Opinion
F073153
06-15-2018
CHARLES ANDERSON MILLER, Plaintiff and Appellant, v. KEVIN F. BERNIE, Defendant and Respondent.
Charles Anderson Miller, in pro. per., for Plaintiff and Appellant. Scampini, Mortara & Harris, Haig A. Harris, Jr., and Neil S. Turner for Defendant and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 12-C-0112)
OPINION
APPEAL from a judgment of the Superior Court of Kings County. Louis F. Bissig, Judge. Charles Anderson Miller, in pro. per., for Plaintiff and Appellant. Scampini, Mortara & Harris, Haig A. Harris, Jr., and Neil S. Turner for Defendant and Respondent.
-ooOoo-
Plaintiff, a state prison inmate, sued defendant, an attorney, to recover payment for paralegal services plaintiff performed for defendant while plaintiff was imprisoned. Plaintiff also sued for repayment of a $1.7 million loan he allegedly made to defendant, as reflected in a written letter agreement. Defendant moved to dismiss plaintiff's complaint, asserting, based on case law, that plaintiff, as a state prisoner, was entitled to access to the courts only if he was indigent and the action was a bona fide action threatening his personal or property interests. Defendant presented argument and evidence in support of the motion, to show that plaintiff's claims were without merit; plaintiff submitted opposing argument and evidence. The trial court considered all the evidence, determined defendant's evidence was more credible, concluded plaintiff's action was not a bona fide action threatening his property interests, and dismissed the complaint. Plaintiff appeals. We conclude the trial court followed an unauthorized and improper procedure in dismissing the complaint. Accordingly, we reverse the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Plaintiff is an inmate in state prison, serving a term of 115 years to life. He filed a complaint and a first amended complaint against defendant, alleging causes of action for breach of contract and common counts. Plaintiff alleged a written memorialization, in a letter dated June 17, 2010, of an oral contract in which defendant promised to repay $1.7 million plaintiff loaned to him, with interest. Payment was due by May 1, 2011. By the same date, defendant also promised to pay plaintiff $60,500 for paralegal services plaintiff performed for defendant while plaintiff was incarcerated. The common counts were for money had and received by defendant for the use and benefit of plaintiff and for money lent by plaintiff to defendant at defendant's request.
Plaintiff's first amended complaint added a cause of action for fraud, but it was later dismissed.
Plaintiff obtained a default judgment against defendant. The trial court later set aside the default and default judgment on defendant's request, and defendant answered. Both parties demanded a jury trial; the trial court scheduled a trial for June 13, 2016. On August 17, 2015, however, defendant filed a motion to dismiss, arguing based on case law that an indigent prisoner must be afforded access to the courts only when there is a bona fide threat to his or her personal or property interests. Based on evidence defendant presented with his motion, he contended there was no bona fide threat to any interest of plaintiff, and therefore the action should be dismissed. Plaintiff opposed, asserting defendant's motion was a "nonstatutory speaking motion," which is now treated as a motion for summary judgment. He objected to defendant's evidence, submitted evidence in opposition to defendant's motion, and contended there were triable issues of material fact to be placed before the trier of fact, so the motion should be denied.
The judge who heard the matter initially continued it to allow plaintiff time to submit further evidence on specified subjects about which the judge was concerned. The continued hearing was held before a different judge. After weighing the evidence and making credibility determinations, the second judge granted defendant's motion and dismissed the action. Plaintiff's subsequent motion for a new trial was denied. Plaintiff appeals from the judgment of dismissal and the denial of his motion for a new trial.
In light of the issues addressed in this appeal, we deny plaintiff's request for judicial notice, filed December 20, 2016. The documents that are the subject of the request are not relevant to these issues. (People v. Rowland (1992) 4 Cal.4th 238, 268, fn. 6 [judicial notice cannot be taken of any matter that is irrelevant].)
DISCUSSION
I. Defendant's Motion to Dismiss
Defendant's motion was captioned as a motion to dismiss plaintiff's action. The notice of motion stated the motion was "made on the grounds that a state prisoner, appearing in propria persona, is not entitled to pursue an action in a state court for damages against a Defendant until the trial court first makes a determination that the state prisoner's lawsuit is a bona fide action threatening the prisoner's property interests, and that, in fact, the pending action is not a bona fide lawsuit and therefore must be dismissed." The notice did not identify any statutory grounds for the motion. It identified two cases as the basis of defendant's motion: Wantuch v. Davis (1995) 32 Cal.App.4th 786 (Wantuch) and Apollo v. Gyaami (2008) 167 Cal.App.4th 1468 (Apollo). In his points and authorities, defendant discussed additional cases and made a passing reference to Code of Civil Procedure section 583.150, which states "[t]his chapter" (i.e., chapter 1.5, of Title 8, of Part 2, which contains the statutes authorizing dismissal of actions) "does not limit or affect the authority of a court to dismiss an action . . . under a rule adopted by the court . . . or by the Judicial Council . . . , or otherwise under inherent authority of the court." Defendant argued that the standard for determining whether the action was bona fide and threatened the inmate's property interests was not the standard applicable to a demurrer, where all pleaded facts are assumed to be true, or the standard applicable to a motion for summary judgment, where the issue is whether the facts are undisputed and entitle the moving party to a judgment. Rather, he asserted the cases stated the determination was simply left to the trial court's discretion.
All further statutory references are to the Code of Civil Procedure unless otherwise indicated.
Defendant's motion presented the following facts. Defendant hired plaintiff to perform paralegal services for him while plaintiff was not incarcerated. After plaintiff was incarcerated in 1998, defendant continued to provide him work. Plaintiff performed paralegal services for defendant in two cases in which defendant represented parties to litigation, the Mitchell matter and the Lolonis Winery matter. Defendant contended the agreement was conditional: plaintiff was to be paid only if the client paid defendant. Because the clients never paid defendant, defendant did not owe plaintiff anything for his paralegal services.
Defendant also contended the claim for payment for paralegal services was barred by the statute of limitations. The limitations period for actions on oral contracts and other obligations not in writing is two years. (§ 339.) The limitations period for actions on a written contract or book account is four years. (§ 337.) Defendant contended plaintiff ceased performing paralegal services for him in the Mitchell matter in 2006, so the statute of limitations on an action for payment (whether two years or four years) expired before the complaint in this action was filed on March 12, 2012. The last billing statement in the Lolonis Winery matter was dated February 29, 2008, more than four years prior to the filing of the complaint.
