JARED M. VILLERY, Plaintiff and Appellant, v. DEPARTMENT OF CORRECTIONS AND REHABILITATION, Defendant and Respondent.
No. F071088
Fifth Dist.
Apr. 8, 2016
246 Cal. App. 4th 407
[CERTIFIED FOR PARTIAL PUBLICATION*]
Jared M. Villery, in pro. per., for Plaintiff and Appellant.
Kamala D. Harris, Attorney General, Jennifer A. Neill, Assistant Attorney Gеneral, Sara J. Romano and Michael G. Lagrama, Deputy Attorneys General, for Defendant and Respondent.
OPINION
FRANSON, J.—Jared M. Villery appeals from an order sustaining a demurrer to his petition for writ of mandate. The petition sought an order directing personnel at the California Correсtional Institution (CCI) in Tehachapi, California, to process his inmate grievances in accordance with applicable regulations. The trial court determined that habeas corpus relief was a more appropriate remedy and dismissed Villery‘s mandamus petition.
As a gеneral rule, a petition for a writ of mandate may be dismissed if the plaintiff has an alternate “plain, speedy, and adequate remedy, in the ordinary course of law.” (
California courts have long regarded a writ of habeas corpus as an extraordinary remedy. In comparison, mandamus is the traditional remedy to compel a public official to perform a legal duty. The legal duty at issue here is the processing of inmate grievances submitted on CDCR Form 602, which we have held involves ministerial tasks. (Menefield v. Foreman (2014) 231 Cal.App.4th 211, 216-217 [180 Cal.Rptr.3d 3] (Menefield).) Based on the nature of both habeas corpus and mandamus, we conclude that habeas corpus
We therefore reverse the judgment and remand for further proceedings.
FACTS AND PROCEEDINGS
Villery, during the times relevant to this lawsuit, was a prisoner housеd at CCI. In January and February of 2014, Villery submitted three inmate grievances to CDCR regarding allegedly wrongful acts and omissions by prison staff. He contends the grievances and subsequent inquiries about their status have not been processed and “all applicable time deadlines for prison staff to rеspond to these have expired.”
In May 2014, Villery filed a petition for writ of mandate to compel CDCR officials to process his grievances in accordance with the regulations set forth in article 8 of chapter 1 of title 15 of the California Code of Regulations.2 Villery named CDCR аs a defendant and listed Kimberly Holland, CCI‘s warden, and I. Alomari and T. Jackson, appeals coordinators,3 as real parties in interest.
Villery alleged that he “is particularly aggrieved by [CDCR‘s] failure to carry out its ministerial duties because [he] must exhaust his available administrative remedies before he may seek judicial rеlief, yet the injuries he has suffered due to prison officials[‘] misconduct are ongoing.” Villery alleged the refusal to process his grievances will permanently block his First
In October 2014, CDCR filеd a demurrer to Villery‘s petition. Villery filed objections to the demurrer and CDCR filed a reply. In November 2014, a hearing on the demurrer was held and Villery appeared telephonically through CourtCall.
On December 2, 2014, the court filed a minute order sustaining the demurrer without leave to amend. The minutе order stated that Villery had another, more appropriate remedy because (1) the petition alleged the failure to process his inmate grievances violated his right to access the courts and (2) habeas corpus relief is available when a prison inmate claims he has been denied access to the courts.
In January 2015, Villery filed a notice of appeal that refers to “the judgment.”
DISCUSSION
I. Appellate Review
A. Appealable Judgment or Order
The appellate record contains no judgment or order of dismissal. The trial court‘s docket does not list the entry of a judgment or an order of dismissal. An unsigned minute order sustaining a demurrer without leave to amend is not an appealable order. (Nowlon v. Koram Ins. Center, Inc. (1991) 1 Cal.App.4th 1437, 1440 [2 Cal.Rptr.2d 683]; see
In March 2015, this court issued an order staying the appeal and directing Villery to file a letter brief addressing the jurisdictional basis for the appeal. After receipt of the letter brief, this court entered an order stating we would deem the appeal to be taken from an appealable order and vacated the stay. (See Nowlon v. Koram Ins. Center, Inc., supra, 1 Cal.App.4th at pp. 1440-1441 [order sustaining demurrer deemed to include an appealable
B. Standard of Review for Demurrers
When a demurrer is sustained, appellate courts conduct a de novo review to determine whether the pleading alleges facts sufficient to state a cause of action under any legal theory.4 (Flores v. Department of Corrections & Rehabilitation (2014) 224 Cal.App.4th 199, 204 [168 Cal.Rptr.3d 204] (Flores).) Appellate courts treat the demurrer as admitting all material facts properly pleaded, but do not assume the truth of contentions, deductions or conclusions of law. (Ibid.) The pleader‘s contentions or conсlusions of law are not controlling because appellate courts must independently decide questions of law without deference to the legal conclusions of either the pleader or the trial court. (Neilson v. City of California City (2005) 133 Cal.App.4th 1296, 1304 [35 Cal.Rptr.3d 453].)
