Judge: Gail Killefer, Case: 23STCV11420, Date: 2024-11-06 Tentative Ruling
Case Number: 23STCV11420 Hearing Date: November 6, 2024 Dept: 37
HEARING DATE: Wednesday, November 6, 2024
CASE NUMBER: 23STCV11420
CASE NAME: Jeryl Smith v. Los Angeles Unified School District
MOVING PARTY: Defendant Los Angeles Unified
School District
OPPOSING PARTY: Plaintiff Jeryl Smith
TRIAL DATE: Not Set
PROOF OF SERVICE: OK
PROCEEDING: Demurrer to Sixth Amended
Complaint
OPPOSITION: 22 October 2024
REPLY: 30
October 2024
TENTATIVE: Defendant LAUSD’s demurrer to the sixth
amended complaint is sustained without leave to amend. The action is dismissed.
Background
On May 22, 2023, Jeryl Smith (“Plaintiff”), filed a Complaint
against the Los Angeles Unified School District (“LAUSD” or “Defendant”) and
Does 1 to 20.
The Second Amended Complaint (“SAC”) alleges seven causes of
action: (1) violation of Ed. Code § 22458, (2) negligence, (3) conversion, (4)
negligent misrepresentation, (5) fraudulent misrepresentation, (6) elder abuse,
and (7) retaliation.
On October 4, 2023, Defendant LAUSD’s demurrer and motion to
strike the SAC was sustained with leave to amend.
On October 27, 2023, Plaintiff filed a Third Amended Complaint
(“TAC”) alleging six causes of action: (1) violation of Ed. Code § 22458, (2)
negligence, (3) conversion, (4) negligent misrepresentation, (5) intentional
misrepresentation, and (6) elder abuse, and (7) retaliation.
On January 30,
2024, the court sustained LAUSD’s demurrer with leave to amend the first and
third causes of action and denied leave to amend the second, fourth, and sixth
causes of action. LAUSD’s motion to strike was also granted with leave to
amend.
On February 8,
2024, Plaintiff filed the Fourth Amended Complaint (“4AC”) alleging two single
causes of action for violation of Ed. Code § 22458 and conversion. On May 13,
2024, the court sustained Defendant LAUSD’s demurrer to the 4AC with leave to
amend.
On May 21, 2024,
Plaintiff filed the Fifth Amended Complaint (“5AC”) alleging a single cause of
action for violation of Ed. Code § 22458. On July 29, 20204, the court
sustained the demurrer to the 5AC with leave to amend.
On August 12, 2024,
Plaintiff filed the operative Sixth Amended Complaint (“6AC”) alleging the same
single cause of action for violation of Ed. Code § 22458.
LAUSD now demurs to
the 6AC. Plaintiff opposes the demurrer. The matter is now before the court.
I. Legal Standard
Where pleadings are defective, a party may raise the defect
by way of a demurrer. (Coyne v. Krempels (1950) 36 Cal.2d 257, 262.) A
demurrer tests the sufficiency of a pleading, and the grounds for a demurrer
must appear on the face of the pleading or from judicially noticeable matters.¿
(CCP, § 430.30(a); Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) In
evaluating a demurrer, the court accepts the complainant’s properly pled facts
as true and ignores contentions, deductions, and conclusory statements. (Daar
v. Yellow Cab Co. (1976) 67 Cal.2d 695, 713; Serrano v. Priest (1971)
5 Cal.3d 584, 591.) Moreover, the court does not consider whether a plaintiff
will be able to prove the allegations or the possible difficulty in making such
proof. (Fisher v. San Pedro Peninsula Hospital (1989) 214 Cal.App.3d
590, 604.)
Leave to amend must be allowed
where there is a reasonable possibility of successful amendment. (Goodman v.
Kennedy (1976) 18 Cal.3d 335, 348.)¿ The burden is on the complainant to
show the Court that a pleading can be amended successfully. (Ibid.)
II. Discussion
A. Failure to Exhaust
Administrative Remedies
The
court previously sustained the demurrer to the 5AC on the basis that Plaintiff
had failed to show he exhausted his administrative remedies under Ed.
Code § 22219(a):
(a) The board may in its
discretion hold a hearing for the purpose of determining any question presented
to it involving any right, benefit, or obligation of a person under this part.
The court found that the fact STRS attempted to obtain
information from LAUSD but had been unsuccessful was not a showing of
exhaustion of administrative remedies because there was no allegation that
Plaintiff made a request to the Teacher’s Retirement Board, but the request was
denied. (See Rush v. State Teachers' Retirement System
(2021) 62 Cal.App.5th 151, 156–157 [“Rush requested a hearing pursuant to section 22219,
which authorizes the Teachers’ Retirement Board (the board) to hold a hearing
to determine ‘any question presented to
it involving any right, benefit, or obligation of a person under [the Teachers’
Retirement Law].’ ”].)
