Filed 11/2/23 Sullivan v. State Department of State Hospitals CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
MANSE SULLIVAN,
F085270
Plaintiff and Appellant,
(Super. Ct. No. 18CECG04118)
v.
STATE DEPARTMENT OF STATE OPINION
HOSPITALS,
Defendant and Respondent.
THE COURT*
APPEAL from a judgment of the Superior Court of Fresno County. D. Tyler
Tharpe, Judge.
Manse Sullivan, in pro. per., for Plaintiff and Appellant.
Rob Bonta, Attorney General, Cheryl L. Feiner, Assistant Attorney General,
Gregory D. Brown, Lisa A. Tillman and Katherine J. Grainger, Deputy Attorneys
General, for Plaintiff and Respondent.
-ooOoo-
* Before Hill, P. J., Levy, J. and Meehan, J.
Appellant Manse Sullivan appeals the trial court ruling granting Respondent State
Department of State Hospital’s (DSH) motion for summary judgment, ending his action
challenging a regulation prohibiting patients of state hospitals from possessing various
devices that can access the internet. Sullivan also challenges the trial court’s denial of his
request for the appointment of counsel. We affirm both rulings issued by the trial court.
PROCEDURAL AND FACTUAL SUMMARY
In 2006, a jury concluded Sullivan was a sexually violent predator (SVP) and was
committed to a state hospital for an indefinite period of time. Sullivan is now housed at
Coalinga State Hospital (Coalinga). Sullivan is before this court after challenging a
regulation governing the types of electronic devices individuals in state hospitals can
possess. Besides raising various constitutional challenges, Sullivan also believes the
changes to the subject regulation were not properly enacted under the Administrative
Procedures Act (APA).1
On December 22, 2017, DSH sent a notice to each person who had made a request
for notice of its intention to pursue regulatory amendments and to make findings
supporting the conclusion an emergency required the amendment of Title 9 of the
California Code of Regulations, section 4350.2 The notice included the proposed
regulatory language, expanding the definition of what would be considered prohibited
electronic devices to include those with media storage and media burning capabilities.
The notice also identified the reasons why DSH was pursuing this emergency action.
On or about January 2, 2018, DSH filed the rulemaking package with the Office of
Administrative Law (OAL), including the text of the amended rule, confirmation that the
five day emergency notice was sent, and a list of 83 commenters, with their summarized
1 This summary is mostly presented in chronological order showing when Sullivan
initiated his challenge to the regulatory change.
2 All further statutory references will be to the California Code of Regulations,
unless otherwise specified.
2.
comments and the DSH’s responses. As part of the package provided to OAL, DSH
prepared a notice stating its belief the proposed amendments were “ ‘necessary on an
emergency basis for the immediate preservation of the public peace, health and safety, or
general welfare.’ ” The notice further explained that with access to a broad range of
devices with digital memory storage and/or digital media burning capability, patients
could virtually distribute child pornography, have access to individuals who could be
harmed, violate copyright laws, and/or access information about a DSH facility’s
physical layout. To support its belief an emergency was present, DSH stated 11 patients
had been arrested in 2017 for possessing child pornography, and that two to three new
child pornography cases were reported each month within their facilities, requiring
investigation. The notice also recognized that technology had significantly advanced,
resulting in a patient’s ability to possess massive amounts of data via USB drives and
other formats not addressed in the original version of section 4350, making it possible to
virtually access, view, distribute, and secrete illicit materials as well as provide an
opportunity to communicate with past and potential victims. On January 11, 2018, OAL
approved the emergency amendments on an interim basis, to be effective between
January 12, 2018, and July 12, 2018.
On January 16, 2018, and January 18, 2018, two separate memorandums were sent
out by the Fresno County District Attorney’s Office and the director of Coalinga
informing all Coalinga patients and detainees of the timeline for implementing the
emergency amendments to section 4350. An “amnesty/grace period” for patients to
voluntarily relinquish their prohibited electronic devices, was provided from January 19,
2018, to January 28, 2018. On January 27, 2018, Sullivan voluntarily relinquished a
number of items that were listed by Coalinga as falling within nine separate categories.
