Filed 6/29/20 Burgess v. Schubert CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THIRD APPELLATE DISTRICT

(Sacramento)

—-

DWAYNE LAMONT BURGESS,

Plaintiff and Appellant,

v.

ANNE MARIE SCHUBERT,

Defendant and Respondent.

C087379

(Super. Ct. No. 34-2017-00224503-CU-CR-GDS)

Plaintiff and appellant Dwayne Lamont Burgess, an inmate incarcerated at Dueul Vocational Institution, filed a complaint against multiple defendants, including respondent Anne Marie Schubert, the District Attorney of Sacramento County. Burgess appeals in propria persona from an adverse judgment entered following an order sustaining Schubert’s demurrer without leave to amend.

In his complaint, Burgess alleged that he was convicted “without full disclosure of . . . jurisdiction” and in violation of his due process rights. On appeal, Burgess argues: (1) he stated sufficient facts to state a cause of action against Schubert; (2) Schubert is not entitled to absolute prosecutorial immunity; and (3) he is entitled to a “rehearing” due to procedural irregularities in the trial court.

We affirm the judgment.

BACKGROUND

In December 2017 Burgess filed a civil complaint against defendants: (1) the State of California; (2) Steve White, the former District Attorney of Sacramento County; and (3) Anne Marie Schubert, the current District Attorney of Sacramento County. Read charitably, the complaint alleges that White and Schubert lacked jurisdiction to criminally prosecute Burgess (for a crime or crimes that Burgess does not detail).

In March 2018 Schubert filed a demurrer to the complaint, arguing that she was entitled to absolute prosecutorial immunity from Burgess’s action, pursuant to Government Code section 821.6, and asking the trial court to sustain the demurrer without leave to amend.

In April 2018 Burgess filed a pleading that apparently was in response to an order by the trial court to show cause why his complaint should not be dismissed. In that pleading, Burgess insisted that defendants were obliged to “prove jurisdiction . . . and otherwise th[e] Court[’]s original conviction against [Burgess] [was] . . . unlawful and unconstitutional.”

In May 2018 the trial court sustained Schubert’s demurrer without leave to amend, ruling in relevant part that Schubert was absolutely immune from Burgess’s action pursuant to Government Code section 821.6, because Burgess did “not allege[] how [Schubert] harmed [Burgess] other than by her role as prosecutor.” The trial court entered judgment for Schubert, and dismissed the action with prejudice as to her. In June 2018 Burgess timely appealed the judgment for Schubert.

The lawsuit continued against White until October 2018, when the trial court sustained White’s demurrer to the complaint without leave to amend, and entered judgment for White. In November 2018 Burgess filed a notice of appeal, identifying the trial court’s October 2018 order as the relevant judgment or order he sought to appeal.

DISCUSSION

Deficiencies in Burgess’s Briefs

Before reaching the substance of Burgess’s claims, we address his failure to comply with the California Rules of Court on appeal.

Pro. per. litigants are held to the same standards and must follow the same rules of procedure as litigants who are represented by counsel. “[M]ere self-representation is not a ground for exceptionally lenient treatment. Except when a particular rule provides otherwise, the rules of civil procedure must apply equally to parties represented by counsel and those who forgo attorney representation. (See Lawrence v. Superior Court (1988) 206 Cal.App.3d 611, 619, fn. 4.) . . . [citation] . . . A doctrine generally requiring or permitting exceptional treatment of parties who represent themselves would lead to a quagmire in the trial courts, and would be unfair to the other parties to litigation.” (Rappleyea v. Campbell (1994) 8 Cal.4th 975, 984-985.)

Burgess has failed to provide an adequate statement of facts in his opening brief in conformance with California Rules of Court, rule 8.204(a)(2)(C), which requires “a summary of the significant facts limited to matters in the record.” (Silva v. See’s Candy Shops, Inc. (2016) 7 Cal.App.5th 235, 260.) His statement is largely incomprehensible and omits any citation to the record. (Id. at p. 261 [“Statements of fact not supported by citations to the record are improper”].)

