Judge Gary Y. Tanaka, Case 21TRCV00895 2023-03-01 Tentative Ruling

Judge: Gary Y. Tanaka, Case: 21TRCV00895, Date: 2023-03-01 Tentative Ruling

Case Number: 21TRCV00895 Hearing Date: March 1, 2023 Dept: B

LOS ANGELES SUPERIOR COURT – SOUTHWEST DISTRICT

Honorable Gary Y. Tanaka Wednesday, March 1, 2023

Department B Calendar No. 4

PROCEEDINGS

Save PV Schools, LLC v. California Department of Public Health, et al.

21TRCV00895

1. Palos Verdes Peninsula Unified School District’s Demurrer to Third Amended Petition for Writ of Mandate and Prohibition

2. Los Angeles County Department of Health’s Demurrer to Third Amended Petition for Writ of Mandate and Prohibition

TENTATIVE RULING

Palos Verdes Peninsula Unified School District’s Demurrer to Third Amended Petition for Writ of Mandate and Prohibition is overruled, in part, and sustained without leave to amend, in part.

Los Angeles County Department of Health’s Demurrer to Third Amended Petition for Writ of Mandate and Prohibition is overruled, in part, and sustained without leave to amend, in part.

Background

Petitioner filed the Petition for Writ of Mandate and Prohibition on December 13, 2021. Petitioner filed the Third Amended Petition for Writ of Mandate and Prohibition (“TAP”) on November 22, 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 “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 they were not given proper notice of hearings and procedures. Petitioner alleged the following causes of action in the Second Amended Petition: 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. In the Third Amended Petition, Petitioner alleges the following causes of action: 1. Writ of Mandate; 2. Writ of Mandate; 3. Alternative Writ; 4. Declaratory Judgment; 5. Due Process; 6. Violation of Equal Protection; 7. Violation of Education Rights.

Meet and Confer

Respondent Los Angeles County Department of Health set forth a meet and confer declaration in sufficient compliance with CCP § 430.41. (Decl., Valerie E. Alter, ¶¶ 2-3.)

Respondent set forth a meet and confer declaration in sufficient compliance with CCP § 430.41. (Decl., Daniel S. Moddaferi, ¶¶ 2-6.)

Request for Judicial Notice

Respondents’ requests for judicial notice are granted pursuant to Evidence Code section 452(b)(c) and (h). The Court takes judicial notice of the existence of the documents, but not necessarily the truth of the matters set forth in the documents.

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.)

Demurrer of Los Angeles County Department of Public Health

Respondent Los Angeles County Department of Public Health (“LACDPH”) demurs to the Third Amended Petition and the first, third, and fourth causes of action on the ground that the causes of action fail to state sufficient facts to constitute a cause of action.

First Cause of Action for Writ of Mandate

Third Cause of Action for Alternative Writ

The demurrer to the first and third causes of action is overruled. Petitioner states facts sufficient to constitute the causes of action.

“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.

“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.

First, the Court notes that the demurrer, itself, is substantially based on alleged characterizations and concessions made by Petitioner’s counsel during the meet and confer process rather than the specific allegations set forth in the Third Amended Petition. The Court can only analyze the demurrer upon the face of the allegations of the Third Amended Petition and must deem the allegations as true.

The arguments set forth in the demurrer essentially consist of the following: Respondent argues that, during the meet and confer process, Petitioner’s counsel stated that Petitioner does not challenge the mask mandate, itself, but, instead, the lack of exceptions to the mandate. Respondent states that, in fact, exceptions to the mandate do, in fact, exist. In addition, with the Reply, Respondent argues that it did not breach any ministerial duties.

Here, Petitioner has adequately set forth facts to meet the requirements for a writ of mandate. Petitioner alleges that Respondents enacted, interpreted, and enforced the challenged mandate in an arbitrary manner to the detriment of Petitioner. (TAP, ¶¶50-60.) Petitioner has alleged that the interpretation and enforcement of the mandate has resulted in the failure to provide the necessary exemptions to Petitioner’s members. (Id.) Petitioner has alleged that Respondent failed to perform ministerial duties to ensure the proper and sufficient exceptions and accommodations for qualified individuals. (Id.) Petitioner has alleged that Respondent did not obtain the data necessary to justify the enactment of the order. In addition, Petitioner has alleged that Respondent failed to meet its ministerial duties imposed by SB336 to provide Petitioner and others similarly situated to obtain proper notice related to changes to health officers’ orders prior to its enforcement. (TAP, ¶¶ 53-55.)

Respondent argues that Petitioner has only invoked the ADA with the opposition and not in the TAP. However, the TAP is replete with allegations concerning the failure on the part of Respondent in that necessary “accommodations” were not provided to Petitioner’s members. It does not appear that the ADA is being alleged as a cause of action, but, simply in argument, in the context of the alleged failure to adequately and properly consider exemptions. The ADA was invoked in the opposition, but it does not appear to be necessary to specifically allege the ADA in the body of the TAP, itself, in order to state a cause of action. Respondent also argues that it did not breach any ministerial duties, but instead that any alleged duties were merely discretionary. However, at the same time, Respondent also argues that it had no discretion with respect to the mandate as it is merely complying with guidance provided by the CDC. Petitioner has adequately alleged that the alleged breaches involved ministerial rather than solely discretionary duties.

