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1 XAVIER BECERRA Exempt Under Gov. Code § 6103
Attorney General of California
2 DARRYL W. SPENCE
Supervising Deputy Attorney General
3 LISA A. TILLMAN
Deputy Attorney General
4 State Bar No. 126424 E-FILED
1300 I Street, Suite 125 1/19/2021 2:26 PM
5 P.O. Box 944255 Superior Court of California
Sacramento, CA 94244-2550 County of Fresno
6 Telephone: (916) 210-7910 By: I. Herrera, Deputy
Fax: (916) 324-5567
7 E-mail: Lisa.Tillman@doj.ca.gov
Attorneys for Defendant
8 California Department of State Hospitals
9
SUPERIOR COURT OF THE STATE OF CALIFORNIA
10
COUNTY OF FRESNO
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14 MANSE SULLIVAN, Case No. 18CECG04118
15 Petitioner, RESPONDENT DEPARTMENT OF
STATE HOSPITALS’ MEMORANDUM
16 v. OF POINTS AND AUTHORITIES IN
SUPPORT OF MOTION FOR
17 JUDGMENT ON THE PLEADINGS
CALIFORNIA DEPARTMENT OF STATE
18 HOSPITALS, Date: February 18, 2021
Time: 3:30 p.m.
19 Respondent. Dept: 402
Judge: The Honorable D. Tyler Tharpe
20 Trial Date: None Assigned
Action Filed: November 1, 2018
21
22 INTRODUCTION
23 The Department of State Hospitals (Department) contends petitioner Sullivan’s action, a
24 combination of a petition for writ of mandamus and a complaint for declaratory relief and
25 compensatory damages, is procedurally barred. First, the Department is not properly named in
26 the claim for mandamus relief. A mandamus claim may only proceed against an officer who has
27 a duty to act. Second, the Department, as a state agency, is not a proper defendant in Sullivan’s
28 federal civil rights action for damages. Third, Sullivan’s failure to file a government claim
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Department of State Hospitals’ Memo Ps & As ISO Motion for Judgment on the Pleadings (18CECG04118)
1 forecloses his state law claims for damages. Therefore, the Department’s motion for judgment on
2 the pleadings should be granted and the action should be dismissed.
3 STATEMENT OF THE CASE
4 I. DSH'S REGULATORY BAR ON PATIENTS' POSSESSION OF ELECTRONIC DEVICES.
5 By statute, civil detainees confined to the Department are subject to restrictions as to the
6 property they may possess. (Welf. & Inst. Code, § 7295, subd. (a).) The Department maintains a
7 list of items deemed contraband at every state hospital, with the list posted in hospital units and
8 on its website. (Id., subds. (a), (b), (g), (h).)1 “Contraband” is defined as items a patient is
9 prohibited from possessing because the items pose a risk to the safety and security of the facility.
10 (Id., subd. (i).)
11 The Department is authorized to issue regulations concerning its facilities. (Welf. & Inst.
12 Code, §§ 4000, 4005.1.) In 2003, the Department enacted section 891 of title 9 of the California
13 Code of Regulations, which states, “Non-LPS patients shall not have access to the internet.”
14 (Exh. A, Cal. Code Regs., tit. 9, § 891; Req. J. Not.)2
15 In 2009, the Department (known as the Department of Mental Health at that time) adopted,
16 on an emergency basis, section 4350 of title 9 of California Code of Regulations (Section 4350).
17 (Exh. B, Prior Version Cal. Code Regs. tit. 9, § 4350; Req. J. Not.) Section 4350 was made
18 permanent in 2010. (Ibid.) At that time, Section 4350 prohibited civil detainees from possessing
19 “electronic devices with the capability to connect to a wired. . . . .and/or wireless. . . .
20 communications network to send and/or receive information.” (Ibid.)
21 On January 10, 2018, the Department issued a Notice of Proposed Emergency Amendments
22 to Section 4350. (Exh. C, DSH Not. Emergency Regs.; Req. J. Not.) The amendments prohibit
23 the Department’s patients from possessing certain electronic devices. (Ibid.) The amendments
24
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DSH five state hospitals - Atascadero, Coalinga, Metropolitan, Napa and Patton – treat .
25 various types of patients: incompetent to stand trial defendants, mentally disordered offenders,
mentally ill inmates, defendants declared not guilty by reason of insanity, sexually violent
26 predators (SVPs) and Lanterman-Petris-Short Act committees. (Exh. H, DSH website.) SVPs are
housed at the Department. (Ibid.)