Further, the opening brief lacks adequate citation to the record in support of his assertions. (See Cal. Rules of Court, rule 8.204(a)(1)(C); Dietz v. Meisenheimer & Herron (2009) 177 Cal.App.4th 771, 800-801 [failure to include citations to appellate record in brief may result in forfeiture of claim].) Burgess’s reply brief is similarly deficient.

And there is another problem with Burgess’s appeal: he failed to designate an adequate appellate record, omitting relevant documents from the proceedings below—i.e., the complaint, the demurrer—necessary for us properly to analyze his claims. Part of Burgess’s burden in showing error is to provide an adequate record from which the claimed error may be demonstrated; the failure to present such a record may be fatal to his appellate contentions. (Bains v. Moores (2009) 172 Cal.App.4th 445, 478 [court rejected a claim that demurrer was improperly sustained where the appellant failed to present adequate record by including operative complaint and demurrers].)

Based upon the noncompliant nature of Burgess’s briefs and his failure to present an adequate appellate record, it might be appropriate for us to rule his contentions have been forfeited. (See State Comp. Ins. Fund v. WallDesign Inc. (2011) 199 Cal.App.4th 1525, 1528-1529, fn. 1.) But because Schubert has augmented the record on appeal, we have a sufficient record. Therefore, in the interests of justice, we will address the merits of Burgess’s arguments on appeal.

Standard of Review

A demurrer is used to test the sufficiency of the factual allegations of the complaint to state a cause of action. (Code Civ. Proc., § 430.10, subd. (e).) “ ‘In reviewing an order sustaining a demurrer, we examine the operative complaint de novo to determine whether it alleges facts sufficient to state a cause of action under any legal theory.’ ” (Mathews v. Becerra (2019) 8 Cal.5th 756, 768.)

“ ‘ “We treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. [Citation.] We also consider matters which may be judicially noticed.” [Citation.] Further, we give the complaint a reasonable interpretation, reading it as a whole and its parts in their context. [Citation.] When a demurrer is sustained, we determine whether the complaint states facts sufficient to constitute a cause of action. [Citation.] And when it is sustained without leave to amend, we decide whether there is a reasonable possibility that the defect can be cured by amendment: if it can be, the trial court has abused its discretion and we reverse; if not, there has been no abuse of discretion and we affirm. [Citations.] The burden of proving such reasonable possibility is squarely on the plaintiff.’ [Citations.]” (Zelig v. County of Los Angeles (2002) 27 Cal.4th 1112, 1126.)

Analysis

I

Burgess’s first argument is that the trial court erred in ruling Burgess did not state a legally sufficient cause of action in the complaint. Burgess appears to contend that, because he was “tried and convicted under an illegal or unlawful [s]tatutory [l]aw,” the superior court lacked jurisdiction to consider the Sacramento District Attorney’s Office’s criminal action against him, and therefore his civil complaint against Schubert was valid.

Schubert argues the trial court properly ruled that she is immune from Burgess’s suit pursuant to Government Code section 821.6.

We agree with Schubert.

“ ‘A public employee is not liable for injury caused by [her] instituting or prosecuting any judicial or administrative proceeding within the scope of [her] employment, even if [s]he acts maliciously and without probable cause.’ (Gov. Code, § 821.6.) This immunity applies to a public prosecutor. [Citation.] . . . [Citations.] [¶] The immunity is absolute, applying even if the prosecutor ‘acts maliciously and without probable cause’ (Gov. Code, § 821.6; see Falls v. Superior Court (1996) 42 Cal.App.4th 1031, 1042-1044), such as by concealing exculpatory evidence [Citation].” (Miller v. Filter (2007) 150 Cal.App.4th 652, 666.)

“ ‘[T]he immunity statute is given an “expansive interpretation” in order to best further the rationale of the immunity, that is, to allow the free exercise of the prosecutor’s discretion and protect public officers from harassment in the performance of their duties.’ ” (Miller v. Filter, supra, 150 Cal.App.4th at p. 668.)