As to the claim for repayment of a $1.7 million loan, defendant's motion addressed statements made by plaintiff in the declaration plaintiff filed in support of the default judgment. The declaration stated that Renee Miller and Michelle Buck, who were his partners in the Pacific Rim International and Atlantic Ridge Investments partnerships, were to buy out plaintiff's interests in those partnerships for $1.7million. Plaintiff instructed Renee Miller to turn the funds from the partnership sale over to defendant to allow defendant to make an investment in the Lolonis Winery for plaintiff. In early 2008, Buck sent plaintiff an escrow closing statement reflecting the partnership sale. A year later, plaintiff learned the escrow closing statement was a fabricated document. In September 2009, plaintiff confronted defendant a bout "where the $1,700,000 was used." Defendant "did not admit diverting the money, or taking it for his own benefit," but "did . . . promise to stand good for it, and provide [plaintiff] with a written promise to repay it." In two telephone calls on June 15, 2010, plaintiff and defendant reached the agreement for repayment that is reflected in a June 17, 2010, letter memorializing the oral agreement.
Plaintiff declared that Renee Miller is not related to him, and is not his spouse or former spouse.
Plaintiff's first amended complaint alleged defendant wrote him the June 17, 2010, letter, which stated it memorialized an agreement made by the parties in two telephone conversations on June 15, 2010. In the letter, which was attached to the first amended complaint, defendant promised, in exchange for plaintiff's agreement not to sue defendant or specified other individuals, to pay plaintiff by May 1, 2011, "[t]he sum of $1,700,000 previously borrowed from [plaintiff] back in March of 2008 (from [plaintiff's] sale of partnership interests in Pacific Rim Int'l)," with interest. Defendant also promised to pay plaintiff the $60,500 owed for paralegal work by May 1, 2011; he promised to provide $500 to tide plaintiff over until the full amount was paid, and to have quarterly care packages sent to plaintiff in prison until May 1, 2011.
In his motion to dismiss, defendant acknowledged that, if this letter were authentic, the written promise to pay the paralegal fees would have been made within two years prior to the filing of the complaint, and would have made plaintiff's action timely. Defendant, however, contended the June 17, 2010, letter was a forgery; he denied writing or signing it. He presented a transcript he represented to be the prison's recording of plaintiff's only telephone call with defendant on June 15, 2010, the date the oral agreement was allegedly made; the telephone call was apparently made to the Lolonis Winery, but defendant was present there and spoke with plaintiff. The conversation did not include a discussion of any agreement to pay plaintiff. Defendant also presented evidence regarding plaintiff's typewriter and its font, aimed at showing plaintiff himself typed the June 17, 2010, letter.
Additionally, defendant submitted the declaration of a forensic document examiner, who compared the signature on the June 17, 2010, letter with examples of defendant's signature. He opined that the signature on the letter "pictorially resemble[d] some of the obvious handwriting features" of defendant's signature, but there was "sufficient evidence present ... to positively conclude that the questioned signature is not the normal or genuine signature" of defendant and "there was an attempt by an individual to imitate the genuine signature of" defendant.
Defendant also contended the obligations alleged by plaintiff were not enforceable because they violated California Code of Regulations, Title 15, section 3024. That regulation prohibits prison inmates "engag[ing] actively in a business or profession except as authorized by the institution head." (Id., subd. (a).) It defines "business" as "any revenue generating or profit making activity." (Ibid.) Because both the paralegal services and the sale of plaintiff's partnership interest involved "revenue generating or profit making activity," (ibid.) defendant asserted plaintiff was barred from both activities and could not enforce the alleged obligations based on those activities. Defendant presented no evidence plaintiff lacked authorization from the institution head to perform paralegal services or participate in the sale of his partnership interests.
At the initial hearing of the motion to dismiss, the trial court granted plaintiff a 60-day continuance so plaintiff could submit further evidence that he had $1.7 million to lend and that he had authorization from the prison warden to perform paralegal services while incarcerated. At the continued hearing, before a different judge, the second judge focused on the issues the first judge had asked plaintiff to address.
The second judge granted defendant's motion to dismiss. The ruling stated: "Plaintiff has admitted that he does not have in his possession any reliable documentation from any financial institution to prove that he had $1.7 million available to him and was able to make this investment. The court does not find that proof of this investment is support[ed] by a number of care packages and small sums of money forwarded to plaintiff by defendant." The trial court concluded authorization to engage in paralegal activities while imprisoned could not be inferred from "unnamed correctional officers" monitoring telephone calls between the parties. The trial court went on to discuss the evidence presented, and to find the defendant's evidence that the June 17, 2010, letter agreement was forged was persuasive, and only forged documents supported plaintiff's claim for repayment of $1.7 million. The trial court concluded plaintiff did not have a bona fide property interest underlying the lawsuit, and "[d]ismissal is authorized under case law supporting litigation by a state prisoner only after the court has found the litigation stems from bona fide civil claims." (Citing Apollo, supra, 167 Cal.App.4th at pp. 1485-1486.)
II. Nonstatutory Speaking Motion to Dismiss
"A speaking motion to dismiss or strike is one which is supported by facts outside the pleadings. [Citation.] Such facts ordinarily are set forth in an affidavit or declaration." (Veseley v. Sager (1971) 5 Cal.3d 153, 167, fn. 4 (Veseley).) Prior to 1956, a defendant could file a nonstatutory speaking motion to dismiss an action. For example, in Cunha v. Anglo California Nat'l Bank (1939) 34 Cal.App.2d 383, after the defendants successfully demurred to the original and first amended complaints, they demurred to the second amended complaint and also filed a motion to dismiss it on the ground it was sham and based on false allegations. (Id. at pp. 384, 388.) The motion to dismiss was supported by an affidavit showing the facts were such that the plaintiff could not cure the defects in his complaint. (Id. at pp. 389-390.) The motion was not based on any dismissal statute, but the statutes did not provide the exclusive means of dismissal. (Id. at p. 388.) The court concluded the defendants had the right to make the motion and support it with affidavits; the trial court had jurisdiction to hear and determine it. (Id. at p. 389.) The plaintiff offered no evidence in opposition. (Ibid.) Because the answer of one defendant and the affidavit filed in support of the motion to dismiss showed that the plaintiff had no cause of action, the court upheld the dismissal of the action as " 'vexatious, clearly without merit, and not brought in good faith.' " (Id. at pp. 391-392.)
