Judge James C. Chalfant, Case 22STCP04432 2023-04-13 Tentative Ruling

Real Party-in-Interest Los Angeles Unified School District (“LAUSD”) demurs to the First Amended Petition (“FAP”) filed by Petitioner Jason Knopke (“Knopke”). LAUSD separately moves to strike portions of the FAP.

The court has read and considered the moving papers, oppositions, and replies,[1] and renders the following tentative decision.

Petitioner Knopke filed the Petition against Respondent Commission on Professional Competence (“Commission”) on December 6, 2022. The operative pleading is the FAP filed on January 26, 2023, alleging a claim for administrative mandamus. The FAP alleges in pertinent part as follows.

Knopke was a LAUSD music teacher at Peary Middle School (“Peary”). FAP, ¶1. On August 13, 2021, LAUSD employees Ileana M. Dávalos (“Dávalos”), Kristen Murphy (“Murphy”), and Karla Gould (“Gould”) distributed to LAUSD employees an Interoffice Memo (“Memo”) with the subject line “COVID-19 Vaccination Requirement for Employees and Other Adults Working at District Facilities.” FAP, ¶11. The Memo included a COVID Vaccination Requirement (“Policy”) requiring all employees to vaccinate for COVID-19 by October 15, 2021, unless they obtained a medical or religious exemption, both of which were subject to various conditions. FAP, ¶¶ 3, 5.

The Policy was unofficial and never adopted by way of resolution. FAP, ¶5, n. 1. The Memo does not identify a resolution number or include any attachment or website URL that references a resolution by the Board. FAP, ¶¶ 13, 14. Any regulation that a school district’s governing board votes on would become a matter of public record. FAP, ¶9. LAUSD never submitted any officially adopted policy or regulation to the Commission. FAP, ¶6. A reasonable inference is that LAUSD’s Board of Education (“Board”) never voted to adopt the Policy per Government Code (“Govt. Code”) section 35160. FAP, ¶¶ 7, 10.

Knopke notified LAUSD that the Policy violated his constitutional rights. FAP, ¶16. He also asserted that he had a right to refuse vaccination based on the Protection of Human Subjects in Medical Experimentation Act (“Protections Act”) (Health & Safety Code section 24170 et. seq), which makes it unlawful to pressure someone to take part in a human medical experiment. FAP, ¶17.

LAUSD denied Knopke a medical exemption but granted a religious exemption. FAP, ¶18. This exemption required him to leave his normal work station at Peary and teach subjects outside his credential area via an online independent studies program at City of Angels. FAP, ¶19. Because Knopke did not have the necessary credentials, this assignment would violate another law, the Every Student Succeeds Act (“ESSA”). FAP, ¶20. He rejected the assignment as an inadequate accommodation. FAP, ¶21.

LAUSD dismissed Knopke from his employment for refusal to either vaccinate or accept the accommodation. FAP, ¶23. LAUSD’s First Amended Accusation listed the causes of dismissal as (1) evident unfitness for service under Education Code (“Educ. Code”) section 44932(a)(6), (2) persistent violation of or refusal to obey the school laws of the state or reasonable regulations prescribed for the government of the public schools under Educ. Code section 44932(a)(8), and (3) willful refusal to perform regular assignments without reasonable cause under Educ. Code section 44939. FAP ¶28.

Because the Board never officially adopted the Policy, it was not legally adopted and therefore null and void. FAP, ¶¶ 6, 10. LAUSD also never presented any evidence that it obtained a Short-Term Waiver pursuant to Educ. Code section 44225(m)(1), or other waiver under 5 CCR section 80120, that would allow Knopke to lawfully teach outside his credential’s authorization. FAP, ¶22. Nonetheless, the Commission affirmed LAUSD’s decision to terminate Knopke’s employment for failure to comply with the Policy on September 7, 2022. FAP, ¶6, 32.

Knopke seeks mandamus directing the LAUSD to reinstate Knopke to his prior position and make him whole, including attorney’s fees and costs. FAP Prayer for Relief, ¶¶ 2-3.

