Spencer v. Dept. of Corrections and Rehabilitation CA5

Filed 10/29/26 Spencer 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 of Corrections and Rehabilitation CA5 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 EDWARD B. SPENCER, F090280 Plaintiff and Appellant, (Super. Ct. No. 24CU0344) v. DEPARTMENT OF CORRECTIONS AND REHABILITATION, OPINION Defendant and Respondent. APPEAL from a judgment of the Superior Court of Kings County. Robert S. Burns, Judge. Edward B. Spencer, in pro. per., for Plaintiff and Appellant. Rob Bonta, Attorney General, Sara J. Romano, Assistant Attorney General, Julie A. Malone and Van Kamberian, Deputy Attorneys General, for Defendant and Respondent. -ooOoo-  Appellant Edward B. Spencer is a self-represented inmate at the Substance Abuse Treatment Facility and State Prison (SATF) within the Department of Corrections and Rehabilitation (CDCR). Spencer filed a petition for writ of mandamus and declaratory relief (original petition) contending, among other things, that CDCR failed to take action with respect to a grievance Spencer submitted (Grievance No. 535103) after a CDCR information technician deleted, and was subsequently unable to retrieve, a computer file that Spencer was working on. The trial court sustained CDCR’s successive demurrers to the original petition and Spencer’s first amended petition for writ of mandamus and declaratory relief (FAP) with leave to amend on the ground that Spencer failed to demonstrate that he exhausted his administrative remedies. The trial court then sustained CDCR’s demurrer to Spencer’s second amended petition for writ of mandamus (SAP) without leave to amend on the same ground and after determining Spencer failed to demonstrate that he should be excused from exhausting his administrative remedies, and dismissed the SAP. Spencer appeals. We reverse and remand with directions. FACTUAL AND PROCEDURAL BACKGROUND I. Factual Background “In reviewing a judgment of dismissal entered after the sustaining of a demurrer, we accept as true the factual allegations of the complaint” (Whittemore v. Owens Healthcare-Retail Pharmacy, Inc. (2010) 185 Cal.App.4th 1194, 1197) and “ ‘ “consider matters which may be judicially noticed” ’ ” (Evans v. City of Berkeley (2006) 38 Cal.4th 1, 6). “ ‘We do not, however, assume the truth of contentions, deductions, or conclusions of fact or law.’ ” (People ex rel. Lungren v. Superior Court (1996) 14 Cal.4th 294, 300– 301.) 2.  The facts recited below are alleged in Spencer’s SAP and in exhibits attached thereto. In providing the factual background related to this matter, we also occasionally refer to allegations in, and exhibits to, Spencer’s original petition and FAP. 1 A. Subject Incident Spencer is a vision-impaired inmate at SATF. He was assigned to, and was working on, one of the SATF computers. Prior to the event(s) at issue, a computer file Spencer was working on, which he describes as a “Legal Manuscript,” was accessible and operational. Spencer is a certified paralegal and alleges the file “is a tool of [his] trade.” The file was stored on the “hard drive of CDCR, which is in [the] possession of [CDCR] officers/officials and staff[].” Spencer alleges that “[o]n February 21, 2024, … [an SATF information technician] was unable to open [Spencer’s] file … after twenty minutes of imputing administrator codes.” The information technician advised Spencer that he needed to delete Spencer’s file from the computer but that he would be able to retrieve the file after deleting it. 2 After the information technician deleted Spencer’s file from the CDCR computer, however, he was unable to retrieve Spencer’s file. In this litigation, Spencer “is seeking recovery of his personal property [i.e., his file] or its value.” 1 We are cognizant of the principle that an “ ‘ “amended pleading supplants all prior complaints” ’ ” and that “ ‘ “[i]t alone will be considered by the reviewing court.” ’ ” (Mendoza v. JPMorgan Chase Bank, N.A. (2016) 6 Cal.App.5th 802, 820, fn. 6.) We adhere to this principle in part. IV of this opinion and therein address whether, standing alone, the SAP withstands demurrer. Nevertheless, the factual allegations of Spencer’s original petition and FAP provide a more complete picture of the events at issue and do not appear to be inconsistent with allegations in the SAP. 2 In Spencer’s Grievance No. 535103, Spencer stated that the information technician “came to … [the] library to see why [Spencer] could[ not] have his … computer documents printed via Canvas.” One possible inference that may be drawn from this statement is that the information technician took the actions he did in an attempt to assist Spencer with printing his file. 3.  