In 1956, the practice of filing nonstatutory speaking motions to dismiss or strike was abolished. In Pianka v. State of California (1956) 46 Cal.2d 208 (Pianka), the plaintiff sued a public entity for personal injuries, and the defendant moved to dismiss on the ground of sovereign immunity, supporting the motion with an affidavit. (Id. at p. 209.) The court stated: "[N]onstatutory speaking motions have now been superseded by the procedure governing motions for summary judgment contained in section 437c of the Code of Civil Procedure. . . . [¶] Under this section a motion supported by affidavit of a person having knowledge of the facts may be made after answer whenever it is claimed that the action has no merit, and the complaint may be dismissed unless the other party shows facts sufficient to present a triable issue. The remedy afforded by this section is broad enough to cover all situations in which speaking motions have been employed, and there is therefore no longer any need for the nonstatutory procedure. In the interests of orderly and efficient administration of justice the litigant should be required to employ the statutory remedy, and a speaking motion to dismiss should be treated as a motion for summary judgment in order to preserve the safeguards provided by the statute." (Id. at pp. 211-212, fn. omitted.) However, because the parties did not have notice the motion would be considered as a motion for summary judgment, the court "tested the propriety of the judgment under the rules laid down by the decisions involving speaking motions." (Id. at p. 212.) The court stated: "It has been uniformly held that it was error to grant such a motion where the affidavit did no more than controvert a material allegation of the complaint and create an issue of fact which could not be properly tried on affidavits." (Ibid.) Because the defendant's supporting affidavit merely controverted the allegations of the complaint, disclosing the existence of a question of fact for trial, the court reversed the judgment of dismissal. (Ibid.)
In Veseley, the court reiterated its conclusion that speaking motions have been superseded by the summary judgment statute. (Veseley, supra, 5 Cal.3d at p. 167.) Veseley arose out of an automobile accident. The plaintiff sought to impose liability for injuries he suffered in the accident on the defendant, Sager, who allegedly served alcoholic beverages to the driver who injured the plaintiff. (Id. at pp. 157-158.) Sager demurred to the complaint and moved to strike as sham the allegations that the driver drove with Sager's permission and as his employee or agent. Sager supported the motion to strike with his declaration that the driver was not his employee and Sager did not own the car in which he was driving. (Id. at p. 158.)
The court stated: "From an examination of the points and authorities in support of the motion to strike, it is clear that the motion was not one for summary judgment [citation], but rather was a 'speaking motion,' addressed to the 'inherent right of a court to strike or dismiss a complaint when it is made to appear by extraneous evidence that it is sham and based upon false allegations.' [Citation.] In Pianka . . . , we stated that such 'nonstatutory speaking motions have . . . been superseded by the procedure governing motions for summary judgment contained in section 437c of the Code of Civil Procedure.' " (Veseley, supra, 5 Cal.3d at p. 167.) The court treated the motion to strike as a motion for summary judgment. Although the plaintiff had not filed any opposing affidavits or declarations, the court found Sager's declaration was insufficient to grant summary judgment. (Id. at pp. 169-170.) It failed to adequately address all the allegations and theories alleged in the complaint, so it failed to establish facts showing every element necessary to entitle Sager to a judgment. (Ibid.) The court reversed the judgment of dismissal. (Id. at p. 170.)
More recently, in Saltarelli & Steponovich v. Douglas (1995) 40 Cal.App.4th 1 (Saltarelli), the plaintiff, a law firm, sued the defendant, its former client, to recover on a contractual lien on the defendant's recovery in the lawsuit in which the law firm had represented him. (Id. at p. 3.) The defendant moved to dismiss the action, claiming it was barred by a discharge in bankruptcy. The trial court granted the motion. (Id. at p. 4.)
The defendant's motion was supported by declarations and exhibits; no statutory basis for the dismissal was cited. (Saltarelli, supra, 40 Cal.App.4th at p. 4.) "The procedure of moving to dismiss an action based on extrinsic evidence is disapproved in California and the motion is permitted only where it complies with the requirements for a motion for summary judgment. [Citations.] Here, the motion utterly fails to comply with any of the procedural requirements for a summary judgment motion." (Id. at p. 5.) The court, however, treated the motion as a motion for judgment on the pleadings; in such a motion, the court considers the complaint and matters of which judicial notice may be taken in determining whether the complaint states facts sufficient to constitute a cause of action. The trial court had taken judicial notice of the exhibits presented by the defendant, and "[t]he declarations, which were not a proper subject for judicial notice, were superfluous to the decision." (Id. at p. 5.) Because the plaintiff's proposed amended complaint adequately pleaded a claim in spite of the bankruptcy discharge, the court reversed with instructions to permit him to file the amended complaint. (Id. at pp. 7-8.)
Defendant's motion was presented as a motion to dismiss. It did not invoke any of the express statutory grounds for dismissal, such as the sustaining of a demurrer without leave to amend, delay in serving the defendants, or delay in bringing the action to trial. (See §§ 581, 583.250, 583.360, 583.410, 583.420.) The motion was supported by declarations and other extrinsic evidence. Thus, defendant submitted a nonstatutory speaking motion to dismiss the action, even though such motions were eliminated more than 50 years ago. As indicated in Pianka, Veseley, and other cases, such motions must now be brought as motions for summary judgment.
"The purpose of the law of summary judgment is to provide courts with a mechanism to cut through the parties' pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute." (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843 (Aguilar).) A defendant may move for summary judgment if he contends the action has no merit. (§ 437c, subd. (a)(1).) "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." (Id., subd. (c).) The moving party must support the motion with evidence, in the form of "affidavits, declarations, admissions, answers to interrogatories, depositions, and matters of which judicial notice shall or may be taken." (Id., subd. (b)(1).) "The supporting papers shall include a separate statement setting forth plainly and concisely all material facts that the moving party contends are undisputed ... followed by a reference to the supporting evidence." (Ibid.; Cal. Rules of Court, rule 3.1350(c), (d), (h).) The motion must be made on at least 75 days' notice. (§ 437c, subd. (a)(2).)
