This case was last updated from Los Angeles County Superior Courts on 11/05/2020 at 01:55:23 (UTC).

RONALD PATTERSON VS SCOTT KERNAN

Case Summary

On 04/09/2018 RONALD PATTERSON filed an Other - Writ Of Mandamus lawsuit against SCOTT KERNAN. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judge overseeing this case is MARY H. STROBEL. The case status is Disposed - Dismissed.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****2993

  • Filing Date:

    04/09/2018

  • Case Status:

    Disposed - Dismissed

  • Case Type:

    Other - Writ Of Mandamus

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Stanley Mosk Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judge

MARY H. STROBEL

 

Party Details

Plaintiff and Petitioner

PATTERSON RONALD

Defendants and Respondents

KERNAN SCOTT

CDCR-DIRECTOR

Attorney/Law Firm Details

Respondent Attorneys

BAILEY JENNIFER ORA

CANO JENNIFER ORA

 

Court Documents

Request for Judicial Notice - REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF OPPOSITION BRIEF TO AMENDED PETITION FOR WRIT OF MANDATE

9/24/2020: Request for Judicial Notice - REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF OPPOSITION BRIEF TO AMENDED PETITION FOR WRIT OF MANDATE

Minute Order - MINUTE ORDER (HEARING ON PETITION FOR WRIT OF MANDATE)

11/3/2020: Minute Order - MINUTE ORDER (HEARING ON PETITION FOR WRIT OF MANDATE)

Certificate of Mailing for - CERTIFICATE OF MAILING FOR (COURT ORDER) OF 05/12/2020

5/12/2020: Certificate of Mailing for - CERTIFICATE OF MAILING FOR (COURT ORDER) OF 05/12/2020

Amended Complaint - Amended Amended Complaint (Amended)

5/22/2019: Amended Complaint - Amended Amended Complaint (Amended)

Answer

12/17/2019: Answer

Notice of Ruling

10/8/2019: Notice of Ruling

Notice - NOTICE OF HEARING AND TRIAL SETTING CONFERENCE

6/14/2019: Notice - NOTICE OF HEARING AND TRIAL SETTING CONFERENCE

Demurrer - without Motion to Strike

6/14/2019: Demurrer - without Motion to Strike

Notice Re: Continuance of Hearing and Order

3/19/2019: Notice Re: Continuance of Hearing and Order

Notice - NOTICE OF NEW HEARING DATE

3/20/2019: Notice - NOTICE OF NEW HEARING DATE

Minute Order - MINUTE ORDER (ORDER TO SHOW CAUSE RE DISMISSAL FOR PETITIONER'S FAILURE TO ...)

3/14/2019: Minute Order - MINUTE ORDER (ORDER TO SHOW CAUSE RE DISMISSAL FOR PETITIONER'S FAILURE TO ...)

Notice of Ruling

3/15/2019: Notice of Ruling

Notice Re: Continuance of Hearing and Order

1/23/2019: Notice Re: Continuance of Hearing and Order

Certificate of Mailing for - Certificate of Mailing for Minute Order (TRIAL SETTING CONFERENCE) of 01/03/2019

1/3/2019: Certificate of Mailing for - Certificate of Mailing for Minute Order (TRIAL SETTING CONFERENCE) of 01/03/2019

Minute Order -

9/20/2018: Minute Order -

SUMMONS -

4/30/2018: SUMMONS -

ORDER ON COURT FEE WAIVER -

4/9/2018: ORDER ON COURT FEE WAIVER -

PETITION FOR WRIT OF MANDAMUS AND COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

4/9/2018: PETITION FOR WRIT OF MANDAMUS AND COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

24 More Documents Available

 

Docket Entries

  • 11/03/2020
  • Docketat 09:30 AM in Department 82; Hearing on Petition for Writ of Mandate - Held

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  • 11/03/2020
  • DocketMinute Order ( (HEARING ON PETITION FOR WRIT OF MANDATE)); Filed by Clerk