The following discussion sets forth, in chronological order, Spencer’s efforts at pursuing his administrative remedies. B. Pre-petition Pursuit of Administrative Remedies On March 17, 2024, Spencer submitted Grievance No. 535103 seeking the return of his file or its value pursuant to section 3193, subdivision (b), of title 15 of the California Code of Regulations. 3 On March 23, 2024, the CDCR’s Office of Grievances (OOG) issued a decision that “redirected” 4 Grievance No. 535103 “to appropriate staff in accordance with the 3 Title 15, section 3193, subdivision (b) of the California Code of Regulations provides: “[CDCR] shall accept liability for the loss or destruction of incarcerated person personal property when it is established that such loss or destruction results from employee action. Incarcerated persons shall utilize the administrative remedies procedures if unable to resolve a personal property claim pursuant to [California Code of Regulations, title 15,] section 3481. Upon acceptance of liability, [CDCR] shall provide to the incarcerated person similar items of equal or greater value when such items are available via donated property items. If donated items are not available, monetary compensation to the incarcerated person for such loss shall not exceed either the dollar value assigned to the item or items at the time the incarcerated person received authorization to possess the property; the cost of the item, verified by receipt; or the replacement value for the item or a similar item, as determined by [CDCR]. Staff recommendations to the Victim Compensation and Government Claims Board regarding monetary reimbursement will be made accordingly.” All further references to sections are to the California Code of Regulations, title 15, unless otherwise indicated. A reference to a former section of title 15 of the California Code of Regulations is to the version that was effective January 5, 2022, to December 31, 2024. 4 The term “Redirected” means “the claim will be forwarded to the appropriate authority … because it fits one of [seven enumerated] circumstances.” (Former § 3483, subd. (g)(4).) The redirect decision did not specify which of the seven enumerated circumstances that OOG determined Grievance No. 535103 met. 4. California Code of Regulations, title 15” (the redirect decision). The redirect decision stated, “Your request will be addressed by appropriate staff at [SATF], as determined by the Reviewing Authority” 5 and advised Spencer that, if he was dissatisfied with the response, he could appeal to CDCR’s Office of Appeals (OOA). On May 20, 2024, Spencer submitted an appeal to OOA stating that “the redirect has not been addressed within 60 days.” (Some capitalization omitted.) According to his original petition, Spencer also sent two letters, one on June 6, 2024, to the grievance coordinator, and one on June 26, 2024, to OOA, advising them that Grievance No. 535103 had been pending for more than 60 days, and requesting its status. On August 2, 2024, according to an exhibit attached to Spencer’s memorandum in opposition to demurrer (to the original petition), OOA wrote to Spencer and advised him that it had received his correspondence inquiring as to the status of Grievance No. 535103, and stated that “a grievance decision was sent to [him] on [March 25, 2024].” It advised him that he could request “an Olson review of [his] central file … for copies related to this matter.” 6 Spencer alleges the only notification he received on March 25, 2024, was the redirect decision. On September 3, 2024, Spencer filed his original petition with the Kings County Superior Court. 5 The term “Reviewing Authority” was defined by regulation as “the official who oversees the Office of Grievances or Office of Appeals and who is responsible for the overall quality and timeliness of the written response to each claim raised in a grievance or appeal, respectively.” (Former § 3480, subd. (b)(11).) 6 “Incarcerated or supervised persons may review their own case records file and unit health records, subject to applicable federal and state law. This review shall be conducted in the presence of staff, and may necessitate the use of a computer. [¶] … No incarcerated or supervised person shall access information designated confidential pursuant to section 3321 which is in or from their own case records file.” (§ 3370, subds. (c), (d); see In re Olson (1974) 37 Cal.App.3d 783 [discussing the rights of inmates to review their prisoner files].) 5.  