On January 30, 2018, after the grace period ended, additional items were then confiscated
from Sullivan during a hospital-wide search.
3.
Sullivan filed with this court a request for a writ, seeking mandate, prohibition,
and declaratory relief, on April 24, 2018, which was denied on August 31, 2018, for
failing to exhaust administrative and/or legal remedies. (See Sullivan v. California
Department of State Hospitals, F077382.) Sometime during August 2018, DSH
commenced the regular rulemaking process to approve the section 4350 amendments.3
OAL eventually approved the amendments to section 4350, through this regular
rulemaking process, effective February 5, 2019.
Sullivan filed a petition challenging the amendment of section 4350 with Coalinga
on September 17, 2018, which was denied on September 24, 2018.4 On November 1,
2018, Sullivan filed a petition for a writ of habeas corpus in the trial court, challenging
the amended section 4350. The petition sought a writ of mandate and/or prohibition, and
alleged five separate causes of action as follows:
1. First cause of action for a writ of mandate. This cause of action alleged
each named respondent5 had “a clear, present and expressed ministerial duty to comply
with the requirements of the APA, Government Code section 815.6; and the First and
Fourteenth Amendment[s], Substantive Due Process Clause, as well as the Equal
Protection Clause.”
3 On June 21, 2018, OAL re-adopted the emergency amendments on an interim
basis, effective July 12, 2018, to October 11, 2018. On October 4, 2018, the second
re-adoption of the emergency amendments was approved by OAL, effective October 11,
2018, to January 10, 2019.
4 The date on the letter denying Sullivan’s petition is September 24, 2016. We
presume this was a typographical error, since it is in direct response to Sullivan’s petition
dated 2018.
5 In his petition and in his briefing to this court, Sullivan refers to various
respondents whose actions he contends are at least partly responsible for his alleged
injuries. Only DSH is a named party in the action, and the only respondent before this
court.
4.
2. Second cause of action seeking declaratory relief. This cause of action
asked the court to define the responsibilities each respondent owed when implementing
the subject regulation.
3. Third cause of action alleging first amendment violations. Sullivan alleged
that by limiting his use of electronic devices because of violations committed by others,
DSH violated his freedom of expression.
4. Fourth cause of action alleging a violation of Sullivan’s right to equal
protection. This cause of action alleged Sullivan’s civil liberties were impacted due to
his status as an SVP.
5. Fifth cause of action alleging a violation of the doctrine of stare decisis.
This cause of action alleged DSH failed to follow the law applicable to SVP’s who are
civil detainees and not prisoners.
Sullivan concluded his petition by asking the court to grant his request for a writ
of mandate and/or prohibition, and for declaratory relief. Sullivan further asked the court
to vacate any authorities denying him or others from the right to purchase electronic
devices that can connect to the internet. Finally, Sullivan sought compensation for any
property that was damaged, destroyed or made inoperable when transported to a storage
facility.
After a demurrer and a separate request for a judgment on the pleadings brought
by DSH were unsuccessful, DSH filed an answer to the petition on November 27, 2019.
The answer denied the material allegations of the petition and raised eight separate
affirmative defenses. On October 2, 2020, Sullivan made a formal request for the
appointment of counsel to assist him in pursuing the petition. The trial court denied this
request in January 2021, stating Sullivan failed to provide evidence he had a bona fide
personal or property interest at stake.
Thereafter, on June 9, 2022, DSH filed a motion for summary judgment, and/or in
the alternative, a motion for summary adjudication. The trial court issued a tentative
5.
ruling prior to oral argument on the motion. After addressing the various constitutional
and procedural violations alleged by Sullivan, the court stated its conclusion Sullivan
failed to produce evidence disputing evidence provided by DSH showing the emergency
rulemaking processes and regular rulemaking process were executed properly. Because
these claims were at the core of each cause of action, the court stated its tentative
conclusion the motion for summary judgment should be granted.
Following oral argument on September 7, 2022, the tentative ruling was adopted
as the final judgment by the court. After a notice of entry of judgment was served on
October 12, 2022, Sullivan filed a timely notice of appeal on November 14, 2022.
DISCUSSION
Sullivan challenges two separate rulings by the trial court in this appeal. In
addition to the ruling on the motion for summary judgment, Sullivan also challenges the
court’s denial of his request for the appointment of counsel. We address this latter issue
first.
