Judge James C. Chalfant, Case Number: 23STCL01543, Date: 2024-04-02 Tentative Ruling

Maria Chao v. Frank D Lanterman Regional Center, 23STCL01543

Tentative decision on demurrer: sustained

Respondent Frankman D. Lanterman Regional Center (“Regional Center”) demurs to the Petition filed by Petitioners Maria Chao and Kua Chao (collectively, the “Chaos”).

The court has read and considered the moving papers (no opposition was filed) and renders the following tentative decision.

Petitioner Maria Chao erroneously filed a Notice of Appeal—Administrative Hearing for Parking on March, 7, 2023. The operative pleading is the Petition,[1] filed on January 24, 2024, and naming the Department of Developmental Services (“DDS”) as the Defendant and Regional Center as Real Party-in-Interest. The Petition alleges erroneous application of the Lanterman Developmental Disabilities Services Act in determining whether there will be an adjustment to a claimant’s individual budget. The Petition alleges in pertinent part as follows.

Since February 28, 2013, 13 year-old Milo Chao (“Claimant”) has had an Individualized Education Program (“IEP”) due to his eligibility for Regional Center services based on his Autism Spectrum Disorder Diagnosis. Although Claimant is verbal, he has required a 1:1 aide since preschool because he has very limited communication and lack of safety skills. The 1:1 aide has been funded by the Chaos and reimbursed by the school district.

On April 1, 2022, Claimant enrolled in the Self Determination Program (“SDP”) with the Regional Center. After graduating from elementary school, Claimant required a different school because he no longer was able to keep up with general education.

On June 2, 2022, Claimant’s IEP assessment determined that he requires 100% special education. During the IEP assessment, the parties agreed that a private special education school, Frostig, would be the best fit. The Chaos then entered into a settlement agreement[2] with Los Angeles Unified School District (“LAUSD”) in which the LAUSD attorney and parent’s attorney confirmed that LAUSD will not pay for a 1:1 aide at non-public special education schools. Although non-public special education schools have higher tuition, they generally have embedded aides. Frostig does not include a 1:1 aide that Claimant requires.

In July 2022, Maria Chao asked Regional Center to fund the 1:1 aide through the SDP. Regional Center ultimately found a change in circumstance to modify the Chao’s SDP budget as LAUSD was no longer reimbursing for a 1:1 aide. However, Regional Center ultimately denied the request, reasoning that the Chaos had not exhausted the generic resources available and the school district is legally responsible to provide a 1:1 aide.

The Claimant subsequently appealed Regional Center’s denial to the Office of Administrative Hearings.

On December 7, 2022, the Administrative Law Judge (“ALJ”) Erlinda D. Shrenger denied the appeal for Regional Center to fund the 1:1 school aide through the SDP.

The Petition seeks mandamus compelling Regional Center to reimburse the Chaos for the 1:1 aide for the 2022-2023 school year in the amount of $73,000. The Petition also requests that (1) the court not dismiss the Petition as Petitioners are moving forward with appeal, and (2) they be permitted to proceed without an attorney or guardian ad litem (“GAL”).

On March 7, 2023, Mrs. Chao erroneously filed a “Notice of Appeal—Administrative Hearing,” for a Parking Enforcement Ruling appeal. None of DDS, the Office of Administrative Hearings (“OAH”), and Regional Center were named as Defendants/Respondents. Nor were any “Doe” Defendants/Respondents named.

On April 27, 2023, the court granted Regional Center’s ex parte application requesting the case be transferred to a Central District writs and receivers department. The case was transferred to this court (Department 85).

On June 27, 2023, the court held a trial setting conference. The court ordered the Chaos to file a petition as there was only an appeal from a citation on file. The court noted that the Chaos could not appear on behalf of Claimant without an appointment as GAL. The court continued to the Trial Setting Conference to October 24, 2023 for the Petition to be filed and a GAL appointed.

On October 24, 2023, the court again advised the Chaos that they could not represent the Claimant without a GAL appointment and a lawyer. Mr. Chao informed the court that they were seeking legal representation. The court informed the Chaos that the case will be dismissed if a Petition and GAL appointment were not on file by the next hearing date of February 8, 2024.

On January 24, 2024, the Chaos filed the Petition, identifying themselves as “Plaintiff”, DDS as “Defendant”, and Regional Center as “Real Party of Interest.”

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 upon 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 §411.35 or (i) by §411.36. CCP §430.10. Accordingly, 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); 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, (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. Nevertheless, 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, (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).

Reginal Center is one of 21 regional centers in California, which are established and operate pursuant to the Lanterman Developmental Disabilities Services Act (Welfare & Institutions (“W&I”) Code §4500 et seq.) (“Lanterman Act”). Regional centers are private, non-profit corporations under contract with DDS to serve as local points of contact for individuals and families eligible to receive regional center services. W&I Code §4620 et seq.