C. Continued (Post-petition) Pursuit of Administrative Remedies On December 11, 2024, Spencer wrote the warden, advised him “[i]t’s December 9, 2024, and I still have not receive[d] a response [to Grievance No. 535103],” and asked him to conduct an investigation so that Spencer could exhaust his administrative remedies. Also on or about December 11, 2024, according to his FAP, Spencer again wrote OOA and inquired as to the status of Grievance No. 535103. On December 11 or 12, 2024, Spencer submitted a new grievance (Grievance No. 666449) regarding the same matter. In it, Spencer stated he still had not received a decision on his redirected Grievance No. 535103. He requested CDCR accept liability for the loss of his computer file. On or about December 16, 2024, the warden’s office submitted a grievance on behalf of Spencer (Grievance No. 668314)—possibly in response to Spencer’s December 11, 2024 letter. On December 31, 2024, OOG issued a grievance decision that “rejected” Grievance No. 668314. It read, in part: “[CDCR] received your [G]rievance [No. 668314] on [December 17, 2024,] which you submitted on [December 16, 2024]. This claim has not been assigned for review or response because it is being handled as specified below. [¶] … [¶] Your claim … is rejected for the reason or reasons indicated below: [¶] You did not submit this claim within the timeframe required by the California Code of Regulations, title 15. The date you discovered the adverse policy, decision, action, condition, or omission by [CDCR] was [March 25, 2024]; yet the date you submitted this claim was [December 16, 2024]. You should have submitted your claim on or by [May 24, 2024,] to meet the requirement set forth in the regulations.” As previously stated, Spencer alleges the only notification he received on March 25, 2024, was the redirect decision. 6.  On or about January 24, 2025, Spencer submitted an appeal related to Grievance No. 668314. In it, Spencer stated he “never submitted this claim. The Warden[’s] office submitted the claim based on the [December 11, 2024,] letter I submitted.” (Some capitalization omitted.) On or about February 8, 2025, OOG issued a grievance decision that “denied” Grievance No. 666449. It read, in part, “[y]our contesting [sic] not receiving a response from [Grievance No. 535103] regarding the loss of your property is without merit. You provided no evidence of any loss in [Grievance No.] 535103. When the AISA [presumably, an acronym for “Associate Information Systems Analyst” 7] investigated your claim there was nothing in the electronic record to substantiate your alleged loss. You were notified of that decision on [March 25, 2024,] but seem to have not accepted the available evidence. Your grievance is denied as no CDCR policies or rules were violated.” Again, Spencer alleges the only notification he received on March 25, 2024, was the OOG redirect decision. On or about March 3, 2025, Spencer submitted an appeal with respect to Grievance No. 666449. The record does not include the appeal, but it is acknowledged in the May 11, 2025 OOA decision discussed below. On or about March 6, 2025, an “Inmate Request for Interview” was presented to an SATF library technician, which posed the following question: “Did you submit your thumb-drive to [the] Information Technician with inmate [Spencer’s] … legal manuscript file to be uploaded to [an SATF] … computer?” The library technician responded: “Yes, when the … computer was connected to the network, a thumb drive containing the file you are referring to was submitted to the [Information Technology] office in order for them to upload it to the network.” (Some capitalization omitted.) 7 See California Department of Corrections and Rehabilitation, Adult Institutions, Programs, and Parole, Operations Manual (Dec. 2025) page 431. 7.  On or about April 6, 2025, OOA issued a decision on the appeal of Grievance No. 668314 and indicated, as its decision, “[t]ime [e]xpired.” (Boldface omitted.) The decision was sent to Spencer along with a cover letter. The cover letter read, in part: “Pursuant to … [former] section 3485[, subdivision ](g)(10), … OOA had sixty calendar days to complete a written response to your appeal. However, the time[]period expired before … OOA was able to respond to your appeal. Thus, the decision by … [OOG] serves as [CDCR’s] final response to your complaint.” The OOA decision regarding Grievance No. 668314 advised Spencer similarly and stated, “this is [CDCR]’s final response regarding this claim and this response exhausts all administrative remedies available to you for this claim.” On May 11, 2025, OOA issued its decision on the appeal of Grievance No. 666449 and indicated, as its decision, “[t]ime [e]xpired.” (Boldface omitted.) The decision advised Spencer that CDCR was unable to