Harrington-Wisely v. State

• Decision Date: 20 November 2007
• Docket Number: No. B190431.,B190431.
• Citation: 68 Cal.Rptr.3d 209,156 Cal.App.4th 1488
• Court: California Court of Appeals Court of Appeals
• Parties: Gail Marie HARRINGTON-WISELY et al., Plaintiffs and Appellants, v. The STATE of California et al., Defendants and Respondents.

68 Cal.Rptr.3d 209

156 Cal.App.4th 1488

Gail Marie HARRINGTON-WISELY et al., Plaintiffs and Appellants, v. The STATE of California et al., Defendants and Respondents.

No. B190431.

Court of Appeal, Second District, Division 7.

November 20, 2007.

Litt, Estuar, Harrison & Kitson, LLP, Barrett S. Litt and Paul J. Estuar, Los Angeles, for Plaintiffs and Appellants.

Edmund G. Brown, Jr., Attorney General, David S. Chaney and Frances T. Grunder, Senior Assistant Attorneys General, Michelle Des Jardins and Rene L. Lucaric, Supervising Deputy Attorneys General, for Defendants and Respondents.

PERLUSS, P.J.

Gail Marie Harrington-Wisely and several additional plaintiffs (collectively Wisely) appeal from the stipulated judgment entered after the trial court granted summary adjudication on 10 causes of action in favor of the State of California, the California Department of Corrections (CDC), the California State Prison at Lancaster and several prison officials (collectively government defendants) in this action arising out of the search of visitors to 11 California prisons. We dismiss Wisely's appeal because the stipulated judgment is not an appealable judgment or order.

FACTUAL AND PROCEDURAL BACKGROUND

1. California State Prisons' X-ray and Search of Visitors

From 1999 through March 2001 eleven institutions operated by the CDC required all visitors to pass through a backscatter X-ray machine, the Secure 1000, as a means of detecting concealed weapons and contraband, such as money and narcotics. The Secure 1000 discharged low-level backscatter X-rays that penetrated a few centimeters into a person's skin, producing a spectral-like computer image of the body, including an outline of breasts, genitalia and folds of skin. If an image showed a gray or darkened area that could not be conclusively identified, visitors were required to undergo an unclothed visual inspection. Darkened areas were found to include feminine hygiene products, breast implants, brassiere underwire and diapers. Visitors who did not agree to be screened with the Secure 1000 were denied access to the prison and told they may be subject to an unclothed visual inspection on future visits.

2. The Initial Complaint; Suspension of Use of the Secure 1000

On March 30, 2000 Wisely filed a class-action complaint alleging violations of state and federal constitutional rights and several tort claims relating to the use of the Secure 1000. On March 23, 2001, after Wisely had moved for a preliminary injunction, the CDC directed the institutions to discontinue use of the Secure 1000 until further notice. The CDC agreed it would provide 90 days' notice before resuming use of the Secure 1000 to give Wisely time to renew her motion for a preliminary injunction.

3. The Fifth and Sixth Amended Complaints and Motions to Strike

On June 6, 2003 Wisely filed a fifth amended complaint seeking damages and injunctive relief, which included claims under title 42 United States Code section 1983 for violation of visitors' federal constitutional rights; a claim for violation of the right to privacy protected by the California Constitution article I, section 1; a claim under Civil Code section 52.1¹ for damages including treble damages made available pursuant to Civil Code section 52;² claims for violation of a mandatory duty under Government Code section 815.6;³ and claims for negligence and negligent supervision.⁴ Wisely alleged, among other things, the State violated prison visitors' constitutional rights by X-raying them as a condition of entry into the prison without reasonable suspicion the visitors had contraband or posed a threat to prison security.⁵

On October 24, 2003 the trial court granted the government defendants' motion to strike references to damages under Civil Code section 52, subdivision (a), holding a state prison is not a business establishment a prerequisite to recovering damages under the statutory scheme.

On November 18, 2003 Wisely filed a further amended complaint, removing reference to treble damages under Civil Code section 52, subdivision (a), but seeking civil penalties and exemplary damages under Civil Code section 52, subdivision (b). On February 4, 2004 the court granted the government defendants' motion to strike all claims for damages (including civil penalties characterized as damages) under Civil Code section 52, subdivision (b).

4. The Motions for Summary Adjudication; the Court's Ruling on Its Sua Sponte Motion for Reconsideration

Following additional motion and pleading practice by the parties, on July 1, 2005 the court granted the government defendants' motion for summary adjudication on the first 10 causes of action in the then-operative complaint, holding Wisely was not entitled to damages because all government defendants enjoyed qualified immunity and Wisely had failed to meet various statutory prerequisites for the recovery of damages. The court, however, denied summary adjudication of the final cause of action asserted against the government defendants, styled as a taxpayer's suit seeking declaratory and injunctive relief.

