gno.law

Faunce v. Cate

California Court of Appeal · D062130 · 2013-12-17 · Published · 222 Cal. App. 4th 166 · 166 Cal. Rptr. 3d 61 · 2013 WL 6624255 · 2013 Cal. App. LEXIS 1009

DAVID W. FAUNCE, Plaintiff and Appellant, v. MATTHEW CATE Et Al., Defendants and Respondents

Proceeding
appeal from an order and judgment
Trial court
Superior Court of San Diego County · No. 37-2011-00092986-CU-DF-CTL
Trial judge
Randa Trapp
Outcome
affirmed — Judgment affirmed and appeal of order dismissed.
Area
civil
Panel
McINTYRE (author)

Analysis

A model's reading — qwen3.8-27b, prompt v1, 2026-10-13T06:47Z · confidence high

The trial court sustained a demurrer to Faunce's second amended complaint without leave to amend, finding he failed to plead a reasonable expectation of privacy, outrageous conduct, or an underlying wrong, and that his new retaliation claim was improper. The Court of Appeal affirmed the judgment, holding Faunce failed to allege a reasonable expectation of privacy given prison security policies, and dismissed the appeal from the preliminary injunction order as untimely and outside the scope of the notice of appeal.

Ruling reviewedStandardThe courtThe model
Order denying preliminary injunction
“Because Faunce's notice of appeal did not identify the trial court's order denying his request for a preliminary injunction, we lack jurisdiction to consider this portion of the appeal.”
unclearnot reachedagree with court
The appellate court correctly identified that the notice of appeal did not include the order denying the preliminary injunction, which is a jurisdictional defect. Additionally, the court correctly noted the appeal was untimely under the 180-day rule for orders. Therefore, the dismissal of this portion of the appeal is procedurally correct.
Sustaining demurrer to privacy claims (Penal Code § 636 and Cal. Const. art. I, § 1)
“Faunce's pleading shows that whatever expectation of privacy he had in this setting was not reasonable as defendants' actions were based on prison policy to further the safety and security of the institution.”
de novocorrectagree with court
The court applied the correct standard of review for a demurrer. It correctly interpreted Penal Code section 636 as requiring a 'reasonable expectation of privacy.' Given Faunce's admission that the officer's presence was based on institutional safety policies and his status as a life-sentence murderer, the court reasonably concluded that no reasonable expectation of privacy existed as a matter of law at the pleading stage.
Sustaining demurrer to intentional infliction of emotional distress claim
“we agree with the trial court's implied conclusion that a policy requiring a convicted murderer be examined by a prison physician, that has expressed safety concerns, in the presence of a correctional officer does not amount to outrageous conduct.”
de novocorrectagree with court
The court correctly applied the legal standard for 'extreme and outrageous' conduct. Conduct that is merely negligent or follows established institutional policies for security does not meet the high threshold for IIED. The court's determination that the conduct was not outrageous as a matter of law is supported by the facts pleaded.
Sustaining demurrer to conspiracy and declaratory/injunctive relief claims
“Thus, the trial court properly sustained the demurrer as to these claims because they were 'wholly derivative of' other nonviable causes of action.”
de novocorrectagree with court
The court correctly stated that conspiracy is not an independent cause of action and requires an underlying tort. Since the underlying privacy and IIED claims failed, the conspiracy claim necessarily failed. Similarly, declaratory and injunctive relief are remedies, not independent causes of action, and fail if the underlying claims do not state a valid cause of action.
Sustaining demurrer to retaliation claim without leave to amend
“Faunce did not obtain leave of the trial court to add this new cause of action and the trial court correctly sustained the demurrer to this claim without leave to amend.”
de novocorrectagree with court
The trial court had granted leave to amend specifically to cure defects in the first amended complaint. Adding a new cause of action (retaliation) in the second amended complaint without further leave was improper. The appellate court correctly affirmed the dismissal of this claim.