complete a response within a 60-day period and that “[a]s a result, this is [CDCR]’s final response regarding this claim and this response exhausts all administrative remedies available to you for this claim.” II. Procedural Background A. Successive Demurrers to Spencer’s Original Petition, FAP and SAP As previously stated, on September 3, 2024, Spencer filed his original petition. He named CDCR, “L. Liberte, Information Technician,” and “Lujuan, Grievance Coordinator” as named respondents (collectively, respondents). In the original petition, Spencer sought, among other things, a declaration that respondents are required to 8. comply with subdivision (b) of section 3193 8 and subdivision (g) of former section 3483 9 and compensation for the loss and/or destruction of his legal manuscript. Respondents demurred to the original petition. The demurrer was sustained with leave to amend as to CDCR and Lujuan and without leave to amend as to Liberte. The trial court’s basis for sustaining the demurrer with leave to amend as to CDCR was that Spencer had failed to adequately allege that he had exhausted his administrative remedies. On December 26, 2024, Spencer filed his FAP. In it, he removed from the caption “Lujuan, Grievance Coordinator” and “L. Liberte, Information Technician” as named respondents. CDCR demurred to the FAP. The trial court sustained the demurrer again on the ground that Spencer failed to adequately allege that he exhausted his administrative remedies, and granted Spencer “leave to amend for a final opportunity to demonstrate exhaustion of administrative remedies as to his claim for the loss or destruction of his personal property.” (Boldface & italics omitted.) On May 19, 2025, Spencer filed his SAP. CDCR demurred to the SAP on five grounds: (1) that Spencer “failed to exhaust his administrative remedies”; (2) that he “fail[ed] to establish that [CDCR] failed to perform a nondiscretionary, mandatory ministerial duty”; (3) that the “request for relief is 8 See footnote 3, ante. 9 Subdivision (g) of former section 3483 provides, in part, “[t]he grievance Coordinator shall ensure that a written grievance decision is completed no later than 60 calendar days after receipt of the grievance, unless other statutory or regulatory authority requires a response in less than 60 calendar days,” provides 10 different responses that may be given in connection with a grievance including, without limitation, “ ‘Denied,’ ” “ ‘Granted,’ ” “ ‘Redirected,’ ” “ ‘Rejected,’ ” and “ ‘Time Expired,’ ” and includes an explanation of each response. 9. uncertain”; (4) that Spencer “fail[ed] to establish a beneficial interest”; and (5) that he “fail[ed] to state sufficient facts to establish entitlement to declaratory relief.” B. The Trial Court’s Order on the Demurrer to the SAP and Spencer’s Appeal On July 25, 2025, the trial court sustained CDCR’s demurrer to the SAP on the ground that Spencer “failed to demonstrate exhaustion of his administrative remedies or that he should be excused from the exhaustion requirement,” denied Spencer leave to amend, and dismissed the SAP (the dismissal order). In the dismissal order, the trial court acknowledged that Spencer had submitted Grievance No. 535103, dated March 17, 2024, seeking to have CDCR “accept liability for Liberte’s allegedly wrongful deletion of Spencer’s legal file”; that OOG’s redirect decision advised Spencer that, if he was dissatisfied with the redirect decision, he may appeal the decision; that Spencer has filed a declaration stating he submitted an appeal with OOA 10; but that “there is no decision from … OOA with respect to this grievance.” The trial court concluded that Spencer “was required to appeal from the decision to redirect his claim” and that Spencer’s “purported ‘appeal’—even if submitted to … OOA—does not challenge the decision that the claim was redirected, rather it only challenges that the redirect had not been addressed.” The court ruled that Spencer’s efforts “do[] not constitute adequate exhaustion of administrative remedies with respect to [Spencer’s] claim for loss or destruction of his personal property as required for [CDCR] to accept liability under section 3193, subdivision (b).” 10 Spencer alleged in his SAP that he “submitted his appeal within 60 days of discovering the first level decision, [and] it was timely under the applicable regulations.” He also attached a copy of the appeal (CDCR form 602-2) as exhibit B to his SAP in which he advised OOA that he had not received a decision on the redirect of his Grievance No. 535103. 10.  