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Shearin v. Brown

California Court of Appeals, Second District, Fifth Division

July 11, 2013

NICHOLAS SHEARIN et al., Plaintiffs and Appellants,
EDMUND G. BROWN, JR., as Governor, etc., et al., Defendants and Respondents.

APPEAL from orders of the Superior Court of the County of Los Angeles, Kenneth R. Freeman and Carl J. West, Judges, Los Angeles County Super. Ct. No. BC400279

Kiesel Boucher Larson, Paul R. Kiesel, Steven D. Archer, Jeffrey A. Koncius; Law Offices of Sanford Jossen and Sanford Jossen for Plaintiffs and Appellants.

Sedgwick, Michael F. Healy and Kelly Savage Day for Defendants and Respondents.



Plaintiff and appellant Robert Lopez (plaintiff) filed a class action against defendants and respondents (defendants)[1] seeking damages for himself and all others similarly situated for allegedly being detained in prison beyond their lawful release dates.

He appeals from the trial court’s order denying his motion for class certification, as well as the trial court’s earlier order sustaining demurrers to plaintiff’s causes of action under section 1983 of title 42 of the United States Code (section 1983 claims).

We hold that because there was substantial evidence supporting the trial court’s findings that common issues did not predominate and that plaintiff’s claims were not typical of the putative class members’ claims, the trial court did not abuse its discretion in denying the class certification motion. We further hold that the order sustaining the demurrers to plaintiff’s section 1983 claims is nonappealable. We therefore affirm the order denying the class certification motion and dismiss the appeal with respect to the order sustaining the demurrers to the section 1983 claims.


A. Operative Complaint[2]

The third amended complaint asserted three causes of action against defendants: (1) wrongful detention in violation of the California Constitution and Civil Code section 52.3; (2) false imprisonment; and (3) negligence based on breach of a mandatory duty. That complaint defined the class as “all persons who have been tried, convicted and incarcerated from crimes in the State of California, whether adult or juvenile, who have had their sentence miscalculated and who have remained incarcerated for a period in excess of the time for which they should have been incarcerated had all lawful credits been applied and their sentence(s) been calculated correctly based on all applicable laws during the course of their incarceration.”

In the third amended complaint, plaintiff explained the gravamen of the action as follows: “The Plaintiffs, on behalf of themselves and the class of similarly situated persons described below, seek damages to the extent allowable under applicable Federal and State law from all Defendants named herein for false imprisonment and violation of their Constitutionally protected civil rights, privileges and immunities because they were not timely released from Defendants penal facilities upon the completion of their respective correctly calculated sentences as required under the laws of the State of California. The Defendants failure to timely release the Plaintiffs resulted in their being ‘over-detained’ during which time they continued to be treated in all respects as though they were prisoners notwithstanding that their correctly calculated sentences had been fulfilled and all legal justification for their continued imprisonment and treatment as prisoners had ended. [¶]... The Plaintiffs’ respective over-detentions occurred as a direct and proximate result of the Defendants systematic pattern and practices of failure, neglect or disregard of Plaintiffs and all others similarly situated civil rights by: [¶] a. Failing to implement a system for the correct calculation of release dates including, but not limited to, the calculation of their minimum and maximum sentencing periods and early release dates after application of all appropriate credits consistent with applicable law; [¶] b. Failing to implement a system for the timely release of prisoners upon the completion of their respective correctly calculated sentence(s); [¶] c. Failing to timely release prisoners from penal institutions upon the conclusion and satisfaction of their correctly-calculated sentences.” (Italics added.)

Plaintiff further alleged that because common issues of law and fact predominated, defendants’ liability to each class member could be established by common proof on a classwide basis. Plaintiff asserted, “This case presents issues of law and fact common to the class as to whether there is a systematic pattern and practice by the Defendants, and each of them whereby individuals under their care, custody, control and supervision were routinely over-detained in penal facilities after their properly-calculated sentences had been completed due to miscalculations or failure to make adjustments in sentences given applicable law, all in violation of Plaintiff’s Federal and State Constitutional rights. These questions of law and fact predominate over questions that affect only individual class members. Proof of a common or single state of facts or systematic failure will establish the right of each member of the class to recover. Damages for over-detention can then be calculated on a simple per diem basis.” (Italics added.)

Plaintiff repeatedly emphasized that the class claims arose from defendants’ systematic pattern and practice that resulted in miscalculations of the putative class members’ sentences and the alleged over-detentions. For example, plaintiff alleged, “Defendants and each of them maintained and permitted a continuing policy, custom and practice including but not limited to, failing to determine the correctly calculated sentences for prisoners. Defendants thereby acted with deliberate indifference toward individuals incarcerated in facilities by continuing to incarcerate them after the expiration or satisfaction of their correctly calculated sentences resulting in their loss of freedom, in violation of their constitutional rights. These policies, customs and practices are evidenced in part in the failure of Defendants to comply with applicable State law, enactments, regulations and Court Orders for the release of Plaintiffs and all others similarly situated. By so doing, the Defendants, and each of them violate Court imposed sentencing Orders and leave Plaintiffs to remain incarcerated after they should have been released. [¶] The Defendants policies, customs and practices were the proximate cause of the violations of Plaintiffs’ rights described herein. The Defendants, and each of them, are liable for all of the injuries sustained by Plaintiffs.” (Italics added.)