I. The Request for the Appointment of Trial Counsel
Several months after DSH answered the petition, Sullivan made a motion
requesting the appointment of counsel.6 Decisions in California identify the appointment
of counsel as a measure available to a trial court to ensure an indigent prisoner is
provided meaningful access to the courts. The availability of such a measure has been
extended to civil detainees as well, “[b]ecause civil commitment involves a significant
deprivation of liberty, a defendant in an SVP proceeding is [also] entitled to due process
protections.” (People v. Otto (2001) 26 Cal.4th 200, 209.) However, neither the
California Constitution nor Penal Code section 2601, subdivision (d) have been
interpreted to require the appointment of counsel for an indigent plaintiff litigant as a
6 Again, at this point, the court had already rejected DSH’s demurrer and motion for
judgment on the pleadings.
6.
matter of right. (Apollo v. Gyaami (2008) 167 Cal.App.4th 1468, 1483.) Instead, the
choice of measures available to safeguard a prisoner’s right to meaningful access to the
courts in a civil action is committed to the exercise of a trial court’s discretion. (Id. at
pp. 1483–1484; Smith v. Ogbuehi (2019) 38 Cal.App.5th 453, 468.)
On review, an appellate court must determine whether the exercise of discretion
considered the statutory right to meaningful access to the courts “to prosecute bona fide
civil claims.” (Apollo v. Gyaami, supra, 167 Cal.App.4th at p. 1484.) When exercising
discretion, a trial court should first consider whether the appellant is indigent, and
second whether the lawsuit involves a bona fide threat to a personal or property interest.7
(Smith v. Ogbuehi, supra, 38 Cal.App.5th at p. 466.) If the answer to both questions is
yes, then the court must consider what measures might be available to protect the
appellant’s access to the courts. (Id. at pp. 466–467.)
When issuing its tentative ruling, the trial court accepted the fact Sullivan was
indigent. The court then stated there was no evidence in the record that Sullivan had a
bona fide personal or property interest at stake, before denying the request for the
appointment of counsel. We agree with the trial court’s conclusion that Sullivan failed to
establish a bona fide8 interest existed, as no evidence was provided with the motion
establishing or even suggesting Sullivan had a bona fide personal or property interest.
Because Sullivan failed to meet this burden of proof in the motion, we find no abuse of
discretion.
7 Many federal courts define this standard differently looking to whether
“exceptional circumstances” exist rather than whether a bona fide case exists, when
determining the need to appoint counsel for an indigent civil litigant. (E.g., Byrd v.
Maricopa County Board of Supervisors (9th Cir. 2017) 845 F.3d 919, 925.)
8 Often defined as genuine, authentic, or real. (See Merriam-Webster Dictionary,
“bona fide” [as of Oct. 4, 2023].)
7.
II. The Motion for Summary Judgment
While the motion brought by DSH asked for either a summary judgment, or a
summary adjudication, the court granted DSH’s motion for summary judgment, resulting
in a resolution of the entire case against Sullivan. One argument Sullivan has made to
challenge the trial court’s ruling on the motion for summary judgment is that the motion
was a last ditch effort on the eve of trial after having lost on a demurrer and a separate
motion for a judgment on the pleadings. These motions have entirely different purposes
and the denial of one does not predict how the other will be resolved.
A demurrer and a motion on the pleadings focus on the adequacy of the pleadings,
asking whether enough has been alleged to allow a case to go forward. (See Code Civ.
Proc., §§ 430.80, 438.) The allegations of a pleading, at this stage, are given great
deference. For instance, a demurrer is used only to challenge defects that appear on the
face of the pleading under attack. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) If the
essential elements of a valid cause of action are alleged, the pleading will survive a
general demurrer. (Quelimane Co. v. Stewart Title Guaranty Co. (1998) 19 Cal. 4th 26,
38–39.) The court does not go beyond the pleading to consider the actual facts
supporting the allegations.
