ZACHARIE v. CALIFORNIA DEPARTMENT OF CORRECTIONS AND REHABILITATION

F053939

CHARLES ZACHARIE, Plaintiff and Appellant, v. CALIFORNIA DEPARTMENT OF CORRECTIONS AND REHABILITATION, Defendant and Respondent.

Court of Appeal of California, Fifth Appellate District

November 26, 2008

Not to be Published in Official Reports
Attorney(s) appearing for the Case

Charles Zacharie, in propria persona, for Plaintiff and Appellant.

No appearance for Defendant and Respondent.

OPINION
THE COURT*

Inmate Charles Zacharie filed a petition for writ of mandate and declaratory relief contending that defendant California Department of Correction and Rehabilitation (the Department) wrongfully disposed of his personal property in violation of California Code of Regulations, title 15, section 3190 while he was placed in administrative segregation. The trial court summarily denied the petition on the ground Zacharie failed to serve the Department as required by statute. Zacharie appeals.
FACTS AND PROCEDURAL HISTORY

On March 2, 2006, Zacharie was placed in administrative segregation for battery on a peace officer, a rule violation. On April 13, 2006, he was found guilty and assessed a 12-month security housing unit (SHU) term with a minimum eligible release date (MERD) of December 2, 2006. On June 14, 2006, the same day Zacharie was transferred to the Corcoran SHU, his third level appeal was granted in part because his requested witness was not present at the rule violation hearing. The director ordered the matter be reheard. On June 22, 2006, the rule violation report reissued. The matter was reheard on November 22, 2006, and Zacharie’s SHU term with the December 2, 2006, MERD reissued.1

Zacharie was transferred from Corcoran prison to a prison in Susanville on January 23, 2007. When his property was returned on March 5, 2007, several items were missing. The Department rejected Zacharie’s appeal regarding the missing items as untimely on the ground the property had been disposed of on August 8, 2006.

Zacharie filed a petition for writ of mandate and declaratory relief contending that as of June 14, 2006, the date of the reissue/rehear order, his 12-month SHU term was voided and his status reverted to administrative segregation and remained so until November 22, 2006 when the SHU term reissued. Thus, the Department disposed of his property while he was in administrative segregation in violation of California Code of Regulations, title 15, section 3190, subdivision (s), which provides, “[a]ll allowable inmate property shall be inventoried, documented, and stored for inmates … placed in segregated housing … until the inmate returns.”2 Zacharie requested return of the property or payment of its value—$202.77.

The trial court summarily denied the petition because it had not been served on the Department as required by Code of Civil Procedure, sections 1088 and 1107. Zacharie filed a motion for reconsideration and a second petition for writ of mandate, which the trial court also denied. The court ruled that Zacharie’s motion for reconsideration failed to comply with Code of Civil Procedure section 1008 and his lock-down status did not excuse his obligation to comply with the notice requirements governing service of the writ of mandate. The order also advised Zacharie that his “issues may be pursued in the context of a writ of habeas corpus. A writ of habeas corpus has the advantage of avoiding the cumbersome procedural rules that accompany the prosecution of a writ of mandate and habeas corpus is generally a remedy that is less costly and time-consuming to pursue.”

Zacharie appealed those orders.3
DISCUSSION

The trial court properly denied the petition for writ of mandate because Zacharie did not serve the Department. In a mandamus proceeding against a corporation or association, the adverse party is entitled to notice before the petition is filed. (Code Civ. Proc., § 1088 [copy of the petition must be served on each person against whom the writ is sought]; Code Civ. Proc., § 1107 [the application for a prerogative writ shall be accompanied by proof of the service of a copy of the petition on respondent]; Superior Court of Los Angeles County v. District Court of Appeal (1966) 65 Cal.2d 293, 296 [Court of appeal did not have jurisdiction to issue writ of mandamus because statutory requirements for service were not satisfied]; 8 Witkin, Cal. Procedure (5th ed. 2008) Extraordinary Writs, § 183, p. 1087.)

The cases Zacharie cites do not aid his appeal. Minsky v. City of Los Angeles (1974) 11 Cal.3d 113, 121; Holt v. Kelly (1978) 20 Cal.3d 560, 564-565 and Long v. City of Los Angeles (1998) 68 Cal.App.4th 782 hold that an action for return of property wrongfully held is not within the purview of the tort claims act. The act applies only to claims for “money or damages.” A claim for specific recovery of property is not one for money or damages within the meaning of the statutes.

The court did not deny the petition because Zacharie failed to comply with the tort claims act. Rather, the court properly denied the petition because Zacharie did not serve the party against whom he sought relief.
DISPOSITION

The orders are affirmed.
FootNotes

* Before Levy, Acting P.J., Cornell, J., and Kane, J.
1. Zacharie does not disclose where he was housed during this period.
2. By way of explanation, subdivision (t) provides: “Privilege Group A or B inmates placed in administrative segregation (AD SEG) shall have their property inventoried and stored pending the outcome of Initial Classification Committee review. If the inmate is released to general population and maintains their Privilege Group A or B assignment, all allowable property shall be returned. If the inmate is retained in AD SEG, all allowable property as determined by current departmental regulations shall be reissued to the inmate. If the inmate received a SHU term, the inmate shall be required to dispose of unallowable property due to privilege group and/or security level and/or institution mission change in accordance with section 3191(c).” (Cal. Code Regs., tit. 15, § 3190, subd. (t).)

Section 3191, subdivision (c) provides:
Inmate personal property not meeting the criteria in section 3190, shall be disposed of in accordance with this section. An inmate shall select one of the methods listed in sections 3191(c)(1) through 3191(c)(5) below for disposing of non-allowable personal property which is unauthorized pursuant to subsection (b) and section 3190. If the inmate makes no selection or has insufficient funds, staff shall document that fact and determine the method of disposition….
(1) Mail the item to an address of an individual willing to accept the personal property, provided by the inmate, via USPS or common carrier at the inmate’s expense. This option is not available for inmates with insufficient trust account funds.
(2) Return the item to the sender via USPS or common carrier at the inmate’s expense. This option is not available for inmates with insufficient trust account funds.
(3) Donate the item to a charitable organization as designated by the institution/facility.
(4) Donate the item to the institution/facility.
(5) Render the item useless and dispose of it according to institution/facility procedures. (See Cal. Code Regs., tit. 15, § 3190, subd. (t).)
3. There is no respondent because the Department was not served in the underlying action.