The
court sustained the demurrer to the 5AC because Plaintiff failed to allege that
she presented to the Board a request to correct her retirement benefits under
section 22219, thus exhausting her administrative remedies. Plaintiff has now
amended the pleadings and filed the operative 6AC alleging in the relevant
part:
26. CalSTRS, on or
about January 26, 2023, sent a letter to plaintiff informing her that the
agency had “done its due diligence to retrieve the necessary information to
take appropriate actions on [...plaintiff’s] account.” CalSTRS noted that it
had “made multiple attempts to correspond with LAUSD, but to no avail.” A copy
of the letter is attached to this complaint as Exhibit “D” and made a part
hereof.
27. After efforts for a hearing by the
administrative board through CalSTRS failed, plaintiff was left with no choice
but to bring this action.
Exhibit D is a
“Citizen’s Complaint” filed with the Office of Legal Ethics and Accountability
informing Plaintiff that it has been unable to retrieve the information from
LAUSD “in order to correct discrepancies on your account with no success” and
informing Plaintiff she should contact LAUSD to take action so that “CalSTRS
may make any necessary modifications to your account.” (6AC, Ex. D.)
Plaintiff’s
opposition does not deny that Plaintiffs request to have his retirement
benefits corrected was not presented to the Board but argues that Ed. Code § 22219
does not apply because it “is restrict to a conflict between a member denied a
benefit or an obligation by CalSTRS.” (Opp. at p. 3:24-4:2.) Plaintiff does not
cite any case law in support of this proposition and the proposition contrasts
with the broad language of section 22219 as it applies to “any right, benefit,
or obligation of a person under this part.” In O'Connor v. State Teachers'
Retirement System (1996) 43 Cal.App.4th 1610, the plaintiff had an
administrative hearing before the STRS Board wherein he challenged how the
Board calculated his retirement benefits. (Id., at p. 1613.) If after an
administrative decision is rendered, Plaintiff can file a petition
for writ of administrative mandate pursuant to CCP § 1094.5.
Second, Plaintiff
cites no case law to show that Plaintiff is excused from presenting his claims
before the Board or that such a claim was presented and later rejected or
denied by the Board, such that he exhausted his administrative remedies.
Plaintiff cites no case law or procedures from CalSTR showing that
the presentation of a complaint before the Office of Legal Ethics and
Accountability satisfies the requirement of presenting a claim before the
Teachers’ Retirement Board for adjudication. Plaintiff fails to show that the
final letter from the Office of Legal Ethics and Accountability advising
Plaintiff to contact LAUSD and ask LAUSD to take action satisfies the
exhaustion of administrative remedies.
The
‘rule of exhaustion of administrative
remedies is well established in California
jurisprudence.’ [Citation] Generally, it means a party must exhaust administrative
remedies before resorting to the courts.
[Citation.] More specifically, ‘[t]he doctrine of exhaustion
of administrative remedies
requires that where a remedy before an administrative agency is provided by
statute, regulation, or ordinance, relief must be sought by exhausting
this remedy before the courts will act.’ [Citations.]
(Parthemore v. Col (2013) 221 Cal.App.4th 1372, 1379.) This
is true even when the administrative remedy contains permissive language. (See Morton v. Superior Court (1970) 9 Cal.App.3d 977, 982
[“It is the rule that if an administrative remedy is available, it must be
exhausted even though the administrative remedy is couched in permissive
language”].) “Where an administrative remedy is provided by statute, relief must
be sought from the administrative body and the remedy exhausted before the
courts will act; a court violating the rule acts in excess of jurisdiction.” (Hollon v. Pierce (1967) 257 Cal.App.2d 468, 475; see
also Kaiser Foundation Hospitals v. Superior Court (2005)
128 Cal.App.4th 85, 100.) “ ‘[W]hen a statute authorizes [a] prescribed
procedure, and the court acts contrary to the authority thus conferred, it has
exceeded its jurisdiction.’ ” (People v. American Contractors
Indemnity Co. (2004) 33 Cal.4th 653, 661.)
The court finds that
Plaintiff failed to exhaust his administrative remedies by not presenting his
request to have his retirement benefits calculated to the Board. The demurrer
is sustained without leave to amend. The action is dismissed.
The court does not
address LAUSD’s demurrer based on uncertainty due to the 6AC’s request for
damages, penalties, and attorney’s fees as those points are now moot.
Conclusion