Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Kings County. Ct. No. 05C0219 Lynn C. Atkinson, Judge.
Jonathan LaMons, in propria persona, for Plaintiff and Appellant.
Edmund G. Brown, Jr., Attorney General, David E. Chaney, Chief Assistant Attorney General, Rochelle D. East, Senior Assistant Attorney General, Vickie P. Whitney and Megan R. O'Carroll, Deputy Attorneys General, for Defendant and Respondent.
OPINION
Ardaiz, P.J.
Appellant Jonathan LaMons is an inmate at Corcoran State Prison. He was convicted in 1990 of first degree murder and is serving a sentence of 26 years to life. He brought this civil action against various persons who work at the prison. His "Amended Complaint for Damages" contains allegations recounting his version of his unsuccessful attempt to be housed without a cellmate. It contains five causes of action and seeks relief in the form of compensatory and punitive damages.
The respondents on this appeal are six named defendants who moved for and obtained summary judgment. The court's order granting summary judgment stated in pertinent part: "The motion for summary judgment is supported by sufficient facts to find that defendant is entitled to judgment. Plaintiff failed to exhaust his administrative remedies through the Director's Level. [] This alone is grounds upon which to grant summary judgment. (Wright v. State of California (2004) 122 Cal.App.4th 659, 664-665 (Wright) [The exhaustion requirement is jurisdictional: a court cannot hear a case before a litigant exhausts administrative remedies].) In addition, defendant responded to the merits of the complaint with declarations denying the contentions made in the complaint. Plaintiff has failed to raise a triable issue of fact in opposition to this evidence and failed to comply with the procedural requirements in presenting opposition to a summary judgment."
The court's ruling also stated: "Plaintiff's separate statement … does not respond to all of the facts asserted by defendant in its separate statement and where the plaintiff disputes the facts, he does not cite to any evidence to support the opposition to the fact as required by CCP 437c, subdivision (b)(3) and CRC 3.1350(f)"
LaMons appealed on March 26, 2008 from the superior court's March 7, 2008 order granting summary judgment to the defendants and denying his request for a continuance of the summary judgment hearing. This order is not appealable (see Modica v. Merin (1991) 234 Cal.App.3d 1072 & Code Civ. Proc., § 904.1), but the record on appeal includes a judgment of dismissal entered on April 18, 2008. Although we are not required to do so, we deem appellant's notice of appeal to be an appeal from the subsequent judgment. (Mukthar v. Latin American Security Service (2006) 139 Cal.App.4th 284, 288.)
APPELLANT'S CONTENTIONS
Appellant raises two contentions on this appeal. First, he argues that because this is a tort action brought under California state law, and not an action for violation of any federal law, he is not required to exhaust administrative remedies available to prison inmates. Second, he contends that the superior court abused its discretion in denying his request for a continuance of the summary judgment hearing. As we shall explain, we find both of appellant's contentions to be without merit and will affirm the judgment.
FACTS
Appellant's "Amended Complaint for Damages" was filed on December 6, 2005. Its first cause of action is directed at respondent Hill, a Correctional Lieutenant. It alleges that Hill intentionally inflicted emotional distress upon appellant by placing appellant in the Administrative Segregation unit of the prison "without legal justification to do so." Appellant's second cause of action is similar to the first but is directed at different defendants. It alleges that defendant Wood, also a Correctional Lieutenant, and defendant Rivera, alleged to be a Sergeant and a prison guard, inflicted emotional distress upon him by causing him to be subjected to 150 days of solitary confinement within the Administrative Segregation unit of the prison "without any legal justification to do so."
Appellant's third cause of action alleges that defendants Hill, Wood and Rivera "intentionally violated the plaintiff's State Constitutional Rights by preparing or by authorizing the documentation that caused the plaintiff to be subjected to wrongful Ad. Seg. placement ..." His fourth cause of action is directed at defendants Talisman, a medical doctor and staff psychiatrist at the prison, and Gibson, a clinical case manager formerly employed at the prison. It alleges that their negligence caused "plaintiff's meds" to "run out" and that he "suffered the extreme effects of abrupt medication stoppage." Appellant's fifth and last cause of action alleges that defendant Scribner was the warden of the prison and is "vicariously liable for the plaintiff's injuries."