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  • 09/24/2020
  • DocketRequest for Judicial Notice (IN SUPPORT OF OPPOSITION BRIEF TO AMENDED PETITION FOR WRIT OF MANDATE); Filed by CDCR-Director (Respondent)

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  • 09/03/2020
  • Docketat 1:30 PM in Department 82; Hearing on Petition for Writ of Mandate - Not Held - Continued - Court's Motion

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  • 09/01/2020
  • Docketat 1:58 PM in Department 82; Court Order

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  • 09/01/2020
  • DocketMinute Order ( (COURT ORDER)); Filed by Clerk

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  • 09/01/2020
  • DocketCertificate of Mailing for ((COURT ORDER) of 09/01/2020); Filed by Clerk

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  • 06/02/2020
  • Docketat 09:30 AM in Department 82; Hearing on Petition for Writ of Mandate - Not Held - Continued - Court's Motion

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  • 05/27/2020
  • DocketReply (to respondents' response to petition's opening brief for trial nunc pro tunc); Filed by Ronald Patterson (Petitioner)

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  • 05/12/2020
  • Docketat 1:23 PM in Department 82; Court Order

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44 More Docket Entries
  • 04/30/2018
  • DocketSummons; Filed by Ronald Patterson (Petitioner)

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  • 04/30/2018
  • DocketSUMMONS

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  • 04/16/2018
  • DocketNOTICE OF TRIAL SETTING CONFERENCE & ATTACHED ORDERS THEREON

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  • 04/16/2018
  • DocketNotice of Trial Setting Conference and Attached Orders Thereon; Filed by Clerk

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  • 04/09/2018
  • DocketPETITION FOR WRIT OF MANDAMUS AND COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

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  • 04/09/2018
  • DocketORDER ON COURT FEE WAIVER

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  • 04/09/2018
  • DocketOrder on Court Fee Waiver (Superior Court); Filed by Plaintiff

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  • 04/09/2018
  • DocketPetition; Filed by null

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  • 04/09/2018
  • DocketRequest-Waive Court Fees

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  • 04/09/2018
  • DocketRequest to Waive Court Fees

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Tentative Rulings

Case Number: BS172993    Hearing Date: November 03, 2020    Dept: 82

Ronald Patterson,

v.

Kernan Scott,

Judge Mary Strobel

Hearing: November 3, 2020

BS172993

Tentative Decision on Amended Petition for Writ of Mandate: DENIED

Petitioner Ronald Patterson (“Petitioner”) seeks a writ of mandate directing Respondent Secretary of the California Department of Corrections and Rehabilitation (“Respondent,” “CDCR,” or “Department”) to invalidate a regulation promulgated by CDCR to implement Proposition 57, which voters passed in 2016 to amend the California Constitution to provide parole review to nonviolent offenders. (See First Amended Petition (FAP) generally.) In particular, Petitioner challenges section 3491(b)(2) of CDCR’s emergency regulations. (See FAP 1, discussing 15 CCR § 3491(a), (b)(2).) As discussed below, Petitioner may also challenge section 3497(a) of CDCR’s regulations.

Judicial Notice

Respondent’s RJN Exhibits 1 and 2 – Granted. (Evid. Code § 452(c).)

Background

Petitioner was sentenced in 1998 for the crime of possession of a firearm by a felon. (First Amended Petition filed 5/22/19 (FAP) Exh. C at ¶ 26.) Petitioner was “enhanced” 24 years under the Three Strikes Law. (Ibid.) An Abstract of Judgment attached to the original petition states that Petitioner was sentenced to 25 years to life for possession of a firearm by a felon. (See Pet. Exh. C.)