Authorities

  • relied: Blank v. Kirwan (1985) 39 Cal.3d 311 — Standard of review for an order sustaining a demurrer is de novo.
  • relied: Palacin v. Allstate Ins. Co. (2004) 119 Cal.App.4th 855 — In reviewing a demurrer, the court assumes the truth of properly pleaded facts and gives the complaint a reasonable interpretation.
  • relied: Financial Corp. of America v. Wilburn (1987) 189 Cal.App.3d 764 — Allegations that merely set forth contentions or legal conclusions are not credited in a demurrer review.
  • relied: Pioneer Electronics (USA), Inc. v. Superior Court (2007) 40 Cal.4th 360 — The California Constitution's privacy right protects an individual's reasonable expectation of privacy against a serious invasion.
  • relied: Hill v. National Collegiate Athletic Assn. (1994) 7 Cal.4th 1 — Whether a plaintiff has a reasonable expectation of privacy is a mixed question of law and fact that can be adjudicated as a matter of law if undisputed facts show no such expectation.
  • relied: Christensen v. Superior Court (1991) 54 Cal.3d 868 — Elements of a cause of action for intentional infliction of emotional distress include extreme and outrageous conduct.
  • relied: Davidson v. City of Westminster (1982) 32 Cal.3d 197 — Conduct must be so extreme as to exceed all bounds of that usually tolerated by a civilized community to be considered outrageous.
  • relied: Fowler v. Varian Associates, Inc. (1987) 196 Cal.App.3d 34 — Whether behavior is extreme and outrageous is a legal determination to be made by the court.
  • relied: Okun v. Superior Court (1981) 29 Cal.3d 442 — Conspiracy is not an independent cause of action but a basis of liability for multiple defendants when an underlying civil wrong is stated.
  • relied: Wong v. Tai Jing (2010) 189 Cal.App.4th 1354 — Injunctive and declaratory relief are equitable remedies, not independent causes of action.
  • relied: Ochs v. PacifiCare of California (2004) 115 Cal.App.4th 782 — Claims that are wholly derivative of other nonviable causes of action may be properly demurred.
  • relied: Harris v. Wachovia Mortg., FSB (2010) 185 Cal.App.4th 1018 — A demurrer to a new cause of action added without leave to amend may be sustained without leave to amend.
  • relied: Polster, Inc. v. Swing (1985) 164 Cal.App.3d 427 — Appellate jurisdiction is limited to the judgment or order specified in the notice of appeal.
  • relied: Norman I. Krug Real Estate Investments, Inc. v. Praszker (1990) 220 Cal.App.3d 35 — Appellate courts lack jurisdiction over orders not mentioned in the notice of appeal.
  • relied: Delmonico v. Laidlaw Waste Systems, Inc. (1992) 5 Cal.App.4th 81 — An untimely notice of appeal is an absolute bar to appellate jurisdiction.
  • relied: Stratton v. First Nat. Life Ins. Co. (1989) 210 Cal.App.3d 1071 — Appellate courts must dismiss untimely appeals without reaching the merits.

The appellate opinion: sound — The opinion is sound because it correctly applies the de novo standard of review to the demurrer and accurately interprets Penal Code section 636 and the California Constitution's privacy clause to require a reasonable expectation of privacy. The court's dismissal of the preliminary injunction appeal is procedurally correct based on the scope of the notice of appeal and the timeliness of the filing.

How this analysis was made · dispute it

A model's reading — claude-fable-5-1, prompt v1, 2026-10-13T04:31Z · confidence medium

The San Diego Superior Court denied prisoner David Faunce's request for a preliminary injunction and later sustained defendants' demurrer to his second amended complaint without leave to amend, holding he pleaded no reasonable expectation of privacy for his Penal Code section 636 and constitutional privacy claims, no outrageous conduct for intentional infliction of emotional distress, no underlying wrong for conspiracy or equitable relief, and that his retaliation claim exceeded the scope of leave to amend. The Court of Appeal dismissed the appeal from the preliminary injunction order for lack of jurisdiction (not named in the notice of appeal and untimely) and affirmed the judgment of dismissal on de novo review.

