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Filed 12/16/13 Shell v. Jones CA3

NOT TO BE PUBLISHED

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication 

or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Sacramento)

----

EDWARD VICTOR SHELL,

Plaintiff and Appellant,

v.

DIANE JONES et al.,

Defendants and Respondents.

C071558

(Super. Ct. No. 

34200900037121CUPOGDS)

In this action against four prison employees for declaratory relief, plaintiff and 

prison inmate Edward Victor Shell sought a declaration that defendants acted negligently 

and violated his due process and equal protection rights in failing to apply certain

“mandated enhancements” to his sentence when asked. The trial court sustained without 

leave to amend the demurrer of two defendants to plaintiff’s complaint, and entered 

judgment in their favor. 

In this pro se appeal from the judgment, plaintiff contends the trial court erred in 

sustaining the demurrer, and abused its discretion in failing to review the request for 

judicial notice plaintiff filed in opposition to defendants’ demurrer. 
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We conclude the trial court did not err or abuse its discretion in sustaining the 

demurrer without leave to amend and denying plaintiff’s request for judicial notice. 

Accordingly, we affirm the judgment. 

STANDARD OF REVIEW

Because this is an appeal following a successful demurrer, we accept as true all 

facts properly pled in plaintiff’s complaint, and also incorporate any facts of which we 

may take judicial notice. (Gu v. BMW of North America, LLC (2005) 132 Cal.App.4th 

195, 200.)

BACKGROUND

Allegations of the Complaint

Plaintiff is a prison inmate. Defendants are Diane Jones, a correctional case 

records manager; P.D. Palmer, a prison warden; N. Grannis, the “Chief [of] Inmate 

Appeals,” and B. Sullivan, a “staff services Manager I.” 

In 1997, plaintiff was charged in San Diego Superior Court case No. SCD126559 

with committing four counts of robbery and one count of attempted robbery in January of 

that year; the amended information also alleged plaintiff suffered seven prior serious and 

violent felony convictions in October 1991, in San Diego Superior Court case 

No. CR124969.1 The abstract of judgment in case No. SCD126559 shows plaintiff was 

convicted by a jury of three counts of robbery, and one count of attempted robbery; it 

also was found true that plaintiff had served one prior prison sentence, within the 

meaning of Penal Code section 667, subdivision (a). Plaintiff was sentenced as a thirdstrike offender in case No. SCD126559 to serve a term of 80 years to life, comprised of 

 

1 On the court’s own motion, we take judicial notice of the abstracts of judgment in 

San Diego Superior Court case Nos. SCD126559 and CR124969. (Evid. Code, §§ 452, 

subd. (d), 459.) 
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three 25-to-life terms, plus one five-year enhancement for having served a prior 

prison term. 

In or about 2008, while in prison, plaintiff viewed a segment of the television 

show CBS Nightly News concerning Sara Jane Olson, who was released from state 

prison and was later returned to prison when it was determined her term of imprisonment 

had not been properly calculated. Plaintiff became concerned his sentence might be in 

error because “there were six (6) five-year enhancements totaling thirty (30) years 

missing from his sentence, because the court had sentence[d] defendant to seven (7) prior 

felony convictions, allegedly ‘brought and tried separately.’ ” Plaintiff alleged that, if 

and when it is time for him to be released from prison, “he has been placed in a position 

leading to a real potential of having thirty-(30)-years added to his sentence”; and he 

“didn’t want to be involved in the bureaucracy later should changes be made.” 

Plaintiff met with defendant Jones, a correctional case records manager, to explain 

his concerns and his belief that his sentence had been “miscalculat[ed]” and was therefore 

“unauthorized,” but Jones refused to correct his sentence. Plaintiff’s appeal from Jones’s

decision was reviewed and denied by defendant Palmer. Defendant Grannis reviewed 

plaintiff’s appeal at the next level and returned it to defendant as incomplete. Finally, 

plaintiff’s appeal was heard and denied by defendant Sullivan, whose decision states: 

“Until records staff receive amended documents from the courts, [plaintiff’s release] date 

is calculated according to the current court documents. The [plaintiff] has not provided 

compelling argument to warrant modification of the decision reached by the institution.” 