Regional centers are tasked with, among other things, facilitating and procuring necessary services and support for their clients in an effort to maximize opportunities and choices for living, working, learning, and recreating in the community. W&I Code §4640.7(a).

With the exception of infants and toddlers up to three years of age who have certain disabilities, or are at risk of having disabilities, only those individuals who are determined by a regional center to have a developmental disability, as defined by the Lanterman Act, are eligible to receive services from a regional center. Govt. Code §§ 95000-95001; W&I Code §4512(a)(1).

Disputes between regional centers and consumers about services to be included in an Individual Program Plan are resolved through an administrative appeals process set forth in the Lanterman Act. W&I Code §4700 et seq. DDS contracts with OAH to provide independent hearing officers to conduct these hearings. W&I Code §4712(b).

Real Party Regional Center demurs to the Petition on the grounds that the Chaos failed to name either OAH or DDS as Respondent on a timely basis, and (2) they lack standing. Dem., p.1. No opposition is on file.

Regional Center has complied with the meet and confer requirements of CCP section 430.31(a). Abramowtiz Decl. ¶2.

OAH held the hearing and made the administrative decision in the underlying Lanterman Act proceeding. DDS is the agency which contracts with OAH for that purpose. At least one of OAH and DDS must be named as Respondent in a mandamus case seeking review of OAH’s decision. See Hayes v. California Dept. of Developmental Services, (2006) 138 Cal.App.4^th 1523, 1531-34.

Regional Center notes that the initial “Notice of Appeal-Administrative Hearing did not name DDS or OAH. The Chaos added DDS as “Defendant” in their January 24, 2024 Petition. Pet. at 1. Although OAH was not added in the Petition, OAH is not a necessary or indispensable party where DDS is named. Hayes, supra, 138 Cal.App.4^th at 1531-34.

Regional Center argues that the January 24, 2024 addition of DDS was untimely. Dem., at 8.[3] Pursuant to the Lanterman Act, either party may now appeal a decision within 180 days. At the time this decision was issued to the Chaos, the correct timeframe was still 90 days. W&I Code §4712.5(a).[4] Reginal Center argues without citation that the effective date of OAH’’s decision is the date it is first mailed or served. The OAH Decision was served via certified mail to the Chaos on the same December 7, 2022 date it was issued. Regional Center argues that it makes no difference which limitations period the court uses. If the court chooses the 90-day time frame from the time the decision was issued, the last day to appeal would be March 7, 2023. If the court opts for the new 180-day period, the Chaos would have had until June 5, 2023. Either way the January 24, 2024 naming of DDS was untimely. Dem. at 8-9.

Apart from failing to cite a statutory authority that OAH’s decision is effective when mailed or served, Regional Center has no facts in the Petition or matter subject to judicial notice showing when the OAH decision was sent to the Chaos. As a result, this limitations argument fails.

Code of Civil Procedure section 372(a)(1) requires that minors who are (or should be) parties to an action must appear in a proceeding either by a guardian or conservator of the estate or by a GAL appointed by the court.

Regional Center notes that, at both the June 27 and October 24, 2023 Trial Setting Conferences, the court informed the Chaos that one or both must be appointed as GAL for son’s claim. He also had to have a lawyer; the Chaos could not represent him.

Regional Center demonstrates the latter statement to be the law. Dem. at 3, n. 2. No one but an attorney can represent another person in court. Birbrower, Montalbano, Condon & Frank v. Superior Court, (1998) 17 Cal.4^th 119, 127-30. A GAL is not a party, but merely a representative of a party who lacks capacity to represent himself or herself in the proceeding. J.W. v. Superior Court, (1993) 17 Cal.App.4^th 958, 964-65. A parent appointed as GAL may not act in pro per but must have a lawyer. Id. at 969.

When the Chaos filed the Petition on January 24, 2024, they sought to proceed without an attorney and not as GALs. The Chaos are not in compliance with the court’s directions or the law. The court does not have discretion to relieve them of these obligations and they lack standing to proceed on their own behalf.

[1]The Chaos titled the Petition as “Amendments to Petition of Writ of Administrative Mandamus”. However, Regional Center correctly notes that it is the initial Petition because the document filed on March 7, 2023 was a “Notice of Appeal—Parking” on a Judicial Council form.

[2] The ALJ’s administrative decision notes that this settlement agreement was private and confidential. Hence, the ALJ could not consider the substance of this agreement, only that the Chaos confirmed they had entered into it with LAUSD.

[3] While Regional Center refers to law concerning necessary and indispensable parties, it is not clear why. Dem. at 6, 10.

[4] W&I Code section 4712.5 was amended as of March 1, 2023, extending the time to file an appeal to a court of competent jurisdiction from 90 days to 180 days. Dem. at 8, n. 5.