The moving party bears the initial burden of producing evidence that makes a prima facie showing of the nonexistence of any triable issue of material fact. (Aguilar, supra, 25 Cal.4th at p. 850.) If the moving party carries that burden, the burden of production shifts to the opposing party to make a prima facie showing of the existence of a triable issue of material fact. (Ibid.) Throughout the summary judgment proceeding, however, the moving party bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law. (Ibid.)
A moving defendant has met his burden of showing the cause of action has no merit if he has shown that one or more elements of the cause of action cannot be established, or that there is a complete defense to the cause of action. (§ 437c, subd. (o); Aguilar, supra, 25 Cal.4th at p. 849.) A moving defendant may show that the plaintiff cannot establish at least one element of the cause of action by showing that the plaintiff does not possess, and cannot reasonably obtain, the evidence needed to prove that element. (Aguilar, at p. 854.) The defendant must present evidence, however, and may not simply assert that the plaintiff does not possess and cannot reasonably obtain the necessary evidence. (Id. at pp. 854-855.) A moving defendant may rely on the plaintiff's "factually devoid discovery responses" to make that showing and shift the burden of production to the plaintiff. (Union Bank v. Superior Court (1995) 31 Cal.App.4th 573, 590.)
The adverse party may oppose the motion and present contrary evidence; the opposing party must respond to the moving party's separate statement, indicating which facts are disputed and citing evidence demonstrating the dispute. (§ 437c, subd. (b)(3).) " '[T]he moving party's affidavits are strictly construed while those of the opposing party are liberally construed.' [Citations.] We accept as undisputed facts only those portions of the moving party's evidence that are not contradicted by the opposing party's evidence. [Citation.] In other words, the facts alleged in the declarations of the party opposing summary judgment must be accepted as true." (Waisbren v. Peppercorn Productions, Inc. (1995) 41 Cal.App.4th 246, 251-252.) "[T]he sole declaration of a party opposing a summary judgment motion which raises a triable issue of fact is sufficient to deny that motion." (Estate of Housley (1997) 56 Cal.App.4th 342, 359.) "The trial court's sole function on a motion for summary judgment is issue finding, not issue determination." (Saldana v. Globe-Weis Systems Co. (1991) 233 Cal.App.3d 1505, 1510.)
The need for the protections of the summary judgment procedure was illustrated by this case, in which the trial court was deluged with evidence by both parties. The trial court lacked (and this court lacks) the benefit of a separate statement of undisputed material facts and supporting evidence, and a responsive separate statement identifying the facts remaining in dispute, which would have organized the moving party's and the opposing party's evidence into a more readily understandable format. The motion also was set on 31 days' notice, which included five days for mailing. Plaintiff's opposition was served 21 days after the motion was served on him. The trial court continued the hearing an additional 60 days, but only to permit plaintiff to address two issues specified by the trial court. Plaintiff was deprived of the 75 days' notice (plus five days for mailing) mandated for motions for summary judgment. (§ 437c, subd. (a)(2); Robinson v. Woods (2008) 168 Cal.App.4th 1258, 1261-1262.)
The trial court did not treat the motion as a motion for summary judgment. It did not place on defendant the initial burden of presenting facts and evidence demonstrating that plaintiff's claims were without merit. It did not liberally construe and give credence to plaintiff's opposing evidence. It did not accept as undisputed only the facts and evidence presented by defendant that were not contradicted by the plaintiff's evidence. It did not merely determine whether issues of fact remained in dispute, requiring a trial. Instead, it made findings of fact and determinations of credibility, which are inappropriate in the context of a motion for summary judgment, and which would not have been necessary if the facts had indeed been undisputed. The trial court was required to treat defendant's nonstatutory speaking motion to dismiss as a motion for summary judgment. (Pianka, supra, 46 Cal.2d at pp. 211-212; Veseley, supra, 5 Cal.3d at pp. 167-168.) Because defendant did not follow the proper procedures for bringing a motion for summary judgment, and because the evidence indicated there were triable issues of material fact, defendant's motion should have been denied.
III. Access to the Courts
Defendant contends his motion to dismiss was authorized by certain cases, including Wantuch and Apollo, which he seems to contend allow him to bypass the procedural requirements of a motion for summary judgment and bring a speaking motion to dismiss. None of those cases, however, discusses or authorizes bringing a motion to dismiss a prisoner's action, or addresses the procedural requirements for bringing such a motion.
In Payne v. Superior Court (1976) 17 Cal.3d 908 (Payne), the court addressed the issue of access to the courts by a prison inmate named as a defendant in a civil action. Payne was imprisoned for receiving stolen property. The owner of the property filed a civil action for damages against him. (Id. at p. 911.) The Department of Corrections did not allow Payne to appear for trial, and a default judgment was entered against him. (Id. at p. 912.) The issues before the court were whether Payne had been unconstitutionally deprived of his right of access to the courts and, if so, what the appropriate remedy should be. (Ibid.)
The court noted that, while a prisoner has a right to defend himself in a civil action, he has no right to appear personally in court to do so. (Payne, supra, 17 Cal.3d at p. 913.) It addressed "the dual deprivation facing an indigent prisoner," that is, the deprivation of both appointed counsel and the right to appear personally in court. (Id. at p. 913, fn. omitted.) The court concluded no state interests justified denial of a prisoner's access to the courts, and "such unqualified deprivation constitutes a violation of [a prisoner's] rights under the due process and equal protection clauses of both the state and federal Constitutions." (Id. at pp. 922-923.) Regarding the appropriate remedy, the court stated that granting a prisoner "an absolute right to both appointed counsel and personal appearance would achieve the anomalous result of according him greater privileges than those possessed by an ordinary indigent civil litigant." (Id. at p. 923.) The inmate could be granted the right to appear in court, but denied the right to appointed counsel. The prisoner would still be unable to undertake investigative functions needed to defend the action, however. Another suggested alternative was deferring trial of the action until the inmate was released from prison. This would be feasible if the inmate's prison sentence was relatively short; if the inmate faced lengthy incarceration, however, this alternative could substantially impair the rights of the civil plaintiff against the inmate. "In those cases the only feasible method of granting access rights to indigent prisoners is appointment of counsel." (Ibid.)