Passed by the voters in November 2016, Proposition 57 amended the California Constitution to provide parole review to nonviolent offenders. The California Constitution, as amended by Proposition 57, provides that “[a]ny person convicted of a nonviolent felony offense and sentenced to state prison shall be eligible for parole consideration after completing the full term for his or her primary offense.” (Cal. Const., art. I, § 32, subd. (a)(1).) The Constitution also provides that “[t]he Department of Corrections and Rehabilitation shall adopt regulations in furtherance of these provisions, and the Secretary of the Department of Corrections and Rehabilitation shall certify that these regulations protect and enhance public safety.” (Id. at subd. (b).) Pursuant to its authority, CDCR promulgated regulations defining the nonviolent parole process for eligible inmates and excluding from eligibility any inmate serving an indeterminate sentence. (Former Cal. Code Regs., tit. 15, § 3491, subd. (b)(1).) However, in In re Edwards (2018) 26 Cal.App.5th 1181, 1191, the Court of Appeal invalidated that regulation, finding that excluding such inmates was “inconsistent with the voters’ intentions.” Thereafter, the Department adopted emergency regulations making indeterminately sentenced nonviolent offenders, like Petitioner, eligible for nonviolent parole consideration. (Cal. Code Regs., tit. 15, § 3495, § 3496, § 3497.)

In the FAP, Petitioner challenges a part of section 3491 of these emergency regulations. (See FAP 1, discussing 15 CCR § 3491(a), (b)(2).) Petitioner alleges that the challenged section provides that an inmate is not eligible for parole consideration under Proposition 57 if, within one year of the date of the eligibility review, the inmate will be eligible for a parole consideration hearing under section 3051, or 3055 of the Penal Code. Petitioner contends that this provision conflicts with Section 32, subdivision (a)(1) and should be invalidated.

The court judicially notices that Petitioner’s parole consideration hearing was held on August 8, 2019, and that Petitioner was denied parole. (RJN Exh. 2.)

Procedural History

On April 9, 2018, Petitioner, in pro per, filed a petition for writ of mandate and complaint for declaratory and injunctive relief against Respondent.

On March 1, 2019, Respondent filed a demurrer to the petition. On May 22, 2019, before a ruling on the demurrer, Petitioner filed a first amended petition and complaint (FAP).

On June 14, 2019, Respondent filed and served a demurrer to the FAP. No opposition was received.

On October 8, 2019, the court overruled the demurrer.[1] The court also set the writ petition for hearing on June 2, 2020, and set a briefing schedule.

On December 17, 2019, Respondent filed an answer.

On April 29, 2020, Respondent filed and served an opposition brief with respect to the FAP.

On May 4, 2020, Petitioner untimely filed an opening brief in support of the FAP. The proof of service purports to show mail service of the brief on a date unclear and on an unspecified person at the Office of the Attorney General. It appears Respondent received the brief, as Respondent addresses the opening brief in its opposition.

On May 12, 2020, as a result of conditions and orders related to the spread of Covid-19, the court continued the hearing on the writ petition to September 3, 2020.

On May 27, 2020, Petitioner filed a “reply to respondents respond to petitioners opening brief for trial Nunc Pro Tunc.” The proof of service did not specify who Petitioner served.

On September 1, 2020, the court noted the deficient proof of service, ordered Petitioner to serve the reply on Respondent, and continued the hearing on the writ petition to November 3, 2020. Petitioner has not lodged further proof of service showing compliance with the court’s order.

On September 24, 2020, Respondent filed and served a request for judicial notice.

Analysis

Standard of Review

The original petition, which is attached to the FAP as Exhibit A, states that Petitioner seeks a writ of mandate pursuant to CCP section 1085. Although not entirely clear from the FAP itself as it contains no prayer, it appears that Petitioner continues to seek ordinary mandate in the FAP. (FAP Exh. A at p. 16.)

“A writ of mandate under section 1085 is available where the petitioner has no plain, speedy and adequate alternative remedy; the respondent has a clear, present and usually ministerial duty to perform; and the petitioner has a clear, present and beneficial right to performance.” (Conlan v. Bonta (2002) 102 Cal.App.4th 745, 751–52.)

