had expired, was not subject to immunity.
Finally, the State contends that it is entitled to a new trial because the trial court failed to take judicial notice of the Code of Regulations setting forth the inmate grievance process.
The State sought to admit sections 3084.1 through 3085 of title 15 of the Code of Regulations regarding inmate appeals. Gallegos objected to the evidence as irrelevant. The trial court sustained the objection and declined to take judicial notice of the regulations. The State, nevertheless, was able to introduce evidence of the inmate appeal process through its witness, Michael Cry, the CDCR inmate appeals coordinator. And, in closing argument, counsel for the State argued that Gallegos was aware of the appeal process but failed to file an appeal. The State was, thus, able to put forth its defense that Gallegos could have avoided any harm had he filed an appeal. Hence, even if the court erred in failing to admit or take judicial notice of the regulations, the State was not prejudiced.
III. GALLEGOSS CROSS-APPEAL
Gallegos contends that the trial court erred in granting the States motion for a directed verdict on his Civil Code section 52.1 claim. The court granted the motion, finding that Gallegos failed to show that the State interfered with his constitutional rights "by threatening or committing violent acts."
Civil Code section 52.1, subdivision (b) provides in relevant part that "[a]ny individual whose exercise or enjoyment of rights secured by the Constitution or laws of the United States, or of rights secured by the Constitution or laws of this state, has been interfered with, or attempted to be interfered with, [by threats, intimidation, or coercion], may institute and prosecute . . . a civil action for damages . . . to protect the peaceable exercise or enjoyment of the right or rights secured."
Here, Gallegos alleged that the States conduct in falsely imprisoning him supported his claim for damages under Civil Code section 52.1, subdivision (b). He alleges that the court erred by not considering that the States coercion in falsely imprisoning him stated a cause of action under the statute.
Civil Code section 52.1 requires " `an attempted or completed act of interference with a legal right, accompanied by a form of coercion. " (City and County of San Francisco v. Ballard (2006) 136 Cal.App.4th 381, 408 (Ballard), quoting Jones v. Kmart Corp. (1998) 17 Cal.4th 329, 334.) A threat of violence or coercion is sufficient under the statute. (Ballard, supra, 136 Cal.App.4th at p. 408.) While the evidence supported Gallegoss claim that he was falsely imprisoned, the record is bereft of any evidence of threats, intimidation, or coercion by the State to interfere with his right to be released on parole. The court properly granted the motion for a directed verdict on Gallegoss cause of action under the statute.
IV. DISPOSITION
The judgment is affirmed.
We concur:
REARDON, Acting P. J.
SEPULVEDA, J.