A motion for summary judgment goes beyond the pleadings and must be resolved
on the actual facts presented to the trial court. Summary judgment is granted when “there
is no triable issue as to any material fact and … the moving party is entitled to judgment
as a matter of law.” (Code Civ. Proc., § 437c, subd. (c).) Again, the focus is on facts
presented to the court, not just unsupported allegations in a pleading. (See Aguilar v.
Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) Therefore, a beneficial ruling on the
adequacy of allegations in a pleading, does not automatically suggest a similar ruling will
result once actual facts are put before the trial court.
8.
A. Standard of Review Following a Summary Judgment
This court uses a de novo standard to review the trial court’s decision to grant
summary judgment. (Prilliman v. United Air Lines, Inc. (1997) 53 Cal.App.4th 935,
951.) As a result, we are not bound by the trial court’s stated reasons or rationales.
(Ibid.) “In reviewing a motion for summary judgment, we accept as undisputed fact only
those portions of the moving party’s evidence that are uncontradicted by the opposing
party. In other words, the facts alleged in the evidence of the party opposing summary
judgment and the reasonable inferences that can be drawn therefrom are accepted as
true.” (Hersant v. Department of Social Services (1997) 57 Cal.App.4th 997, 1001.)
“ ‘We liberally construe the evidence in support of the party opposing summary judgment
and resolve doubts concerning the evidence in favor of that party.’ ” (Conroy v. Regents
of University of California (2009) 45 Cal.4th 1244, 1249–1250.)
Our de novo review applies the same standard as used by the trial court. (AARTS
Productions, Inc. v. Crocker National Bank (1986) 179 Cal.App.3d 1061, 1064.) Our
obligation is “ ‘ “to determine whether issues of fact exist, not to decide the merits of the
issues themselves .…” ’ ” (Wright v. Stang Manufacturing Co. (1997) 54 Cal.App.4th
1218, 1228.) We “ ‘consider all of the evidence’ and ‘all’ of the ‘inferences’ reasonably
drawn therefrom [citation], and must view such evidence [citations] and such inferences
[citations], in the light most favorable to the opposing party.” (Aguilar v. Atlantic
Richfield Co., supra, 25 Cal.4th at p. 843; see also Atalla v. Rite Aid Corp. (2023) 89
Cal.App.5th 294, 300.)
As with any other appeal, we start with the presumption the judgment is correct.
(Jones v. Department of Corrections and Rehabilitation (2007) 152 Cal.App.4th 1367,
1376.) “ ‘[I]t is the appellant’s responsibility to affirmatively demonstrate error and,
therefore, to point out the triable issues the appellant claims are present by citation to the
record and any supporting authority.’ ” (Claudio v. Regents of University of California
(2005) 134 Cal.App.4th 224, 230.)
9.
B. Application
1. Fundamental Flaws in Sullivan’s Opposition to the Motion
Any party may move for summary judgment if they believe the action has no merit
or that there is no defense to the action or proceeding. (Code Civ. Proc., § 437c,
subd. (a)(1).) Among the documents a moving party must provide with their motion is “a
separate statement setting forth plainly and concisely all material facts that the moving
party contends are undisputed.” (Id. at subd. (b)(1).) In response, a party opposing a
motion for summary judgment must then provide:
“ … a separate statement that responds to each of the material facts
contended by the moving party to be undisputed, indicating if the opposing
party agrees or disagrees that those facts are undisputed. The statement
also shall set forth plainly and concisely any other material facts the
opposing party contends are disputed. Each material fact contended by the
opposing party to be disputed shall be followed by a reference to the
supporting evidence. Failure to comply with this requirement of a separate
statement may constitute a sufficient ground, in the court’s discretion, for
granting the motion.” (Id. at subd. (b)(3).)
DSH provided a separate statement of undisputed facts with their moving papers.
Among the material facts listed, the separate statement addressed the rulemaking process
utilized by the DSH when amending section 4350, first through the emergency
rulemaking process, then later using the regular rulemaking process. Each statement of
material fact in the separate statement was supported by evidence showing how the
rulemaking process was implemented. DSH’s separate statement also addressed the fact
that after the emergency amendment to section 4350 was made, Sullivan voluntarily
relinquished various devices in his possession. The separate statement also established
how the emergency amendment to section 4350 was still in effect when employees at
Coalinga confiscated additional devices on January 30, 2018, which Sullivan failed to
relinquish earlier.