On February 7, 2023, the Commission filed notice that it will not be an active participant in these proceedings unless the court so orders or a party requests an award of attorney’s fees or costs against it.

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; (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, (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).

LAUSD demurs to the FAP on the basis that the statute of limitations passed before Knopke filed his Petition. Dem. at 3-5. LAUSD also moves to strike portions of the FAP alleging that the Board did not adopt the Policy. Mot. to Strike at 3-4.

On February 27, 2023, the parties engaged in meet and confer efforts to discuss the issues reflected in this demurrer and motion to strike. Cruz Decl., ¶3, Ex. A. The parties exchanged emails through March 1, 2023 but could not reach an agreement. Cruz Decl., ¶3, Ex. A. As to whether the Board adopted the Policy, Knopke asserted that if the Board adopted the policy after LAUSD applied it, LAUSD should explain that in responsive pleading instead of moving to strike relevant allegations from the FAP. Cruz Decl., ¶4, Ex. A. LAUSD has demonstrated that it fulfilled the meet and confer requirement.[2]

“[A] demurrer based on a statute of limitations will not lie where the action may be, but is not necessarily, barred. 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 (citation omitted).

Educ. Code section 44934(a) governs dismissal or suspension proceedings based on charges specified in Educ. Code section 44932. See FAP ¶28. The decision reached in such proceedings are reviewable by a court in the same manner as a decision made by a hearing officer under Govt. Code section 11500, et seq., the Administrative Procedure Act (“APA”) governing state agencies. Educ. Code §44945. Govt. Code section 11523 provides that judicial review of decisions under the APA may be had through a petition for writ of mandate, and the petition shall be filed within 30 days after the last day on which reconsideration can be ordered. Govt. Code §11523.

The power to order reconsideration shall expire (a) 30 days after the delivery or mailing of a decision to respondent, (b) on the date set by the agency itself as the effective date of the decision if that date occurs prior to the expiration of the 30-day period, or (c) at the termination of a stay of not to exceed 30 days which the agency may grant for the purpose of filing an application for reconsideration. Govt. Code §11521(a). If no action is taken on a petition within the time allowed for ordering reconsideration, the petition shall be deemed denied. Id.

If the petitioner, within ten days after the last day on which reconsideration can be ordered, requests the agency to prepare all or any part of the record, the time within which a petition may be filed shall be extended until 30 days after its delivery to him or her. Govt. Code §11523.

As LAUSD argues (Opp. at 5), the FAP alleges that the Commission affirmed LAUSD’s decision to terminate Knopke’s employment for failure to comply with the Policy, effective September 7, 2022. FAP, ¶¶ 6, 32. Per Govt. Code section 11521(a) the power to order reconsideration expired on the September 7, 2022 effective date of the Commission’s decision. The Commission’s September 7, 2022 effective date precluded any request for reconsideration. Govt. Code §11521(a). See Moran v. Board of Medical Examiners, (1948) 32 Cal.2d 301, 304 (board’s power to reconsider expired on the date it ordered the decision to be effective under Govt. Code section 11521).

Pursuant to Govt. Code section 11523, Knopke’s Petition was required to be filed within 30 days, or by October 7, 2022, unless extended by a request for the administrative record. Any request for all or any part of the record made within ten days after September 7, 2022, or by September 17, 2022, would extend the deadline until 30 days after its delivery. See Govt. Code §11523. The FAP does not allege that Knopke made a timely request or when he received the record. Knopke filed the Petition on December 6, 2022, which was untimely without an extension for a request for the administrative record.

In opposition, Knopke concedes that the FAP does not show that the Petition was timely filed and contends that he will file a SAP before the demurrer hearing date as permitted by CCP section 472. Knopke is wrong. He has already amended his Petition once without leave of court, as he had the right to do under CCP section 472 (“[a] party may amend its pleading once without leave of court….”). He may not, however, amend again without leave of court or stipulation. He also may not move for leave to amend without complying with CRC 3.1324. Reply at 2.