The demurrer to the first and third causes of action is overruled.

Fourth Cause of Action for Declaratory Judgment

The demurrer to the fourth cause of action is sustained without leave to amend.

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 basis, as outlined in CCP § 1060, for declaratory relief. In addition, a declaration of rights and duties under CCP § 1060 is not necessary as the rights and duties of the parties will be adjudicated pursuant to the first and third causes of action. CCP § 1061.

The demurrer to the fourth cause of action is sustained without leave to amend.

Demurrer of Palos Verdes Peninsula Unified School District

Respondent demurs to the second through seventh causes of action on the ground that the causes of action fail to state facts sufficient to constitute a cause of action.

Second Cause of Action for Writ of Mandate

Third Cause of Action for Alternative Writ

The demurrer to the second and third causes of action is overruled. Plaintiff states facts sufficient to constitute the causes of action.

“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.

Here, Petitioner has adequately set forth facts to meet the requirements for a writ of mandate. Petitioner has set forth various mandatory duties imposed by statute as to Respondent. Petitioner has alleged that by failing to “provide adequate accommodations to Petitioner’s members, and other students, or parents of students, who are qualified for and request such accommodations with respect to masking, based on hearing impairment or other qualifying conditions, the District violates mandatory duties under existing law.” (TAP, ¶ 64.) Petitioner also alleges that on August 11, 2021, District violated the Brown Act (Gov. Code 54954.3(a)) by excluding Petitioner’s members from a public meeting, and then instituting the challenged policy at that meeting. (TAP, ¶¶ 20, 21, 66.) Petitioner also alleges that District failed to respond to the public records request. (TAP, ¶ 46.) Petitioner also alleges that District failed to “discharge their threshold ministerial duties regarding the investigation and implementation of ventilation-based protocols, including, but not limited to, the failure to measure (or disclose) the current ACH or VR levels in all indoor areas, and the failure to prioritize available government funding for such purposes. (Gov. Code §§ 6252, 6253, 6253.1).” (TAP, ¶ 69.)

District argues that the Petition is not appropriate and fails to state a cause of action because the District cannot ignore County health regulations. Whether health regulations have or have not been ignored or complied with is a factual issue, not proper for adjudication with a demurrer. In fact, Petitioner has alleged that Respondent’s actions necessarily resulted in the violations of other regulations and enactments related to public health and safety. As adequately stated in the Petition, Petitioner requests that the masking order be implemented and enforced in a manner that is consistent with applicable laws. Petitioner has adequately alleged that Respondent’s duties and responsibilities with respect to the identification of disabilities and accommodations are mandatory and, thus, Respondent’s mere argument that it has no authority to determine what exemptions are allowed do not necessarily provide a legitimate ground for demurrer.

Thus, the demurrer to the second and third causes of action is overruled.

Fourth Cause of Action for Declaratory Judgment

The demurrer to the fourth cause of action is sustained without leave to amend.

Code Civ. Proc., § 1060 states, in relevant part:

Fifth Cause of Action for Due Process

The demurrer to the fifth cause of action is overruled. Petitioner states facts sufficient to constitute a cause of action.

“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.

As already noted above, the alleged Brown Act violation provides a sufficient basis to support the cause of action for Due Process Violation. The demurrer to the fifth cause of action is overruled.

Sixth Cause of Action for Violation of Equal Protection

The demurrer to the sixth cause of action is sustained without leave to amend.

Generally, upon the sustaining of the demurrer, the scope of leave to amend is to amend the existing causes of action and not to add new causes of action. See, People ex rel. Dept. of Pub. Wks. v. Clausen (1967) 248 Cal.App.2d 770, 785. Addition of a new cause of action may be proper, however, when it “directly responds to the court's reason for sustaining the earlier demurrer.” Patrick v. Alacer Corp. (2008) 167 Cal.App.4th 995, 1015. Here, this new cause of action was not in response to or necessary based on the Court’s ruling sustaining the Demurrer to the Second Amended Verified Petition. Thus, the Demurrer to the sixth cause of action is sustained without leave to amend.

Seventh Cause of Action for Violation of Educational Rights

The demurrer to the seventh cause of action is overruled. Petitioner states facts sufficient to state a cause of action.

Petitioner alleges that “California law guarantees all students equal access to education without discrimination.” (TAP, ¶ 87.) Here, for the same reasons noted in overruling the demurrer to the second and third causes of action, Petitioner has alleged sufficient facts to state that specific educational rights were violated.

Respondents are ordered to file and serve their Answers to the Third Amended Verified Petition within 10 days of this date.

Petitioner is ordered to give notice of this ruling.