"The access right, in turn, comes into existence only when a prisoner is confronted with a bona fide legal action threatening his interests. If a prisoner is merely a nominal defendant with nothing of consequence at stake, no need emerges for an appointed attorney. Thus, before appointing counsel for a defendant prisoner in a civil suit the trial court should determine first whether the prisoner is indigent. If he is indigent and the court decides that a continuance is not feasible, it should then ascertain whether the prisoner's interests are actually at stake in the suit and whether an attorney would be helpful to him under the circumstances of the case. The latter determination should be comparatively simple: if the prisoner is not contesting the suit against him, or any aspect of it, there is no need for counsel; but if he plans to defend the action and an adverse judgment would affect his present or future property rights, an attorney should be appointed." (Payne, supra, 17 Cal.3d at p. 924.)
Further, if the inmate's testimony is needed, the trial court can attempt to arrange for the Department of Corrections to transport the prisoner to court. The court recognized that, except in a few circumstances, the courts do not have statutory authority to order the Department of Corrections to transport a prisoner for appearance in a civil action. (Payne, supra, 17 Cal.3d at p. 924.) If it is unable to arrange transportation, and the prisoner's testimony is required by due process, the trial court may order a continuance or use other alternatives, such as recording the prisoner's testimony or holding a portion of the trial at the prison. (Id. at pp. 924-925.) The court emphasized: "All we decide is that when a prisoner is threatened with a judicially sanctioned deprivation of his property, due process and equal protection require a meaningful opportunity to be heard. How that is to be achieved is to be determined by the exercise of discretion by the trial court." (Id. at p. 927.)
The court issued a writ of mandate, directing the trial court to vacate the default judgment against Payne. It noted Payne's stake in the proceedings was undisputed, and directed that, if the trial court found Payne was incarcerated and indigent, it should "conduct further proceedings consistent with this opinion." (Payne, supra, 17 Cal.3d at pp. 926-927.)
In Yarbrough v. Superior Court (1985) 39 Cal.3d 197 (Yarbrough), the court again addressed an inmate's right of access to the courts when named as a defendant in a civil action. It reaffirmed Payne, which held "that as a matter of due process and equal protection under both the federal and California Constitutions an indigent prisoner who is a defendant in 'a bona fide legal action threatening his interests' is entitled to access to the courts to be heard in his defense." (Yarbrough, at p. 200.) Payne also "left to the trial court's discretion how access is to be achieved in particular cases, recognizing that, at times, appointment of counsel may be the only alternative[, and] made it clear . . . that the trial court's authority to appoint counsel is independent of its power to order compensation." (Yarbrough, at p. 200.)
Yarbrough was serving 17 years to life in prison for second degree murder; he was sued for the wrongful death of his murder victim. (Yarbrough, supra, 39 Cal.3d at p. 201.) He moved the court for appointment of counsel. The trial court concluded Yarbrough was an indigent prisoner named as a defendant in a civil action, and the litigation was not spurious and could affect his interests. It believed counsel should be appointed for him, but the trial court did not have the authority to order compensation. It denied Yarbrough's motion, and he sought a writ to compel appointment. (Id. at p. 203.)
The court discussed whether the civil action threatened Yarbrough's interests: "One of the criteria for appointment of counsel is that an adverse judgment will affect property rights. If the indigent presently has no property—and by definition he is not likely to have much—some assessment must be made as to the indigent's assertion that his interests are 'actually at stake.' . . . [¶] The court itself should evaluate the potential for loss to the prisoner, weighing such factors as age, term of incarceration, employment history, education, skills, family background and the likelihood of inheriting or otherwise obtaining property. The court may also consider the prisoner's prospects for earning money while in prison and accumulating sums to satisfy a civil judgment—royalties from books and songs come to mind. Undoubtedly there are other sources that might prove fruitful." (Yarbrough, supra, 39 Cal.3d at pp. 204-205.) The trial court had not conducted that inquiry. (Id. at p. 205.)
The court stated the trial court must also determine whether counsel would help the prisoner under the circumstances of the case. It noted Yarbrough's criminal conviction would be admissible against him in the civil action and would preclude relitigation of the issues it determined. (Yarbrough, supra, 39 Cal.3d at p. 205.) Counsel might assist on the issue of damages, however, if the prisoner's property interests were actually at stake. (Id. at p. 206.) Because the trial court had not seriously considered any factor other than indigence, the court remanded the matter to the trial court to reconsider the question of how to effectuate Yarbrough's right of access to the courts. (Id. at p. 207.)
In Wantuch, the court applied the principles of Payne and Yarbrough to a civil action in which a prison inmate was the plaintiff and the cross-defendant. Wantuch sued his criminal defense attorney for malpractice. The attorney cross-complained for his attorney fees arising out of that representation. (Wantuch, supra, 32 Cal.App.4th at pp. 789-790.) Wantuch's fee agreement with the attorney was secured by a promissory note and a deed of trust on Wantuch's real property. (Id. at p. 790.)
Wantuch actively participated in the prosecution of his action. After he failed to appear for a status conference, he requested appointment of counsel or an order releasing him for his court appearance. Wantuch failed to appear for a second status conference. At that status conference, the trial court denied his request for appointed counsel, struck Wantuch's complaint and answer to the cross-complaint, and entered judgment against Wantuch on the complaint and cross-complaint. (Wantuch, supra, 32 Cal.App.4th at p. 791.) On appeal, the court was "concerned with the nature and extent of a prisoner's right of access to the civil courts." (Id. at p. 792.)
The court stated that a prisoner has a statutory right under Penal Code section 2601, subdivision (e), to initiate a civil action and, if an indigent prisoner initiates a bona fide civil action, the statutory right carries with it a right to meaningful access to the courts to prosecute the action. (Wantuch, supra, 32 Cal.App.4th at p. 792.) It listed possible remedies to secure access to the courts: "(1) deferral of the action until the prisoner is released [citation]; (2) appointment of counsel for the prisoner [citations]; (3) transfer of the prisoner to court [citations]; (4) utilization of depositions in lieu of personal appearances [citations]; (5) holding of trial in prison [citation]; (6) conduct of status and settlement conferences, hearings on motions and other pretrial proceedings by telephone [citation]; (7) propounding of written discovery; (8) use of closed circuit television or other modern electronic media; and (9) implementation of other innovative, imaginative procedures." (Id. at pp. 792-793, fn. omitted.) The court noted a prisoner is not entitled to any particular remedy; "[t]he trial court determines the appropriate remedy to secure access in the exercise of its sound discretion." (Id. at pp. 793-794.) "In determining the appropriate remedy to secure access, the trial court should consider the nature of the action, the potential effect on the prisoner's property, the necessity for the prisoner's presence, the prisoner's role in the action, the prisoner's literacy, intelligence and competence to represent himself or herself, the stage of the proceedings, the access of the prisoner to a law library and legal materials, the length of the sentence, the feasibility of transferring the prisoner to court and the cost and inconvenience to the prison and judicial systems." (Id. at p. 793.)