Plaintiff filed the instant action for declaratory relief. He alleged that, in failing to 

comply with the applicable regulations (Cal. Code Regs., tit. 15, § 3075.1(b), (e)) and 

Department of Corrections and Rehabilitation Operational Manual (operational manual), 

sections 33030.3.1 and 71010.4 requiring them to address and correct his unauthorized 

sentence, defendants acted negligently and denied him due process and equal protection 
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of the law. Plaintiff sought a declaration that defendants had acted negligently and 

violated his rights to due process and equal protection. Defendant also sought orders 

directing defendants, consistent with their obligations under the applicable regulations 

and operational manual sections, to “apply the mandated enhancements under the 

required legal standard,” and to correct the abstract of judgment “to conform to 

[plaintiff’s] indictment and conviction.” Finally, plaintiff sought an injunction against 

defendants to refrain from harassing or retaliating against him, or disrupting his normal 

routine, job assignment, and current institutional placement. 

Demurrer by Defendants Jones and Palmer

The Attorney General demurred to the complaint on behalf of two of the four 

defendants: Jones and Palmer. The demurrer asserted plaintiff failed to state a cause of 

action because his allegations are speculative, in that the complaint “anticipat[es] a highly 

unlikely, hypothetical, future injury,” and plaintiff has shown no error in his sentencing. 

Moreover, demurring defendants asserted plaintiff’s sole remedy to correct an 

unauthorized sentence is to file a writ of habeas corpus in the sentencing court. 

Plaintiff opposed the demurrer. He asserted his 1991 priors were not “legally 

charged,” because his 1991 plea agreement was violated and he must now either “be 

sentenced on the priors or have his sentence stricken.” Plaintiff also argued (among other 

things) that defendants have no discretion not to act in response to his request under 

provisions of the operational manual, but must correct a sentencing error once it has been 

brought to their attention. 

The trial court agreed with the demurring defendants that plaintiff should seek the 

relief he requests -- i.e., to “apply the mandated enhancements” and to correct the abstract 

of judgment “to conform to his indictment and conviction” -- by filing a habeas corpus 

proceeding in the sentencing court. The court sustained the demurrer of defendants Jones 

and Palmer without leave to amend, on the ground the complaint fails to state facts 
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sufficient to state a cause of action (Code Civ. Proc., § 430.10, subd. (e)). Thereafter, the 

court entered a judgment in favor of the demurring defendants. 

DISCUSSION

I

Applicable Rules Governing this Appeal

Plaintiff claims the trial court erred in sustaining defendants’ demurrer to the 

declaratory relief complaint. He asserts he has a right -- based on the constitution, 

statutes, regulations, and operational manual provisions -- to “have the defendants move 

the lower court to correct his abstract of judgment” to reflect the actual fact of his prior 

conviction. 

On appeal from a judgment dismissing an action after sustaining a demurrer 

without leave to amend, the standard of review is well settled. This court gives the 

complaint a reasonable interpretation, and treats the demurrer as admitting all material 

facts properly pleaded. We do not, however, assume the truth of contentions, deductions 

or conclusions of law; rather, the judgment must be affirmed “if any one of the several 

grounds of demurrer is well taken. [Citations.]” (Bagatti v. Department of Rehabilitation

(2002) 97 Cal.App.4th 344, 352; see also Lee v. Blue Shield of California (2007) 

154 Cal.App.4th 1369, 1377-1378.) 

When, as here, a trial court sustains a demurrer without leave to amend, our task 

on review is to “decide whether there is a reasonable possibility the plaintiff could cure 

the defect with an amendment. [Citation.] If we find that an amendment could cure the 

defect, we conclude that the trial court abused its discretion and we reverse; if not, no 

abuse of discretion has occurred. [Citation.] The plaintiff has the burden of proving that 

an amendment would cure the defect.” (Schifando v. City of Los Angeles (2003) 

31 Cal.4th 1074, 1081; Richelle L. v. Roman Catholic Archbishop (2003) 

106 Cal.App.4th 257, 266.)
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II

The Demurrer Was Properly Sustained

The existence of an “ ‘actual controversy relating to the legal rights and duties of 

the respective parties,’ suffices to maintain an action for declaratory relief. (Code Civ. 