Ruling reviewedStandardThe courtThe model
Order denying preliminary injunction (appeal dismissed; not identified in notice of appeal and untimely)
“Because Faunce's notice of appeal did not identify the trial court's order denying his request for a preliminary injunction, we lack jurisdiction to consider this portion of the appeal.”
de novonot reachedagree with court
Appellate jurisdiction is confined to the orders designated in the notice of appeal, and an appeal filed more than 180 days after entry of an appealable order is untimely; the court correctly declined to reach the merits on either ground, applying Polster, Krug, Delmonico and Stratton. The notice filed May 23, 2012 was well beyond 180 days from the October 27, 2011 minute order.
Demurrer sustained to Penal Code section 636 and California constitutional privacy claims for failure to plead a reasonable expectation of privacy
“Faunce's pleading shows that whatever expectation of privacy he had in this setting was not reasonable as defendants' actions were based on prison policy to further the safety and security of the institution.”
de novocorrectunsure
The result is defensible under Hill v. NCAA, which permits the reasonable-expectation question to be decided as a matter of law and makes advance notice of a practice relevant, and Faunce pleaded he knew of the policy since 2007. But the reasoning is thin: it treats the existence of a policy as defeating reasonableness without engaging Faunce's allegation that the safety concerns were 'feigned' (which must be accepted as true on demurrer unless conclusory), and it does not grapple with section 636's express inclusion of custody holding areas as places where a reasonable expectation may exist. The court also relied on judicially noticed facts about his murder conviction that were outside the pleading.
Demurrer sustained to intentional infliction of emotional distress claim for failure to plead outrageous conduct
“a policy requiring a convicted murderer be examined by a prison physician, that has expressed safety concerns, in the presence of a correctional officer does not amount to outrageous conduct.”
de novocorrectagree with court
Whether conduct is extreme and outrageous is a threshold legal question for the court (Christensen, Fowler), and having a correctional officer present during a prison medical visit pursuant to institutional policy does not exceed all bounds tolerated by a civilized community. The court's reliance on the judicially noticed conviction is unnecessary but does not alter the outcome.
Demurrer sustained to conspiracy and declaratory/injunctive relief claims as derivative of nonviable causes of action
“Thus, the trial court properly sustained the demurrer as to these claims because they were "wholly derivative of" other nonviable causes of action.”
de novocorrectagree with court
Okun v. Superior Court establishes that civil conspiracy is not an independent tort, and injunctive and declaratory relief are remedies dependent on a viable substantive claim; once the privacy and IIED claims failed, these necessarily fell with them.
Demurrer sustained without leave to amend to retaliation claim added in second amended complaint without leave of court
“Faunce did not obtain leave of the trial court to add this new cause of action and the trial court correctly sustained the demurrer to this claim without leave to amend.”
de novocorrectagree with court
Harris v. Wachovia holds that after a demurrer is sustained with leave to amend, a plaintiff may not add new causes of action without permission, and the trial court's order limited amendment to curing the defects raised. The court did not address the trial court's alternative exhaustion ground or whether leave should have been granted, but the procedural ground suffices.

Authorities

  • relied: Blank v. Kirwan (1985) 39 Cal.3d 311 — Order sustaining demurrer without leave to amend is reviewed de novo, accepting properly pleaded facts as true.
  • relied: Hill v. National Collegiate Athletic Assn. (1994) 7 Cal.4th 1 — Reasonable expectation of privacy and seriousness of invasion are mixed questions that may be decided as a matter of law when undisputed facts show no reasonable expectation.
  • relied: Pioneer Electronics (USA), Inc. v. Superior Court (2007) 40 Cal.4th 360 — California constitutional privacy protects a reasonable expectation of privacy against a serious invasion.
  • relied: Christensen v. Superior Court (1991) 54 Cal.3d 868 — Elements of intentional infliction of emotional distress, including extreme and outrageous conduct.
  • relied: Davidson v. City of Westminster (1982) 32 Cal.3d 197 — Outrageous conduct must exceed all bounds usually tolerated by a civilized community.
  • relied: Fowler v. Varian Associates, Inc. (1987) 196 Cal.App.3d 34 — Whether conduct is extreme and outrageous is initially a legal determination for the court.
  • relied: Okun v. Superior Court (1981) 29 Cal.3d 442 — Civil conspiracy is not an independent cause of action but a basis for imposing liability on multiple defendants for an underlying wrong.
  • relied: Wong v. Tai Jing (2010) 189 Cal.App.4th 1354 — Injunctive and declaratory relief are equitable remedies, not causes of action.
  • relied: Ochs v. PacifiCare of California (2004) 115 Cal.App.4th 782 — Claims wholly derivative of nonviable causes of action fail with them.
  • relied: Harris v. Wachovia Mortgage, FSB (2010) 185 Cal.App.4th 1018 — Following an order sustaining a demurrer with leave to amend, a plaintiff may not add new causes of action without leave of court.
  • relied: Polster, Inc. v. Swing (1985) 164 Cal.App.3d 427 — Appellate jurisdiction is limited to the notice of appeal and the judgment or order appealed from.
  • relied: Norman I. Krug Real Estate Investments, Inc. v. Praszker (1990) 220 Cal.App.3d 35 — Court of Appeal lacks jurisdiction over an order not mentioned in the notice of appeal.
  • relied: Delmonico v. Laidlaw Waste Systems, Inc. (1992) 5 Cal.App.4th 81 — An untimely notice of appeal is an absolute bar to appellate jurisdiction.
  • relied: Stratton v. First Nat. Life Ins. Co. (1989) 210 Cal.App.3d 1071 — An untimely appeal must be dismissed without reaching the merits.

