Judge: James C. Chalfant, Case: 22STCP04310, Date: 2023-11-07 Tentative Ruling

Case Number: 22STCP04310    Hearing Date: November 7, 2023    Dept: 85

            Respondents Tony Thurmond in his official capacity as Superintendent of Public Instruction (“Thurmond”), the State Board of Education (“Board”), and the California Department of Education (“DOE”) (collectively, the “State Entities”) demur to and move to strike portions of the Second Amended Petition (“SAP”) filed by Petitioners Adam Geczi (“Geczi”), Aaron Kofahl (“Kofahl”), and John Srebalus (“Srebalus”).  Respondent State of California (the “State”) separately demurs to the SAP.[1]

            The court has read and considered the moving papers, oppositions, and replies to each motion, and renders the following tentative decision.

            A. Statement of the Case

            1. The SAP

            Former Petitioners “SF” and “XT,” both minors, and Srebalus filed the Petition against the State and Entities on December 8, 2022.  The operative pleading is the SAP filed on May 18, 2023, alleging causes of action for (1) writ of mandate under the Free School Guarantee, (2) declaratory and injunctive relief under the Free School Guarantee, (3) declaratory and injunctive relief for equal education opportunity, (4) declaratory and injunctive relief for wealth and race discrimination, and (5) declaratory and injunctive relief for a taxpayer action.  The SAP alleges in pertinent part as follows.

            a. Respondents’ Duties

            Since 1879, the State has recognized the general diffusion of knowledge and intelligence as essential to the preservation of rights and liberties.  SAP, ¶13.  The California Constitution requires the State to provide children with a free education, including summer school and non-academic credit extracurricular activities.  SAP, ¶¶ 2, 14.  The equal protection clause prohibits conditioning public education on tuition fees because basic educational equality is a fundamental right.  SAP, ¶41.  In furtherance of these constitutional rights, several statutes and regulations independently prohibit charging fees for public education.  SAP, ¶42.

The State has the ultimate authority and responsibility to guarantee free and equal public education.  SAP, ¶32.  It must ensure that its schools provide basic equality of educational opportunity.  SAP, ¶15. 

            DOE administers and enforces state laws for education and cooperates with federal and state agencies in prescribing rules and regulations.  SAP, ¶34. 

Thurmond and the Board must ensure that all public school districts comply with state laws for education.  SAP, ¶¶ 33, 35.  The Board determines educational policy and adopts rules and regulations governing public education.  SAP, ¶35.

            b. The Summer School Scheme

            Summer school provides an opportunity to retake a class because of a poor grade, participate in extracurricular classes, or receive extra help in a subject and still graduate on time.  SAP, ¶6.  Although schools are not required to provide summer school, when they do they cannot charge a fee under California Teachers Assn. v. Board of Education, (1980) 109 Cal.App.3d 73, 745.  SAP, ¶6.

The most recent California Assessment of Student Performance and Progress results show that two out of three students do not meet state math standards, and over half fall below standards on English and reading.  SAP, ¶16.  The results showed even lower pass rates for black and latinx students.  SAP, ¶16.  The California Poverty Measure shows that non-white populations live in greater poverty and are in a poorer position to pay for summer programs.  SAP, ¶57.  The COVID-19 pandemic has further widened the educational inequalities between races and income groups.  SAP, ¶59.

Summer school is usually available to all public school students without financial cost.  SAP, ¶1.  When it is not, it advantages those students whose families can afford it.  SAP, ¶1.  This creates a two-tiered system that distributes educational opportunity based on wealth.  SAP, ¶¶ 1, 15.  These schemes leave behind the students who need it the most, those for whom race and socio-economic background are already barriers to education.  SAP, ¶7. 

             As a workaround to constitutional protections, many schools outsource summer school to private entities that charge hundreds of dollars in tuition per course and funnel it back into those schools.  SAP, ¶2.  They rent public school classrooms, hire public school teachers, teach school curricula for academic credit, expunge poor grades, and award graduation credit for public schools.  SAP, ¶2.  They pay the excess tuition fees to the schools.  SAP, ¶2.  These educational foundations effectively enable the offending public schools to collect tuition for summer school offerings.  SAP, ¶2.  There is no system in place to provide financially struggling families with access to these summer school programs.  SAP, ¶8. 

            Based on time a volunteer spent on school district websites, Petitioners are informed and believe that 17 districts with a combined student body of 200,000 have such schemes.  SAP, ¶¶ 9, 45-46.  These programs were often the only choice in those districts.  SAP, ¶58. 

One such program, the South Pasadena Education Foundation (“SPEF”), provided summer school for the South Pasadena Unified School District (“SPUSD”).  SAP, ¶7.  Courses cost between $150 and $850.  SAP, ¶¶ 51-53.  SPEF uses SPUSD campuses and teachers, the transcripts are identical, and students can use credits from SPEF towards SPISD graduation requirements.  SAP, ¶¶ 10, 49.  The option to pay for an opportunity to expunge unsatisfactory grades significantly improves these students’ odds of graduating on time and their college admission options.  SAP, ¶56.  Taking required courses through summer programs also allows students to take more advanced courses during the school year.  SAP, ¶55.  SPEF has raised hundreds of thousands for SPUSD every year since 2015.  SAP, ¶10. 

            Petitioners’ volunteer’s search revealed six other districts and five high schools with such programs.  SAP, ¶11, Ex. A.  The State has never audited student tuition fees charged or received in these districts.  SAP, ¶10.  One district said that although it had no scholarship for the educational foundation in effect, a $600 class is discounted to $100 if the student is on a free or reduced-price lunch program.  SAP, ¶58.

The State must be aware of this illegal scheme.  SAP, ¶3.  School district websites offer and promote the scheme to school faculty as a way to hone student skills, cover school curricula, address academic deficiencies, expunge failures, gain academic credit on official transcripts, facilitate taking higher-level courses, and boost chances for access to higher education.  SAP, ¶3.  Some districts openly admit the programs raise funds to supplement the school district’s budget.  SAP, ¶¶ 7, 11, Ex. A. 

The State has failed to take meaningful steps to prevent its districts from conditioning access to educational services and the quality of educational services on payment of tuition.  SAP, ¶¶ 15, 62.  Neither the State, nor any school or school district, has informed students and teachers that this scheme is illegal.  SAP, ¶4.  The State has no accountability system to detect or remediate such systems, and there is no reporting requirement for State approval before a district collects fees for summer school classes taught on their premises.  SAP, ¶5.  The State willingly turns a blind eye and has never identified these pay-to-learn schemes.  SAP, ¶¶ 5, 12. 

            Neither a scholarship program nor fee-waiver policy for student fees can remedy the constitutional violation.  SAP, ¶40.  Fee waivers and scholarships for needy students are undeniably stigmatizing and degrading.  SAP, ¶40.  The open solicitation of donations from families that pay the tuition also stigmatize families that do not contribute, suggesting that their student children are getting a free ride at their peers’ expense.  SAP, ¶40. 

            c. Petitioners’ Harm

            Petitioner Geczi is a public school teacher and department chair at Mira Costa High School in the Manhattan Beach Unified School District (“MBUSD”).  SAP, ¶18.  Petitioner Kofahl is a teacher in the same department.  SAP, ¶24.

            Geczi taught in MBUSD’s summer school program before it shut down and was replaced with MBX, which is an educational foundation.  SAP, ¶18.  Geczi then taught for MBX.  SAP, ¶18.  Kofahl also taught for MBX, but he initially did not realize that it was separate from the MBUSD.  SAP, ¶24.