All six of these defendants and respondents (Hill, Wood, Rivera, Talisman, Gibson and Scribner) moved for summary judgment. The motion sought summary judgment on two theories. First, appellant failed to exhaust his administrative remedies. Second, even if appellant had exhausted his administrative remedies, there was undisputed evidence establishing that defendant Hill was not liable to appellant for intentional infliction of emotional distress (first cause of action), that defendants Wood and Rivera were not liable to appellant for intentional infliction of emotional distress (second cause of action), that defendants Hill, Wood and Rivera did not violate appellant's State constitutional rights (third cause of action), that defendants Talisman and Gibson were not liable to appellant for negligence (fourth cause of action), and that defendant Scribner could not be held vicariously liable for any act of an employee that was not itself tortuous (fifth cause of action). Appellant's appeal does not contend that there is any triable issue of fact as to either of these two theories. We therefore need not recount here the evidence presented by the defendants in support of their motion. Appellant did not present evidence showing the existence of any factual dispute. His arguments are legal ones - that he was not required to exhaust administrative remedies, and that he was denied a continuance he needed in order to obtain evidence showing the existence of a triable issue of fact.
SUMMARY JUDGMENT
"The motion for summary judgment shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." (Code Civ. Proc., § 437c, subd. (c); in accord, see also Wilson v. 21st Century (2007) 42 Cal.4th 713, 720.) Ordinarily, on appellate review of an order granting summary judgment, "we independently examine the record in order to determine whether triable issues of fact exist to reinstate the action. [Citation.]" (Wiener v. Southcoast Childcare Centers, Inc. (2004) 32 Cal.4th 1138, 1142; in accord, see also Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 860.) "'We review the trial court's decision de novo, considering all the evidence set forth in the moving and opposing papers except that to which objections were made and sustained.'" (State Depart. of Health Services v. Superior Court (2003) 31 Cal.4th 1026, 1035.) In the present case, however, appellant is not contending there is a triable issue of fact as to whether he exhausted the administrative remedies available to him. He is instead contending that he was not legally required to do so. The issue on appeal is thus whether the moving defendants are "entitled to judgment as a matter of law" (Code Civ. Proc., § 437c, subd. (c)) due to the fact that appellant did not exhaust his available administrative remedies.
Appellant's contention that the court wrongfully denied his request for a continuance of the summary judgment hearing is reviewed under a different standard. Subdivision (h) of the summary judgment statute states in pertinent part: "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, then be presented, the court shall deny the motion, or order a continuance to permit affidavits to be obtained or discovery to be had or may make any other order as may be just." (Code Civ. Proc., § 437c, subd. (h).)
"Subdivision (h) was added to section 437c '"[t]o mitigate summary judgment's harshness," … [Citations]' (Frazee v. Seely (2002) 95 Cal.App.4th 627, 634 (Freeze)) 'for an opposing party who has not had an opportunity to marshal the evidence[.]' (Mary Morgan, Inc. v. Melark (1996) 49 Cal.Aopp.4th 765, 770.) 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. (Yuzon v. Collins (2004) 116 Cal.App.4th 149, 167; Dee v. Vintage Petroleum, Inc. (2003) 106 Cal.App.4th 30, 34.) Continuance of a summary judgment hearing is not mandatory, however, when no affidavit is submitted or when the submitted affidavit fails to make the necessary showing under section 437c, subdivision (h). (Frazee, supra, 95 Cal.App.4th at pp. 633-634; see also California Automobile Ins. Co. v. Hogan (2003) 112 Cal.App.4th 1292, 1305-1306.) Thus, in the absence of an affidavit that requires a continuance under section 437c, subdivision (h), we review the trial court's denial of appellant's request for a continuance for abuse of discretion. (FSR Brokerage, Inc. v. Superior Court (1995) 35 Cal.Aopp.4th 69, 72 .…)" (Cooksey v. Alexakis (2004) 123 Cal.App.4th 246, 253-254.)
"'The appropriate test for abuse of discretion is whether the trial court exceeded the bounds of reason. When two or more inferences can be reasonably deduced from the facts, the reviewing court has no authority to substitute its decision for that of the trial court.'" (Walker v. Superior Court (1991) 53 Cal.3d 257, 272.)
With these standards of review in mind, we now address appellant's contentions.
I.