The appellate opinion: sound with gaps — The jurisdictional dismissal, IIED, derivative-claim and unauthorized-amendment holdings are well supported by the cited authorities, and the privacy result is defensible under Hill given Faunce's pleaded notice of the policy. The privacy analysis, however, does not confront the 'feigned' safety allegation or section 636's express reference to custody areas, relies on judicially noticed conviction facts outside the pleading, and never addresses whether denial of leave to amend was an abuse of discretion under Blank v. Kirwan.

How this analysis was made · dispute it

Opinion — McIntyre

Filed 12/17/13

CERTIFIED FOR PUBLICATION

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

DAVID W. FAUNCE, D062130 Plaintiff and Appellant, v. (Super. Ct. No. 37-2011-00092986- CU-DF-CTL) MATTHEW CATE et al., Defendants and Respondents.

APPEAL from an order and judgment of the Superior Court of San Diego County, Randa Trapp, Judge. Judgment affirmed and appeal of order dismissed.

David W. Faunce, in pro. per., for Plaintiff and Appellant.

Kamala D. Harris, Attorney General, Jonathan L. Wolff, Assistant Attorney General, Thomas S. Patterson and Christopher H. Findley, Deputy Attorneys General, for Defendants and Respondent. Penal Code section 636 makes it a crime to eavesdrop on a prisoner's conversation with certain individuals in situations where the prisoner has a reasonable expectation of privacy. (Undesignated statutory references are to the Penal Code.) In this case, we conclude that David Faunce, a prisoner appearing in propria persona, failed to allege facts showing he had a reasonable expectation of privacy. Accordingly, we affirm the judgment dismissing his complaint. We also dismiss Faunce's appeal from an order denying his request for a preliminary injunction.

FACTUAL AND PROCEDURAL BACKGROUND

Faunce, a prisoner at R.J. Donovan Correctional Facility, sued defendants Matthew Cate, George Neotti, M. Glynn, D. Strayhorn, A. Canlas, M. Walker and M.

Akbari (collectively defendants) and moved for a preliminary injunction. In response to defendants' demurrer, Faunce filed a first amended complaint. The trial court denied Faunce's request for a preliminary injunction and later granted him leave to file an amended complaint "to cure the pleading defects raised by defendants." Faunce filed a second amended complaint (the operative complaint), which included for the first time, a claim for retaliation.

The trial court sustained defendants' demurrer to the operative complaint without leave to amend. The court concluded that Faunce's claims for violating section 636 and the privacy provisions of the California Constitution failed because Faunce did not plead a reasonable expectation of privacy. The court also concluded that Faunce failed to plead outrageous conduct necessary to support a cause of action for intentional infliction of emotional distress, that he failed to plead an underlying wrong to support his conspiracy 2 claim and that his request for declaratory and injunctive relief failed with their supporting causes of action. Finally, it ruled that Faunce's retaliation claim exceeded the bounds of its amendment order and, on the merits, that Faunce had not pleaded exhaustion of administrative remedies. Faunce appealed from the judgment. He also appealed from the order denying his request for a preliminary injunction preventing defendants from creating or enforcing any rule, regulation or practice that violates or evades compliance with section 636.