As discussed below, Petitioner seeks to invalidate a CDCR regulation. ““In order for a regulation to be valid, it must be (1) consistent with and not in conflict with the enabling statute and (2) reasonably necessary to effectuate the purpose of the statute.” (In re Edwards (2018) 26 Cal.App.5th 1181, 1189.) “‘The task of the reviewing court in such a case is to decide whether the [agency] reasonably interpreted [its] legislative mandate. ... Such a limited scope of review constitutes no judicial interference with the administrative discretion in that aspect of the rulemaking function which requires a high degree of technical skill and expertise. ... [T]here is no agency discretion to promulgate a regulation which is inconsistent with the governing statute. ... Whatever the force of administrative construction ... final responsibility for the interpretation of the law rests with the courts. ... Administrative regulations that alter or amend the statute or enlarge or impair its scope are void ....’ (Ibid.)

“When construing constitutional provisions and statutes, including those enacted through voter initiative, ‘[o]ur primary concern is giving effect to the intended purpose of the provisions at issue. [Citation.] In doing so, we first analyze provisions’ text in their relevant context, which is typically the best and most reliable indicator of purpose. [Citations.] We start by ascribing to words their ordinary meaning, while taking account of related provisions and the structure of the relevant statutory and constitutional scheme. [Citations.] If the provisions’ intended purpose nonetheless remains opaque, we may consider extrinsic sources, such as an initiative’s ballot materials. [Citation.] Moreover, when construing initiatives, we generally presume electors are aware of existing law. [Citation.] Finally, we apply independent judgment when construing constitutional and statutory provisions.’” (In re Edwards (2018) 26 Cal.App.5th 1181, 1189.)

Petitioner’s Facial Challenge to a CDCR Regulation

Petitioner Lacks Standing to Challenge Section 3491(a) and (b)(2)

In the FAP, Petitioner challenges a part of section 3491 of CDCR’s emergency regulations. (See FAP 1, discussing 15 CCR § 3491(a), (b)(2).) In the challenged subdivisions, Section 3491 provides that a “determinately-sentenced nonviolent offender” is not eligible for parole consideration under Proposition 57 if, within one year of the date of the eligibility review, the inmate will be eligible for a parole consideration hearing under section 3051, or 3055 of the Penal Code. (FAP 1-2, citing § 3491(a), (b)(2).)

In the answer, Respondent “denies that petitioner was excluded from the nonviolent parole process pursuant to title 15, section 3491, subdivision (b) as that regulation applies solely to determinately-sentenced nonviolent offenders. Therefore, respondent alleges that petitioner is not a ‘beneficially interested’ party within the meaning of California Code of Civil Procedure section 1086.” (Ans. ¶ 3.) In its opposition brief, Respondent similarly asserts that section 3491 does not apply to Petitioner as he is an indeterminately-sentenced nonviolent offender. (Oppo. 2, fn. 1.) Petitioner does not respond to this point and apparently concedes the same. (See Sehulster Tunnels/Pre-Con v. Traylor Brothers, Inc. (2003) 111 Cal.App.4th 1328, 1345, fn. 16 [failure to address point is “equivalent to a concession”].)

“A writ of mandate under section 1085 is available where the petitioner … has a clear, present and beneficial right to performance.” (Conlan v. Bonta (2002) 102 Cal.App.4th 745, 751–52 [emphasis added].)

To have standing to seek a writ of mandate, a party must be “beneficially interested.” (CCP § 1086.) “A petitioner is beneficially interested if he or she has some special interest to be served or some particular right to be preserved or protected over and above the interest held in common with the public at large.” (Rialto Citizens for Responsible Growth v. City of Rialto (2012) 208 Cal. App. 4th 899, 913.) “This standard … is equivalent to the federal ‘injury in fact’ test, which requires a party to prove by a preponderance of the evidence that it has suffered ‘an invasion of a legally protected interest that is '(a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical.'’” (Associated Builders and Contractors, Inc. v. San Francisco (1999) 21 Cal.4th 352, 361-362.)

Here, Petitioner is an indeterminately-sentenced nonviolent offender. (See Pet. Exh. C [abstract of judgment showing sentence of 25 years to life for possession of a firearm by a felon].) Accordingly, as argued in opposition and alleged in the answer, section 3491(b)(2) does not apply to Petitioner. (Oppo. 2, fn. 1.) Because section 3491(b)(2) does not apply to Petitioner, he does not show a beneficial interest to challenge that regulation, as required under CCP section 1086.

