Washington v. Dept. of Corrections and Rehabilitation CA5

Filed 3/4/21 Washington v. Dept. of Corrections and Rehabilitation CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FIFTH APPELLATE DISTRICT

STEPHEN WASHINGTON, F079957 Plaintiff and Appellant, (Super. Ct. No. MCV078367) v.

CALIFORNIA DEPARTMENT OF OPINION CORRECTIONS AND REHABILITATION et al.,

Defendants and Respondents.

THE COURT* APPEAL from an order of the Superior Court of Madera County. James E. Oakley, Judge. Stephen Washington, in pro. per., for Plaintiff and Appellant. Xavier Becerra, Attorney General, Monica N. Anderson, Assistant Attorney General, Neah Huynh and Arthur B. Mark III, Deputy Attorneys General, for Defendants and Respondents. No appearance for Defendant and Respondent Jeff Brandon. -ooOoo-

* Before Franson, Acting P.J., Peña, J. and Snauffer, J.

Plaintiff Stephen D. Washington, a self-represented inmate, brought this lawsuit against the California Department of Corrections and Rehabilitation (CDCR) and its officials, alleging state and federal causes of action related to sexual harassment. The CDCR and individual defendants represented by the Attorney General’s Office filed a demurrer, arguing they were immune from liability, the state law claims were barred because plaintiffs did not comply with the claim presentation requirements in the Government Claims Act (Gov. Code, § 810 et seq.),1 and the verbal harassment alleged did not state a cognizable federal civil rights cause of action. The trial court filed a written order sustaining the demurrer and the action proceeded in the superior court against one individual defendant who was represented by separate counsel. No judgment has been filed. Plaintiff filed an appeal from the order sustaining the demurrer. “Orders sustaining demurrers are not appealable.” (Hill v. City of Long Beach (1995) 33 Cal.App.4th 1684, 1695.) Generally, “a reviewing court is ‘without jurisdiction to consider an appeal from a nonappealable order, and has the duty to dismiss such an appeal upon its own motion.’ ” (In re Mario C. (2004) 124 Cal.App.4th 1303, 1307.) We conclude this general principle should be applied here because a final judgment has yet to be entered, the action is proceeding against a remaining defendant, and the appellate briefing has not addressed all issues. (See Gov. Code, § 68081 [supplemental briefing of omitted issues]; Code Civ. Proc., § 472c [leave to amend as an issue on appeal].) We therefore dismiss the appeal. BACKGROUND Plaintiff’s complaint was filed by the Madera County Superior Court in July 2018. In February 2019, plaintiff filed his first amended complaint, which is the operative pleading for purposes of this appeal. Plaintiff labeled his causes of action (1) violation of