Foster v. Harrell

RICKY TYRONE FOSTER, Plaintiff and Appellant, v. ARLAN L. HARRELL, a Judge of the Superior Court et al., Defendants and Respondents.

F083079

California Court of Appeals, Fifth District

May 3, 2022

NOT TO BE PUBLISHED

APPEAL from judgments of the Superior Court of Fresno County, No 19CECG04061. Kristi Culver Kapetan, Judge.

Ricky Tyrone Foster, in pro. per., for Plaintiff and Appellant.

Cummings, McClorey, Davis, Acho & Associates, and Sarah L. Overton for Defendants and Respondents Judge Arlan L Harrell, Judge F. Brian Alvarez, and Judge Alan M. Simpson.

Daniel C. Cederborg, Fresno County Counsel, and Kyle R. Roberson Deputy County Counsel, for Defendant and Respondent Judge Lisa M. Gamoian.

OPINION

THE COURT ^[*]

Plaintiff Ricky Tyrone Foster filed this action under section 1983 of title 42 of the United States Code (section 1983) against three superior court judges and a former deputy district attorney. Foster sought (1) declaratory relief stating each defendant's acts and omissions violated his constitutional rights and (2) injunctive relief vacating orders on his postconviction DNA motions brought under Penal Code section 1405 and granting him a hearing. The trial court sustained defendants' demurrers based on its lack of subject matter jurisdiction and defendants' immunity.

The initial and dispositive issue in this appeal is whether the superior court had subject matter jurisdiction over a section 1983 action that challenges orders entered by the superior court in plaintiff's criminal case. As explained below, the superior court lacked subject matter jurisdiction.

We therefore affirm the judgments of dismissal.

FACTS

In 1994, Foster was convicted of serious offenses relating to a carjacking. (People v. Foster (1995) 34 Cal.App.4th 766, 768.) The jury found Foster used a firearm during the commission of the offenses. The trial court sentenced Foster "to a total unstayed prison term of life with the possibility of parole plus 12 years." (Id. at p. 769.) In 1995, this court affirmed Foster's conviction and sentence. (Id. at p. 776.) In this century, Foster's criminal case has generated many appeals and writs, including matters this court has assigned case Nos. F049527, F054991, F056668, F058503, F065550, F069125, F071986, F075422, F075455, F075904, F078583, F078710, F078906, F079060, and F080157.

On December 21, 2016, Foster filed his first motion pursuant to Penal Code section 1405 for postconviction DNA testing. In May 2017, the superior court denied the motion due to improper service. In June 2017, Foster appealed the denial of his motion and this court assigned the appeal case No. F075904 (People v. Foster (Mar. 14, 2018) [nonpub. order]). In March 2018, Foster filed a request for dismissal of the appeal, which this court granted.

Later that March, the superior court filed Foster's motion requesting the appointment of counsel to prepare a motion for postconviction DNA testing. In May 2018, Judge Gary D. Hoff issued an order granting Foster's request for the appointment of counsel. On June 28, 2018, appointed counsel filed a motion to compel postconviction DNA testing pursuant to Penal Code section 1405. The Attorney General's Office and the Fresno County District Attorney's Office did not respond to the motion within 90 days after it was served. Foster describes the absence of a response as a waiver of the right to file a response or a default.

On December 10, 2018, Judge Alan M. Simpson issued an order designating the judicial officer to conduct proceedings on the merits of Foster's motion to compel postconviction DNA testing, which proceedings were to include an order setting the date and time for a hearing on the motion. Foster contends the issuance of this order was an abuse of discretion and it is one of the orders he sought to have vacated by filing this civil lawsuit.

On January 7, 2019, Judge F. Brian Alvarez signed and filed an order denying Foster's motion for DNA testing. On January 23, 2019, Foster filed a petition for writ of mandate challenging the order denying his motion; this court assigned the petition case No. F078710 (Foster v. Superior Court (Fresno) (Feb. 13, 2019) [nonpub. order]). On February 13, 2019, we summarily denied Foster's petition for writ of mandate. After the denial of his writ petition, Foster filed a notice of appeal from the order denying his motion on February 25, 2019. This court assigned the appeal case No. F078906 (People v. Foster (July 10, 2019) [nonpub. order]). On July 10, 2019, this court dismissed the appeal as taken from a nonappealable order, stating:

"Penal Code section 1405, subdivision (k) provides that the denial of motion for postconviction DNA testing is not appealable. That section further provides that the order may be reviewed by writ of mandate filed within 20 days of the superior court's decision. This court notes that appellant previously filed a writ of mandate challenging the superior court's January 7, 2019, order on January 23, 2019, and this court denied the petition for writ of mandate on February 13, 2019, in Foster v. The Superior Court of Fresno County, case No. F078710."