27 2
LPS is an abbreviation for the Lanterman-Petris-Short Act. Because Sullivan is detained
under the Sexually Violent Predators Act (Welf. & Inst. Code, §§ 6600 et seq.), he is subject to
28 section 891 of title 9 of the California Code of Regulations.
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1 were approved by the Office of Administrative Law on an interim basis on January 12, 2018 and
2 approved on a permanent basis on February 5, 2019. (Exh. D, OAL Notice; Req. J. Not.)
3 On January 12, 2018, DSH-Coalinga Executive Director Brandon Price notified patients
4 and staff of the approval of the amended Section 4350 and listed the electronic devices designated
5 as contraband. (Exh. E, Price Memos, dated Jan. 12, 2018; Req. J. Not.)
6 In memoranda dated January 16 and January 18, 2018, the Fresno County District
7 Attorney’s Office and DSH-Coalinga Executive Director Brandon Price, respectively, informed
8 patients of the timeline for implementation of the amended Section 4350. (Exh. F, Fresno County
9 DA Memo; see also Exh. G, Price Memo, dated Jan. 18, 2018; Req. J. Not.) The ‘amnesty/grace
10 period’ for patients to voluntarily relinquish, without fear of prosecution, the prohibited
11 computers and electronic devices, was from 9:00 a.m. on Friday, January 19, 2018 through 4:00
12 p.m. on Sunday, January 28, 2018. (Ibid.) After 4:00 p.m. on Sunday, January 28, 2018, such
13 items were deemed contraband. (Ibid.)
14 II. THE SUBJECT ACTION.
15 Manse Sullivan is a civil-detainee committed under the Sexually Violent Predator Act
16 (SVPA). (Welf. & Inst. Code, §§ 6500 et seq.). (Petn., p. 2, Item 3.) At all relevant times, he
17 has been housed at the Department. (Ibid.; see also p. 11, ¶¶ 3, 4.) Sullivan alleges his electronic
18 devices were unlawfully confiscated pursuant to Section 4350. (Id., p. 9 & pp. 11-12, ¶ 5.)
19 On November 1, 2018, Sullivan filed this petition for a writ of mandamus and complaint for
20 declaratory relief and damages. (Ct. Docket.) The action alleges the following causes of action:
21 1. Violation of the ministerial duty to comply with the Administrative Procedures Act
22 (APA), the mandatory duty indicated in Government Code section 815.6, and the First and
23 Fourteenth Amendments (substantive due process clause).3 (Petn., p. 18.)
24
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Government Code section 815.6 provides: “Where a public entity is under a mandatory
26 duty imposed by an enactment that is designed to protect against the risk of a particular kind of
injury, the public entity is liable for an injury of that kind proximately caused by its failure to
27 discharge the duty unless the public entity establishes that it exercised reasonable diligence to
discharge the duty.
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1 2. Violation of the requirements of Government Code section 11342.45 and the
2 Fourteenth Amendment (substantive due process clause), which are necessary for satisfying the
3 APA. (Petn., p. 19.)4
4 3. Violation of the free speech clause of the First Amendment. (Petn., p. 19.)
5 4. Violation of the equal protection clause. (Petn., p. 21.)
6 5. Violation of substantive due process pursuant to the doctrine of stare decisis. (Petn.,
7 p. 24.)
8 The prayer for relief seeks a writ of mandamus, declaratory relief to vacate Section 4350
9 and permit the purchase and use of internet-capable devices, and compensation for property that
10 was damaged, destroyed or rendered inoperable. (Petn., p. 28.)
11 On June 27, 2019, the Department was served with the action. (Ct. Docket.) To date, the
12 remaining respondents-defendants have not been served. (Ibid.)
13 On November 4, 2019, the Department filed a demurrer, contending each claim
14 substantively failed to state a cause of action. (Exh. J, Demurrer; Req. J. Not.) In addition, the
15 Department asserted Sullivan could not, as a pro per plaintiff, bring suit on behalf of other
16 detainees. (Ibid.) This Court overruled the demurrer, finding Sullivan could proceed on a
17 declaratory relief claim under the APA in conjunction with his mandamus claim, and declining to
18 determine if more than one claim was adequately plead as the demurrer, per the notice, was to the
19 entire complaint. (Exh. K, Minute Order; Req. J. Not.) The Department then filed an answer to
20 the petition. (Ct. Docket)
21 On December 28, 2020, the Department’s counsel sent a meet-and-confer letter to Sullivan,
22 stating the grounds for this motion for judgment. (Decl. Tillman, ¶ 2.) The letter explained that
23 this motion for judgment on the pleadings addressed the procedural requirement of naming the
24 proper defendant-respondent to the claims in the action, and did not revisit the substantive
25 arguments made in the demurrer. (Ibid.) The Department’s counsel engaged in a telephonic
26 meet-and-confer with plaintiff on January 9, 2021. (Ibid.)
