Filed 4/8/13 Hysell v. Pleasant Valley State Prison 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                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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

DOUGLAS WILLIAM HYSELL,
                                                                                           F064932
         Plaintiff and Appellant,
                                                                           (Super. Ct. No. 11CECG01955)
                   v.

PLEASANT VALLEY STATE PRISON et al.,                                                     OPINION
         Defendants and Respondents.



                                                   THE COURT*
         APPEAL from a judgment of the Superior Court of Fresno County. Debra J.
Kazanjian, Judge.
         Douglas William Hysell, in pro. per., for Plaintiff and Appellant.
         Kamala D. Harris, Attorney General, Jennifer A. Neill, Assistant Attorney
General, Jessica N. Blonien and Amy Daniel, Deputy Attorneys General, for Defendants
and Respondents.
                                                        -ooOoo-



*        Before Gomes, Acting P.J., Poochigian, J. and Peña, J.
       Appellant, Douglas William Hysell, an inmate at Pleasant Valley State Prison
(Pleasant Valley), filed a petition for writ of mandate naming the Pleasant Valley warden
and various Pleasant Valley staff members as respondents. Appellant alleged that
respondents had a mandatory duty to deliver packages from approved vendors within 15
days of their arrival and that he had not been receiving his packages within that time
limit. In support of his position, appellant set forth various examples of his having
received a package late. Appellant further alleged that respondents had improperly
rejected the administrative appeals that he had filed regarding his packages. Appellant
requested the trial court to order respondents to: timely deliver vendor packages; not
retaliate against inmates by withholding packages; and properly file and process appeals.
       Respondents demurred to the petition. Respondents argued that appellant had
failed to exhaust his administrative remedies in that he did not correct and resubmit the
rejected appeals. Respondents further asserted that appellant failed to state a claim for
relief because he had not presented an actual case or controversy for resolution. Rather,
appellant was seeking an advance order for anticipatory claims.
       The trial court sustained the demurrer without leave to amend. The court found
that appellant had failed to allege sufficient facts to constitute a viable writ of mandate
because he was only seeking to compel respondents to perform future acts. Appellant
had failed to show that respondents were currently over the 15 day time limit to deliver a
package to him. The court further found that appellant was not seeking the court to order
respondents to properly process any current appeal but, rather, was seeking an order
pertaining to appellant’s future administrative appeals.
       Appellant contends the trial court erred because he demonstrated a practice and
pattern of withholding packages. According to appellant, this pattern will continue unless
the court intervenes. Appellant further argues that he has a right to submit administrative
appeals and that an appeal should not be rejected because a particular form was not
attached.

                                              2.
       The trial court correctly sustained the demurrer. Appellant has not shown that the
respondents have a present duty to act. Mandate does not lie to compel the performance
of future acts. Therefore the judgment will be affirmed.
                                       DISCUSSION
       A party may seek a writ of mandate to “compel the performance of an act which
the law specially enjoins, as a duty” or to compel “the use and enjoyment of a right …
from which the party is unlawfully precluded.” (Code Civ. Proc., § 1085, subd. (a).)
However, the petitioner must show that the respondent has a present duty to perform the
act the petitioner seeks to compel. Mandate will not lie to compel the performance of
future acts. (Treber v. Superior Court (1968) 68 Cal. 2d 128, 134.) Accordingly, disputes
that the parties anticipate may arise but that do not presently exist will not support a
mandate claim. (Stonehouse Homes LLC v. City of Sierra Madre (2008) 167 Cal. App. 4th
531, 542.) The duty of the court is to decide actual controversies by a judgment that can
be carried into effect. The court does not give opinions on moot questions or abstract
propositions. (In re Miranda (2011) 191 Cal. App. 4th 757, 762.)
       Here, appellant’s petition did not seek the delivery of a specific package or
processing of a particular administrative appeal. Rather, appellant sought an order
regarding future package deliveries and future administrative appeals. Mandate will not
issue to compel future acts or correct future wrongs. Therefore, the trial court properly
sustained the demurrer.
       Further, appellant has not shown that respondents violated a duty. California Code
of Regulations, title 15, section 3134, subdivision (c)(4), provides

       “Delivery by staff of packages, special purchases, and all publications, shall
       be completed as soon as possible but not later than 15 calendar days, except
       during holiday seasons such as Christmas, Easter, and Thanksgiving, and
       during lockdowns or modified programs of affected inmates.”
While the rules of construction provide that “shall” is mandatory, and thus delivery “as
soon as possible” is mandatory (Cal. Code Regs., tit. 15, § 3000.5, subd. (c)), the 15 day

                                              3.
limit is directory only. Under section 3000.5, subdivision (f), time limits do not create a
right to have the specified action taken within the time limits. “The time limits are
directory, and the failure to meet them does not preclude taking the specified action
beyond the time limits.” (§ 3000.5, subd. (f).) Accordingly, the fact that a delivery
occurs more than 15 days after the package was received does not in itself violate a duty.
                                     DISPOSITION
       The judgment is affirmed. In the interests of justice, no costs are awarded. (Cal.
Rules of Court, rule 8.278(a)(5).)




                                             4.