DISCUSSION

I. Order Denying Preliminary Injunction Although not raised by the respondents, we note that Faunce's notice of appeal does not specify that he is appealing from the order denying his request for a preliminary injunction. The notice of appeal is limited to the "[j]udgment of dismissal after an order sustaining a demurrer." An order denying a preliminary injunction is an appealable order. (Code Civ. Proc., § 904.1, subd. (a)(6).) "Our jurisdiction on appeal is limited in scope to the notice of appeal and the judgment or order appealed from." (Polster, Inc. v. Swing (1985) 164 Cal.App.3d 427, 436.) We have no jurisdiction over an order not mentioned in the notice of appeal. (Norman I. Krug Real Estate Investments, Inc. v. Praszker (1990) 220 Cal.App.3d 35, 46-47.) Because Faunce's notice of appeal did not identify the trial court's order denying his request for a preliminary injunction, we lack jurisdiction to consider this portion of the appeal.

3 Faunce's purported appeal from the order denying his request for a preliminary injunction also fails on the separate ground that it is untimely. A party has a maximum of 180 days to appeal from when an appealable order is entered into the minutes. (Cal.

Rules of Court, rule 8.104 (a)(1)(C), (c)(2) & (e).) An untimely notice of appeal is an "absolute bar" to appellate jurisdiction. (Delmonico v. Laidlaw Waste Systems, Inc.

(1992) 5 Cal.App.4th 81, 83.) We have no jurisdiction to act on an untimely appeal and must dismiss the appeal without reaching the merits. (Stratton v. First Nat. Life Ins. Co.

(1989) 210 Cal.App.3d 1071, 1078.)

Here, the trial court entered a minute order denying Faunce's request for a preliminary injunction on October 27, 2011. Faunce untimely appealed from the order on May 23, 2012. Accordingly, we must dismiss the appeal from the order denying the preliminary injunction.

II. Demurrer A. Standard of Review We review an order sustaining a demurrer without leave to amend de novo (Blank v. Kirwan (1985) 39 Cal.3d 311, 318), assuming the truth of all properly pleaded facts as well as facts inferred from the pleadings, and give the complaint a reasonable interpretation by reading it as a whole and its parts in context. (Palacin v. Allstate Ins.

Co. (2004) 119 Cal.App.4th 855, 861.) However, we give no credit to allegations that merely set forth contentions or legal conclusions. (Financial Corp. of America v. Wilburn (1987) 189 Cal.App.3d 764, 768-769.)

4 B. Privacy Causes of Action Here, Faunce alleged a violation of section 636 and the privacy provisions of the California Constitution. Specifically, Faunce alleged that he had a reasonable expectation of privacy while seeing a licensed physician in a treatment room and on numerous occasions, a prison physician feigning concern for his safety, allowed a correctional officer to be present in the treatment room over Faunce's objections. The trial court sustained the demurrer to these claims on the ground Faunce did not have a reasonable expectation of privacy. We agree.

Section 636 makes it unlawful for a person, "without permission from all parties to the conversation," to nonelectronically eavesdrop upon "a conversation, or any portion thereof, that occurs between a person who is in the physical custody of a law enforcement officer or other public officer and that person's attorney, religious adviser, or licensed physician." (§ 636, subd. (b).) Although Faunce argues that his right to patient-physician privacy is "absolute," the protection of section 636 is limited to eavesdropping on conversations occurring where there is a "reasonable expectation of privacy, including a custody holding area, holding area, or anteroom." (Ibid.) Similarly, the right to privacy under the California Constitution (art. I, § 1) protects an individual's reasonable expectation of privacy against a serious invasion. (Pioneer Electronics (USA), Inc. v. Superior Court (2007) 40 Cal.4th 360, 370.)

5 Thus, to allege an actionable violation of his right to privacy under either section 636 or the California Constitution, Faunce must show he had a reasonable expectation of privacy when he met with prison medical staff. "Whether plaintiff has a reasonable expectation of privacy in the circumstances and whether defendant's conduct constitutes a serious invasion of privacy are mixed questions of law and fact. If the undisputed material facts show no reasonable expectation of privacy or an insubstantial impact on privacy interests, the question of invasion may be adjudicated as a matter of law." (Hill v. National Collegiate Athletic Assn. (1994) 7 Cal.4th 1, 40.)