Finally, the trial court determined that Spencer’s continued, post-petition efforts to obtain a substantive decision on the redirect of Grievance No. 535103 were unavailing because those efforts would be considered untimely given the requirement that a grievance be submitted within 60 calendar days of discovering the challenged act or omission (see former § 3482, subd. (b)(1)) and that an appeal of a grievance decision be submitted within 60 calendar days of discovering the decision (see former § 3484, subd. (b)(1)). The trial court stated that “[t]o the extent [Spencer] was dissatisfied with the decision to redirect his claim, his recourse was to submit a timely appeal of that response. [Citation.] Absent this timely appeal, [Spencer] has failed to exhaust his administrative remedies.” The court further determined that Spencer “has … not demonstrated he should be excused from exhaustion for the reasons set forth at length in the court’s prior order sustaining the demurrer to the [FAP]. Because the issue of exhaustion is dispositive, the court declines to address the remaining grounds set forth in the demurrer.” The court sustained CDCR’s demurrer without leave to amend and dismissed the SAP. On August 7, 2025, Spencer timely appealed the dismissal order. DISCUSSION I. Standard of Review “A demurrer tests the legal sufficiency of the factual allegations in a complaint. We independently review the sustaining of a demurrer and determine de novo whether the complaint alleges facts sufficient to state a cause of action or discloses a complete defense. [Citations.] We assume the truth of the properly pleaded factual allegations, facts that reasonably can be inferred from those expressly pleaded, and matters of which judicial notice has been taken. [Citation.] We construe the pleading in a reasonable manner and read the allegations in context.” (City of Industry v. City of Fillmore (2011) 198 Cal.App.4th 191, 205 (City of Industry).) 11.  “We must affirm the judgment if the sustaining of the demurrer was proper on any of the grounds stated in the demurrer, regardless of the trial court’s stated reasons.” (City of Industry, supra, 198 Cal.App.4th at p. 205.) However, a demurring party “who has advanced multiple theories in support of a demurrer … may be deemed to have abandoned those theories by failing to reassert them on appeal.” (Tukes v. Richard (2022) 81 Cal.App.5th 1, 20.) “[I]f the proponent of a theory does not consider it worthy of recitation to the appellate court, the appellate court is entitled to presume the theory has no merit.” (Ibid.) Here, the parties have only addressed the ground upon which the trial court sustained CDCR’s demurrer—i.e., that Spencer failed to adequately demonstrate he had exhausted his administrative remedies or that he should be excused from the requirement. Consequently, we limit our review to the ground relied on by the court and argued on appeal by CDCR. (See Tukes v. Richard, supra, 81 Cal.App.5th at pp. 20–21.) II. The Parties’ Contentions The crux of Spencer’s argument on appeal is that CDCR’s failure to respond to Grievance No. 535103 makes the process “unavailable” to him. Spencer states that, on February 7, 2025, OOA advised him that he was previously notified that a decision was rendered on Grievance No. 535103 on March 25, 2024. However, Spencer states that the only notification he received on March 25, 2024, was the redirect decision. The redirect decision was not a substantive resolution of Grievance No. 535103, as it only provided that Spencer’s grievance would be addressed by “appropriate staff at [SATF], as determined by the Reviewing Authority.” Spencer contends that the “administrative remedies process is not efficacious and further pursuit would … [b]e a futile gesture” and that he “has diligently pursued his administrative remedies to address the [fact that] no response” was received to Grievance No. 535103. Spencer cites to a number of federal cases that he contends supports his position that the administrative remedies process has been made “unavailable” to him. We examine relevant case law, post. 12.  CDCR contends the trial court “correctly determined that Spencer’s alleged appeal of his grievance … did not challenge the redirection decision, only that the redirection had not been addressed.” 