            Geczi noticed several harmful effects of MBX’s program.  SAP, ¶18.  Because MBX allowed students to get easy A’s in less time than the same courses would take during the MBUSD school year, students chose to take those courses during the summer with MBX.  SAP, ¶19.  Whereas MBUSD’s social sciences department was previously among the highest performing in California, its ranking fell.  SAP, ¶20.  Students who attended the summer classes in MBX performed poorly on standardized tests.  SAP, ¶20.  MBUSD could not prevent students from taking the MBX courses to get easier grades because “students vote with their feet.”  SAP, ¶21.  Forced to compete with a private entity, Geczi’s department had to lower grading standards to attract students.  SAP, ¶¶ 21, 29.  The loss of students to MBX also prompts MBUSD to cut costs via less job security and lower salaries for teachers.  SAP, ¶22. 

            After Geczi spoke out against the MBX summer school system, in March 2018 the MBX principal chose not to rehire him.  SAP, ¶23.  The $7,000 per summer Geczi earned though MBX was a large portion of his income.  SAP, ¶30. 

When a colleague/MBX instructor refused to change his grading distribution to give more A’s, that colleague and Kofahl were blacklisted.  SAP, ¶25.  When Kofahl complained, MBUSD leadership said it could not do anything about it.  SAP, ¶25.  Kofahl has also suffered reputational harm as other summer programs refuse to hire him.  SAP, ¶30. 

After his blacklisting, Kofahl talked to students about why he would not return to MBX the next summer.  SAP, ¶26.  Some of them expressed frustration that MBX allowed affluent student families to pay to inflate their grades.  SAP, ¶26.  Kofahl asked MBUSD to audit MBX to learn how it used funds collected through the summer school offerings.  SAP, ¶27.  MBUSD has neither performed this audit nor produced relevant documents.  SAP, ¶27.   When Kofahl told MBX that charging fees for public education violated the law, it basically told him to go kick rocks.  SAP, ¶27.

            Kofahl filed a Uniform Complaint Procedures (“UCP”) complaint with MBUSD to challenge the two-tiered system MBUSD’s partnership with MBX had created.  SAP, ¶28.  On appeal, DOE concluded that MBX could charge fees because it only rented MBUSD facilities and redirected its funds to MBUSD as a donation, not as part of a formal partnership.  SAP, ¶28. 

            Srebalus is a taxpayer in one of the districts with an unlawful summer school program, to which he has paid the tuition.  SAP, ¶31. 

            d. Exhaustion of Administrative Remedies

            On July 11, 2022, Petitioners asked Respondents to take immediate action to address the constitutional violations at issue.  SAP, ¶63.  On September 1, 2022, DOE Deputy Superintendent Abel Guillen (“Guillen”) issued a Fiscal Management Advisory regarding “Summer School, Third Parties, and Tuition Fees” (“Advisory”).  SAP, ¶64. 

            This Advisory did not discuss the issues in this SAP or direct districts and charter schools to investigate whether such summer school offerings exist.  SAP, ¶64.  It did not enjoin schools from charging a fee for summer school.  SAP, ¶66.  Instead, it listed nine factors to determine if a district offers educational activities within the meaning of the law should someone make a pupil fees complaint.  SAP, ¶66.  These factors did not include the concerns in this SAP, and the Advisory did not explain how to weigh these factors against each other.  SAP, ¶66.

            Petitioners do not need to exhaust the UCP complaint procedure.  SAP, ¶67.   There are no meaningful complaint procedures to challenge the State’s failure to meet constitutional requirements.  SAP, ¶67.  Per Education Code (“Educ. Code”) section 262.3, nothing in “this chapter” requires exhaustion of the administrative complaint process before pursuit of civil law remedies.  SAP, ¶67.  Educ. Code section 49013(a) also only says that a person “may” file a non-compliance complaint under the UCP.  SAP, ¶67. 

            The timelines for the UCP complaint procedure and the Advisory render them incapable of providing quick and meaningful relief.  SAP, ¶67.  The UCP complaint process does not ensure full reimbursement for all affected pupils, parents, and guardians.  SAP, ¶67.  It does not identify illegal schemes such as those at issue here.  SAP, ¶67.  Requiring the filing of individual complaints with local school districts also places students and families in an untenable position by compelling them to take on local schools and school districts to secure a constitutional right to free public education.  SAP, ¶68.

            e. Causes of Action

            Cal. Const. art. IX, section 5, requires that the State provide a system of schools with a free school in each district.  SAP, ¶70.  Respondents have a ministerial duty to enforce the California Constitution’s free education requirement.  SAP, ¶72.  They have refused to perform this duty despite their ability to do so.  SAP, ¶74.  A fee waiver and scholarship policy does not satisfy the requirements of the free school guarantee.  SAP, ¶70.  Respondents violate Former Petitioners’ right to a free education because it does not prevent schools from charging tuition for district-sponsored summer schools through education foundations.  SAP, ¶¶ 71, 79.  Petitioners have no plain, speedy, or adequate remedy for this.  SAP, ¶76.

            Equal protection clauses (Cal. Const. Art. I, §7(a); Cal. Const. Art. IV, §16(a)) prohibit a variance in the quality of public education based on students’ ability to pay fees or obtain waivers.  SAP, ¶83.  Respondents violate the Former Petitioners’ rights insofar as the summer programs cause the quality of public education to vary based on a student’s ability to pay fees.  SAP, ¶¶ 84, 89.

            This is also a taxpayer action.  Srebalus is required to pay state and federal taxes.  SAP, ¶93.  He has an interest in the unlawful expenditure of federal, state, county, or municipal funds to administer a public education system that engages in unconstitutional racial and wealth discrimination.  SAP, ¶94.

            f. Requested Relief

            The SAP seeks to enjoin Respondents from continuing to use educational foundations to charge for summer school.  SAP, ¶17.  It also seeks to compel Respondents to provide compensatory academic relief for the students penalized for their inability to afford tuition and the families that suffer financial hardship because they paid it.  SAP, ¶17. 

            Petitioners seek a peremptory writ of mandate compelling Respondents to rescind fee-based summer school programs in California school districts.  SAP Prayer for Relief, ¶1.  They also seek declaratory judgment that such conduct violates Cal. Const. Art. IX, section 5; Art. I, section 7(a), and Art. IV, section 16(a).  SAP Prayer for Relief, ¶2.  They further seek an injunction compelling Respondents to develop a monitoring and enforcement system to prevent the imposition of unconstitutional tuition for summer school through education foundations, and to compensate parents who were charged such tuition.  SAP Prayer for Relief, ¶3.  Finally, Petitioners seek attorney’s fees and costs.  SAP Prayer for Relief, ¶¶ 4-5.

            2. Course of Proceedings[2]

            On December 5, 2022, Former Petitioner SF served the Petition and Summons on the State, DOE, Board, Thurmon, and the Office of the Attorney General (“OAG”).

            On January 27, 2023, the court denied Former Petitioners and their Guardians ad litem’s ex parte application to proceed under fictitious names. State Entities RJN Ex. B.  Aside from service issues, there was an inadequate showing of a need to proceed anonymously.  Entities RJN Ex. B.  Former Petitioners could file a noticed motion for leave to proceed anonymously.  Entities RJN Ex. B. 