Petitioner’s Challenge to Section 3497(a) and Related Regulations

In its opposition brief, Respondent interprets Petitioner as challenging title 15, section 3497(a) of CDCR’s regulations, which does apply to indeterminately-sentenced nonviolent offenders such as Petitioner. (Oppo. 2-5.)

Section 3497(a) states: “Inmates determined to be eligible for a parole consideration hearing under Section 3496 shall be referred to the Board of Parole Hearings at least 180 calendar days prior to their nonviolent parole eligible date unless they have previously been scheduled for a parole consideration hearing under any other provision of law or will be eligible for a parole consideration hearing under any other provision of law within the next 12 months.”

Section 3495(a) defines “indeterminately-sentenced nonviolent offender” to include inmates such as Petitioner. Section 3495(f) defines “nonviolent parole eligible date” as “the date on which an indeterminately-sentenced nonviolent offender who is eligible for a parole consideration hearing under Section 3496 has served the full term of his or her primary offense.” Section 3496(a) states that “[a]n ‘indeterminately-sentenced nonviolent offender,’ as defined in subsection 3495(a), shall be eligible for a parole consideration hearing by the Board of Parole Hearings under Article 16 of Chapter 3 of Division 2 of this title.”

As alluded to in section 3496(a), the timing for parole consideration hearings is covered in Article 16, including Title 15, section 2449.32. (See generally In re Arroyo (2019) 37 Cal.App.5th 727, 732, fn. 4.)

In his writ briefs and FAP, Petitioner does not specifically cite or analyze section 3497(a) or any of these other CDCR regulations. Construing the FAP to challenge 3497(a) and related CDCR regulations, Petitioner’s arguments are not persuasive. Petitioner “contends that CDCR is denying him early parole consideration by making him go to his regular scheduled board hearing, which is where and when he would go if Prop. 57 did not exist.” (FAP 1.) Relatedly, Petitioner asserts that “CDCR has decided to circumvent early parole consideration for petitioner and other like situated inmates by invoking a title 15 provision that states: If an inmate has been scheduled for a parole hearing in the past, or will be scheduled for a parole hearing in the next year, based on their MERD, YPED, EPED [such scheduling] will control and Petitioner will not be referred to the board under the Indeterminately Sentenced Non-Violent Offender Parole Hearing Process.” (FAP 1.) Petitioner contends that this “screening” and “scheduling” by CDCR conflicts with section 32(a)(1) and should be invalidated. (FAP 2.)

In these arguments, Petitioner challenges the CDCR regulations based on the timing of parole consideration, rather than eligibility. However, Section 32 of the California Constitution does not dictate the timing of an inmate’s parole suitability hearing. Proposition 57 amended the California Constitution to provide that, “[a]ny person convicted of a nonviolent felony offense and sentenced to state prison shall be eligible for parole consideration after completing the full term for his or her primary offense.” (Cal. Const., art. I, § 32, subd. (a)(1), italics added.) This language only makes inmates “eligible” for parole and does not require CDCR to provide eligible inmates with immediate parole consideration. Thus, in In re Arroyo (2019) 37 Cal.App.5th 727, 731, the Court of Appeal reasoned, “nothing in section 32(a)(1) [of the Amendment] dictates the timing of an inmate’s actual parole suitability hearing.” Rather, the Amendment “provides only that [an inmate who qualifies] ‘shall be eligible for parole consideration after completing the full term for his . . . primary offense.’” (Ibid.)

CDCR has broad rulemaking authority to promulgate regulations to “fill up the details” to implement the nonviolent parole program. (PaintCare v. Mortensen (2015) 233 Cal.App.4th 1292, 1307 [holding that where an enabling statute or initiative expressly delegates rulemaking authority to an administrative agency, the agency is authorized to “fill up the details” of the proposed scheme].) Because section 32(a) does not dictate the timing of the inmate’s parole suitability hearing, Petitioner does not show that the scheduling dictated by section 3497(a) exceeds the scope of CDCR’s rulemaking authority under section 32(b).