27
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Government Code section 11342.45 defines the phrase “emergency” in the context of
28 enactment of emergency regulations.
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1 LEGAL STANDARD
2 I. STANDARD FOR MOTION FOR JUDGMENT ON THE PLEADINGS.
3 Under Code of Civil Procedure section 438, a judgment on the pleadings in favor of the
4 defendant is appropriate on the “entire” action or “any of the causes of action state therein” when
5 “the court has no jurisdiction of the subject of the cause of action alleged in the complaint” or
6 “when the complaint fails to allege facts sufficient to state a cause of action.” (Code Civ. Proc., §
7 438, subd. (c)(1)(B)(i) & (ii) & (c)(2)(A).) A defendant may make a motion for judgment on the
8 pleadings on the ground that the complaint does not state facts sufficient to constitute a cause of
9 action against that defendant. (Id., § 438(c)(1)(B)(ii); Templo v. State (2018) 24 Cal.App.5th 730,
10 735.)
11 The standard for granting a motion for judgment on the pleadings is essentially the same as
12 that applicable to a general demurrer: under the state of the pleadings, together with matters that
13 may be judicially noticed, a party is entitled to judgment as a matter of law. (Schabarum v. Cal.
14 Legislature (1998) 60 Cal.App.4th 1205, 1216; Code Civ. Proc., § 438 (d) [request for judicial
15 notice in support of motion].) All properly pleaded, material facts are deemed true, but not
16 contentions, deductions, or conclusions of fact or law. (Blank v. Kirwan (1985) 39 Cal.3d 311,
17 318.) The state court applies federal law to “determine whether a complaint pleads a cause of
18 action under section 1983 sufficient to survive a general demurrer.” (Catsouras v. Dept. of Cal.
19 Highway Patrol (2010) 181 Cal.App.4th 856, 891.)
20 Where the defendant has unsuccessfully demurred on a particular ground, it cannot renew
21 that argument in a subsequent motion for judgment on the pleadings absent a “material change in
22 the applicable case law or statute since the ruling on the demurrer.” (Code Civ. Proc., § 438,
23 subd. (g)(1).) None of the arguments presented in this motion were presented in the demurrer.
24 (Exhs. J, K.)
25 II. STANDARD FOR LEAVE TO AMEND.
26 Amendment is not permitted where the “facts are not in dispute and the nature of the claim
27 is clear but no liability exists under substantive law.” (Lawrence v. Bank of America (1985) 163
28 Cal.App.3d 431, 436.) “When a litigant is appearing in propria persona, he is entitled to the
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1 same, but no greater, consideration than other litigants and attorneys. . . . Further, the in propria
2 persona litigant is held to the same restrictive rules of procedure as an attorney.” (Bianco v. Cal.
3 Highway Patrol (1994) 24 Cal.App.4th 1113, 1125-1126.)
4 LEGAL ARGUMENT
5 I. THE DEPARTMENT IS NOT A PROPER DEFENDANT OR RESPONDENT.
6 A. The Department is not Properly Sued Under Section 1983.
7 Sullivan’s federal constitutional claims are implicitly brought under the federal Civil Rights
8 Act of 42 U.S.C. § 1983 (Section 1983). Section 1983 “is not itself a source of substantive
9 rights,” but merely provides “a method for vindicating federal rights elsewhere conferred.”
10 (Graham v. Connor (1989) 490 U.S. 386, 393-394.) “Traditionally, the requirements for relief
11 under section 1983 have been articulated as: (1) a violation of rights protected by the Constitution
12 .... , (2) proximately caused (3) by conduct of a ‘person’ (4) acting under color of state law.”
13 (Crumpton v. Gates (9th Cir. 1991) 947 F.2d 1418, 1420.)
14 Because Sullivan seeks compensation for property that was destroyed or damaged as a
15 result of the alleged constitutional violations, the Department is not a proper defendant in his
16 Section 1983 claims. “[A] state and its officials sued in their official capacity are not considered
17 ‘persons' within the meaning of Section 1983” in a suit for damages. (Cortez v. County of Los
18 Angeles (9th Cir. 2002) 294 F.3d 1186, 1188 (citing Will v. Michigan Dept. of State Police (1989)
19 491 U.S. 58, 70-71); Wolfe v. Strankman (2004) 392 F.3d 358, 364 [Judicial Council is a state
20 agency].) The Department is operated within a state agency. (Welf. & Inst. Code, § 4000.)