            On March 16, 2023, Srebalus filed applications for his appointment as Zoe Keller’s guardian ad litem.  SF, XT, and Srebalus also filed the First Amended Petition (“FAP”)

            On April 3, 2023, the court denied another ex parte application to allow the Former Petitioners to proceed under fictitious names.  Entities RJN Ex. C.  They still had not made a strong showing that they need to proceed anonymously.  Entities RJN Ex. C.  If they filed a noticed motion, they would need to show a real stigma.  Entities RJN Ex. C. 

            On April 26, 2023, Srebalus and Former Petitioners served the FAP on the State, DOE, Board, Thurmon, and the OAG.  On May 3, 2023, Srebalus and Former Petitioners again served the FAP on the Board, the DOE, and Thurmond.  The next day, May 4, 2023, the court ordered Petitioners’ counsel to file an amended petition using the Petitioners’ real names by May 18, 2023.  Entities RJN Ex. D. 

On May 18, 2023, Petitioners Geczi, Kofahl, and Srebalus filed the SAP.  On May 19, 2023, Geczi, Kofahl, and Srebalus served the SAP on the State and OAG.  On May 22, 2023, Geczi, Kofahl, and Srebalus served the SAP on DOE, the Board, and Thurmond. 

            On June 6, 2023, Geczi, Kofahl, and Srebalus served the SAP and Summons on the State, Thurmond, DOE, and the Board by substitute service, effective June 16, 2023.  On June 23, 2023, Geczi, Kofahl, and Srebalus served the SAP and Summons on the State and Thurmond by substitute service, effective July 3, 2023.

            B. Governing Law

            1. The Education Code

Article 5.5 of the Educ. Code is designed to provide notice and guidance regarding unlawful pupil fees, deter violations, and apply an administrative process to investigate, adjudicate, and remedy a violation.  Educ. Code §§ 49010-13.  “A pupil enrolled in a public school shall not be required to pay a pupil fee for participation in an educational activity.  Educ. Code §49011(a). 

“Pupil fee” is defined as “a fee, deposit, or other charge imposed on pupils, a pupil’s parents or guardians, in violation of Section 49011 and Section 5 of Article IX of the California Constitution, which requires educational activities to be provided free of charge to all pupils without regard to their families’ ability or willingness to pay fees or request special waivers….”  Educ. Code §49010(a). 

“Educational activity” is defined as “an activity offered by a school, school district, charter school, or county office of education that constitutes an integral fundamental part of elementary and secondary education, including, but not limited to, curricular and extracurricular activities.”  Educ. Code §49010(a).

Every three years, CDE must develop and distribute, and post on its website, guidance for LEAs regarding unlawful pupil fees.  Educ. Code §49012(a).

            A complaint of non-compliance may be filed with the principal of a school under the UCP regulations.  Educ. Code §49013(a).  The complaint may be filed anonymously.  Educ. Code §49013(b).  A complainant not satisfied with the school’s decision may appeal to CDE and shall receive a written appeal decision within 60 days.  Educ. Code §49013(c).

If the public school finds merit in a complaint, or CDE finds merit in the appeal, the public school shall provide a remedy to all affected pupils, parents, and guardians that, where applicable, includes reasonable efforts by the public school to ensure full reimbursement to all affected pupils, parents, and guardians.  Educ. Code §49013(d). 

            The Superintendent of Public Instruction (“SPI”) shall establish and implement a system of complaint processing (the UCP) for specified topics.  Educ. Code §33315(a).  The UCP system shall apply to pupil fee disputes.  Educ. Code §33315(a)(1)(I).

2. The UCP Regulations

            The UCP regulations, located at 5 CCR sections 4600 et seq., apply to the filing, investigation, and resolution of a complaint regard an alleged violation by a local agency of certain laws, and to complaints relating to all matters addressed in Educ. Code section 3315(a)(1), which includes claims that pupils were unlawfully charged.  5 CCR §4610(a), (b).  A “local educational agency” (“LEA”) is any public school district and county office of education or charter school, as applicable, unless otherwise stated in law.  5 CCR §4600(p). 

The UCP requires LEAs to adopt policies consistent with the UCP for the investigation and resolution of complaints.  5 CCR §4621(a).  Such policies shall protect complainants from retaliation, identify the positions responsible for receiving and investigating complaints, and ensure that those responsible for compliance or investigation shall be knowledgeable about the laws and programs that person is assigned to investigate.  5 CCR § 4621(a), (b).

            LEAs are required to annually notify their students, parents, officials, and other interested parties about the UCP system and how to use it, including the opportunity to appeal. 5 CCR §4622(a), (b). 

            Pupil fee complaints may be filed with the school’s principal and may be filed anonymously.  5 CCR §4630(d), (e).  A complaint may be filed by any individual, including a person’s duly authorized representative or an interested third party, public agency, or organization. See 5 CCR §4600(d).

            When a complaint is filed, the responsible LEA officials shall conduct and complete an investigation in accordance with the local procedures adopted pursuant to section 4621 and prepare a written LEA Investigation Report.  5 CCR § 4631(a).  The investigation shall include an opportunity for the complainant, the complainant’s representative, or both, to present evidence or information leading to evidence to support the allegations of non-compliance.  5 CCR §4631(b).  An LEA’s refusal to provide the investigator with relevant records or information, or its failure to cooperate in the investigation, may result in a finding based on evidence collected that a violation has occurred and may result in the imposition of a remedy in favor of the complainant.  5 CCR §4631(d).

            The post-investigation LEA Investigation Report must include findings of fact, as well as conclusions “providing a clear determination” as to whether the LEA violated the law.  5 CCR §4631(e).  If the LEA finds merit in the complaint, it must impose corrective actions, which, in the case of a pupil fee dispute, must include a remedy to all affected pupils, parents, and guardians, including reasonable efforts to ensure full reimbursement thereto.  5 CCR §4631(e)(3).  “Reasonable efforts” includes good faith attempts to identify and fully reimburse all pupils, parents and guardians who paid a pupil fee within one year prior to the filing of the complaint.  5 CCR §4600(t).

            5 CCR section 4632 provides a right to appeal to the DOE.  5 CCR §4632(a).  DOE determines whether: (1) the LEA followed its complaint procedures; (2) the LEA Investigation Report includes material findings of fact necessary to reach its legal conclusions; (3) the material findings of fact are supported by substantial evidence; (4) the legal conclusions are correct; and (5) where non-compliance was found, whether the corrective actions provide a proper remedy. 5 CCR §4633(d).

            C. Statement of Facts

            1. The Advisory

            In September 2022, DOE issued an Advisory addressed to County and District Superintendents and Charter School Administrators.  State Entities RJN Ex. A.  The Advisory sought to address recent questions about tuition fees for third-party summer school programs.  State Entities RJN Ex. A.

            Educ. Code section 49011(a) prohibits the imposition of pupil fees for participation in an educational activity.  State Entities RJN Ex. A.  An “educational activity” is one offered by a school, school district, charter school, or county office of education (LEA) that constitutes an integral fundamental part of elementary and secondary education.  State Entities RJN Ex. A; Educ. Code §49010(a). 

            Under Educ. Code sections 33315(a)(1)(I) and 49013, any person can file a complaint relating to unauthorized pupil fees with the principal of a school pursuant to local UCP policies.  State Entities RJN Ex. A.  That person can appeal the local decision to DOE.  State Entities RJN Ex. A.  If the LEA or DOE finds merit in the complaint or appeal, the LEA must provide a remedy that includes reasonable efforts to ensure full reimbursement for affected pupils, parents, and guardians.  State Entities RJN Ex. A. 