The court found the trial court abused its discretion by dismissing Wantuch's action. It acknowledged trial courts were authorized to use terminating sanctions for failure to comply with trial court delay reduction rules, but "[p]reventing parties from presenting their cases on the merits is a drastic measure" and "[t]erminating sanctions should not be ordered as a first response when noncompliance is through no fault of the party." (Wantuch, supra, 32 Cal.App.4th at p. 795.) "[T]he trial court imposed terminating sanctions solely because of Wantuch's failure to appear at the status conference. Wantuch's nonappearance was not willful, but was solely the result of his imprisonment. The status conference could have been conducted by written correspondence or by telephone. In all other respects, Wantuch had diligently prosecuted the matter." (Ibid.) The court reversed and remanded, stating the trial court must determine whether Wantuch was indigent and whether the lawsuit was a bona fide action threatening Wantuch's property interests. (Id. at p. 796.) It stated the action appeared to be a legitimate controversy, and noted the cross-complaint involved a substantial amount of money and an interest in real property. It did not explain how the trial court was to make those determinations, but merely left the matter to the trial court's discretion. (Ibid.) It also left the remedy to the trial court's discretion, in the event it found Wantuch was indigent and the lawsuit was bona fide. (Ibid.)
Apollo addressed a civil action in which the inmate was the plaintiff. Apollo sued prison personnel for personal injuries he allegedly sustained as a result of being denied the special diet that was prescribed by a prison doctor because of Apollo's medical condition. (Apollo, supra, 167 Cal.App.4th at p. 1471.) Apollo had difficulty prosecuting his action. The court clerk rejected many of the papers Apollo submitted for filing, and he had problems locating and serving the defendants and communicating with the trial court. (Id. at pp. 1473-1476.) In his case management conference statement, Apollo expressed his " 'dire need' " of appointed counsel. (Id. at p. 1476.)
The defendant filed a motion for summary judgment, set for hearing February 7. (Apollo, supra, 167 Cal.App.4th at pp. 1476-1477.) Apollo delivered his opposition papers to the prison mailroom on January 31, but they were not delivered to the trial court until February 9, two days after the hearing of the motion. (Id. at pp. 1477-1478.) On February 1, Apollo mailed the court a request for an order permitting him to appear by telephone, but the court did not receive it until February 7. The trial court called Apollo at 10:00 a.m. on the date of the hearing, although the hearing had been set for 8:30 a.m. The prison representative speaking on the telephone advised the trial court Apollo was coming back from his housing unit with his documentation, but the trial court would not wait for him. (Id. at p. 1477.) It granted the defendant's motion and dismissed Apollo's action with prejudice. (Id. at pp. 1477-1478.)
On appeal, the trial court addressed what it deemed to be the crucial issue: whether Apollo was deprived of his right of meaningful access to the courts. (Apollo, supra, 167 Cal.App.4th at p. 1482.) It reviewed Wantuch, then stated: "Generally, a trial court has discretion to choose among . . . remedies in safeguarding a prisoner litigant's right of meaningful access to the courts to prosecute or defend against a civil action threatening his or her interests. [Citations.] However, a trial court does not have discretion to choose no remedy in cases where the prisoner's civil action is bona fide and his or her access to the courts is being impeded." (Apollo, at pp. 1483-1484.)
Apollo had advised the trial court early on of the limitations on his ability to perform legal work, such as limits on using the law library and making copies. (Apollo, supra, 167 Cal.App.4th at p. 1484.) He submitted timely documents and requested orders to appear by telephone, but the court clerk repeatedly rejected his documents; he resubmitted them, often more than once, until they were filed. The record did not indicate whether the trial court considered his requests to appear by telephone. (Id. at pp. 1484-1485.) Apollo also repeatedly asked the trial court to consider his dire need for appointment of counsel. (Id. at p. 1485.) The court concluded the trial court abused its discretion by granting the defendant's motion for summary judgment without first ensuring that Apollo's right of meaningful access to prosecute bona fide claims was being protected. (Ibid.)
The court instructed that, on remand, "the trial court must first determine whether [Apollo] is indigent," then "whether this lawsuit involves a bona fide threat to [Apollo's] personal or property interests." (Apollo, supra, 167 Cal.App.4th at p. 1485-1486.) It left those issues to the trial court's discretion, but noted that the California Victim Compensation and Government Claims Board, to which Apollo had presented a government claim prior to filing his lawsuit, opined that his claim raised " ' complex issues of fact and law that should be resolved through formal legal action.' " (Id. at p. 1486.) The court also instructed the trial court to exercise its discretion in determining what remedy would be appropriate under the circumstances. (Id. at p. 1487.)
In each of these cases, the issues before the reviewing court were whether the trial court was required to take special steps to ensure the prisoner meaningful access to the courts to prosecute or defend the civil action, and, if so, what measures were to be taken to do so. In Payne and Yarbrough, the prisoner was a defendant in the civil action, and the primary question was whether, despite his indigence, the prisoner had current or potential future property interests that might be adversely affected by a judgment entered against him in the civil action. The issue was not the viability of the plaintiff's claims or the defendant's defenses. In determining whether the prisoner was entitled to access to the courts, the trial court was not required to address the issues the trier of fact would ultimately determine. As Yarbrough indicated, the factors the trial court was to consider included the prisoner's "age, term of incarceration, employment history, education, skills, family background and the likelihood of inheriting or otherwise obtaining property," including royalties from books or songs that might be earned while incarcerated. (Yarbrough, supra, 39 Cal.3d at p. 205.) Thus, a mini-trial of the merits of the civil action was neither required nor contemplated.