21 Therefore, this Court should enter judgment in the Department’s favor on Sullivan’s Section 1983
22 claims under the First and Fourteenth Amendment (due process and equal protection) for
23 damages.
24 Further, to the extent Sullivan’s request for an order to vacate Section 4350 is viewed as
25 injunctive relief, the Department is not properly sued for injunctive relief in a Section 1983
26 action. A “plaintiff seeking injunctive relief against the State is not required to allege a named
27 official's personal involvement in the acts or omissions constituting the alleged constitutional
28 violation.” (Hartmann v. Cal. Dept. Corrections & Rehabilitation (9th Cir. 2013) 707 F.3d 1114,
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1 1127 (citing Hafer v. Melo, (1991) 502 U.S. 21, 25).) Rather, such plaintiff must “name the
2 official within the entity who can appropriately respond to injunctive relief.” (Hartmann, supra,
3 707 F.3d at p. 1127 (citing Los Angeles County v. Humphries, 562 U.S. 29, 37, 39 (2010).)
4 Sullivan’s Section 1983 claims do not name any individual Department official as a
5 defendant responsive to his request for injunctive relief. Because the Department is not a proper
6 defendant to a Section 1983 action, this Court should grant the Department’s motion for judgment
7 on the pleadings as to Sullivan’s claims for violation of the First Amendment and Fourteenth
8 Amendment (Due Process Clause and Equal Protection Clause) pursuant to Section 1983.
9 B. The Department is Not a Proper Defendant in the Declaratory Relief
Claim.
10
11 “[I]t is the general and long-established rule that in actions for declaratory and injunctive
12 relief challenging the constitutionality of state statutes, state officers with statewide
13 administrative functions under the challenged statute are the proper parties defendant.” (Serrano
14 v. Priest (1976) 18 Cal.3d 728, 752.) Here, no state officer with statewide administrative
15 functions under the challenged statewide regulation is named as a party defendant. Because the
16 Department is not a state officer with statewide administrative functions, Sullivan cannot state a
17 proper claim for declaratory relief against the Department. This Court should enter judgment in
18 favor of the Department on the declaratory relief claim.
19 C. The Department is Not a Proper Defendant in the Mandamus Action.
20 “Where mandamus is sought to control the affairs of a public entity, the proceeding is
21 brought against the board or officer whose duty it is to act. If the officer named as the respondent
22 is not the one whose duty is involved, relief is denied.” (Wenzler v. Municipal Ct. of Pasadena
23 Judicial Dist. (1965) 235 Cal.App.2d 128, 132.) In this mandamus action, no officer or official of
24 the Department is named. The only named party defendant, the Department, has no involved
25 duty. Therefore, this Court should enter judgment in favor of the Department.
26 //
27 //
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1 II. SULLIVAN'S STATE LAW CLAIMS FOR DAMAGES ARE BARRED BY THE FAILURE TO
FILE A GOVERNMENT CLAIM.
2
3 Under the Government Claims Act, the claim presentation requirements apply to claims for
4 “money or damages.” (Gov. Code, § 905; see City of Los Angeles v. Super. Ct. (Collins) (2008)
5 168 Cal.App.4th 422, 429-430.) Although the term “money or damages” is not defined in the
6 Act, “it is comprehensive in scope and includes tort claims arising out of negligence, nuisance,
7 breach of statutory duties, and intentional wrongs.” (Loehr v. Ventura County Community
8 College Dist. (1983) 147 Cal.App.3d 1071, 1079 [citations omitted].)
9 Compliance with the Government Claims Act is a mandatory jurisdictional prerequisite to
10 any state law action for monetary damages against a state entity; hence failure to properly allege
11 compliance with the Act is a ground for demurrer. (State of California v. Super. Ct. (Bodde)
12 (2004) 32 Cal.4th 1234, 1245.) A plaintiff must plead compliance with the government tort claim
13 filing requirements and rejection of the claim by a governmental agency to state a cause of action
14 under state law. (Id. at 1237; see Gov. Code, §§ 911.2, 945.4; C.A. Magistretti Co. v. Merced
15 Irrig. District (1972) 27 Cal.App.3d 270 [a failure to allege compliance is valid ground to sustain
16 a demurrer].) The statutory requirement of claim presentation does not apply to federal civil
17 rights causes of actions. (Williams v. Horvath (1976) 16 Cal.App.3d 834, 838.) However, the
18 joinder of federal claims does not insulate the state law claims from the government tort claim
19 presentation requirement. (Dujardin, supra, 69 Cal.App.3d at p. 355.)