In his reply brief, Petitioner argues that Proposition 57 “does guide the timing of when a Early Parole Consideration hearing is actually held.” (Reply 7.) However, Petitioner only refers to the statement in section 32(a)(1) that “any person convicted of a nonviolent felony offense and sentenced to state prison shall be eligible for parole consideration after completing the full term for his or her primary offense.” (emphasis added.) This language concerns eligibility for parole consideration, not timing. Petitioner does not show that he, or other similarly situated inmates, were denied eligibility for parole consideration “after completing the full term for his or her primary offense.” Indeed, Petitioner was granted a parole consideration hearing on August 8, 2019, and was denied parole. (RJN Exh. 2.) Petitioner does not show that the parole considerations employed at his August 2019 differ in any respect from those which apply to a Prop 57 parole hearing.

Based on the foregoing, Petitioner does not show a conflict between the CDCR regulations and section 32.

Petitioner’s Request for Early Parole Consideration

As noted, Petitioner asks to “be scheduled for the parole consideration immediately.” (FAP 3.) “A writ of mandate under section 1085 is available where the petitioner has no plain, speedy and adequate alternative remedy.” (Conlan v. Bonta (2002) 102 Cal.App.4th 745, 751–52.) Petitioner appears to have an adequate remedy in habeas corpus regarding the scheduling of his particular parole hearing.

Moreover, Petitioner does not show that Respondent has a clear, present, and ministerial duty to schedule him “immediately” for parole consideration. The court judicially notices that Petitioner’s parole consideration hearing was held on August 8, 2019, and that Petitioner was denied parole. (RJN Exh. 2.) Petitioner fails to show that, under relevant CDCR regulations, Petitioner is presently entitled to “immediate” parole consideration given that he was recently denied parole.

Petitioner’s Requests for Declaratory and Injunctive Relief, and Punitive Damages

In his opening brief, Patterson asks for “punitive damages [and] declaratory and injunctive relief.” (Opening Brief at p. 4.)

Petitioner cannot obtain such relief because he did not request it in the FAP. Although the FAP refers in the caption to a complaint for declaratory and injunctive relief, the body of the FAP does not address such causes of action. The original petition, attached as Exhibit C, included a separate cause of action for declaratory relief and also requested an injunction as a remedy. As the court found for the demurrer decided in October 2019, it does not appear to the court that Petitioner intended, by attaching the petition as Exhibit C, to proceed with those causes of action in the FAP. Petitioner did not seek leave to amend the FAP in response to that ruling. Nor did the FAP request punitive damages.

Moreover, Petitioner’s claims for declaratory and injunctive relief and punitive damages appear to be entirely derivative of the writ claim discussed above. Because Petitioner has not established an underlying claim, these derivative claims fail for the same reasons.

Conclusion

The petition is DENIED.


[1] In its ruling on demurrer, the court interpreted the FAP as challenging “a part of section 3491 of [CDCR’s] emergency regulations” and “section 3491(b).” (10/8/19 Minute Order at 2 and 4.) In overruling the demurrer based on adequate remedy, the court reasoned: “While Petitioner may have an adequate remedy in habeas corpus regarding the scheduling of his particular parole hearing, Respondents ignore the bulk of the FAP which appears to be a facial challenge to the constitutionality of a portion of section for this claim.” (Id. at 4.)

With respect to Petitioner’s claim for declaratory and injunctive relief in the original petition, the court stated: “Although the FAP refers in the caption to a complaint for declaratory and injunctive relief, the body of the FAP does not address such causes of action. The original petition, attached as Exhibit C, included a separate cause of action for declaratory relief and also requested an injunction as a remedy. It does not appear to the court that Petitioner intended, by attaching the petition as Exhibit C, to proceed with those causes of action.” (Id. at 4.)