Judge: Gary Y. Tanaka, Case: 21TRCV00895, Date: 2022-10-25 Tentative Ruling
Case Number: 21TRCV00895 Hearing Date: October 25, 2022 Dept: B
LOS ANGELES SUPERIOR COURT – SOUTHWEST DISTRICT
Honorable Gary Y. Tanaka Tuesday, October 25, 2022
Department B Calendar No. 3
PROCEEDINGS
Save PV Schools, LLC v. California Department of Public Health, et al.
21TRCV00895
Palos Verdes Peninsula Unified School District’s Demurrer to Second Amended Petition for Writ of Mandate and Prohibition
Palos Verdes Peninsula Unified School District’s Motion to Strike Portions of Second Amended Petition for Writ of Mandate and Prohibition
TENTATIVE RULING
Palos Verdes Peninsula Unified School District’s Demurrer to Second Amended Petition for Writ of Mandate and Prohibition is sustained with 20 days leave to amend.
Palos Verdes Peninsula Unified School District’s Motion to Strike Portions of Second Amended Petition for Writ of Mandate and Prohibition is moot.
Background
Petitioner filed the Petition for Writ of Mandate and Prohibition on December 13, 2021. Petitioner filed the Second Amended Petition for Writ of Mandate and Prohibition on April 1, 2022. Petitioner alleges the following facts. Petitioner is a group of parents and family members of students at Palos Verdes Peninsula Unified School District (“District” or demurring “Respondent”). Petitioner alleges that Respondents failed to perform ministerial duties in response to the COVID-19 pandemic, including the imposition of harmful mandatory mask policies. Petitioner also alleges that classrooms lacked proper ventilation and that the distribution of at-home COVID testing kits was flawed. Petitioner alleges the following causes of action: 1. Writ of Mandate; 2. Writ of Mandate; 3. Writ of Mandate; 4. Writ of Mandate; 5. Writ of Prohibition; 6. Alternative Writ; 7. Declaratory Judgment; 8. Due Process; 9. Violation of Educational Rights.
Meet and Confer
Respondent set forth a meet and confer declaration in sufficient compliance with CCP § 430.41 and CCP § 435.5. (Decl., Gabriel N. Kontarovsky, ¶¶ 13-16.)
Request for Judicial Notice
Respondent’s request for judicial notice is granted pursuant to Evidence Code section 452(b)(c) and (h).
Demurrer
A demurrer tests the sufficiency of a complaint as a matter of law and raises only questions of law. (Schmidt v. Foundation Health (1995) 35 Cal.App.4th 1702, 1706.) In testing the sufficiency of the complaint, the court must assume the truth of (1) the properly pleaded factual allegations; (2) facts that can be reasonably inferred from those expressly pleaded; and (3) judicially noticed matters. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) The Court may not consider contentions, deductions, or conclusions of fact or law. (Moore v. Conliffe (1994) 7 Cal.App.4th 634, 638.) Because a demurrer tests the legal sufficiency of a complaint, the plaintiff must show that the complaint alleges facts sufficient to establish every element of each cause of action. (Rakestraw v. California Physicians Service (2000) 81 Cal.App.4th 39, 43.) Where the complaint fails to state facts sufficient to constitute a cause of action, courts should sustain the demurrer. (C.C.P., § 430.10(e); Zelig v. County of Los Angeles (2002) 27 Cal.App.4th 1112, 1126.)
Sufficient facts are the essential facts of the case "with reasonable precision and with particularity sufficiently specific to acquaint the defendant with the nature, source, and extent of his cause of action.” (Gressley v. Williams (1961) 193 Cal.App.2d 636, 643-644.) "Whether the plaintiff will be able to prove the pleaded facts is irrelevant to ruling upon the demurrer." (Stevens v. Superior Court (1986) 180 Cal.App.3d 605, 609–610.) Under Code Civil Procedure § 430.10(f), a demurrer may also be sustained if a complaint is “uncertain.” Uncertainty exists where a complaint’s factual allegations are so confusing they do not sufficiently apprise a defendant of the issues it is being asked to meet. (Williams v. Beechnut Nutrition Corp. (1986) 185 Cal.App.3d 135, 139, fn. 2.)
Respondent demurs to the fourth through ninth causes of action, which are the only causes of action directed against demurring Respondent, on the ground that the causes of action fail to state facts sufficient to constitute a cause of action.
As to the fourth through ninth causes of action, Petitioner fails to allege facts to demonstrate standing. Petitioner alleges that it is “formed by, and wholly comprised of, parents and families of students attending Palos Verdes Peninsula Unified School District….” (Second Am. Pet. ¶ 4.) The fourth through ninth causes of action are brought pursuant to workplace health and safety regulations, including those adopted by Cal/OSHA. Petitioner fails to allege facts to state that any of its members are employees or agents of demurring Respondent.
Fourth Cause of Action for Writ of Mandate
“A court may issue a writ of mandate “to compel the performance of an act which the law specially enjoins, as a duty resulting from an office, trust, or station; ...” (Code Civ. Proc., § 1085.) (2) Mandate will lie only where (1) the respondent has a clear, present, and usually ministerial duty to act, and (2) the petitioner has a clear, present, and beneficial right to performance of that duty. (People ex rel. Younger v. County of El Dorado (1971) 5 Cal.3d 480, 491 [96 Cal.Rptr. 553, 487 P.2d 1193].) However, the writ will not lie to control the discretion conferred upon a public officer or agency. (Ibid.) The latter rule derives from the view “'[c]ourts should let administrative boards and officers work out their problems with as little judicial interference as possible. ...'” State Bd. of Education v. Honig (1993) 13 Cal.App.4th 720, 741.