Also in February 2019, Foster filed a petition for writ of habeas corpus in the Fresno County Superior Court, case No. 19CRWR684731. On June 25, 2019, Judge Arlan L. Harrell denied the writ petition without holding a hearing. Foster contends the superior court abused its discretion and violated his rights to due process when it denied the writ petition. Foster contends he would have obtained relief if an evidentiary hearing had been held. Judge Harrell's order denying Foster's writ petition and Judge Alvarez's order denying his motion for DNA testing are the other two orders Foster seeks to have vacated in this civil lawsuit.

Based on Foster's inability to obtain relief through appeals or writ petitions, Foster contends a section 1983 action is the sole remedy now available to secure his constitutional right to due process and obtain a hearing on his motion for postconviction DNA testing pursuant to Penal Code section 1405.

PROCEEDINGS

On November 1, 2019, Foster filed a civil rights complaint under section 1983. On December 9, 2019, Foster filed a first amended complaint (FAC) against a former deputy district attorney, Lisa M. Gamoian, ^[1] and Judges Simpson, Alvarez, and Harrell. The FAC is the operative pleading for purposes of this appeal.

On January 6, 2021, Foster filed proofs of service stating the summons, "CIVIL RIGHTS COMPLAINT BY A PRISONER," and other documents had been served on Judge Harrell, Judge Alvarez, and Judge Gamoian by substitute service on an executive secretary of the Fresno County Superior Court on December 8, 2020. The proofs of service were completed by the registered California process server who served the papers. The proofs of service do not explicitly state whether the complaint served on the defendants was the original pleading or the FAC.

On January 14, 2021, Foster filed requests for entry of default on mandatory Judicial Council form CIV-100 against the three defendants who had been served. Foster completed item 1.a. on the forms to refer to a complaint filed on November 1, 2019, which was the date his original complaint was filed. In the box at the bottom of the forms designated for court use only, the deputy clerk of the superior court checked the box stating "Default NOT entered as requested (state reason)" and then wrote: "line #1.a. is incorrect."

On January 22, 2021, Judges Harrell, Alvarez, and Simpson filed a demurrer to the FAC that asserted the superior court lacked subject matter jurisdiction over the FAC and the FAC against them was barred by judicial immunity. On February 8, 2021, Judge Gamoian filed a demurrer to the FAC that also asserted the superior court lacked subject matter jurisdiction and, thus, could not grant the relief requested.

On February 8, 2021, Foster filed objections to the defendants' demurrers, contending the defendants were in default and the late-filed demurrers must be stricken from the record. Foster argued the defendants had not filed a responsive pleading withing the 30 days allowed and, as a result, he was entitled to have his requests for default entered.

On February 16, 2021, Foster filed objections to the clerk of court setting a default hearing on July 14, 2021, which he characterized as an abuse of the clerk's ministerial duty and contrary to the Trial Court Delay Reduction Act (Gov. Code, § 68600 et seq.).

In March 2021, Foster filed a notice of stay of proceedings asserting judicial misconduct and racial bias. Foster stated he had filed a petition for writ of mandate with the court of appeal seeking to vacate the clerk's refusal to enter defaults against the defendants.

On June 10, 2021, the defendants filed replies to Foster's papers. Judge Gamoian asserted service of the summons on her was defective and, therefore, her demurrer was timely filed. She also asserted Foster failed to oppose the merits of her demurrer and, as a result, he had forfeited any argument against the grounds raised in the demurrer. The reply of Judges Harrell, Alvarez, and Simpson asserted Foster was not entitled to a default against any defendant because (1) Foster had not served the FAC, (2) his request for default sought to have default entered on the original complaint, and (3) his request for default was properly rejected as defective by the clerk. Their reply also asserted the trial court lacked the subject matter jurisdiction to grant Foster the relief sought in his FAC-that is, an order vacating the orders entered in his criminal case.

On July 8, 2021, the superior court held a hearing on the pending matters. Foster attended using CourtCall. After hearing argument, ...