            If an LEA offers a summer school program, it may not charge tuition or other pupil fees.  State Entities RJN Ex. A; Educ. Code §49011; 5 CCR §350.  However, the question becomes whether a third party affiliated in some way with an LEA can lawfully charge tuition fees for a summer school program.  State Entities RJN Ex. A.  In other words, the question is whether the law considers the third party’s summer school program “offered” by the LEA.  State Entities RJN Ex. A. 

            That question is a proper subject for a UCP pupil fees complaint.  State Entities RJN Ex. A.  The response depends on the relationship between the LEA and the third party.  State Entities RJN Ex. A.  The Advisory listed non-exclusive factors to consider in deciding whether the LEA is offering the education activities include (1) the organizational structure of the third party, including whether it is legally separate from the LEA and the degree of independence, (2) the relationship between the third party and the LEA, such as the composition of the third party’s governing body and leadership, (3) the content of any Memorandum of Understanding or other written agreement regarding the use of LEA resources and any fees for such use, (4) the entity responsible for communicating about the summer school program to students, parent and guardians, and how that responsibility is communicated to parents, (5) the eligible student population, including whether non-LEA school students may attend the program, (6) the responsibility for choosing which courses are taught, (7) who is responsible for registration, (8) the responsibility for scheduling, (9) the responsibility for collecting fees from enrolled students, (10) the responsibility for hiring, supervising, and paying summer school staff, and (11) the responsibility and procedure for awarding and/or transferring course credit.  State Entities RJN Ex. A. 

2. Demurrer Ruling in D.J.

            In September 2013, the court overruled the demurrer of respondent State Entities and the State in D.J. v. State of California (“D.J.”), Case No. BS142775.  Opp. RJN Ex. B.  The D.J. petition alleged that Respondents had abrogated their responsibility to provide English learner education to students lacking oral and written proficiency in English, as mandated by Prop 227, federal law, and California constitutional authority.  Ex. B, p. 1.  The mandamus claim alleged that Respondents have a clear and present state-mandated duty to ensure that EL students receive access to education and equal educational opportunity through EL.  The mandate claim sought to compel Respondents to cease doing nothing in response to reports from districts that nothing has been done to serve EL students and to establish policies and procedures to effectively ensure that all EL students in public school receive EL instruction.  Ex. B, p. 4.  The mandate claim relied on the State’s ultimate responsibility under the California Constitution and federal law to take appropriate action, alleging that inaction is not an option.  See Hollman v. Warren, (1948) 32 Cal.2d 351, 355 (mandamus not available to compel the exercise of discretion in a particular manner but does lie to compel the exercise of discretion for some action).   Id.  The court noted that Respondents had taken action through creating a program for delivering EL services but had not taken any action in response to reports from school districts; whether they had complied with their mandatory duty was a factual issue for trial.  Ex. B, pp. 5-6.

As for exhaustion of administrative remedies, the petitioners admitted they never filed a UCP complaint concerning these allegations.   Ex. B, pp. 6-7.  They argued that this administrative procedure did not apply because they sought relief against the State Entities, not the individual school districts, and no administrative mechanism exists to enforce the mandatory duty of Respondents as opposed to the school districts.  Ex. B, 7.  The court agreed that the petitioners brought the suit in a representative capacity to obtain systemic relief.  Ex. B, p. 8.  Respondents were silent on any process or remedy for their compliance with their alleged mandatory duty.  Ex. B, p. 8.  In a case holding that the UCP process provides an adequate remedy, the court noted that the law excuses compliance with piecemeal administrative remedies where there is a systemic shortfall.  Tri-County Special Educ. Local Plan Area v. County of Tuolumne, (“Tri-County”) (2004) 123 Cal.App.4th 563, 576.  Ex. B, p. 8.

As for the taxpayer claim against the State, the purpose of CCP section 526a is to permit a challenged to wasteful government action.  The petition contended that Respondents are permitting school districts to misuse funds, which is sufficient for taxpayer claim.  The taxpayer need not identify the specific funds expended if the illegal governmental conduct necessarily involves the expenditure of public funds.  McKinney v. Board of Trustees, (1982) 31 Cal.3d 79, 91.

            D. Meet and Confer

            On July 7, 2023, all parties met and conferred via telephone as to both demurrers and the motion to strike.  Edelstein Decl., ¶2; Prouty Decl., ¶2.  Efforts to resolve the issues failed.  Edelstein Decl., ¶2; Prouty Decl., ¶2.  Respondents have demonstrated that they fulfilled the meet and confer requirement for their motions.

            E. The Demurrers

            1. Applicable Law 

            Demurrers are permitted in administrative mandate proceedings.  CCP §§ 1108, 1109.  A demurrer tests the legal sufficiency of the pleading alone and will be sustained where the pleading is defective on its face. 

            Where pleadings are defective, a party may raise the defect by way of a demurrer or motion to strike or by motion for judgment on the pleadings.  CCP §430.30(a); Coyne v. Krempels, (1950) 36 Cal.2d 257.  The party against whom a complaint or cross-complaint has been filed may object by demurrer or answer to the pleading.  CCP §430.10.  A demurrer is timely filed within the 30-day period after service of the complaint.  CCP §430.40; Skrbina v. Fleming Companies, (1996) 45 Cal.App.4th 1353, 1364. 

            A demurrer may be asserted on any one or more of the following grounds: (a) The court has no jurisdiction of the subject of the cause of action alleged in the pleading; (b) The person who filed the pleading does not have legal capacity to sue; (c) There is another action pending between the same parties on the same cause of action; (d) There is a defect or misjoinder of parties; (e) The pleading does not state facts sufficient to constitute a cause of action; (f) The pleading is uncertain (“uncertain” includes ambiguous and unintelligible); (g) In an action founded on a contract, it cannot be ascertained from the pleading whether the contract is written, is oral, or is implied by conduct; (h) No certificate was filed as required by CCP sections 411.35 or 411.36.  CCP §430.10. 

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.  The face of the pleading includes attachments and incorporations by reference (Frantz v. Blackwell, (1987) 189 Cal.App.3d 91, 94), but it does not include inadmissible hearsay.  Day v. Sharp, (1975) 50 Cal.App.3d 904, 914.   

            The sole issue on demurrer for failure to state a cause of action is whether the facts pleaded, if true, would entitle the plaintiff to relief.  Garcetti v. Superior Court, (“Garcetti”) (1996) 49 Cal.App.4th 1533, 1547; Limandri v. Judkins, (1997) 52 Cal.App.4th 326, 339.  The question of plaintiff’s ability to prove the allegations of the complaint or the possible difficulty in making such proof does not concern the reviewing court.  Quelimane Co. v. Stewart Title Guaranty Co., (1998) 19 Cal.4th 26, 47. 

The ultimate facts alleged in the complaint must be deemed true, as well as all facts that may be implied or inferred from those expressly alleged.  Marshall v. Gibson, Dunn & Crutcher, (“Marshall”) (1995) 37 Cal.App.4th 1397, 1403.  This rule does not apply to allegations expressing mere conclusions of law, or allegations contradicted by the exhibits to the complaint or by matters of which judicial notice may be taken.  Vance v. Villa Park Mobilehome Estates, (“Vance”) (1995) 36 Cal.App.4th 698, 709. 

