Judge: Curtis A. Kin, Case: 24STCP00510, Date: 2025-05-01 Tentative Ruling

24STCP02299  Luchia Tsegaberhan
The Petition will be granted.  A copy of the signed decree will be available in Room 112 of the clerk’s office seven days after the date of the hearing.

Case Number: 24STCP00510    Hearing Date: May 1, 2025    Dept: 86

            Respondents County of Los Angeles (“County”) and Barbara Ferrer (“Ferrer”) (collectively “demurring respondents”) demur to the First Amended Petition for Writ of Mandate and Complaint (“FAP”) in its entirety.  For the reasons that follow, the Demurrer is SUSTAINED.

I.       Factual Allegations

            Respondent California Department of Public Health (“CDPH”) authorized the operation of the public needle distribution (the “Program”) in the City of Santa Monica, and the Program was set to operate in parks and on the 3rd Street Promenade. (FAP ¶ 18.) On June 12, 2018, respondent County’s Board of Supervisor approved a contract between County’s Department of Public Health and RPI Venice Family Clinic, wherein respondent County would fund the Program and RPI Venice Family Clinic would operate it for an initial three-year period. (FAP ¶¶ 18-19.) The contract, which had been entered into on July 1, 2018, was set to expire on June 30, 2021 and provided for two one-year extensions for a maximum of five years. (FAP ¶ 19.) The duration of the contract was extended twice under this provision. (FAC ¶¶ 24-25.)

            On information and belief, it is alleged that respondent CDPH failed to comply with the requirement of providing for a period of public comment under Healthy and Safety Code § 121349(e)(3) by not sending a written and email notice to the chief of police, the sheriff, or both, of the jurisdiction where the proposed program would operate. (FAC ¶ 21.) Additionally, it is alleged that Health and Safety Code §121349(c) only permits such programs to operate for two years without going through the procedures for reauthorization. (FAC ¶ 22.) It is further alleged that respondent CDPH failed to consult with local law enforcement prior to reauthorizing the subject program. (FAC ¶¶ 23-25.)

            Petitioners challenge the legality of the Needle Distribution Program authorized by respondent CDPH, funded by respondent CLADPH, and operated by RPI Venice Family Clinic. (FAP ¶ 17.)

II.      Procedural History

          On February 16, 2024, petitioners filed a Petition for Writ of Mandate and Complaint for Illegal Expenditure and Waste of Funds. Thereafter, on August 8, 2024, petitioner filed a First Amended Petition for Writ of Mandate and Complaint for Illegal Expenditure and Waste of Funds.

            On April 2, 2024, demurring respondents simultaneously filed their Answer and demurrer to the First Amended Petition. On April 16, 2025, petitioners lodged a Second Amended Petition without leave of court. On April 18, 2025, petitioners filed an opposition, contending the demurrer should be taken off calendar due to the Second Amended Petition. On April 25, 2025, demurring respondents filed a reply.

III.     Analysis

            As a preliminary matter, the Court notes that petitioners improperly filed their Second Amended Petition without leave of court. While petitioners claim that they have a right to amend their petition pursuant to CCP § 472 (Opp. at 2), they had already exercised that right on August 8, 2024, when the operative First Amended Petition was filed. Thus, any further amendment was required to be done either by stipulation or through noticed motion. (CCP §§ 472; 473(a).) Thus, the Second Amended Complaint was improperly lodged with the Court and is consequently stricken pursuant to CCP § 436.

            The Court thus proceeds to address the instant Demurrer to the First Amended Petition.

A.           Lack of Verification

Demurring respondents first demur to the First Amended Petitioner on the ground that it is unverified. (Demurrer at 6.) Because petitioners failed to verify their First Amended Petition, this is a fatal defect. (Krueger v. Superior Ct. (1979) 89 Cal. App. 3d 934, 939.) Accordingly, the demurrer is sustained on this ground.

B.           First Cause of Action – Writs of Mandate Pursuant to CCP § 1085

CCP § 1085(a) provides: “A writ of mandate may be issued by any court to any inferior tribunal, corporation, board, or person, to compel the performance of an act which the law specially enjoins, as a duty resulting from an office, trust, or station, or to compel the admission of a party to the use and enjoyment of a right or office to which the party is entitled, and from which the party is unlawfully precluded by that inferior tribunal, corporation, board, or person.” “There are two essential requirements to the issuance of a traditional writ of mandate: (1) a clear, present and usually ministerial duty on the part of the respondent, and (2) a clear, present and beneficial right on the part of the petitioner to the performance of that duty.” (California Assn. for Health Services at Home v. State Dept. of Health Services (2007) 148 Cal.App.4th 696, 704.) “An action in ordinary mandamus is proper where…the claim is that an agency has failed to act as required by law.” (Id. at 705.)

            Petitioners seek a writ of mandate pursuant to CCP § 1085 invalidating the Program and enjoining respondent County and RPI Venice Family Clinic from respectively funding and operating the Program. (FAP ¶ 35.) As alleged, petitioners contend that respondent CDPH had been responsible for authorizing the Program without complying with Health and Safety Code §§ 121349(c) and (e)(3). (FAP ¶¶ 18, 20-26, 32-34.)