APPELLANT'S FAILURE TO EXHAUST ADMINISTRATIVE REMEDIES ENTITLES RESPONDENTS TO JUDGMENT IN THEIR FAVOR
In Wright, supra, the court described the administrative remedy available to appellant (and to all California prison inmates):
" … [S]tate law provides an administrative remedy. Under a regulation promulgated by the Department, a prison inmate may appeal any departmental decision, action, condition, or policy adversely affecting the inmate's welfare. ([Cal. Code Regs, Tit. 15,] §3084.1, subd. (a); Pen. Code, §5058; Muszalski, supra, 52 Cal.App.3d at pp. 506-508; [In re Thompson (1975)] 52 Cal.App.3d [780], 783.)
"This administrative appeal process generally consists of four levels of reviews: an informal review followed successively by three formal reviews. (§ 3084.5, subds. (a)-(e).) The Department must complete its informal level review within 10 working days, its first formal level review within 30 working days, and its second formal level review within 20 working days. (§ 3084.6, subds. (a), (b).) Normally, the Department must complete the third formal level review within 60 working days. (Id. subd. (b)(4).) There are exceptions that can extend these time limits, including the complexity of the decision, action, or policy. (§ 3084.6, subd. (b)(5)(B).) If an exceptional delay prevents the Department from completing a level of review within the specified time limits, the Department must notify the inmate in writing of the reasons for the delay and the estimated completion date. (Id. subd. (b)(6).) This notice requirement does not apply, however, to the third formal level review. (Ibid.)" (Wright, supra, 122 Cal.App.4th at pp. 666-667.)
"Under both state and federal law, a prisoner must exhaust available administrative remedies before seeking judicial relief." (Wright, supra, 122 Cal.App.4th at p. 664.) The fact that an inmate may wish to sue for money damages does not exempt the inmate from the administrative process. "Although money damages are unavailable in the administrative process, [an inmate] must exhaust his administrative remedies before seeking judicial relief. Even where money damages are unavailable, the exhaustion requirement furthers important interests: prison autonomy, mitigating damages, application of Department expertise, and order in the court system." (Id. at p. 663.) "Under state law, inmates are required to exhaust administrative remedies, even when seeking money damages unavailable in the administrative process." (Id. at p. 668.)
Appellant argues that Wright does not apply because he (appellant) sued various individuals, whereas the plaintiff in Wright sued only the state of California. Appellant is incorrect. The plaintiff in Wright sued "the State of California, the Department of Corrections and certain administrative and medical personnel in that department (collectively, the State)." (Wright, supra, 122 Cal.App.4th at p. 663.) All of the Wright defendants were referred to collectively by the appellate court as "the State," and all of them successfully demurred to the complaint. "The trial court granted the State's demurrer to Wright's complaint alleging medical malpractice and failure to furnish medical care. We affirm the judgment." (Id. at p. 663.)
Appellant next argues that he was not required to exhaust the inmate appeals process because he filed a Government Code claim before filing his civil action. (See Gov. Code, §900 et seq., & esp. §§ 905.2, 910, 911.2 & 915.) No authority holds that the filing of a Government Code claim exempts an inmate from the requirement that the inmate must exhaust the inmate appeals process before seeking judicial relief. Wright expressly recognized that an inmate who is required to file a Government Code claim before seeking judicial relief must still exhaust the inmate appeals process when his claim pertains to "any departmental decision, action, condition, or policy adversely affecting the inmate's welfare." (Wright, supra, 122 Cal.App.4th at p. 666.) "[S]ince a litigant must exhaust administrative remedies before filing a court action, we exclude the time consumed by the administrative proceeding from the time limits that apply to pursuing the court action. [Citations.] This procedure serves the orderly administration of justice. [Citation.] Thus, we exclude the time during which a litigant reasonably pursues his administrative remedy from the six-month time limit for filing a court action after the Board of Control rejects a government tort claim. [Citation.]" (Id. at p. 671.) Appellant cites Roberts v. State of California (1974) 39 Cal.App.3d 844 for the proposition that he, in the words of his brief, "has therefore exhausted all of the administrative remedies that are required to maintain an action in a State Court." Nothing in Roberts, however, asserts that an inmate who has had administrative remedies made available to him by the Department of Corrections need not exhaust those administrative remedies. Roberts involved a claim against the state of California for the death of a truck driver who was killed in a single vehicle accident. Roberts held that the Government Code requirement that a claim be filed as a prerequisite to a suit against the state is not unconstitutional, and that the filing of a Government Code claim by the decedent's workmen's compensation carrier and his employer did not excuse the decedent's widow from the Government Code claim filing requirement if the widow sought to sue the state.