            For all demurrers filed after January 1, 2016, the demurring party must meet and confer in person or by telephone with the party who filed the pleading for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer.  CCP §430.31(a).  As part of the meet and confer process, the demurring party must identify all of the specific causes of action that it believes are subject to demurrer and provide legal support for the claimed deficiencies.  CCP §430.31(a)(1).  The party who filed the pleading must in turn provide legal support for its position that the pleading is legally sufficient or, in the alternative, how the complaint, cross-complaint, or answer could be amended to cure any legal insufficiency.  Id.  The demurring party is responsible for filing and serving a declaration that the meet and confer requirement has been met.  CCP §430.31(a)(3).

            “[A] demurrer based on a statute of limitations will not lie where the action may be, but is not necessarily, barred. [Citation.] In order for the bar of the statute of limitations to be raised by demurrer, the defect must clearly and affirmatively appear on the face of the complaint; it is not enough that the complaint shows that the action may be barred.” State ex rel. Metz v. CCC Information Services, Inc., (2007) 149 Cal.App.4th 402, 413.

            If a demurrer is sustained, the court may grant leave to amend the pleading upon any terms as may be just and shall fix the time within which the amendment or amended pleading shall be filed.  CCP §472a(c).  However, in response to a demurrer and prior to the case being at issue, a complaint or cross-complaint shall not be amended more than three times, absent an offer to the trial court as to such additional facts to be pleaded that there is a reasonable possibility the defect can be cured to state a cause of action.  CCP §430.41(e)(1).

2. Analysis

            The State Entities demur to the SAP based on Petitioners’ failure to (a) exhaust administrative remedies (State Entities Dem. at 8-10), (b) allege a mandatory legal duty (State Entities Dem. at 11), (c) assert a viable claim against the State Entities based on school district misconduct (State Entities Dem. at 12-13), (d) assert a claim for declaratory relief that is ripe (State Entities Dem. at 13-14), and allege a viable taxpayer claim (State Entities Dem. at 14-15). 

The State’s demurrer joins these grounds, and it also demurs based on whether it is a proper party.  State Dem. at 6-7.

            a. Exhaustion of Remedies

A writ of mandate will only issue when the petitioner has no plain, speedy, or adequate remedy at law. CCP §1086.  As a general rule, a court will not issue a writ of mandate unless a petitioner has first exhausted its available administrative remedies.  See, e.g., Alta Loma School Dist. v. San Bernardino County Com. On School Dist. Reorganization, (1981) 124 Cal.App.3d 542, 554.  Under this rule, an administrative remedy is exhausted only upon termination of all available, non-duplicative administrative review procedures.  Coachella Valley Mosquito & Vector Control Dist. v. California Public Employment Relations Bd., (2005) 35 Cal.4th 1072, 1080.

The exhaustion doctrine has been described as “a jurisdictional prerequisite to resort to the courts.”  Abelleira v. District Court of Appeal, (1941) 17 Cal.2d 280, 293.  The exhaustion doctrine contemplates that the real issues in controversy be presented to the administrative body, which must be given the opportunity to apply its special expertise to correct any errors and reach a final decision, thereby saving the already overworked courts from intervening into an administrative dispute unless absolutely necessary.  Farmers Ins. Exchange v. Superior Court, (1992) 2 Cal.4th 377, 391.

The failure to allege exhaustion of administrative remedies or facts excusing the failure to exhaust renders the petition subject to demurrer for failure to state a cause of action.  See, e.g., Stenocord Corp. v. City & County of San Francisco, (1970) 2 Cal.3d 984, 990.  A mere allegation that petitioners have exhausted their administrative remedies has been held to be conclusory and insufficient to survive demurrer.  Pan Pacific Property v. County of Santa Cruz, (1978) 81 Cal.App.3d 244, 251.  On the other hand, such an allegation has also been held sufficient to survive demurrer.  Wong v. Regents of University of California, (1971) 15 Cal.App.3d 823, 829.  Therefore, the court has discretion in determining whether the allegation is adequate. 

The exhaustion rule applies even where the statute or regulation couches use of the process in permissive “may” language.  Marquez v. Gourley, (“Marquez”) (2002) 102 Cal.App.4^th 710, 713-14.  An aggrieved party is not required to file a grievance or protest if he does not wish to do so, but if he does wish to seek relief, he must first pursue an available administrative remedy before he may resort to the judicial process.  Marquez, supra, 102 Cal. App. 4th at 714. 

There are exceptions to the exhaustion doctrine; exhaustion is excused when an administrative remedy is unavailable, is inadequate, or it would be futile to pursue it.  McAllister v. County of Monterrey, (2007) 147 Cal.App.4th. 253, 275.  Other exceptions include "situations where the agency indulges in unreasonable delay...when the subject matter lies outside the administrative agency's jurisdiction, [or] when pursuit of an administrative remedy would result in irreparable harm...." Ibid; Green v. City of Oceanside, (1987) 194 Cal.App.3d 212, 222.

            The State Entities argue that Petitioners’ goal is to stop school districts from violating the law concerning summer school tuition and note that the UCP system is specifically designed to achieve that same goal.  A UCP complaint may be filed with the principal of a school under the UCP procedures in 5 CCR section 4600 et seq.  Educ. Code §49013(a). A complainant not satisfied with the decision of a public school may appeal the decision to the DOE.  Educ. Code §49013(c).  If the public school or DOE finds merit in the complaint, the public school shall provide a remedy to all affected pupils, parents, and guardians, including full reimbursement to all affected pupils and families.  Educ. Code §49013(d).  Dem. at 8.

            The State Entities argue that Petitioners may not establish widespread illegality by school districts without a careful examination of the facts and circumstances applicable to each offending school district, including the district’s relationship with a third-party providing summer school classes.  Dem. at 8.  Although the SAP claims that Petitioners have no meaningful complaint procedure to challenge the State Entities’ failure to meet their constitutional duties, the point is not whether the administrative process allows Petitioners to prosecute the same cause of action as in the SAP, but rather whether the process provides some remedy and otherwise serves the exhaustion doctrine’s purposes.  Tejon Real Estate, LLC, v. City of Los Angeles, (“Tejon Real Estate”) (2014) 226 Cal.App.4^th 149, 156 (property owner required to exhaust administrative procedures to obtain interpretation of city’s building and zoning ordinances for development of residence).

            The parties first debate whether the UCP process is mandatory or permissive.  Dem. at 9-10; Opp. at 10-11.  Petitioners argue that the use of the word “may” in Educ. Code sections 262.3(a) (concerning discrimination claims) and 49013(a) and (c) renders the UCP complaint process permissive and not mandatory.  Opp. at 11.  

The court may deal with this issue summarily.  Even if Educ. Code section 262.3(a) applies to the UCP process – the State Entities contend that it does not (Dem. at 9-10) -- the permissive language in Educ. Code sections 262.3(a) and 49013(a) pertains to the complainant’s choice whether to file a complaint and then a subsequent UCP appeal to DOE.  An aggrieved party is not required to file a grievance or protest, but he or she must first pursue an available administrative remedy before resorting to the judicial process.  Marquez, supra, 102 Cal. App. 4th at 714. 

            Petitioners then argue that the relief sought against the State Entities is not available from any school district or other LEA.  The SAP alleges that a substantial number of LEAs are engaged in a systemic illegal summer school tuition scheme.  No LEA can correct that systemic problem.  The State Entities cite Tejon Real Estate, but that case assumes some nexus between the relief available in the administrative process and the requested judicial relief, which in Tejon Real Estate was the validity of zoning or building regulations for development of a property.  See 223 Cal.App.4^th at 156.  The UCP offers resolution at a granular level of specific tuition disputes at a particular summer school.  It cannot offer the structural and systemic relief from the State Entities that is sought by Petitioners.  Opp. at 12-13. 