B. Motion to Certify

Following the overruling of defendants’ demurrer to the third amended complaint, plaintiff filed his motion for class certification. According to plaintiff, the common questions of law and fact predominated over the issues to be adjudicated individually. Plaintiff set forth the common issues as: “(a) Whether the members of the Class were under the care, custody, control and supervision of Defendants, and each of them; (b) Whether the Defendants were under a duty to accurately and properly calculate sentences for the members of the Class including applying all appropriate credits under applicable law; (c) Whether the members of the Class were entitled to be released after serving the correctly-calculated sentence; (d) Whether the members of the Class were over-detained and remained imprisoned in a penal facility, after their lawful right to release had passed, under sentences which were incorrectly or inaccurately calculated by the Defendants; (e) Whether the members of the Class continued to be treated in all respects as prisoners during the period of their respective over-detentions; (f) Whether the Defendants engaged in a pattern or practice that deprived any person of rights, privileges, or immunities secured or protected by the Constitution or laws of the United States or by the Constitution or laws of California; (g) Whether, by failing to release the members of the Class after their lawful, correctly calculated sentences had been completed or otherwise fulfilled, the Defendants imprisoned them without lawful authority or legal justification; (h) Whether Defendants created, conducted, allowed and ratified a systematic pattern and practice which fostered the ongoing breach of their mandatory duties and was the direct and proximate cause of the members of the Class’s respective over-detentions; (i) Whether the members of the Class have been injured by the Defendant’s conduct; and (j) Whether the members of the Class have sustained damages and, if so, what is the proper measure and appropriate formula to be applied in determining such damages.” (Italics added.) Plaintiff also asserted in the class certification motion that his claims were typical of the claims of other putative class members.

Plaintiff’s class certification motion was supported by the declaration of plaintiff’s attorney, Steven Archer, which declaration had attached as exhibits, inter alia, excerpts from the transcript of the deposition of Karen Elliott, the person designated by the Department as most qualified to testify on the Department’s behalf; copies of “early/late release reports” produced by defendants; and certain documents obtained from the Department pursuant to a California Public Records Act (CPRA) (Gov. Code, §§ 6250 et seq.) request.

The excerpts from Ms. Elliott’s deposition transcript contained the following testimony: Ms. Elliott had worked for the Department in various capacities for 23 years. The Department operated under and consistent with California law. The Department was assigned responsibility for confining as inmates in penal institutions persons who had been convicted of various crimes in California. The Department had an obligation or duty to complete inmate time computations in a uniform manner. It also had a duty to ensure that release date calculations were correct. When a case records analyst received a prison packet for a prisoner at an inmate reception, the analyst would review and analyze the documents in the packet for the purpose of calculating a release date, which was usually referred to as an “earliest possible release date.” Upon transfer of an inmate to a “main line institution, ” the Department would conduct subsequent intake audits to ensure, inter alia, that the inmate’s calculated release date was correct. Miscalculations of release dates should have been “caught and corrected” at such subsequent intake audits. At each intake audit, whether it was a reception intake audit or an intake audit following transfer to a mainline institution, the records analyst was expected to review and confirm the calculations on the inmate’s term. The Department also conducted a “60-day parole” audit prior to an inmate’s release. That audit should have detected over-detentions, but in two sample cases, the records analysts did not detect the over-detentions or correct them. The goal and expectation of the Department was that the release dates for all inmates be correctly calculated. But that goal was not “achieved 100%” of the time. When an early release of an inmate occurred, “headquarters” requested a document that explained “what happened.” In the case of a late release, a document explaining what happened was also generated, and those reports were sent to an analyst who would input the information into a spreadsheet called an “early/late release report.” The determination that there had been a late release was not made by the records analyst who created the early/late release report, but rather by a manager or supervisor of the institution responsible for the late release. A manager should have been experienced enough to have verified the correct release date and the fact of late release.[3]

According to the declaration of attorney Archer, the documents produce in response to the CPRA request showed that, “for every entry on those documents that is identified as either ‘TRUE’ or ‘YES’ there is a number which indicates how many days the individual was over-detained (or in one case under-detained and released too early).” Attorney Archer compared the “early/late release reports” produced by defendants in discovery to the documents produced in response to the CPRA request and confirmed that every one of the reports, save one, “appears in the [CPRA] documents as a ‘TRUE’ or ‘YES’ and the number of days match up as well.” He concluded from the documents that “the Defendants [had] already checked, re-calculated and confirmed that they [had] over detained the 594 inmates comprising the Class sought to be certified [in this case] for a total of 65, 643 days during the period January 1, 2004-May 4, 2008.”

