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F061596 (Cal. Ct. App. Sep. 23, 2011)

F061596 Super. Ct. No. CV55494


ROBERT McDANIEL, Plaintiff and Appellant, v. MATTHEW CATE et al., Defendants and Respondents.

Robert McDaniel, in pro. per., for Plaintiff and Appellant. Williams & Associates and Martha M. Stringer for Defendants and Respondents.


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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.


APPEAL from a judgment of the Superior Court of Tuolumne County. James A. Boscoe, Judge.

Robert McDaniel, in pro. per., for Plaintiff and Appellant.

Williams & Associates and Martha M. Stringer for Defendants and Respondents.

Appellant, Robert McDaniel, filed a civil action against respondents, Matthew Cate, the secretary of the California Department of Corrections and Rehabilitation (CDCR), and Frank Chavez, the warden of the Sierra Conservation Center, based on a prison disciplinary proceeding. According to appellant, errors occurred during the disciplinary proceeding and his conduct credits were wrongfully reduced.

Respondents demurred to appellant's second amended complaint. The trial court sustained the demurrer without leave to amend and dismissed appellant's action. The trial court concluded that appellant could not maintain a civil action to collaterally attack a criminal proceeding without proof that the criminal proceeding had been successfully challenged. (Heck v. Humphrey (1994) 512 U.S. 477 (Heck); Yount v. City of Sacramento (2008) 43 Cal.4th 885 (Yount).)

Appellant contends that a civil claim for abuse of process does not require a favorable termination of the underlying criminal proceeding and therefore the trial court erred in sustaining the demurrer to his complaint. However, contrary to appellant's position, the trial court correctly found that appellant could not make a claim for civil damages arising from his confinement without first having successfully challenged that confinement. Accordingly, the judgment will be affirmed.


On review of this judgment dismissing appellant's second amended complaint following respondents' successful demurrer, we must assume the complaint's properly pleaded factual allegations are true and give the complaint a reasonable interpretation. (Campbell v. Regents of University of California (2005) 35 Cal.4th 311, 320.)

Appellant's second amended complaint is difficult to decipher. However, reading all of the complaints together, it appears that while appellant was a state prison inmate he threw a tray at a correctional officer and was charged with battery on a peace officer. Following two hearings, appellant was found guilty of a misdemeanor and lost 150 days of conduct credit. Appellant exhausted his CDCR administrative remedies and his appeals were ultimately unsuccessful.

In the trial court, appellant alleged that the disciplinary hearings were procedurally improper in that: an incorrect form was used; he was denied an impartial decision maker; certain time requirements were not met; and the penalty imposed was excessive under the applicable prison regulation. Based on these alleged errors, appellant's second amended complaint claims that appellant was denied equal protection, did not receive minimal due process, and was falsely imprisoned.

The trial court sustained respondents' demurrers to the complaint and the first amended complaint with leave to amend. Respondents demurred to the second amended complaint on the grounds that the complaint was uncertain because it was ambiguous and unintelligible. The court sustained the demurrer to the second amended complaint without leave to amend on the ground that appellant had not alleged that he had successfully challenged the guilty finding following the prison disciplinary hearing. The court took judicial notice of its own files and noted that appellant had filed a habeas petition regarding the underlying assault issue and that the petition had been denied.


In Heck, supra, 512 U.S. 477, the court established that a civil action for compensatory damages under section 1983 of title 42 of the United States Code that calls into question the lawfulness of a plaintiff's conviction or confinement is not cognizable until the conviction or confinement has been invalidated. (Yount, supra, 43 Cal.4th at p. 893.) Heck analogized such a claim to the common law cause of action for malicious prosecution, which similarly requires that termination of the prior criminal proceeding in favor of the accused be alleged and proved. (Heck, supra, 512 U.S. at p. 484.) "This requirement 'avoids parallel litigation over the issues of probable cause and guilt ... and it precludes the possibility of the claimant [sic] succeeding in the tort action after having been convicted in the underlying criminal prosecution, in contravention of a strong judicial policy against the creation of two conflicting resolutions arising out of the same or identical transaction.'" (Ibid.) Thus "the hoary principle that civil tort actions are not appropriate vehicles for challenging the validity of outstanding criminal judgments" applies to title 42 United States Code section 1983 damages actions that necessarily require the plaintiff to prove the unlawfulness of his or her conviction or confinement. (Heck, supra, at p. 486.) This rule also applies to state tort claims. (Yount, supra, 43 Cal.4th at p. 902.)

Accordingly, in order for appellant to recover damages for this allegedly unconstitutional conviction and imprisonment, he must first prove that the proceeding terminated in his favor, i.e., the conviction or sentence was reversed on direct appeal, expunged by executive order, declared invalid by the trial court, or called into question by a court's issuance of a writ of habeas corpus. (Heck, supra, 512 U.S. at pp. 486-487.) Since appellant did not make such a showing, the trial court correctly sustained respondents' demurrer without leave to amend.

Appellant argues that the Heck rule does not apply to a claim for abuse of process and therefore he should be able to proceed with this action. However, appellant did not allege a cause of action for abuse of process below. Therefore, appellant cannot raise this issue on appeal. A party may not, for the first time on appeal, change the theory of the cause of action. (Johnson v. Greenelsh (2009) 47 Cal.4th 598, 603.)

Moreover, the alleged facts and the relief requested cannot support a claim for abuse of process. Abuse of process requires an ulterior purpose and a willful act in the use of the process to obtain a collateral advantage, not properly involved in the proceeding itself. (Templeton Feed & Grain v. Ralston Purina Co. (1968) 69 Cal.2d 461, 466.) The gravamen of the tort is not the wrongfulness of the prosecution. Rather, the tort requires some "extortionate perversion of lawfully initiated process to illegitimate ends." (Heck, supra, 512 U.S. at p. 486, fn. 5.) Accordingly, while a defendant's act of improperly instituting or maintaining an action may, in an appropriate case, give rise to a cause of action for malicious prosecution, the mere filing or maintenance of a lawsuit, even for an improper purpose, is not a proper basis for an abuse of process action. (Oren Royal Oaks Venture v. Greenberg, Bernhard, Weiss & Karma, Inc. (1986) 42 Cal.3d 1157, 1169.) Further, cognizable injury for abuse of process is limited to the harm caused by the misuse of process. It does not include harm, such as conviction or confinement, resulting from the process being carried through to its conclusion. (Heck, supra, 512 U.S. at p. 486, fn. 5.)

Here, appellant is claiming that he was wrongfully found guilty of battery on a peace officer and that the penalty imposed was excessive. Appellant seeks damages arising from the confinement. These arguments cannot support a cause of action for abuse of process. Respondents did no more than carry out the process to its authorized conclusion. (Templeton Feed & Grain v. Ralston Purina Co., supra, 69 Cal.2d at p. 466.)


The judgment is affirmed. In the interests of justice, no costs are awarded.


WISEMAN, Acting P. J.