Legal questions that arise at the pleading stage include the interpretation of a statute or the application of a statutory provision to facts assumed to be true for purposes of the demurrer. (Walker v. Allstate Indemnity Co. (2000) 77 Cal.App.4th 750, 754 [92 Cal.Rptr.2d 132].)
II. Principles Governing Writs of Mandate
A. Statutory Provisions
In addition,
B. Case Law Addressing Alternate Remedies
The question whether a writ of mandate remains avаilable when there is an adequate remedy in the ordinary course of law was not explicitly addressed by the Legislature. In other words, “the statute does not expressly forbid the issuance of the writ if another adequate remedy exists.” (Phelan v. Superior Court (1950) 35 Cal.2d 363, 366 [217 P.2d 951].) The California Supreme Court has addressed the Legislature‘s silence on this aspect of mandamus relief by adopting the “general rule that the writ will not issue[] if another such remedy [is] available to the petitioner. [Citations.]” (Ibid.; see Flores, supra, 224 Cal.App.4th at p. 205.)
Incorporating this general rule with the other statutory elements, this court recently stated: “Generally, a writ of ordinary mandate will lie when (1) there is no plain, speedy and adequate alternative remedy, (2) the public official has a legal and usually ministerial duty to perform and (3) the petitioner has a clear and beneficial right to performance.” (Menefield, supra, 231 Cal.App.4th at pp. 216-217.)
Whether there is a “‘plain, speedy and adequatе remedy in the ordinary course of law‘” within the meaning of the statute usually is regarded as a question of fact that requires an evaluation of the circumstances of each particular case. (Flores, supra, 224 Cal.App.4th at p. 206; see Glasser v. Municipal Court (1938) 27 Cal.App.2d 455, 458 [81 P.2d 260].) Appellate courts often state that the resolution of this question of fact is a matter largely within the sound discretion of the court. (Flores, supra, at p. 206.) However, existing cases applying the statutory phrase typically address whether an alternative remedy is “plain, speedy, and adequate,” rather than whether that remedy is available “in the ordinary course of law.” For examрle, some petitions for writ of mandate are opposed on the ground that an ordinary action at law for damages provides an adequate remedy. (Tevis v. City & County of San Francisco (1954) 43 Cal.2d 190, 198 [272 P.2d 757] [when municipal employees present a claim for wages, it is generally held
The explicit analysis in most cases addresses whеther a particular remedy is plain, speedy and adequate. The parties have cited no case directly discussing whether a particular remedy is available “in the ordinary course of law” for purposes of
III. Habeas Corpus
A. Nature of the Remedy
The writ of habeas corpus predates the California Constitution, which protects its availability by providing that “[h]abeas corpus may not be suspended unless rеquired by public safety in cases of rebellion or invasion.” (
Courts routinely describe habeas corpus as an “‘extraordinary remedy.‘” (In re Clark (1993) 5 Cal.4th 750, 764, fn. 3 [21 Cal.Rptr.2d 509, 855 P.2d 729].) Sometimes, habeas corpus is referred to as “the ‘Great Writ.‘” (Id. at p. 763.) As an extraordinary remedy, a writ of habeas corpus is not avаilable
B. Habeas Corpus Relief and the Ordinary Course of Law
Given that a writ of habeas corpus is an extraordinary remedy that usually addresses unlawful imprisonment or restraint of liberty, we conclude that it is not available “in the ordinary course of law” (
Consеquently, the demurrer should not have been sustained on the ground that a writ of habeas corpus was the more appropriate remedy.
C. Adequacy of Villery‘s Pleadings
In Menefield, supra, 231 Cal.App.4th 211, this court held that CDCR appeals coordinators had a ministerial duty to screen inmate grievances submitted on CDCR Form 602 and did not have the discretionary authority to ignore such submissions. (Menefield, at p. 217.) Here, Villery‘s exhibits to his petition included the CDCR Form 602‘s that he completed and submitted in connection with his grievances. Furthermore, he alleged that “all applicable time deadlines for prison staff to respond to these [grievances] have expired.”5
Based on these allegations, we conclude that Villery alleged sufficient facts to state a claim for a writ of mandate to enforce a ministerial duty set forth in the Regulations. (
IV. Improper Construction of Villery‘s Petition*
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* See footnote, ante, page 407.
The judgment is reversed. The trial court is directed to vacate its order sustaining the demurrer without leavе to amend and enter a new order overruling the demurrer.
Levy, Acting P. J., and Detjen, J., concurred.