Wantuch and Apollo extended the principles of Payne and Yarbrough to civil actions brought by prisoners as plaintiffs. Neither court explained how the trial court was to conduct its inquiry to determine whether the action was bona fide and whether it threatened the prisoner's personal or property interests. Neither addressed what resolution was appropriate if the trial court determined the plaintiff's personal or property interests were not at stake.
Wantuch, however, also involved a cross-complaint against the prisoner, so some of the same considerations discussed in Payne and Yarbrough, regarding the prisoner's current or potential future property interests, were in issue in that case.
Defendant asserts that federal law provides statutory authority for dismissing an indigent prisoner's case at any time, if the court determines the action is frivolous or fails to state a claim on which relief may be granted. (28 U.S.C. § 1915(e)(2)(B)(i), (ii).) California law has no such statutory provision. The federal authorities are instructive. The federal statute cited by defendant authorizes the court to permit an indigent person to prosecute or defend a civil action without prepayment of fees; it applies to all civil litigants proceeding in forma pauperis, not just to prisoners. (28 U.S.C. § 1915(a)(1); Floyd v. United States Postal Service (6th Cir. 1997) 105 F.3d 274, 276, overruled on another ground in Callihan v. Schneider (6th Cir. 1999) 178 F.3d 800, 803.) It also provides for dismissal "at any time," if the court determines the action "is frivolous or malicious," or "fails to state a claim on which relief may be granted." (28 U.S.C. § 1915(e)(2)(B)(i), (ii).) Dismissal pursuant to the statute does not prevent the litigant from prosecuting the case, but merely requires that the plaintiff pay the filing fee in order to proceed. (Denton v. Hernandez (1992) 504 U.S. 25, 34 (Denton).)
Another section (28 U.S.C. § 1915A) deals specifically with civil actions by prisoners and allows the federal courts to screen a prisoner's action and dismiss it at the outset if the action "is frivolous, malicious, or fails to state a claim upon which relief may be granted." (28 U.S.C. § 1915A(a), (b)(1).) The section applies only to actions by a prisoner against a governmental entity or an officer or employee of a governmental entity, however.
See also, Bator v. Hawaii (9th Cir. 1994) 39 F.3d 1021, 1026, "A dismissal under section 1915(d), however, is not a dismissal on the merits or a bar to the filing of a paid complaint: it means only that the litigant may not file the complaint at government expense." --------
Under federal law, a dismissal for failure to state a claim is similar to a dismissal after the sustaining of a demurrer under California law: the trial court considers the allegations of the complaint, and determines whether the "[f]actual allegations [are] enough to raise a right to relief above the speculative level, [citations] on the assumption that all the allegations in the complaint are true (even if doubtful in fact)." (Bell Atlantic Corp. v. Twombly (2007) 550 U.S. 544, 555.) "[A] well-pleaded complaint may proceed even if it appears 'that a recovery is very remote and unlikely,' " and it may not be dismissed " 'based on a judge's disbelief of a complaint's factual allegations.' " (Id. at p. 556.) Thus, the federal court does not conduct a trial of the facts in order to determine whether to dismiss pursuant to title 28 of the United States Code, section 1915(e)(2)(B)(ii), for failure to state a claim.
Under federal law, a complaint is frivolous under title 28 of the United States Code, section 1915(e)(2)(B)(i) if " 'it lacks an arguable basis either in law or in fact.' " (Denton, supra, 504 U.S. at p. 31.) "[T]he in forma pauperis statute . . . 'accords judges not only the authority to dismiss a claim based on an indisputably meritless legal theory, but also the unusual power to pierce the veil of the complaint's factual allegations and dismiss those claims whose factual contentions are clearly baseless.' [Citation.] 'Examples of the latter class' . . . 'are claims describing fantastic or delusional scenarios, claims with which federal district judges are all too familiar.' " (Ibid.) This "authority to 'pierce the veil of the complaint's factual allegations' means that a court is not bound, as it usually is when making a determination based solely on the pleadings, to accept without question the truth of the plaintiff's allegations. . . . At the same time, in order to respect the congressional goal of 'assuring equality of consideration for all litigants,' [citation], this initial assessment of the in forma pauperis plaintiff's factual allegations must be weighted in favor of the plaintiff. In other words, the § 1915(d) [now § 1915(e)] frivolousness determination, frequently made sua sponte before the defendant has even been asked to file an answer, cannot serve as a factfinding process for the resolution of disputed facts." (Denton, at p. 32.) Again, the federal statute addressing dismissal of frivolous in forma pauperis complaints, by prisoners or otherwise, does not authorize a fact-determining mini-trial of the merits of the plaintiff's claims.
When the indigent prisoner is the plaintiff, Payne and its progeny do not appear to contemplate using the access-to-the-courts inquiry as a means for the defendant to obtain a dismissal of the action without invoking the usual procedures for doing so. The cases do not authorize conducting a mini-trial of the merits of the plaintiff's case, at which both parties present evidence, and the trial court weighs the evidence, makes findings of fact and credibility assessments, then determines which party will prevail, in the guise of determining whether the action is bona fide and threatens the prisoner's personal or property interests so that access to the courts must be assured.
As we read Payne and its progeny, the access-to-the-courts issues generally should be raised and addressed in the trial court when the prisoner-litigant requests assistance because he is having difficulties prosecuting or defending the action due to his incarceration. As Yarbrough observed, "the proceedings on motion for appointment of counsel are essentially ex parte" and "the burden is on the trial court to recognize the unusual case where future property rights are genuinely at stake for the presently indigent incarcerated defendant. It falls on the trial court to recognize and adhere to the guidelines set out in Payne." (Yarbrough, supra, 39 Cal.3d at p. 201.) We note that, in each case, the court stated the first issue for the trial court to address was whether the inmate was indigent. If the prisoner-plaintiff was not indigent, that finding would not justify dismissal of his action. Rather, it would justify a finding that the trial court was not required to institute special measures to ensure his access to the courts, on the assumption that a nonindigent inmate has the ability to retain counsel to facilitate the prosecution of his action.