11 CDCR states that “Spencer needed to exhaust the exact issue he sought to challenge—the redirect of his claim” “to exhaust his administrative remedies.” CDCR argues that Spencer’s post-petition grievances could not exhaust Spencer’s administrative remedies because administrative remedies must be exhausted prior to seeking judicial relief. Finally, CDCR contends the trial court was correct in finding Spencer was not excused from the exhaustion requirement. CDCR argues Spencer’s allegation that further attempts at exhausting his remedies would be futile is without merit because he cannot “positively state that the agency ha[d] declared what its ruling” would have been in his case. CDCR, relying on Foster v. Sexton (2021) 61 Cal.App.5th 998, 1023 (Foster), also argues that the “unavailability excuse … only applies when an incarcerated individual shows that prison administrators thwart an individual from taking advantage of the grievance process through machination, misrepresentation, or intimidation,” and Spencer has not alleged or argued any such conduct. III. Exhaustion of Administrative Remedies A. The Grievance Process As CDCR points out, the administrative remedies process in place at the time Spencer pursued his administrative remedies may be found at former sections 3480 through 3485. The process is initiated by an incarcerated person by submitting a written grievance to OOG. (Former § 3482, subd. (a)(1).) The grievance must be submitted 11 CDCR also states that the appeal of the grievance “does not appear to have actually been submitted and received by [OOA].” We note for the record, however, that Spencer alleged he submitted the appeal and attached a copy of the appeal to his SAP. For purposes of demurrer, we accept Spencer’s allegation as true. (See City of Industry, supra, 198 Cal.App.4th at p. 205.) 13. “within 60 calendar days of discovering” the adverse act or omission that is the subject of the grievance. (Id., subd. (b)(1).) “Discovery occurs when a claimant knew or should have reasonably known of the adverse” act or omission. (Ibid.) “The grievance Coordinator shall ensure that a written grievance decision is completed no later than 60 calendar days after receipt of the grievance, unless other statutory or regulatory authority requires a response in less than 60 calendar days, and contains one of the following decisions as to each claim in the grievance: [¶] (1) ‘Denied,’… ; [¶] (2) ‘Granted,’ … ; [¶] (3) ‘No Jurisdiction,’ … ; [¶] (4) ‘Redirected,’ … [;] [¶] … [¶] (5) ‘Reassigned,’ … [;] [¶] … [¶] (6) ‘Rejected,’ … [;] [¶] … [¶] (7) ‘Disallowed,’ … ; [¶] (8) ‘Identified as Staff Misconduct,’ … ; [¶] (9) ‘Pending Legal Matter,’ … ; or [¶] (10) ‘Time Expired,’ ….” (Former § 3483, subd. (g).) A decision to redirect a grievance—which is at issue here—means “the claim will be forwarded to the appropriate authority described below because it fits one of the following circumstances”: “(A) An issue concerning medical, dental, or mental health services provided by the Correctional Health Care Services Division or a dispute concerning a policy, decision, action, condition, or omission by the Correctional Health Care Services Division or its staff shall be redirected to that Division; “(B) A request for a reasonable accommodation based on a disability shall be redirected to the Institutional or Regional Americans with Disabilities Act coordinator; “(C) A request for an interview, item, assistance, or service shall be redirected to a staff member designated by the Hiring Authority for a response; “(D) A request for records that is made pursuant to the California Public Records Act or the California Information Practices Act shall be redirected to the Institutional or Regional Public Records Act coordinator; 14.  “(E) A request regarding institutional placement or search preference pursuant to the Transgender Respect, Agency, and Dignity Act of 2020 shall be redirected to the Prison Rape Elimination Act Compliance Manager; “(F) A complaint regarding a classification committee decision about institutional placement pursuant to the Transgender Respect, Agency, and Dignity Act of 2020 shall be redirected to the Departmental Review Board via the Office of Appeals; or “(G) An allegation against an inmate or parolee shall be redirected to a staff member designated by the Hiring Authority for a response.” (Former § 3483, subd. (g)(4).) The redirect decision does not specify which of the above circumstances OOG determined was met by Grievance No. 535103. “A claimant who wishes to appeal a grievance decision found in [former] subsections 3483(g)(1) through 3483(g)(6) [which includes a decision to redirect the grievance] shall submit an appeal within 60 calendar days of discovering the decision by … [OOG]. Discovery occurs when a claimant knew or should have reasonably known of the decision.” (Former § 3484, subd. (b)(1).) Once an appeal is taken, “[t]he appeal Coordinator shall ensure that a written appeal decision is completed no later than 60 calendar days after receipt of the appeal, unless other statutory or regulatory authority requires a response in less than 60 calendar days ….” (Former § 3485, subd. (g).) B. Case Law “ ‘When an applicable statute, ordinance, or regulation provides an adequate administrative remedy, a party must exhaust it before seeking judicial relief.’ ” (Foster, supra, 61 Cal.App.5th at p. 1023, italics omitted.) “The exhaustion requirement is jurisdictional: a court cannot hear a case before a litigant exhausts administrative remedies.” (Wright v. State of California (2004) 122 Cal.App.4th 659, 664–665.) “The doctrine, whenever applicable, requires not merely the initiation of prescribed administrative procedures; it requires pursuing them to their appropriate conclusion and 15. awaiting their final outcome before seeking judicial intervention.” (Woodard v. Broadway Federal Sav. & Loan Asso. (1952) 111 Cal.App.2d 218, 221.) “Administrative agencies must be given the opportunity to reach a reasoned and final conclusion on each and every issue upon which they have jurisdiction to act before those issues are raised in a judicial forum.” (Sierra Club v. San Joaquin Local Agency Formation Com. (1999) 21 Cal.4th 489, 510.) A plaintiff or petitioner may successfully avoid a demurrer based on a purported failure to exhaust administrative remedies where the plaintiff or petitioner alleges that “a valid excuse exists for not exhausting” those remedies. (Parthemore v. Col (2013) 221 Cal.App.4th 1372, 1379.) However, this court has ruled that it is insufficient for a petitioner to simply allege that a valid excuse exists for not exhausting. (Foster, supra, 61 Cal.App.5th at pp. 1027–1028.) Rather, the plaintiff or petitioner must “allege specific facts showing the administrative procedure is effectively unavailable.” (Id. at p. 1028.) “ ‘A limited number of exceptions to the exhaustion doctrine have long been recognized in California. Generally, these exceptions apply when the subject matter of the controversy lies outside the administrative agency’s jurisdiction, when pursuit of an administrative remedy would result in irreparable harm, when the administrative remedy is inadequate or unavailable, and when the administrative remedy is futile as the aggrieved party can positively state what the administrative agency’s decision in his particular case would be. The exhaustion doctrine also has not been applied where the agency indulges in unreasonable delay, or, at least in one instance, on grounds of general fairness and equity.’ ” (Kaiser Foundation Hospitals v. Superior Court (2005) 128 Cal.App.4th 85, 101; see Cummings v. Stanley (2009) 177 Cal.App.4th 493, 506, fn. 8 [same].) In Foster, this court expounded on the exceptions to the exhaustion doctrine. (Foster, supra, 61 Cal.App.5th at pp. 1025–1027.) In particular, we discussed when 16. administrative remedies are considered unavailable. (Ibid.) The court considered federal law under the Prison Litigation Reform Act of 1995 (PLRA) and California law and determined that “the reasons for the federal and state law exhaustion requirements are essentially the same.” 12 (Foster, at p. 1026.) This court observed that in Ross v. Blake (2016) 578 U.S. 632 (Ross), “the court noted ‘three kinds of circumstances in which an administrative remedy, although officially on the books, is not capable of use to obtain relief.’ [Citation.] First, an administrative procedure is unavailable when, despite what regulations or guidance materials may promise, it operates as a simple dead end with officers unable or consistently unwilling to provide any relief to aggrieved inmates. [Citation.] Second, an administrative scheme might be so difficult to understand that no ordinary prisoner can discern or navigate it and, therefore, for practical purposes, the administrative scheme is incapable of use. [Citation.] Third, an administrative procedure is unavailable ‘when prison administrators thwart inmates from taking advantage of a grievance process through machination, misrepresentation, or intimidation.’ ” (Foster, supra, 61 Cal.App.5th at p. 1026, citing Ross, supra, 578 U.S. at pp. 643–644.) This court went on to apply the third category, which was the theory that was advanced by the plaintiff in asserting that his administrative remedies were “unavailable.” (Foster, at pp. 1026–1027.) To the extent CDCR relies on Foster for the proposition that the only time the administrative process is considered “unavailable” is when the process is thwarted through “ ‘machination, misrepresentation, or intimidation,’ ” that reliance is misplaced. Foster acknowledged other potential causes of “unavailability” but only considered the latter cause because it was the theory advanced by the plaintiff. (Foster, supra, 61 Cal.App.5th at pp. 1026–1027; see, e.g., Muskan Food & Fuel, Inc. v. City of Fresno 12 This court explained that “[t]he main policies underlying the exhaustion doctrine are administrative autonomy and judicial efficiency.” (Foster, supra, 61 Cal.App.5th at p. 1026, fn. 9.) 