Appellant next argues that Wright was incorrectly decided because only inmates who sue under federal law should be required to exhaust administrative remedies. To the extent appellant is asking this court to overrule more than 60 years of legal precedent, we have neither the desire nor the authority to do so. "By 1941, as a rule of general application, state courts required litigants to exhaust their administrative remedies." (Wright, supra, 122 Cal.App.4th at p. 664; see also Abelleira v. District Court of Appeal (1941) 17 Cal.2d 280, 291-296, and Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) "Under state law, '"'exhaustion of the administrative remedy is a jurisdictional prerequisite to resort to the courts."' [Citations.]" (Wright, supra, 122 Cal.App.4th at p. 665.)
In his reply brief, appellant argues for the first time that his "602 forms were either destroyed, ignored or retained by the defendants" and that he has therefore "exhausted all 'available' administrative remedies by filing timely C.D.C. 602 inmate appeals directly to the various defendants in this action." We reject this contention for two reasons. First, "points raised in the reply brief for the first time will not be considered, unless good reason is shown for the failure to present them before." (Neighbours v. Buzz Oates Enterprises (1990) 217 Cal.App.3d 325, 335, fn. 8; Reichardt v. Hoffman (1997) 52 Cal.App.4th 754, 764.) Second, even if we were to consider it, "the Department's delay does not excuse [an inmate's] failure to exhaust his administrative remedies." (Wright v. State of California, supra, 122 Cal.App.4th at p. 667.) "The remedy for an unreasonable delay is not a suit for damages, but a writ of mandate ordering the Department to perform its duty by completing the review. [Citation.]" (Wright, supra, at p. 667.)
II.
THE COURT DID NOT ABUSE ITS DISCRETION IN DENYING APPELLANT'S REQUEST FOR A CONTINUANCE
As we have already stated, "[c]ontinuance of a summary judgment hearing is not mandatory ... when no affidavit is submitted or when the submitted affidavit fails to make the necessary showing under section 437c, subdivision (h)." (Cooksey v. Alexakis, supra, 123 Cal.App.4th at p. 254.)
"A declaration in support of a request for continuance under section 437c, subdivision (h) must show: '(1) the facts to be obtained are essential to opposing the motion; (2) there is reason to believe such facts may exist; and (3) the reasons why additional time is needed to obtain these facts. [Citations.]' (Wachs v. Curry (1993) 13 Cal.App.4th 616, 623.) '"The purpose of the affidavit required by Code of Civil Procedure section 437c, subdivision (h) is to inform the court of outstanding discovery which is necessary to resist the summary judgment motion. [Citations.]"' (Bahl v. Bank of America (2001) 89 Cal.App.4th 389, 397.) 'It is not sufficient under the statute merely to indicate further discovery or investigation is contemplated. The statute makes it a condition that the party moving for a continuance show "facts essential to justify opposition may exist."' (Roth v. Rhodes (1994) 25 Cal.App.4th 530, 548.)" (Cooksey v. Alexakis, supra, 123 Cal.App.4th at pp. 253-254.)
We cannot conclude that the trial court abused its discretion in denying appellant's request for a continuance of the summary judgment hearing because appellant does not demonstrate that he made the showing required to obtain such a continuance.
First of all, the record on this appeal does not contain any affidavit or declaration whatsoever submitted to the superior court in support of a request for a continuance. This alone is fatal to appellant's contention that the court erred in not granting him a continuance. "'A judgment or order of the lower court is presumed correct. All intendments and presumptions are indulged in to support it on matters as to which the record is silent, and error must be affirmatively shown. This is not only a general principle of appellate practice but an ingredient of the constitutional doctrine of reversible error.'" (Denham v. Superior Court (1970) 2 Cal.3d 557, 564; in accord, see also Ketchum v. Moses (2001) 24 Cal.4th 1122, 1140.) "'It is well settled that all presumptions and intendments are in favor of supporting the judgment or order appealed from, and that an appellant has the burden of showing reversible error, and that, in the absence of such a showing, the judgment or order appealed from will be affirmed. [Citation.]'" (Walling v. Kimball (1941) 17 Cal.2d 364, 373.) "[A]n appellant must affirmatively show error by an adequate record." (Null v. City of Los Angeles (1988) 206 Cal.App.3d 1528, 1532.)