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). It is an abuse of discretion to grant a motion for judgment on the pleadings without leave to amend if there is any reasonable possibility that the plaintiff can state a good cause of action. Dudley v. Department of Transportation (2001), 90 Cal. App. 4th 255, 260.

LAUSD provides evidence of Knopke’s proposed amendments, which the court deems to be an offer of proof.

On March 24, 2023, Knopke emailed LAUSD the allegations that he wanted to add to his FAP in a Second Amended Petition. Cruz Reply Decl., ¶¶ 2-3, Ex. A. These allegations contend allege that the Commission mailed its decision on September 7, 2022. Ex. A. As a result, the decision became final 30 days after it was mailed, on October 7, 2022. Ex. A. The Commission retained jurisdiction to grant reconsideration until this October 7, 2022 date. Ex. A. Knopke had until ten days later, or October 17, 2022, to either file his Petition under Govt. Code section 11523 or request preparation of the record under CCP section 1094.6. Ex. A.

Knopke orally requested preparation of part of the administrative record on September 16, 2022. Ex. A. He requested the Office of Administrative Hearings (“OAH”) to prepare the certified clerk’s record on September 26, 2022. Ex. A. These requests for preparation of the record extended the deadline to file the Petition under CCP section 1094.6 until 30 days after Knopke received the record. Ex. A. OAH mailed the record to Knopke on November 24, 2022, and he received it on November 30, 2022. Ex. A. Thus, Knopke had 30 days after either November 24 or 30, 2022 to file his Petition. Ex. A. Because he filed the Petition on December 22, 2022, it was timely. Ex. A.

LAUSD correctly asserts that Knopke wrongly relies on the 90-day limitations period in CCP section 1094.6, which expressly applies to local agency decisions “other than a school district.” Dem. Reply at 2-3.

Applying the limitations period of Govt. Code section 11523, Knopke’s Petition was required to be filed by October 7, 2022 unless a request for all or any part of the record was made within ten days after September 7, 2022, or by September 17, 2022. This would extend the deadline until 30 days after its delivery. See Govt. Code §11523. Knopke’s offer of proof is that he orally requested preparation of part of the administrative record on September 16, 2022 and then asked OAH to prepare the record on September 26, 2022. Ex. A. Assuming that the request was made on September 16, 2022, it would extend the deadline until 30 days after the record’s delivery. OAH mailed the record to Knopke on November 24, 2022, and he received it on November 30, 2022. Ex. A. Knopke’s Petition filed on December 6, 2022 would be timely.

Leave to amend is granted. While Govt. Code section 11523 does not require the record request to be in writing, and it may be oral, Knopke must allege specific facts of the who, when, and where of the oral request. [3]

The demurrer to the FAP is sustained with leave to amend, and the motion to strike is taken off calendar as moot. Knopke has 20 days to file a SAP adequately pleading around the statute of limitations.

[1] LAUSD failed to lodge a courtesy copy of its replies in violation of the Presiding Judge’s First Amended General Order Re: Mandatory Electronic Filing. Its counsel is admonished to provide courtesy copies in all future filings.

[2] LAUSD attempts to present evidence through declaration and exhibit that the Board adopted by consent vote a measure that approved the implementation of Student and Employee COVID-19 Vaccination requirements at a regular meeting on November 16, 2021, the Board. Cruz Decl., ¶7, Ex. B. The court cannot consider this evidence on demurrer. See Marshall v. Gibson, Dunn & Crutcher, supra, 37 Cal.App.4th at 1403.

[3] In its motion to strike, the LAUSD requests judicial notice of the fact that on November 11, 2021, the Board approved the implementation of employee COVID-19 vaccination requirements. Resp. RJN, p. 3, Ex. B. Knopke’s opposition notes that LAUSD emailed employees the Policy on August 13, 2021, before the November 11, 2021 meeting. Opp. at 3.

The motion to strike is taken off calendar as moot. If it were not, the court would strike the FAP’s allegations at issue as false. In light of LAUSD’s evidence, Knopke’s counsel is directed to follow her responsibilities under CCP section 128.7 in pleading the SAP.