Petitioner fails to allege facts to show that the regulations set forth in the fourth cause of action related to the maintenance of ventilation, including 8 Cal. Code Regs § 3205(c)(2)(E) and 8 Cal. Code Regs §5152-5144, are applicable to COVID mitigation, are applicable to the District as an employer, or create a mandatory ministerial duty to act, as opposed to providing guidelines for the District’s discretionary acts.
Fifth Cause of Action for Writ of Prohibition
“The writ of prohibition arrests the proceedings of any tribunal, corporation, board, or person exercising judicial functions, when such proceedings are without or in excess of the jurisdiction of such tribunal, corporation, board, or person.” Code Civ. Proc., § 1102. Petitioner fails to allege facts to show that the District has a judicial or quasi-judicial function as to petitioner. Thus, petitioner fails to demonstrate that the cause of action is applicable as against demurring Respondent.
Sixth Cause of Action for Alternative Writ
“The writ may be either alternative or peremptory. The alternative writ must command the party to whom it is directed immediately after the receipt of the writ, or at some other specified time, to do the act required to be performed, or to show cause before the court at a time and place then or thereafter specified by court order why he has not done so. The peremptory writ must be in a similar form, except that the words requiring the party to show cause why he has not done as commanded must be omitted.” Code Civ. Proc., § 1087. This cause of action fails for the same reasons that the fourth cause of action fails.
Seventh Cause of Action for Declaratory Judgment
Code Civ. Proc., § 1060 states, in relevant part:
“Any person interested under a written instrument, excluding a will or a trust, or under a contract, or who desires a declaration of his or her rights or duties with respect to another, or in respect to, in, over or upon property, [. . .]may, in cases of actual controversy relating to the legal rights and duties of the respective parties, bring an original action or cross-complaint in the superior court for a declaration of his or her rights and duties in the premises, including a determination of any question of construction or validity arising under the instrument or contract. He or she may ask for a declaration of rights or duties, either alone or with other relief; and the court may make a binding declaration of these rights or duties, whether or not further relief is or could be claimed at the time. The declaration may be either affirmative or negative in form and effect, and the declaration shall have the force of a final judgment. The declaration may be had before there has been any breach of the obligation in respect to which said declaration is sought.”
“To qualify for declaratory relief, [Plaintiff] would have to demonstrate its action presented two essential elements: “(1) a proper subject of declaratory relief, and (2) an actual controversy involving justiciable questions relating to [Plaintiff’s] rights or obligations.... But even assuming that [Plaintiff’s] action satisfies the first requirement, it must still present an ‘actual controversy.’ The ‘actual controversy’ language in Code of Civil Procedure section 1060 encompasses a probable future controversy relating to the legal rights and duties of the parties. It does not embrace controversies that are conjectural, anticipated to occur in the future, or an attempt to obtain an advisory opinion from the court. Thus, while a party may seek declaratory judgment before an actual invasion of rights has occurred, it must still demonstrate that the controversy is justiciable. And to be justiciable, the controversy must be ripe.” Wilson & Wilson v. City Council of Redwood City (2011) 191 Cal.App.4th 1559, 1582 (internal citations and quotations omitted; emphasis in original). “The court may refuse to exercise the power granted by this chapter in any case where its declaration or determination is not necessary or proper at the time under all the circumstances.” Code Civ. Proc., § 1061.
Petitioner has failed to allege facts to demonstrate a contractual or other statutory basis for declaratory relief. In addition, Petitioner has failed to allege facts to demonstrate the existence of an actual controversy which encompasses a probable future controversy.
Eighth Cause of Action for Due Process
“The Fourteenth Amendment prohibits any state deprivation of life, liberty, or property without due process of law. Application of this prohibition requires the familiar two-stage analysis: We must first ask whether the asserted individual interests are encompassed within the Fourteenth Amendment's protection of “life, liberty or property”; if protected interests are implicated, we then must decide what procedures constitute “due process of law.” . . . Due process is required only when a decision of the State implicates an interest within the protection of the Fourteenth Amendment. And “to determine whether due process requirements apply in the first place, we must look not to the ‘weight’ but to the nature of the interest at stake.” Ingraham v. Wright (1977) 430 U.S. 651, 672–673 (internal citations and quotations omitted). “Due process always requires, at a minimum, notice and an opportunity to respond.” U.S. v. Raya-Vaca (9th Cir. 2014) 771 F.3d 1195, 1204.
Here, Petitioner fails to allege facts that its members were deprived of life, liberty, or property such that due process was required.
Ninth Cause of Action for Violation of Educational Rights
Petitioner alleges that “California law guarantees all students equal access to education without discrimination.” (Second Am. Petition, ¶ 97.) However, Petitioner fails to allege facts to state what specific educational rights were violated.
Therefore, the demurrer to the fourth through ninth causes of action is sustained with 20 days leave to amend.
Motion to Strike
The court may, upon a motion, or at any time in its discretion, and upon terms it deems proper, strike any irrelevant, false, or improper matter inserted in any pleading. CCP § 436(a). The court may also strike all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court. CCP § 436(b). The grounds for a motion to strike are that the pleading has irrelevant, false or improper matter, or has not been drawn or filed in conformity with laws. CCP § 436. The grounds for moving to strike must appear on the face of the pleading or by way of judicial notice. CCP § 437.
Defendant moves to strike - page 22, lines 9 through 11: “An order of accounting for all government funds, including, but not limited to, those provided in the ESSER III grant funding, which have been used by Respondent PVPUSD for ventilation improvements to date, and the remaining availability of funds for such purposes.” And page 22, line 12: “and attorneys fees.”
The motion to strike is moot upon the sustaining of the demurrer.
Demurring Respondent is ordered to give notice of this ruling.