Proc., § 1060.)” (Ludgate Ins. Co. v. Lockheed Martin Corp. (2000) 82 Cal.App.4th 592, 

605.) Code of Civil Procedure section 1060 is clear: “Any person . . . who desires a 

declaration of his or her rights or duties with respect to another . . . may, in cases of 

actual controversy relating to the legal rights and duties of the respective parties, bring an 

original action or cross-complaint in the superior court . . . . He or she may ask for a 

declaration of rights or duties, either alone or with other relief; and the court may make a 

binding declaration of these rights or duties, whether or not further relief is or could be 

claimed at the time.” Thus, a complaint for declaratory relief is legally sufficient if it sets 

forth facts showing the existence of an actual controversy relating to the legal rights and 

duties of the parties and requests that the rights and duties of the parties be adjudged by 

the court. If these requirements are met and no basis for declining declaratory relief 

appears, the court should declare the rights of the parties whether or not the facts alleged 

establish the plaintiff is entitled to favorable declaration. (Ludgate Ins. Co. v. Lockheed 

Martin Corp., supra, 82 Cal.App.4th 592, 606, citing Wellenkamp v. Bank of America

(1978) 21 Cal.3d 943, 947.) 

The requirement that an actual controversy be alleged has been satisfied by the 

complaint. Plaintiff alleges defendants had discretion and responsibility under the 

applicable regulations and operational manual provisions to analyze the accuracy of his 

sentence and to correct any errors in that sentence, and their failure to do so constituted 

negligence and the denial of his constitutional rights to due process and equal protection 

of the law. In support of their demurrer, defendants did not dispute the applicability of 

these regulations and operational manual provisions. They argued plaintiff’s sentence 
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appears correct, his allegation that an error in his sentence might be discovered at the 

time of parole is speculative because he will be 110 years old before he is eligible for 

parole, and his sole remedy is to bring a writ of habeas corpus in the sentencing court. 

However, Code of Civil Procedure section 1061 “provides an exception to the 

broad language in Code of Civil Procedure section 1060 as follows[:] ‘the court may 

refuse to exercise the power granted by this chapter in any case where its declaration or 

determination is not necessary or proper at the time under all the circumstances.’ ” 

(C.J.L. Construction, Inc. v. Universal Plumbing (1993) 18 Cal.App.4th 376, 389-390; 

see also Stonehouse Homes LLC v. City of Sierra Madre (2008) 167 Cal.App.4th 531, 

539.) “This section [Code of Civil Procedure section 1061] vests a high degree of 

discretion in the trial court. Its determination to refuse to grant declaratory relief will not 

be disturbed on appeal unless a clear abuse of discretion is shown. The discretionary 

power of the trial court to deny declaratory relief may be invoked by general demurrer.” 

(Farmers Ins. Exchange v. Adams (1985) 170 Cal.App.3d 712, 723, overruled on other 

grounds in Garvey v. State Farm Fire & Casualty Co. (1989) 48 Cal.3d 395, 399, fn. 1; 

see also Otay Land Co. v. Royal Indemnity Co. (2008) 169 Cal.App.4th 556, 562-563; 

Turlock Irrigation Dist. v. Zanker (2006) 140 Cal.App.4th 1047, 1064; Application 

Group, Inc. v. Hunter Group, Inc. (1998) 61 Cal.App.4th 881, 892-893.) 

We cannot conclude the trial court abused its discretion in finding the declaratory 

relief action improper and sustaining the demurrer. Trial courts enjoy broad discretion in 

declaratory relief actions, and “ ‘the court’s decision to grant or deny relief will not be 

disturbed on appeal unless it be clearly shown . . . that the discretion was abused.’ 

[Citation.]” (Pellegrini v. Weiss (2008) 165 Cal.App.4th 515, 529.) The trial court here 

apparently concluded it was not necessary or proper (see C.J.L. Construction, Inc. v. 