If appellant filed an affidavit or declaration in the superior court in support of his request for a continuance, he did not mention it in his notice in the superior court designating the record on appeal. (See Cal. Rules of Court, rule 8.121(a).) The "record on an appeal in a civil case" must contain a "record of the written documents from the superior court proceedings." (Cal. Rules of Court, rule 8.120(a)(1).) That record of written documents is often, as in this case, a "clerk's transcript under rule 8.122." (Cal. Rules of Court, rule 8.120(a)(1)(A).) An appellant "must serve and file a notice in the superior court designating the record on appeal." (Cal. Rules of Court, rule 8.121(a).) "If the appellant elects to use a clerk's transcript, the notice must also designate the documents to be included in the clerk's transcript ...." (Cal. Rules of Court, rule 8.121(b)(1)(B); see also rule 8.122(a), describing how to identify each designated document to be included in the clerk's transcript.) Appellant's notice designating the record on appeal makes no mention of any affidavit or declaration in support of a motion for a continuance, and no such affidavit or declaration appears in the record on appeal.
Appellant attaches as an "exhibit" to his brief a declaration which he contends he submitted to the superior court in support of his request for a continuance. Even if this document had been made part of the record on appeal, it would not demonstrate any abuse of discretion by the trial court in denying appellant's request for a continuance. It states in its entirety:
"Jonathan LaMons, declare:
"1. I am the plaintiff, In Pro Per, in the above entitled action.
"2. Defendants have moved for summary judgment, and plaintiff can provide opposition thereto if he is given the opportunity to conduct further discovery; because most of plaintiff's discovery requests are for documents and responses that are currently in the defendants' possession.
"3. Plaintiff has served the atached [sic] discovery documents on the prison's custodian of records, and on some of the defendants, and has not yet received responses thereto. The requested documents will provide opposition for the defendants' summary judgment.
"4. Plaintiff needs a continuance to conduct further discovery.
"I, Jonathan LaMons, declare under penalty of perjury that the foregoing is true and correct."
Nothing in this purported declaration states that there is any "reason to believe" appellant exhausted the Department's inmate appeals process. (Cooksey v. Alexakis, supra, 123 Cal.App.4th at p. 254.) Nor does the purported document attempt to present "'reasons why additional time is needed'" (ibid.) to obtain evidence that appellant exhausted the inmate appeals process. (Ibid.) If appellant had exhausted the inmate appeals process, he could have presented a declaration simply stating that he had done so. This would not have required any continuance at all. The "discovery documents" attached to appellant's purported declaration all pertain to the merits of his allegations against the defendants in his Amended Complaint for Damages. None of the evidence he might have obtained in response to these discovery requests would have enabled him to successfully oppose the motion for summary judgment because any successful opposition to the defendants' motion for summary judgment would require evidence that appellant exhausted his available administrative remedies. Without such evidence, the moving defendants' evidence that appellant did not exhaust the Department's inmate appeals process would remain undisputed, and the moving defendants would still be entitled to summary judgment in their favor. (Code Civ. Proc., § 437c, subd. (c).)
DISPOSITION
The judgment is affirmed.
WE CONCUR: Vartabedian, J., Kane, J.
The summary judgment statute provides that a motion's "supporting papers shall include a separate statement setting forth plainly and concisely all material facts which the moving party contends are undisputed. Each of the material facts stated shall be followed by a reference to the supporting evidence." (Code Civ. Proc., §437c, subd. (b)(1).) With regard to opposition to a motion for summary judgment, the statute provides: "The opposition papers shall include a separate statement that responds to each of the material facts contended by the moving party to be undisputed, indicating whether the opposing party agrees or disagrees that those facts are undisputed.… Each material fact contended by the opposing party to be disputed shall be followed by a reference to the supporting evidence." (Code Civ. Proc., §437c, subd. (b)(3).) The record on appeal includes neither the moving defendants' separate statement nor appellant's separate statement in response thereto.