            The State Entities reply that the violations at the 17 school districts are the premise underlying the SAP’s systemic claim and the UCP process is expressly designed to address such violations.  Reply at 10.  The exhaustion doctrine policy aids by reducing the scope of litigation even where complete relief is not obtained.  Hence, exhaustion is required even when the available remedy may not resolve all issues or provide the precise relief requested by a plaintiff is not available in the administrative process.  Los Globos Corp v. City of Los Angeles, (“Los Globos”) (2017) 17 Cal.App.5^th 627, 632-33 (nightclub failed to exhaust administrative remedies from city inspectors’ reduction of the number of patrons allowed in the club); Tejon 223 Cal. App. 4th 149, 156.  Reply at 10.

The State Entities fail to address Petitioners’ point that there must be a nexus between the judicial relief sought and the available administrative relief.  For example, in Tejon, supra, 223 Cal. App. 4th at 156, the petitioner failed to submit plans or seek a building permit, which would have enabled the city to determine what conditions should be imposed on his residence project.  Id. at 157.  The petitioner in effect argued that his project was entitled to a variance from the standard rules and regulations without undergoing the permitting process.  Id. at 157.  The court rejected the petitioner’s argument.  Id.  Similarly, in Campbell v. Regents of Unviversity of California, (2005) 35 Cal.4^th 311, the petitioner sought monetary damages for her wrongful termination in addition to reinstatement and back pay.  The court refused to waive the exhaustion requirement solely because the agency’s remedial procedures did not provide for damages relief.  Id. at 323.

            Here, the UCP process exists to enforce the mandatory duty of school districts, not the State Entities.  The existence of summer school violations at 17 or more school districts is the underlying premise to Petitioners’ claim against the State Entities, and the State Entities are correct that exhaustion of UCP’s against these school districts would develop the factual record and reduce the scope of the litigation.  Nonetheless, there is no nexus between school district violations of summer school tuition responsibilities and the State Entities’ mandatory duty to monitor and enforce the free education requirement of the California Constitution.  Relief may be granted against the school districts in the UCP process and not the State Entities.  Conversely, judicial relief may be granted against the State Entities without granting relief against the school districts. 

While the matter is not free from doubt, and although exhaustion would create district-specific facts on the issues, exhaustion of administrative is not required.[3]

            b. Mandamus Claim

            The state legislature must provide for a system of common schools by which a free school shall be kept up and supported in each district at least six months in every year, after the first year in which a school has been established.  Cal. Const., art. IX, §5.  This provision entitles the state’s youth to education at the public expense.  Hartzell v. Connell (1984), 35 Cal. 3d 899, 905 (fees for extracurricular music and sports activities violated the free school guarantee).

Petitioners allege that Respondents have breached a ministerial duty to enforce this requirement.  SAP, ¶¶ 72, 74.  They rely on Butt v. California, (“Butt”) (1992) 4 Cal.4^th 668, 680, that state law does not permit inaction.  Petitioners contend that the State has a non-delegable duty to take reasonable steps to create and enforce a statewide system reasonably calculated to deter, identify, and remediate imposition of illegal student fees and have failed to do so.  Opp. at 15.

A traditional writ of mandate under CCP section 1085 is the method of compelling the performance of a legal, ministerial duty.  Pomona Police Officers’ Assn. v. City of Pomona, (“Pomona”) (1997) 58 Cal.App.4th 578, 583-84.  Generally, mandamus will lie when (1) there is no plain, speedy, and adequate alternative remedy, (2) the respondent has a duty to perform, and (3) the petitioner has a clear and beneficial right to performance.  Id. at 584 (internal citations omitted).  Whether a statute imposes a ministerial duty for which mandamus is available, or a mere obligation to perform a discretionary function, is a question of statutory interpretation.  AIDS Healthcare Foundation v. Los Angeles County Dept. of Public Health, (2011) 197 Cal.App.4th 693, 701.

The State Entities note that a petitioner must plead the ministerial duty in “explicit and forceful” language.  Quackenbush v. Superior Court, (1997) 57 Cal.App.4^th 660, 663.  There also must be a “clear, present, and beneficial right” to the respondent’s performance.  County of San Diego v. California, (2008) 164 Cal.App.4^th 580, 593.  Even then, a court may decline relief where there is a plain, speedy, and adequate remedy or it would implicate serious separation of powers concerns.  Id. at 593-94. 

Petitioners contend that the State Entities have a “ministerial duty to enforce the free education requirement of the California Constitution (SAP, ¶72) and that they breached that duty by “failing to ensure that public school districts do not break the law (SAP, ¶¶ 71, 74).  As the State Entities contend, Petitioners fail to identify any specific statute or constitutional provision imposing a ministerial duty in explicit and forceful language that shows a clear, present, and beneficial right to performance.  Dem. at 11. 

In opposition, Petitioners contend that the duty of State Entities is to take reasonable steps to create and enforce a statewide system reasonably calculated to deter imposition of illegal student fees.  Opp. at 15.  This is a statement of a discretionary duty, not a ministerial one.  An agency decision is an abuse of discretion only if it is “arbitrary, capricious, entirely lacking in evidentiary support, unlawful, or procedurally unfair.”  Kahn v. Los Angeles City Employees’ Retirement System, (2010) 187 Cal.App.4th 98, 106.  In applying this deferential test, a court “must ensure that an agency has adequately considered all relevant factors, and has demonstrated a rational connection between those factors, the choice made, and the purposes of the enabling statute.”  Western States Petroleum Assn v. Superior Court, (1995) 9 Cal.4th 559, 577. 

Mandamus will not lie to compel the exercise of a public agency’s discretion in a particular manner.  American Federation of State, County and Municipal Employees v. Metropolitan Water District of Southern California, (“AFSCME”) (2005) 126 Cal.App.4th 247, 261.  It is available to compel an agency to exercise discretion where it has not done so (Los Angeles County Employees Assn. v. County of Los Angeles, (1973) 33 Cal.App.3d 1, 8), and to correct an abuse of discretion actually exercised.  Manjares v. Newton, (1966) 64 Cal.2d 365, 370-71.  In making this determination, the court may not substitute its judgment for that of the agency, whose decision must be upheld if reasonable minds may disagree as to its wisdom.  Id. at 371.  A writ will lie where the agency’s discretion can be exercised only in one way.  Hurtado v. Superior Court, (1974) 11 Cal.3d 574, 579. 

As the State Entities note, in evaluating whether they abused their discretion, the court must account for the constitutional separation of powers, the presumed expertise of executive agencies acting within the scope of their authority, and the presumption that agencies have complied with their official duties.  Schwartz v. Poizner, (2010) 187 Cal.App.4^th 592, 598.  The court should also presume that officials have complied with official duties in conducting any investigation.  Evid. Code §664.  Id.

Petitioners do not, and cannot, plead that the State Entities have abused their discretion with respect to their duty to take reasonable steps to create and enforce a statewide system reasonably calculated to deter, identify, and remediate imposition of illegal student fees.  The State Entities have taken two steps to avoid illegal summer school tuition.

First, the SPI has implemented the UCP system in compliance with Educ. Code section 33315(a).  The UCP system applies to pupil fee disputes.  Educ. Code §33315(a)(1)(I).  The UCP regulations, located at 5 CCR sections 4600 et seq., apply to the filing, investigation, and resolution of a complaint, inter alia, that pupils were unlawfully charged.  5 CCR §4610(a), (b).  The SAP admits that the UCP policies seeks to avoid illegal pupil fees.  Id; SAP ¶¶ 28, 67.  Because whether a private entity’s fee can be legally attributed to the district is a fact-specific inquiry, UCP complaints offer the best approach to deter, investigate, and remedy these fees disputes.  