20 Moreover, a government claim for damages must be filed within six months of accrual of a
21 cause of action. (Gov. Code, § 911.2.) Ordinarily, a cause of action “accrues” upon occurrence
22 of the last fact essential to the cause of action. (Fox v. Ethicon Endo-Surgery, Inc. (2005) 35
23 Cal.4th 797, 807-809; Norgart v. Upjohn Co. (1999) 21 Cal.4th 383, 397.) Every person who has
24 actual notice of circumstances sufficient to put a prudent person upon inquiry as to a particular
25 fact has constructive notice of the fact itself in all cases in which, by prosecuting such inquiry, he
26 or she might have learned that fact.” (Civ. Code, § 19.)
27 Here, Sullivan seeks reimbursement for damages to his seized property while the property
28 was stored and/or transported by the Department, yet he does not allege any filing of a
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1 government claim. (Petn., int. p. 7.) Sullivan’s government claim accrued with DSH-Coalinga’s
2 implementation of Section 4350 at the end of January 2018. (Petn., p. 9 & pp. 11-12, ¶ 5 & p. 5
3 [Order, dated August 31, 2018, issued in Sullivan v. Dept. State Hospitals, Fifth Appellate Dist.,
4 case 077382]; see also Exh. F, Fresno County DA Memo & Exh. G, Price Memo, dated Jan. 18,
5 2018.) Indeed, Sullivan alleges that his property and the property of other patients were
6 confiscated during a facility-wide sweep at the end of January 2018. (Petn., p. 9 & pp. 11-12, ¶ 5
7 & p. 5.) Yet, Sullivan does not and cannot allege filing a government claim in the subsequent six
8 months. (Exh. L, Certificate of No Claim; Req. J. Not.) Hence, this Court should enter judgment
9 in favor of the Department on Sullivan’s state law claims for damages.
10 III. THE CLAIM FOR DECLARATORY RELIEF SHOULD BE DISMISSED.
11 An action for declaratory relief is conditioned on the existence of an “actual controversy
12 relating to the legal rights and duties of the respective parties . . . .” (Code Civ. Proc., § 1060.)
13 The court may refuse to grant declaratory relief where “its declaration or determination is not
14 necessary or proper at the time under all the circumstances.” (Id., § 1061.)
15 To the extent this Court grants the Department’s motion for judgment on the pleadings as to
16 Sullivan’s Section 1983 claim and mandamus claim, that ruling resolves any existing controversy
17 concerning the Department’s conduct. Where the plaintiff cannot state a claim on the merits,
18 Code of Civil Procedure section 1061 permits the trial court to dismiss the declaratory relief
19 action. (Silver v. City of Los Angeles (1963) 217 Cal.App.2d 134, 141-142; State Farm Fire &
20 Cas. Co. v. Super. Ct. (1987) 191 Cal.App.3d 74, 76.)
21 IV. LEAVE TO AMEND SHOULD BE DENIED.
22 Should Sullivan seek leave to amend, this Court should decline to grant his request. This
23 action as filed on November 1, 2018. (Ct. Docket.) To date, Sullivan has only served the
24 Department as a respondent-defendant. (Ibid.) Sullivan failed to serve other named respondents-
25 defendants within the 60-day time period set by statute. (Cal. Rules Court, rule 3.110(b).)
26 Indeed, this Court may dismiss an action for delay in prosecution where “[s]ervice is not made
27 within two years after the action is commenced against the defendant.” (Code Civ. Proc.,
28 § 583.420, subd. (a)(1).) Hence, this Court should deny any request to amend the action and
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1 serve any as-yet unserved or unnamed respondents-defendants in an attempt to cure the
2 deficiencies in Sullivan’s state and federal claims.
3 CONCLUSION
4 For all the reasons stated, this Court should enter judgment on the pleadings in favor of the
5 Department on each and every claim of this action, without leave to amend.
6 Dated: January 19, 2021 Respectfully Submitted,
7 XAVIER BECERRA
Attorney General of California
8 DARRELL W. SPENCE
Supervising Deputy Attorney General
9
10
11 /s/ Lisa A. Tillman
LISA A. TILLMAN
12 Deputy Attorney General
Attorneys for Defendant
13 Department of State Hospitals
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