Defendants opposed the class certification motion and supported that opposition with their attorney’s declaration that attached, inter alia, excerpts from Ms. Elliott’s deposition transcript and letters sent by the Department concerning a sentencing error in the amended abstract of judgment and the minute order for plaintiff’s sentencing hearing. According to the letters sent by the Department, it detected and addressed the error in plaintiff’s sentence as follows: The operative complaint established that plaintiff was convicted of assault with a firearm in violation of Penal Code section 245, subdivision (a)(2), possession of marijuana in violation of Health and Safety Code section 11359, and possession of marijuana for sale in violation of Health and Safety Code section 11378. On March 16, 2006, three months before plaintiff should have been released if he had been properly sentenced, the Department sent a letter to the sentencing court, copied to the District Attorney and plaintiff’s public defender, advising of the following: “A review of the documents delivered with the above-named inmate [plaintiff] indicates the Abstract of Judgment and/or Minute Order may be in error, or incomplete, for the following reasons: [¶] The Abstract of Judgment and Minute Order reflect Count 12, Health and Safety Code Section 11359, Poss Marij F/Sale, upper term 3 years, plus an enhancement pursuant to Penal Code (PC) Section 186.22(b)(1) sentenced 10 years consecutive to Count 12. Penal Code [s]ection 186.22(b)(1) reflects, ‘If the felony is a serious felony as defined in subdivision (c) of Section 1192.7, the person shall be punished by an additional term of 5 years. If the felony is a violent felony, as defined in subdivision (c) of Section 667.5, the person shall be punished by an additional term of 10 years.’ Health and Safety Code [section] 11359 is not a serious or violent felony, therefore, the [Penal Code s]ection 186.22(b)(1) enhancement carries a range of 2, 3, or 4 years. [¶] May the Court please note that the information does not reflect Count 12 and we are not in receipt of amended charges. We ask the Court to please clarify the sentencing in this case.” Apparently, neither plaintiff nor his public defender took any action to correct the sentencing error, nor did the trial court or the District Attorney. On June 19, 2006, the Department again sent a letter to the sentencing court requesting a response to its March 16, 2006, letter. In November 2007, the Department received an amended abstract of judgment and minute order concerning plaintiff’s sentence. Plaintiff’s release date was then recalculated, and, according to plaintiff, he was released on November 28, 2007. Ms. Elliott testified that when plaintiff’s sentence was ultimately corrected, she calculated that he had been over-detained by 518 days and should have been released on June 26, 2006.

Following the hearing on the motion for class certification, the trial court in a written ruling explained its decision denying the motion for class certification, in part, as follows: “The Court determines that [p]laintiff has not demonstrated that common questions of law or fact predominate among the putative class. In order to assess whether the [d]efendants are liable for the overdetention of putative classmembers, the Court would be required to make highly individualized determinations as to the specific circumstances of each class member. Defendants identify some of these questions as follows: [¶] 1. Has the potential class member been overdetained? [¶] 2. If so, what caused the overdetention? [¶] 3. Who, if anyone, is liable for the overdetention? [¶] 4. If the potential class member has been overdetained, how long has he been overdetained? [¶] 5. Has the potential classmember complied with the requirements of the Claims Act? [¶] The Court agrees that these questions, at minimum, will be individualized as to each classmember, the resolution of which will be required in order to determine whether the Defendants are liable for overdetention. If there was a lawful reason for the overdetention, then this would have to be resolved as to each putative classmember to even assess whether the person is a member of the class. [¶] Plaintiffs contend that the only question is whether overdetention occurred and if so, what compensation is due. However, whether overdetention occurred, and the reasons for that overdetention would require highly individualized assessments as to each inmate in order to determine the State’s liability.”

“Again, there could be many reasons for overdetention of a classmember (including, as is the case with [p]laintiff, an apparent error in the minute order imposing the sentence), and there is no evidence of a policy or practice of overdetention in this case which was applied on a class basis by the named [d]efendants (including [the Department]). To the contrary, the evidence before the Court indicates that the [the Department] engages in several calculations to come up with the [earliest possible release date]. [¶]... [¶] Here, the Court is not persuaded that the evidence before it on certification shows a policy of ‘deliberate indifference’ to the rights of [p]laintiff and the class. There is no evidence, in other words, demonstrating that the class has suffered the same alleged harm based on the same commonly applied policy or practice. [¶]... [¶] Absent evidence of a policy or practice of overdetention (resulting in deliberate indifference to the classmembers’ rights, as was the case in Vanke [v. ...

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