On September 22, 2005, in a ruling on the trial court's sua sponte motion for reconsideration, the court clarified that its summary adjudication ruling barred Wisely from proceeding on her class claims only to the extent they sought damages. All claims seeking injunctive and declaratory relief remained in the action.

5. The Stipulation and Order Regarding Entry of Judgment and Right to Appeal

On March 7, 2006, on the eve of trial on Wisely's claims for injunctive relief, the parties filed an executed stipulation and request for an order entering final judgment, which was "intended to allow for the immediate entry of final judgment." The Stipulation and Order Re: Entry of Final Judgment and Right to Appeal (Stipulation and Order) clearly states judgment will be entered in favor of the government defendants on all damages claims: "Upon full execution of this Order, judgment will be entered in favor of the Government Defendants based on the court's grant of summary adjudication on all causes of actions and claims for damages." No similar language appears with respect to Wisely's causes of action and claims for equitable relief regarding current use of the Secure 1000, which are neither the subject of a court-ordered injunction nor dismissed, as moot or otherwise. Instead the Stipulation and Order refers only to the parties' agreement and the CDC's intentions.

With respect to the Secure 1000, the parties agreed the CDC would dispose of all but one of the Secure 1000 machines; the remaining Secure 1000 machine would be retained solely for use as an exhibit in the event the damages claims were ultimately tried. The parties also agreed, if the CDC decided to use backscatter X-ray technology within seven years after entry of final judgment, the court would hold a hearing to "decide if, or under what standards or protocols, the [CDC] may again use backscatter or similar technology on visitors." Sixteen potential issues to be decided by the court were enumerated, and the Stipulation and Order provides the court "shall retain jurisdiction to enforce the terms of the agreement ...." (Emphasis added.)

The Stipulation and Order further provides, "This is the complete agreement of the Parties. This Order shall constitute the final judgment in this case and shall be entered forthwith. It is only appealable as stipulated." The court signed the stipulation and order on March 7, 2006 under the sentence, "IT IS SO ORDERED AND JUDGMENT IS ENTERED."

DISCUSSION

The existence of an appealable judgment or order is a jurisdictional prerequisite to an appeal. (Jennings v. Marralle (1994) 8 Cal.4th 121, 126, 32 Cal. Rptr.2d 275, 876 P.2d 1074; Griset v. Fair Political Practices Com. (2001) 25 Cal.4th 688, 696, 107 Cal.Rptr.2d 149, 23 P.3d 43.) A reviewing court must raise the issue on its own initiative whenever a doubt exists as to whether the trial court has entered a final judgment or other order or judgment made appealable by Code of Civil Procedure section 904.1. (Jennings, at p. 126, 32 Cal.Rptr.2d 275, 876 P.2d 1074.) Accordingly, although the parties plainly anticipated Wisely would immediately appeal from the "final judgment" to the extent it was based on the trial court's adverse rulings disposing of all causes of action and claims for damages⁶ and no question of our jurisdiction was presented in the briefs submitted on the damages issues, we must determine at the threshold whether we are authorized to decide Wisely's appeal.⁷

Two interrelated defects preclude us from exercising jurisdiction in this matter. Normally, a final judgment is appealable. (Code Civ. Proc, § 904.1, subd. (a)(1).) In this case, however, although providing for entry of a "final judgment," the Stipulation and Order does not formally resolve on the merits any of Wisely's claims for injunctive and declaratory relief—that is, the portions of the first through tenth causes of action that requested equitable relief, in addition to damages, or the fifteenth cause of action, which sought only declaratory and injunctive relief. (See Code Civ. Proc, § 577 ["judgment is the final determination of the rights of the parties in an action or proceeding"]; Sullivan v. Delta Air Lines, Inc. (1997) 15 Cal.4th 288, 304, 63 Cal.Rptr.2d 74, 935 P.2d 781 ["`judgment is final "when it terminates the litigation between the parties on the merits ..."'"].)⁸ As discussed, the Stipulation and Order recites the parties' agreement concerning the CDC's disposal of all but one of the Secure 1000 machines and the procedure for maintaining but not operating the remaining device. Unlike the provision of the Stipulation and Order regarding Wisely's damages claims, which expressly states judgment will be entered in favor of the government defendants as to those claims, this separate portion of the Stipulation and Order regarding claims for injunctive relief as to...