The same appears to be true when the trial court finds the action is not a bona fide action threatening the prisoner's property interests. Yarbrough seemed to contemplate that, if the prisoner-defendant in a civil action did not have an actual property interest that was threatened by the litigation—i.e., if he chose not to contest the matter, or if he was indigent, owned little property, and had little likelihood of being released from prison or acquiring property interests in the future—the trial court would not be required to use extraordinary measures to provide access to the courts, such as appointing counsel or having the prisoner transported to court for trial. The case would proceed, the prisoner would not participate, unless he was able to do so without the court's assistance, and any judgment against him would be ineffective because he had no property on which to execute.
On the flip side of the coin, if the prisoner-plaintiff is found to be indigent and not to have a bona fide claim affecting his personal or property interests, the trial court will deny his request for appointment of counsel, transportation to court, or other special access measures. The plaintiff will be left to prosecute his claim on his own; for example, he may find an attorney willing to represent him pro bono or on a contingent fee basis, or prevail upon friends or family to pay an attorney to represent him. If the defendant believes the prisoner-plaintiff's claims are without merit, the defendant is free to file appropriate motions, such as a motion for judgment on the pleadings or motion for summary judgment, to dispose of the case.
We conclude a prisoner-plaintiff, seeking access to the courts, need not prove his case in a contested mini-trial in order to avoid dismissal on the ground he does not have a bona fide action that involves his personal or property interests. In considering whether the plaintiff has a bona fide action involving his personal or property interests, the trial court should focus on the plaintiff's showing, viewing factual allegations and evidence in the light most favorable to the plaintiff. The trial court should consider the allegations of the plaintiff's complaint, including any attached exhibits, as well as any materials of which judicial notice must or may be taken, to determine whether the plaintiff has stated a cause of action in his pleading. The trial court may inquire into the existence of supporting evidence and consider any evidence offered by the plaintiff in support of the allegations. If the plaintiff's allegations, or undisputed facts, show the action is barred or without merit, the trial court may find the plaintiff does not have a bona fide action involving his personal or property interests. We leave it to the trial court's discretion to determine, in light of the stage of the proceedings at which the issue is presented and whether the plaintiff has had an opportunity to conduct necessary discovery, whether the evidence is so lacking as to make the plaintiff's claims not bona fide and obviously without merit.
The determination addresses only whether, and by what means, the court must facilitate the incarcerated plaintiff's access to the court to prosecute his civil action. It is not a device by which the defendant may obtain a dismissal of the plaintiff's action without complying with recognized procedural requirements for dismissal of an action. It is not an occasion for a contested hearing of the merits of the plaintiff's case; the trial court may not weigh conflicting evidence, determine credibility of witnesses, or make factual findings on disputed issues.
We are concerned by another aspect of the procedure followed in this case. Both parties requested a jury trial. The issue of access to the courts was raised when the trial court, at a case management conference, questioned how a jury trial could be conducted with the plaintiff in prison. The trial court asked the parties to file memoranda of points and authorities discussing how to conduct a jury trial under the circumstances. In their papers, both parties recognized that it would not be feasible to conduct a jury trial at the prison where plaintiff is housed. Defendant suggested plaintiff's testimony could be taken at the prison by deposition, and the deposition could be presented at trial. He also suggested teleconferencing equipment could be used, but the trial court had noted it did not have a system compatible with that of the prison, so that plan might not be feasible. Defendant suggested allowing plaintiff to appear at trial by telephone, and premarking all exhibits, placing them in binders, and giving a set to each party and the court, so plaintiff could follow along with the exhibits as they were discussed in court.
At a subsequent case management conference, in addressing the jury trial issue, the trial court observed that a new courthouse was being built, and was expected to open prior to the trial date in this case. The trial court did not know whether the new courthouse would have videoconferencing equipment that would help with the conduct of the trial. It proposed waiting until the new building was complete to address that issue. The parties agreed. The question whether plaintiff's action was a bona fide action threatening his property interests was not raised in connection with the discussion of the means to afford plaintiff access to the court for trial.
Five months later, defendant filed his motion to dismiss, based on the assertion plaintiff's action was not a bona fide action threatening his property interests, and therefore plaintiff was not entitled to pursue the action. Defendant cited Wantuch and Apollo, but did not discuss plaintiff's right of access to the courts. Defendant presented evidence in an attempt to prove his defenses and disprove plaintiff's claims; he asked the trial court to hear the disputed evidence, weigh and judge it, and determine whether plaintiff's claims had merit. In other words, after refusing to waive his right to a jury trial (which would have permitted the trial court to at least consider whether portions of a court trial could be conducted at the prison or by teleconferencing), defendant presented the case for what was essentially a court trial, without the benefit of live testimony or cross-examination. Defendant risked nothing by doing so. If he lost his motion, he still had a jury trial scheduled. Plaintiff, on the other hand, lost the motion and his case, without being afforded either a jury trial or a full court trial at which he could present live testimony and cross-examine defendant's witnesses. This procedure was not authorized by any statute or by the case law cited by defendant, and we conclude it was inappropriate under the circumstances of this case.
IV. Inherent Authority to Dismiss Frivolous Complaint
Defendant's brief suggests in passing that the dismissal was proper because the trial court had inherent authority to dismiss a fictitious or sham pleading or to dismiss the complaint as a sanction for plaintiff's misconduct. These arguments were not properly raised. Each point made in an appellate brief must be stated "under a separate heading or subheading summarizing the point, and support[ed] . . . by argument and, if possible, by citation of authority." (Cal. Rules of Court, rule 8.204(a)(1)(B).) An argument not separately raised under its own heading is deemed waived. (Golden Day Schools, Inc. v. Department of Education (1999) 69 Cal.App.4th 681, 695, fn. 9; Opdyk v. California Horse Racing Bd. (1995) 34 Cal.App.4th 1826, 1830, fn. 4.) These arguments were not raised under their own headings, so we deem them waived.
Further, defendant's notice of motion to dismiss did not identify either of these theories as a ground on which the motion was made. The defendant's argument in support of the motion did not address them. The trial court's ruling did not discuss them or determine whether dismissal was appropriate on either of these grounds. We cannot review an exercise of the trial court's discretion when the trial court did not exercise its discretion.
DISPOSITION
The judgment is reversed. The matter is remanded with directions to the trial court to vacate the order granting defendant's motion to dismiss and to enter a new order denying the motion. Plaintiff is entitled to his costs on appeal.
/s/_________
HILL, P.J. WE CONCUR: /s/_________
LEVY, J. /s/_________
DETJEN, J.