            Second, apparently in response to Petitioners’ July 11, 2022 request that the State Agencies take immediate action to address the constitutional violations at issue (SAP, ¶63), on September 1, 2022, DOE Deputy Superintendent Guillen issued the Advisory.  SAP, ¶64.  The DOE’s Advisory states that when a third-party summer program collects a fee, whether the LEA receives a portion is only one factor in whether the LEA offers the program as a matter of law.  Entities RJN Ex. A.  Because the Education Code only prohibits the LEA from collecting fees if it offers the summer school program, the reimbursement it receives from the third-party program could therefore be constitutional.  Id.  For example, when Petitioners filed a DCP complaint against MBUSD’s partnership with MBX, the DOE found that MBX could charge fees because it only rented MBUSD facilities and redirected its funds to MBUSD as a donation.  SAP, ¶28.  The Advisory explained that question is a proper subject for a UCP pupil fees complaint and the response depends on the relationship between the LEA and the third party.  State Entities RJN Ex. A.  The Advisory listed 11 non-exclusive factors to consider in deciding whether the LEA is offering the education activities.  State Entities RJN Ex. A. 

Thus, the State Entities have taken two forms of action to address the issue of illegal student tuition at district summers schools: regulations and the Advisory issued in response to Petitioners’ request.  The court must presume that the SPI complied with official duties in investigating Petitioners’ request.  Evid. Code §664. 

As the State Entities argue (Reply at 2), while Petitioners claim that the State Entities must do “something instead of nothing”, they have done something.  This something is sufficient to satisfy the deferential abuse of discretion standard.  Petitioners cannot compel the State Entities to exercise their discretion in a particular manner.  AFSCME, supra, 126 Cal.App.4th at 261.  Nor can they ask the court to substitute its own judgment for that of the State Agencies on what should be done to redress this alleged problem.  See Manjares v. Newton, supra, 64 Cal.2d at 370-71.  Petitioners’ mandamus claim to compel the State Agencies to take further action would also impinge on separation of powers by asking the court to second-guess the State Agencies’ actions.  See Coachella Valley Unified School District, (“Coachella Valley”) (2009) 176 Cal.App.4^th 116-25 (law requiring states to assess EL progress did not specify how a state must do so and was not a basis for mandamus to compel state to change policy).

            The court’s ruling in D.J. is not inconsistent with this decision.  The mandate claim in D.J. was based on the State Entities’ failure to take action when the State had ultimate responsibility under the California Constitution and federal law to do so.  See Hollman v. Warren, (1948) 32 Cal.2d 351, 355 (mandamus not available to compel the exercise of discretion in a particular manner but does lie to compel the exercise of discretion for some action).  The petitioners sought to compel the State Entities to stop doing nothing in response to reports from districts that nothing had been done to serve EL students and to establish policies and procedures that would effectively ensure that all EL students in public school receive EL instruction.  Ex. B, p. 4.  While the State Entities had taken action by creating a program for delivering EL services, they had not taken any action in response to negative reports from school districts.  Ex. B, pp. 5-6.  Unlike D.J., the State Entities have taken action in response to Petitioners’ complaints about summer school tuition.

            More important, the court’s ruling in D.J. would be unlikely to survive today.  Recently, the Second Appellate District decided Los Angeles Waterkeeper v. State Water Resources Control Board, (2023) 92 Cal.App.5^th 230, in which the State Water Board’s constitutional and statutory duty to prevent waste and unreasonable use of water – i.e., recycle water -- was at issue.  Id. at 277.  Faced with the waste of more than 300 million gallons of water per day from City of Los Angeles water treatment plants without any effort to recycle, this court ruled that the Water Board had a duty to do something just as Petitioners argue here.  Id. at 259-60, 278.  The appellate court reversed, holding that the Water Board’s general duty on recycling water is highly discretionary and it had taken general actions to carry out that duty.  Id. at 279-82.  Therefore, petitioner could not state a claim of mandamus for the Water Board to do more.  Id. at 277-79.  The court noted that its holding did not leave the petitioner without a remedy because it could file suit or make a claim before  the Water Board against those who use water unreasonably.  Id. at 284.

It follows a priori that if the Water Board cannot be compelled to do something about the water treatment plants’ waste of water in the face of its Constitutional and statutory duty to govern the recycling of water, then the State Entities cannot be compelled to exercise their discretion to control illegal summer school fees any more than they already have done.  As in Waterkeeper, this does not leave Petitioners without a remedy because they can file suit or make a claim against any school district that violates the free school guarantee for summer school tuition.[4]

            The SAP does not state a viable mandamus claim.

            c. Declaratory Relief Claims

            The SAP’s second, third, and fourth causes of action for declaratory relief allege violations under the free school guarantee of equal education opportunity and for wealth and race discrimination because the State Entities failed to ensure that school districts have not charged summer school fees through a third-party educational foundation.  SAP, ¶¶ 79, 84, 89.

            (1). Failure to State a Claim Based on School District Misconduct

            The State Entities argue that these claims are proper against local districts, but the State is not liable for local agencies’ breaches in tort or contract.  Johnson v. San Diego Unified School District, (1990) 217 Cal.App.3d 692, 698-99.  There is no authority that it is proper to sue state level agencies for school district misconduct; it is only in the rare, emergency situation that state agencies must step in, such as in Butt.  Dem. at 12-13.

Butt addressed whether the state has a constitutional duty to prevent the budgetary problems of a particular school district from depriving its students of basic educational opportunity.  See Butt, supra, 4 Cal.4th at 674.  The school district’s insolvency had resulted in its announcement that its students would lose the last six weeks of the school year, or 20% of the school year.  Id. at 674.  Concluding that the particular circumstances of the case demanded immediate state intervention, the California Supreme Court held that, although the legislature has assigned much of the governance of the public schools to the local districts, the State retains broad responsibility to ensure basic educational equality under the California Constitution.  Id. at 681, 685.   Although Petitioners rely on Butt, the SAP’s allegations do not create a risk of extreme and unprecedented disparity meriting state intervention.  Dem. at 12-13. 

            Petitioners argue that the State Entities’ distinction of Butts is immaterial.  The State was required to intervene to prevent the school district’s budgetary failure to provide a free education in that case even though it had not produced the discriminatory effect.  Id. at 681, 692.  The system of public schools, although administered locally by school districts, is one system applicable to all the common schools.  Butts, supra, 4 Cal.4^th at 680.  The SAP alleges that the State Entities have failed to intervene to prevent school districts from permitting third-party summer school programs to charge fees and share them with the districts, thereby depriving low income and minority students from equal access to education.  SAP, ¶¶ 15-16, 47-61.  Unlike Butts, this practice has not been limited to an isolated six-week period but has persisted every summer for years at numerous school districts.  Petitioners have pled the State’s willful ignorance and deliberate inaction, giving rise to a claim against the State Entities to ensure basic educational equality.  Opp. at 17-18.