Here, Burgess is suing Schubert, the current District Attorney of Sacramento County, for an injury he claims he suffered due to a criminal prosecution. Accordingly, the trial court correctly concluded that, pursuant to Government Code section 821.6, Schubert is immune from Burgess’s suit, which amounts to “harassment” of Schubert in the performance of her duties as a prosecutor.

Further, the trial court did not abuse its discretion in concluding there was no reasonable possibility the defect could be cured by amendment, because no amendment could overcome Schubert’s status as the District Attorney of Sacramento.

II

Burgess’s second argument is that Schubert is not entitled to absolute prosecutorial immunity in light of various federal authorities. Schubert does not respond directly to this argument.

We conclude this argument lacks merit.

Burgess cites federal statutes (15 U.S.C. § 1122 & 22 U.S.C. § 611(c)) and case law (including Rabinowitz v. Kennedy (1964) 376 U.S. 605 [11 L.Ed.2d 940]) in support of his contention that Schubert is not immune from his suit. But those federal authorities are irrelevant to the question on appeal.

Tile 15 United States Code section 1122 purports to waive the immunity of, inter alia, “[a]ny State, instrumentality of a State or any officer or employee of a State or instrumentality of a State acting in his or her official capacity,” (15 U.S.C. § 1122(b)) in an action raising a claim of copyright infringement. (See Chavez v. Arte Publico Press (5th Cir. 2000) 204 F.3d 601, 603-604 [ruling that 15 U.S.C. § 1122 is an unconstitutional effort by Congress to subject states to suit in federal court for violation of copyright laws].) The statute does not help Burgess, as nothing in his complaint or briefing suggests that his action against Schubert implicates any copyright law.

Title 22 United States Code section 611 is part of the Foreign Agents Registration Act of 1938, which requires “ ‘persons engaging in propaganda activities . . . for or on behalf of foreign governments’ ” to disclose their activities to the government of the United States. (Meese v. Keene (1987) 481 U.S. 465, 467-469 [95 L.Ed.2d 415, 420-422].) The statute—discussed in Rabinowitz v. Kennedy, supra, 376 U.S. 605, a case that Burgess invokes—does not help Burgess, as it has nothing to do with lawsuits against state government officials.

III

Burgess’s third and final argument is that he “is entitled to a rehearing in [the] superior court due to no record of oral arguments and . . . defective service of . . . notice” to him.. Specifically, Burgess appears to challenge irregularities he contends occurred in connection with (1) a proceeding held on August 2018 and (2) an October 2018 minute order. Schubert does not respond to this argument.

We reject this argument, because it concerns matters beyond the scope of the instant appeal.

An order sustaining a demurrer without leave to amend is appealable “ ‘only after entry of a dismissal on such an order.’ ” (Thompson v. Ioane (2017) 11 Cal.App.5th 1180, 1189.)

“[A] notice of appeal ‘must be liberally construed.’ (Cal. Rules of Court, rule 8.100(a)(2).) However, there is no construction under which a notice of appeal of a” judgment for a defendant after an order on an earlier date “can be construed as a notice of appeal of a . . . judgment of dismissal following an order” regarding “a different defendant” on a later date. (Bosetti v. United States Life Ins. Co. in City of New York (2009) 175 Cal.App.4th 1208, 1224-1225 (Bosetti).)

Here, Burgess filed (in June 2018) a timely notice of appeal from the trial court’s entry of judgment for Schubert, and then filed another timely notice of appeal (in November 2018) from the trial court’s entry of judgment for White. Now, Burgess asks us to review what he contends were procedural irregularities that occurred after he filed the June 2018 notice of appeal and before the November 2018 notice of appeal. This we cannot do, as Bosetti, supra, 175 Cal.App.4th 1208, makes clear: Burgess’s notice of appeal of the judgment as to Schubert cannot be construed as an appeal of the later judgment as to White. That Burgess’s appeal from the judgment as to White was dismissed does not permit Burgess here to raise claims that are germane only to that dismissed appeal.

DISPOSITION

The judgment is affirmed.

/s/

RAYE, P. J.

We concur:

/s/

HULL, J.

/s/

MURRAY, J.