Faunce alleged he had knowledge of a prison policy, dating back to 2007, that limited an inmate's right to confidentially in furtherance of the safety and security of the institution. Faunce acknowledges that defendants' policies or procedures were based on safety concerns, although he characterized the safety concerns as "feigned." He admitted that defendants acted based on their policies or procedures as he specifically sought an injunction preventing defendants and their successors from enforcing any policy or practice that violated a prisoner's rights under section 636. Faunce's pleading shows that whatever expectation of privacy he had in this setting was not reasonable as defendants' actions were based on prison policy to further the safety and security of the institution.

Moreover, we take judicial notice of Faunce's abstract of judgment showing he was convicted of first degree murder and is serving a life sentence without the possibility of parole.

6 While the propriety of the prison policy tempering an inmate's right to privacy with the security of the institution is not before us, we note that in cases such as this involving prison security measures, section 2600 provides: "A person sentenced to imprisonment in a state prison . . . may during that period of confinement be deprived of such rights, and only such rights, as is reasonably related to legitimate penological interests." Additionally, the California Code of Regulations provides that "[c]onsistent effort will be made to insure the security of the institution and the effectiveness of the treatment programs within the framework of security and safety." (Cal. Code Regs., tit.

15, § 3270.)

C. Remaining Causes of Action Faunce also alleged a claim for intentional infliction of emotional distress. To state a cause of action for intentional infliction of emotional distress, a plaintiff must allege the following elements: " ' "(1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress; (2) the plaintiff's suffering severe or extreme emotional distress; and (3) actual and proximate causation of the emotional distress by the defendant's outrageous conduct." ' " (Christensen v. Superior Court (1991) 54 Cal.3d 868, 903.) For conduct to be outrageous, it " 'must be so extreme as to exceed all bounds of that usually tolerated by a civilized community.' " (Ibid., quoting Davidson v. City of Westminster (1982) 32 Cal.3d 197, 209.) Whether behavior is extreme and outrageous is a legal determination to be made by the court, in the first instance. (Fowler v. Varian Associates, Inc. (1987) 196 Cal.App.3d 34, 44.)

7 Here, Faunce's intentional infliction of emotional distress claim is premised on defendants' practice of acting based on institutional policies and procedures. In essence, he claims that defendants' practice of acting based on institutional policies and procedures amounted to outrageous conduct. However, we agree with the trial court's implied conclusion that a policy requiring a convicted murderer be examined by a prison physician, that has expressed safety concerns, in the presence of a correctional officer does not amount to outrageous conduct. Accordingly, Faunce has not stated a valid claim for intentional infliction of emotional distress.

Faunce alleged that defendants' actions of enforcing institutional policies and practices amounted to a conspiracy to violate section 636. Faunce also sought declaratory and injunctive relief to prevent defendants and their successors from enforcing any policy or practice that violated a prisoner's rights under section 636.

Conspiracy, however, is not an independent cause of action. (Okun v. Superior Court (1981) 29 Cal.3d 442, 454.) When a plaintiff otherwise states a cognizable cause of action for a civil wrong, he or she may allege conspiracy as a basis of liability as to more than one defendant. (Ibid.) Additionally, injunctive and declaratory relief are equitable remedies, not causes of action. (Wong v. Tai Jing (2010) 189 Cal.App.4th 1354, 1361, fn. 2.) Thus, the trial court properly sustained the demurrer as to these claims because they were "wholly derivative of" other nonviable causes of action. (Ochs v. PacifiCare of California (2004) 115 Cal.App.4th 782, 794.)

8 Finally, Faunce alleged a claim for retaliation for the first time in his second amended complaint. Faunce did not obtain leave of the trial court to add this new cause of action and the trial court correctly sustained the demurrer to this claim without leave to amend. (Harris v. Wachovia Mortg., FSB (2010) 185 Cal.App.4th 1018, 1023.)

DISPOSITION

The appeal is dismissed as to the order denying the preliminary injunction. The judgment dismissing the action is affirmed. Defendants are entitled to their costs on appeal.

MCINTYRE, J.

WE CONCUR:

MCCONNELL, P. J.

NARES, J.

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