The State Entities correctly reply (Reply at 5) that a declaratory relief claim based on the same facts and claims as a defective mandamus claim is properly dismissed.  See Coachella Valley, supra, 176 Cal.App.4^th at 126 (declaratory relief cannot broaden the liability which may be imposed on governmental bodies).  See Monterey Coastkeeper v Central Coast Regional Water Quality Control Board , (2022) 76 Cal.App.5^th 1, 7-8, 14, 18 (demurrer properly sustained for declaratory relief claim that respondents failed to take meaningful steps to regulate agricultural discharges because gravamen was that respondents’ system was not sufficiently effective and declaratory relief is not available to tell an agency how to do its job); Zetterberg v. State Dept. of Public Health , (1974) 43 Cal.App.3d 657, 661-65 (trial court should have dismissed action for declaration relief regarding the department’s duty to act against air pollution because court could not, with any specificity, structure the parameters of the duty to exercise that authority). 

The second, third, and fourth causes of action allege violations under the free school guarantee of equal education opportunity and for wealth and race discrimination because the State Entities failed to ensure that school districts have not charged summer school fees through a third-party educational foundation.  As Petitioners admit, these claims are derivative of their mandamus claim.  Opp. at 18.  The claims add no new facts and only offer legal conclusions of separate violations of constitutional law.  They fail for the same reason as the mandamus claim.

            (2). Ripeness

            For a controversy to be ripe it “must be a real and substantial controversy admitting of specific relief through a decree of a conclusive character, as distinguished from an opinion advising what the law would be upon a hypothetical state of facts.”  Pacific Legal Foundation v. California Coastal Commission, (“Pacific Legal Foundation”) (1982) 33 Cal.3d 158, 170.  Courts are prohibited from issuing advisory opinions on matters that are not ripe for review.  Id.  “A controversy is not deemed ripe for adjudication unless it arises from a genuine present clash of interests and the operative facts are sufficiently definite to permit a particularistic determination rather than a broad pronouncement rooted in abstractions.”  O'Grady v. Superior Court, (2006) 139 Cal. App.4th 1423, 1451 (courts will not issue advisory opinions about discovery before requests are propounded).   There is a two-part test for ripeness: (1) is the dispute sufficiently concrete? and (2) what is the hardship to the parties of withholding judicial review?  Pacific Legal Foundation, supra, 33 Cal.3d at 171.  A “hardship” means an “imminent and significant hardship in further delay.”  Farm Sanctuary, Inc. v. Dept. of Food & Agriculture, (1998) 63 Cal.App.4th 495, 502.

            The State Entities assert that the second, third, and fourth causes fail both ripeness factors.  As to the first factor, Petitioners cannot say whether their beliefs are true about what the 17 schools and districts are doing (SAP, ¶¶ 9, 45-46), whether the problem is widespread, or whether the court can compel the creation of a new enforcement system when Petitioners failed to use the old one.  Dem. at 14.  The State Entities add that the SAP fails to allege well pleaded facts that the State Entities breached their responsibility.  Petitioners cite no case law that State Entities can be held responsible for illegal pupil fees charged by one or more school districts.  Reply at 5. 

The SAP alleges that any summer program that shares its fees with the LEA is unconstitutional.  SAP, ¶2.  The court must assume the truth of the SAP’s allegation that 17 summer programs are violating the law.  However, Petitioners fail to allege any breach by the State Entities other than the failure to monitor and intervene to prevent school districts from permitting third-party summer school programs to charge fees and share them with the districts.  SAP, ¶¶ 15-16, 47-61.  The court concluded ante that this is not a breach of the State Entities’ discretionary duty.

As to the second factor, the State Entities contend that Petitioners cannot demonstrate hardship because an aggrieved student or parent can file a UCP complaint in any district that violates the law.  Dem. at 14.  Additionally, Petitioners are not students or their parents and will suffer no hardship from withholding judicial review.  Reply at 8. 

The SAP alleges specific harms that will continue under the current summer school system.  The option to pay for an opportunity to expunge unsatisfactory grades significantly improves these students’ odds of graduating on time and their college admission options.  SAP, ¶56.  Taking required courses through summer programs also allows students to take more advanced courses during the school year.  SAP, ¶55.  Non-white families are less financially able to afford these opportunities, and Black and Latinx students have lower pass rates in math and English.  SAP, ¶¶ 16, 57.

            These harms are not Petitioners’ harms.  They also are more expeditiously and more properly fleshed out through the UCP process than through this lawsuit.  The claims are not ripe.

            d. Taxpayer Claim

            CCP section 526a provides as relevant: “An action to obtain a judgment, restraining and preventing any illegal expenditure of, waste of, or injury to, the estate, funds, or other property of a county, town, city or city and county of the state, may be maintained against any officer thereof, or any agent, or other person, acting in its behalf, either by a citizen resident therein, or by a corporation, who is assessed for and is liable to pay, or, within one year before the commencement of the action, has paid, a tax therein.”  A taxpayer may bring an action under this section by establishing that (1) he or she is a taxpayer and (2) either an illegal expenditure or waste within the meaning of this section has occurred.  Tobe v. City of Santa Ana, (1995) 9 Cal.4^th 1069, 1086; Connerly v. State Personnel Bd., (2001) 92 Cal.App.4^th 16, 29.

            The SAP asserts that Petitioner Srebalus pays state and federal taxes and has an interest in the unlawful expenditure of public funds to administer an unconstitutional public education system.  SAP, ¶¶ 93-94.  He challenges the expenditure of funds to administer and implement a system of public education that allows school districts to provide illegal summer school programs.  Id.

            The State Entities argue that a taxpayer claim may not be employed to attack exercises of administrative discretion and may not interfere with policymaking.  Schmid v. City and County of San Francisco, (2021) 60 Cal.App.5^th 470, 495.  Dem. at 14-15.  This authority is dispositive of the taxpayer claim.  Srebalus may not use a taxpayer claim to attack the State Entities’ discretionary action to comply with its constitutional duty of implementing the UCP and the Advisory.  Waste does not encompass discretionary governmental action; a taxpayer action does not lie where there is a disagreement in the manner in which the government has chosen to address a problem.  California DUI Lawyers Association v. DMV, (“California DUI Lawyers”) (2018) 20 Cal. App. 5th 1247, 1258 (lawyer association had taxpayer standing to challenge DMV’s administrative per se license suspension system). 

            Petitioners argue that they are challenging the State’s expenditure of public funds to administer a system of public education that engages in unconstitutional discrimination.  SAP, ¶94.  The cases challenging the constitutionality of governmental actions fall squarely within CCP section 526a.  California DUI Lawyers, supra, 20 Cal.App.5^th at 1261.  Petitioners cite McKinny v. Board of Trustees, (“McKinney”) (1982) 31 Cal. 3d 79, 91, which found standing to bring a taxpayer claim to challenge a school board’s implementation of a desegregation plan because it inherently required the expenditure of public funds.  Opp. at 18.

            Petitioners miss the point.  The issue is not whether Srebalus has taxpayer standing because the State expends funds to administer the system of public education but whether a taxpayer with standing can make a claim against discretionary governmental action and policymaking.  He cannot.  See Schmid v. City and County of San Francisco, supra, 60 Cal.App.5^th at 495.[5]

            The demurrer to the fifth cause of action is sustained.[6]

            e. Conclusion

            The State Entities’ demurrer is sustained.  Petitioners do not ask for leave to amend, and they do not allege facts that could cure the defect.  Therefore, the State Entities’ demurrer is sustained without leave to amend and the motion to strike is taken off calendar.  The State’s demurrer is sustained without leave for the same reasons as the State Entities’ demurrer.  An OSC re: dismissal is set for December 5, 2023 at 1:30 p.m.