10.
In response to the DSH’s motion for summary judgment, Sullivan submitted his
opposition to the motion including a memorandum of points and authorities, and various
documents attached as exhibits, addressing a public records act request, the denial of the
department’s earlier demurrer, various communications from the department regarding
the implementation of the newly amended section 4350, and another asking whether
Sullivan wanted his devices sent to a third party. Neither a response to DSH’s separate
statement, or a new separate statement in response were submitted by Sullivan addressing
the material facts and/or the supporting evidence provided by DSH on the question of
how the rule changes were implemented or whether the confiscation of his devices was
authorized.
“ ‘[T]he party moving for summary judgment 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.’ [Citation] ‘Once the [movant] has
met that burden, the burden shifts to the [other party] to show that a triable
issue of one or more material facts exists as to [that] cause of action .…’
(Code Civ. Proc., § 437c, subd. (p)(2); [citation].) The party opposing
summary judgment ‘shall not rely upon the allegations or denials of its
pleadings to show that a triable issue of material fact exists but, instead,
shall set forth the specific facts showing that a triable issue of material fact
exists .…’ (§ 437c, subd. (p)(2).) A triable issue of material fact exists
where ‘the evidence would allow a reasonable trier of fact to find the
underlying fact in favor of the party opposing the motion in accordance
with the applicable standard of proof.’ ” (Bacoka v. Best Buy Stores, L.P.
(2021) 71 Cal.App.5th 126, 132.)
“ ‘The separate statement is not merely a technical requirement, it is an
indispensable part of the summary judgment or adjudication process. “Separate
statements are required not to satisfy a sadistic urge to torment lawyers, but rather to
afford due process to opposing parties and to permit trial courts to expeditiously review
complex motions for … summary judgment to determine quickly and efficiently whether
material facts are disputed.” ’ ” (Kojababian v. Genuine Home Loans, Inc. (2009) 174
Cal.App.4th 408, 415–416.) Once a trial court determines a moving party has met its
11.
initial burden of proof, Code of Civil Procedure, section 437c, subdivision (b) allows a
court to exercise its discretion to grant the motion for summary judgment if the opposing
party fails to dispute the material evidence presented by the moving party. (Kojababian,
at p. 416.)
After acknowledging the responsibilities of the parties when addressing a motion
for summary judgment, and the fact the burden of proof does not shift to the opposing
party until the moving party has met its burden, the court stated:
“In the case at bench, [Sullivan] has failed to submit a separate
statement indicating what facts, if any, [Sullivan] disputes and citing to
evidence in support of that dispute.… [Sullivan] has attached evidence to
the [m]emorandum filed in opposition to the motion for summary judgment
and the court has considered those documents in determining whether
[Sullivan] has presented evidence to dispute material facts established by
[DSH].”
Again, for each cause of action alleged, the court found Sullivan failed to present
evidence to dispute the material facts presented by DSH. We find no error given the trial
court’s acknowledgment of the standard of review and the necessity of proof, especially
when indulging Sullivan’s lack of a separate statement by considering documents
attached to his memorandum of points and authorities.
2. The Changes to Section 4350 Were in Effect When Sullivan’s
Items Were Confiscated
Again, one of the stated reasons given by the trial court when granting DSH’s
motion for summary judgment was that Sullivan failed to provide any evidence disputing
a proper use of the rulemaking process, as defined by the APA, when amending
section 4350.
The adoption, amendment, or repeal of emergency regulations in California are
governed by Government Code section 11346.1. This provision delineates the
procedures an agency must employ to promulgate an emergency regulation, and further
provides a definition for what will qualify as an emergency. (Gov. Code, § 11346.1,
12.
subds. (a), (b)(2).) Agencies may not, however, rely on this process indefinitely.
Specifically, Government Code section 11346.1, subdivision (e) provides:
“No regulation, amendment, or order of repeal initially adopted as an
emergency regulatory action shall remain in effect more than 180 days
unless the adopting agency has complied with Sections 11346.2 to 11347.3,
inclusive, either before adopting an emergency regulation or within the
180-day period. The adopting agency, prior to the expiration of the
180-day period, shall transmit to the office for filing with the Secretary of
State the adopted regulation, amendment, or order of repeal, the rulemaking
file, and a certification that [Government Code s]ections 11346.2 to
11347.3, inclusive, were complied with either before the emergency
regulation was adopted or within the 180-day period.”