17. (2021) 69 Cal.App.5th 372, 387 [recognizing that “one type of unavailability occurs when the administrative scheme is so difficult to understand that an ordinary person cannot discern and navigate it. [Citation.] From a practical perspective, such an administrative scheme is incapable of use and exhaustion is excused”]; Kaiser Foundation Hospitals v. Superior Court, supra, 128 Cal.App.4th at p. 101 [discussing exceptions to the administrative exhaustion requirement]; id. at p. 103 [“an administrative remedy may be deemed inadequate if it fails to provide basic due process protections”].) In Andres v. Marshall (9th Cir. 2017) 867 F.3d 1076, a case Spencer relies on, a California state prisoner filed a grievance alleging the defendant used excessive force against him. (Id. at p. 1077.) The prisoner filed a petition for writ of habeas corpus in state court and a complaint in federal court and argued “his administrative remedies were effectively unavailable because [the prison] failed to process his … grievance.” (Id. at pp. 1077–1078.) The district court dismissed the prisoner’s claim for failure to exhaust his administrative remedies under the PLRA. (Andres, at p. 1078.) The Andres court reversed the dismissal. (Id. at p. 1079.) Citing and quoting Ross, the Andres court wrote: “By way of a non-exhaustive list, the [Ross] Court recognized three circumstances in which an administrative remedy was not capable of use to obtain relief despite being officially available to the inmate: (1) when the administrative procedure ‘operates as a simple dead end’ because officers are ‘unable or consistently unwilling to provide any relief to aggrieved inmates’; (2) when the administrative scheme is ‘so opaque that it becomes, practically speaking, incapable of use’ because ‘no ordinary prisoner can discern or navigate it’; and (3) when prison administrators ‘thwart inmates from taking advantage of a grievance process through machination, misrepresentation, or intimidation.’ ” (Id. at p. 1078, italics added.) The court concluded that “[w]hen prison officials improperly fail to process a prisoner’s grievance, the prisoner is deemed to have exhausted available administrative remedies,” and those prison officials “have 18. ‘thwart[ed] inmates from taking advantage of [the] grievance process,’ making that process unavailable.” (Id. at p. 1079.) In Nunez v. Duncan (9th Cir. 2010) 591 F.3d 1217 (Nunez), another case relied on by Spencer, a federal prisoner filed a pro se Bivens 13 complaint alleging he was subjected to a strip search in violation of his First and Fourth Amendment rights. (Nunez, at p. 1218.) The district court granted summary judgment in favor of the Federal Bureau of Prisons and other defendants on the ground that the prisoner did not exhaust his administrative remedies under the PLRA. (Nunez, at p. 1218.) On the limited issue of exhaustion, the Ninth Circuit determined that the prisoner’s “failure to exhaust his administrative remedies [as to his Fourth Amendment claim] is excused.” 14 (Nunez, at p. 1218.) The Nunez court determined that the prisoner had made repeated attempts to exhaust his administrative remedies under the Bureau of Prisons regulations. (Nunez, supra, 591 F.3d at pp. 1220–1222.) The prisoner submitted an informal complaint regarding the matter and requested the law or statutory rule that authorized the strip search (id. at p. 1220); when the prisoner’s informal complaint was denied, he appealed to the warden per Bureau of Prisons procedure (ibid.); the warden treated the appeal as merely a request for a citation to the law/regulation that authorized strip searches and provided the prisoner with an incorrect citation (the warden’s decision) (ibid.); the prisoner then advised that he could not find the relevant law using that citation, and filed 13 Bivens v. Six Unknown Fed. Narcotics Agents (1971) 403 U.S. 388, 389 (violation of 4th Amend. by a federal agent acting under color of law gives rise to a cause of action for damages). 14 The Nunez court upheld the district court’s determination that the prisoner had failed to exhaust his administrative remedies with regard to his First Amendment claim. (Nunez, supra, 591 F.3d at p. 1229.) After determining the prisoner was excused from exhausting his administrative remedies as to the prisoner’s Fourth Amendment claim, the Nunez court affirmed the district court’s grant of summary judgment as to that claim on the