Demurring respondents argue that petitioners have failed to allege the existence of a mandatory duty as applied to them because subdivision (b) of Health and Safety Code section 121349 expressly permits respondent County, through its Board of Supervisors, to authorize the Program’s operations.  According to demurring respondents, the requirements of subdivisions (c) and (e) apply only to respondent CDPH.  (Demurrer at 6-8.)

The Court agrees. While petitioners allege that respondent CDPH authorized the Program and respondent County approved the contract with RPI Venice Family Clinic. (FAP at ¶¶ 18-19), there are no allegations to create the inference that these actions were somehow linked or that respondent CDPH’s authorization was a condition precedent to respondent’s County’s approval of the contract. As respondents point out, section 121349 allows for both local authorities (such as respondent County) and the State Department of Public Health to separately implement a clean needle exchange program. (H&S § 121349(b), (c).) As worded, local authorities, such as respondent County, may implement such a program merely by taking action to do so. (H&S § 121349(b) [“[T]he Legislature hereby authorizes a clean needle and syringe exchange project pursuant to this chapter in any city, county, or city and county upon the action of a county board of supervisors and the local health officer or health commission of that county, or upon the action of the city council, the mayor, and the local health officer of a city with a health department, or upon the action of the city council and the mayor of a city without a health department.”]) By contrast, programs authorized by the State Department of Public Health are subject to specific statutory requirements, including consultation with local law enforcement, demonstration of certain minimum standards, and a period of public comment.  (H&S § 121349(c)-(e).) Therefore, there is no prescribed duty under Section 121349 with which the demurring respondents were required to comply prior to implementing the Program.

In opposition, petitioners raise no substantive argument in response. Because petitioners fail to allege a mandatory duty, the demurrer to the first cause of action is SUSTAINED.

C.           Second Cause of Action – Violation of CCP § 526a Based on Illegal Expenditure of Public Funds

Demurring respondents argue that the second cause of action fails because petitioners fail to allege “any illegal expenditure of, waste of, or injury to, the estate, funds, or other property of a local agency” in violation of CCP § 526a.  With respect to their CCP § 526a cause of action, petitioners only allege that “Respondents are illegally expending and wasting taxpayer fund by using taxpayer funds to operate an illegal needle distribution program in violation of Health and Safe Code § 121349. (FAP ¶ 38.)  As discussed above, however, demurring respondents were authorized by law to implement the Program per Health and Safe Code section 121349(b).

In addition, the demurring respondents argue that respondent County is not a proper party to a cause of action under CCP § 526a, because that statutory provision restricts claims thereunder to the County’s officers, agents, or persons acting on its behalf. (Demurrer at 9.)  That reading of the statute is correct. Even if petitioners had adequately pleaded a cause of action under CCP § 526a with respect to the Program implemented by the County, the explicit terms of CCP § 526a would not allow for such a cause of action against the County itself. (See CCP § 526a(a).)

Petitioners do not substantively respond to either of these grounds.  The demurrer as to the second cause of action is accordingly SUSTAINED.

D.           Leave to Amend

Were the only defect in the First Amended Petition and Complaint the failure to provide Verification, verify, the Court would permit amended to address this reasonably curable defect. (CLD Construction, Inc. v. City of San Ramon (2004) 120 Cal.App.4th 1141, 1146 [“Where the defect raised by … demurrer is reasonably capable of cure, leave to amend is routinely and liberally granted to give the plaintiff a chance to cure the defect in question.”].)

            Petitioners, however, have thus far failed to demonstrate they could reasonably cure by amendment the substantive defects discussed above.  Petitioners attached as Exhibit A to their Opposition to the Demurrer a proposed Second Amended Petition, which the Court interprets as their offer of proof as to their ability to successfully amend the petition. (See Opp. Ex. A.)  The Court has compared the First Amended Petition with the proposed Second Amended Petition, and it appears the only difference is the addition of paragraph 30 to the Second Amended Petition, which alleges that “Respondents, on a continuing day-to-day basis, violate Health and Safety Code Section 121349(d)(3)(C) . . . .” (See Opp. Ex. A at ¶ 30.) The requirements of subdivision (d) of Health and Safety Code section 121349, however, apply only to needle programs authorized by the State Department of Public Health, not local authorities such as respondent County. (H&S § 121349(d) [“In order for an entity to be authorized to conduct a project pursuant to this chapter, its application to the department shall demonstrate that the entity complies with all of the following minimum standards . . .”], emphasis added.)  The proposed Second Amended Petition thus suffers from the same defects as the First Amended Petition, as discussed above.

            At the hearing on the Demurrer to the First Amended Petition, the Court will hear from petitioners their proffer as to how they might reasonably cure the defects of the First Amended Petition such that leave to amend should be given.

V.      Conclusion

            The demurrer to the First Amended Petition is SUSTAINED in its entirety.