Case law has recognized the validity of using the emergency rulemaking process “on an
interim basis during the lengthy proceedings necessary for the preparation of final
regulations.” (Doe v. Wilson (1997) 57 Cal.App.4th 296, 307, citing Sonoma County
Organization etc. Employees v. County of Sonoma (1991) 1 Cal.App.4th 267, and
Schenley Affiliated Brands Corp. v. Kirby (1971) 21 Cal.App.3d 177.)
Sullivan argued both in the trial court and here that the confiscation of his devices
was not warranted under the emergency amendment of section 4350, because the
rulemaking process was not complete. In fact, Government Code section 11346.1,
subdivision (d) specifically states an emergency regulation “shall become effective upon
filing or upon any later date specified by the state agency.”
Sullivan, in his opposition, failed to challenge the validity of the process used by
DSH to implement the emergency amendment to section 4350. Sullivan also failed to
properly challenge the evidence establishing the validity of the two readoptions of the
emergency amendments, as well as the regular amendment of section 4350, making the
changes permanent. The trial court’s conclusion Sullivan failed to dispute DSH was
acting within its legal authority when confiscating his electronic devices is supported by
the record.
13.
3. The Legal Claims Raised in Each Cause of Action
The trial court also addressed the allegations DSH violated various constitutional
rights owed to Sullivan. While these allegations underly the overall request for a writ of
mandate, each theory was also raised in the context of separate causes of action. For
purposes of clarity, we address these claims in the context of each cause of action
alleged.
First Cause of Action
This cause of action requesting a writ of mandate alleged DSH through its agents
had “a clear, present and expressed ministerial duty to comply with the requirements of
the APA, Government Code section 815.6; and the First and Fourteenth Amendment[s],
Substantive Due Process Clause, as well as the Equal Protection Clause.” With respect to
the APA claim, which is linked to the emergency amendment of section 4350, essentially
raising a procedural due process argument, again Sullivan failed to dispute the fact DSH
properly amended section 4350, meeting all the procedural requirements, and establishing
the amendment was needed to address an emergency.
Sullivan’s contention DSH had a ministerial duty to comply with Government
Code section 815.6 also fails for two separate reasons. First, this allegation is tied to the
claim section 4350 was improperly amended. That issue has already been resolved
against Sullivan. Second, section 815.6 is part of the Government Claims Act (GCA),
which governs tort claims brought against a governmental entity. Under Government
Code section 911.2, subdivision (a), a cause of action falling within the parameters of the
GCA must first be presented “not later than six months after the accrual of the cause of
action.” Government Code section 945.4 also provides:
“[N]o suit for money or damages may be brought against a public entity on
a cause of action for which a claim is required … until a written claim
therefor has been presented to the public entity and has been acted upon by
the board, or has been deemed to have been rejected by the board .…”
14.
The “failure to timely present a claim for money or damages to a public entity bars a
plaintiff from filing a lawsuit against that entity.” (State of California v. Superior Court
(2004) 32 Cal.4th 1234, 1239.) Sullivan has effectively conceded that no claim was ever
filed. As a result, any potential claim governed by GCA was forfeited.
Sullivan’s first amendment challenge focuses on restrictions placed on him as a
civil detainee because other inmates or detainees might use access to the internet to
spread child pornography. Again, Sullivan submitted no challenge to formally dispute
DSH’s statement of reasons for the change, nor to challenge the reasonableness of DSH’s
effort to prevent illicit activities. In addition, case law has held restrictions imposed for
legitimate, nonpunitive purposes are permitted as long as they are not excessive in
relation to that purpose. (Bell v. Wolfish (1979) 441 U.S. 520, 539.)
Following our de novo review, we find no error in the trial court’s conclusion. We
specifically agree that because access to other electronic devices that lack internet or
wireless communication capabilities was still available, and because patients could still
use in-house computer labs with staff supervision, First Amendment rights were not
violated.