Universal Plumbing, supra, 18 Cal.App.4th at pp. 389-390) to determine in this 

declaratory relief action whether defendants were obliged under the cited regulations and 
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operational manual provisions to analyze the accuracy of plaintiff’s sentence and to 

correct any errors because plaintiff could seek relief through a habeas corpus proceeding 

in the sentencing court. In evaluating that decision on appeal, we do not ask whether the 

trial court could have ruled differently or “ ‘whether we would have made a different 

decision had the matter been submitted to us in the first instance. Rather, the discretion is 

that of the trial court, and we will only interfere with its ruling if we find that under all 

the evidence, viewed most favorably in support of the trial court’s action, no judge 

reasonably could have reached the challenged result.’ [Citation.]” (Estate of Hammer

(1993) 19 Cal.App.4th 1621, 1634; see also Haraguchi v. Superior Court (2008) 

43 Cal.4th 706, 717.) Accordingly, we reverse the trial court’s ruling for abuse of 

discretion only where there is no reasonable basis for its action. (City National Bank v. 

Adams (2002) 96 Cal.App.4th 315, 323.) 

We discern justifiable reasons for the trial court’s ruling that declaratory relief is 

not necessary and proper under the circumstances. It is correct plaintiff can seek relief 

from an unauthorized sentence or a nonconforming verdict by way of writ of habeas 

corpus in the sentencing court (see In re Birdwell (1996) 50 Cal.App.4th 926, 930; also 

see In re Clark (1993) 5 Cal. 4th 750, 765). Moreover, plaintiff’s argument that his 

sentence is in error appears to turn on the propriety of two San Diego Superior Court 

cases (San Diego Superior Court case Nos. CR124969 and SCD126559), inasmuch as he 

argues his enhancements in the latter case are in error, possibly in part as a result of the 

plea agreement entered in the former.2 The trial court that sentenced plaintiff in both San 

 

2 While this appeal was pending, plaintiff filed a “Notice of Motion for Judicial 

Review in Support of Civil Complaint,” citing the Evidence Code statutes pertaining to 

compulsory judicial notice and the information a court may consider in determining 

whether it can take judicial notice. We decline plaintiff’s request that we take judicial 

notice of the matters identified in his motion, which he contends show “he do[es] not 

have seven strikes,” he was sentenced in case No. CR124967 for strikes “belonging to 
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Diego Superior Court cases is the best place to resolve the question of whether plaintiff’s 

sentence is in error. Finally, plaintiff indicates in his reply brief that he needs a corrected 

abstract of judgment to apply for resentencing and a reduction in sentence, presumably 

pursuant to the Three Strikes Reform Act of 2012 (Prop. 36, §§ 2, 4, & 6 (Gen. Elec.,

Nov. 6, 2012) eff. Nov. 7, 2012). That, too, is a petition that must be filed in the 

sentencing court in the first instance. (See People v. Yearwood (2013) 213 Cal.App.4th 

161, 170-171.) 

We also reject plaintiff’s contention the trial court abused its discretion in failing 

to review his request while the demurrer was pending for judicial notice of certain 

documents filed in case No. CR126559. The court did not fail to review his request; it 

denied the request as containing material that was not needed to rule on defendants’ 

demurrer. Moreover, that denial was within the trial court’s discretion. Evidence Code 

section 453 states the court shall take judicial notice of matters properly presented, but it 

does not compel the court to admit matters it deems irrelevant or would result in the 

undue consumption of time. (See Mitroff v. United Services Automobile Assn (1999) 

72 Cal.App.4th 1230, 1243.) 

In sum, the trial court did not err or abuse its discretion in sustaining the demurrer 

without leave to amend and denying plaintiff’s request for judicial notice. 

 

an[other] individual,” and that justify an order by this court to defendants “to admit that 

[plaintiff] was wrongfully convicted for five felonies” in case No. CR124967. “Taking 

judicial notice of a document is not the same as accepting the truth of its contents or 

accepting a particular interpretation of its meaning.” (Joslin v. H.A.S. Ins. Brokerage

(1986) 184 Cal.App.3d 369, 374.) Even when courts take judicial notice of public 

records, they are not assuming the truth of matters stated therein. (StorMedia Inc. v. 

Superior Court (1999) 20 Cal.4th 449, 457, fn. 9; Love v. Wolf (1964) 226 Cal.App.2d 

378, 403.)
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DISPOSITION

The judgment in favor of the demurring defendants is affirmed. The demurring 

defendants are awarded their costs on appeal. (Cal. Rules of Court, rule 8.278(a)(1)

& (2).)

 HOCH , J.

We concur:

 HULL , Acting P. J.

 BUTZ , J.