With respect to Sullivan’s claim that his Fourteenth Amendment rights have been
violated, two separate rights are implicated. First, Sullivan raises a procedural due
process claim arguing the amendment to section 4350 was flawed. Again, Sullivan failed
to dispute the evidence presented on behalf of DSH supporting the conclusion both the
emergency and regular rule making procedures were followed. Furthermore, DSH’s
separate statement of undisputed facts state Sullivan along with other detainees at
Coalinga, received notice of the proposed changes before they were made. Without
putting these facts into dispute, allegations that procedural due process rights were
violated cannot survive. (See Hobbs v. City of Pacific Grove (2022) 85 Cal.App.5th 311,
320.)
15.
The second part of the Fourteenth Amendment challenge involves Sullivan’s claim
that his substantive due process rights have been violated. The substantive component of
the fourteenth amendment bars arbitrary or wrongful government actions, regardless of
the fairness of the procedures used to implement those actions. (Foucha v. Louisiana
(1992) 504 U.S. 71, 72.) While SVPs may be confined for nonpunitive purposes, they
“ ‘have a substantive due process right to be free from restrictions that amount to
punishment.’ ” (In re Robinson (2017) 19 Cal.App.5th 247, 255.) However, these
detainees may be subject to institutional regulations that have a legitimate, nonpunitive
government purpose that were not excessive. (Ibid.) This court has already held the
restrictions imposed by section 4350 can result in the confiscation of property if it
advances a legitimate interest of the hospital, thus not violating substantive due process.
(See In re Robinson, at p. 255.) We see no reason provided in the record why we should
reach a different conclusion in this case. Without disputing the facts presented by DSH
that there was a legitimate, nonpunitive reason for the amendment, the court’s decision to
grant summary judgment on this claim was appropriate.
The final theory raised by Sullivan in the first cause of action to obtain a writ of
mandate alleges a violation of his right to equal protection under the
Fourteenth Amendment. The trial court found Sullivan failed to establish he was a
member of an identifiable class, and cited case law holding sex offenders are not a
suspect class for purposes of equal protection. (U.S. v. LeMay (9th Cir. 2001) 260 F.3d
1018, 1030; see also Williams v. Castro (Eastern Dist. Cal. 2021) WL1045741.) We
agree with this conclusion.
Second Cause of Action
The second cause of action seeks declaratory relief. Sullivan specifically seeks a
declaration for himself, and “all other[] similarly situated patients,” regarding the various
claims he has already made regarding the equal protection clause and the failure to abide
by the requirements of the APA. The trial court rejected this claim stating:
16.
“[Sullivan] has not presented evidence to dispute that the
amendment was adopted properly under the APA emergency
rulemaking procedures and subsequently under the regular
rulemaking procedures. As such, there is no present controversy for
the court to make such a declaration.”
Following our de novo review, we agree with this conclusion. Furthermore, while not
specifically stated in connection with the ruling on this second cause of action, we also
agree the court was correct to conclude Sullivan, as a self-represented litigant, was unable
to bring this action on behalf of other persons similarly situated as a matter of law. It is
well settled that a person appearing propria persona may represent his or her own
interests in a legal proceeding but may not act as attorneys for others unless they are an
active member of the state bar. (Drake v. Superior Court (1994) 21 Cal.App.4th 1826,
1830.)
Third Cause of Action
The third cause of action alleges a violation of Sullivan’s First Amendment rights.
Specifically, Sullivan believes the restrictions on his freedom of expression and right to
use electronic devices is not narrowly tailored and is based on conduct of others, not on
his own. Sullivan also alleges another violation of his substantive due process rights
based on this infringement of his First Amendment rights.
The court simply concluded Sullivan failed to produce evidence to dispute the fact
the adoption of the section 4350 amendments did not violate his First Amendment rights.
We agree with this statement, and further note the discussion above on the allegation
Sullivan’s First Amendment rights were violated and justified the issuance of a writ of
mandate. Again, restrictions imposed for legitimate, nonpunitive reasons are permitted as
long as they are not excessive in relation to that purpose. (Bell v. Wolfish, supra, 441
U.S. at p. 539.)
Fourth Cause of Action
In the fourth cause of action Sullivan alleges a violation of the equal protection
clause. This claim focuses on Sullivan’s status as an SVP. Sullivan also raised violations
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of his right to due process as connected to this equal protection claim. Again, the court
concluded Sullivan failed to dispute evidence DSH provided to show his equal protection
rights had not been violated.
We again agree. However, we also note, Sullivan’s equal protection claim fails on
legal grounds as well. The equal protection clause requires the state to treat all persons
similarly situated alike or, conversely, to avoid all classifications that are “ ‘arbitrary or
irrational’ and those that reflect ‘ “a bare … desire to harm a politically unpopular
group.” ’ ” (Legg v. Department of Justice (2022) 81 Cal.App.5th 504, 510, citing City of
Cleburne v. Cleburne Living Ctr. (1985) 473 U.S. 432, 446, 447, superseded by statute
on other grounds.) Sullivan failed to provide any evidence putting into dispute the fact
the restrictions stated in section 4350 applied to all patients and detainees housed in DSH
facilities, not just those classified as SVPs.
Fifth Cause of Action
The final cause of action pled by Sullivan alleges a failure to correctly apply the
doctrine of stare decisis. This cause of action mostly restates the same theories alleged
earlier in the petition. When ruling on this cause of action, the court stated:
“The substance of [Sullivan’s] cause of action … challenges the
due process afforded to [Sullivan] in the adoption and
implementation of the amendment to section 4350.… [Sullivan] has
not presented evidence to dispute that the adoption and/or
implementation of the amendment to section 4350 was not in
conformity to his procedural and substantive due process right under
the Fourteenth Amendment.”
We agree with the trial court’s conclusion on the viability of this cause of action.
In conclusion, following our de novo review, we conclude the record supports the
trial courts order granting DSH’s motion for summary judgment.
III. Sullivan’s Recent Requests for Judicial Notice
On August 8, August 14, and August 17, 2023, Sullivan filed three separate
requests for judicial notice of documents attached to those requests. By order of this
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court filed on August 30, 2023, this court deferred any decision on those three separate
requests until we considered Sullivan’s appeal on its merits.
A “reviewing court may take judicial notice of any matter specified in
[s]ection 452.” (Evid. Code, § 459, subd. (a).) However, “[r]eviewing courts generally
do not take judicial notice of evidence not presented to the trial court.” (Vons
Companies, Inc. v. Seabest Foods, Inc. (1996) 14 Cal.4th 434, 444, fn. 3, partially
overruled on other grounds involving jurisdiction as noted in Halyard Health Inc. v.
Kimberly-Clark Corp. (2019) 43 Cal.App.5th 1062, 1074.) Generally, appellate courts
consider only matters that were part of the record at the time the judgment was entered,
unless exceptional circumstances exist justifying a deviation from that rule. (Ibid.)
We deny each request for different reasons. Appendix D to the first request, and
appendix H to the second request are already part of the appellate record, and therefore
there is no need to grant a request for judicial notice to make them part of the record now.
Appendix F to the first request and appendix G to the second request consist of
newspaper or internet based articles and writings that do not come within the parameters
of Evidence Code section 452. Appendix F to the third request for judicial notice is a
memorandum from 2008 from a patient rights activist, and is not relevant to these
proceedings. (See Towns v. Davidson (2007) 147 Cal.App.4th 461, 473, fn. 3, declining
to take judicial notice of irrelevant filings in another appeal.)
The remaining document, appendix E to the first request for judicial notice, was
potentially relevant and judicially noticeable. This item contains statistics from the
California Health and Human Services Agency/Office of Law Enforcement, providing
statistics on crimes or offenses committed at Coalinga in 2017. However, this document
should have been presented to the trial court first and not here on appeal. The trial court
was in the best position to consider whether this document was of benefit to Sullivan’s
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opposition to the motion for summary judgment.9 (See Vons Companies, Inc. v. Seabest
Foods, Inc., supra, 14 Cal.4th at p. 444, fn. 3.)
Sullivan’s three requests for judicial notice are denied.
DISPOSITION
The judgment is affirmed.
9 We note, even if we were to judicially notice Appendix E, there would have been
no alteration in our decision in this case.
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