Judge James C. Chalfant, Case Number: 25STCP01069, Date: 2025-06-03 Tentative Ruling

Respondent Bureau for Private Postsecondary Education (“Bureau”) demurs to the First Amended Petition for Writ of Mandate (“FAP”) filed by Petitioner Olivet University (“University”).

The court has read and considered the moving papers, opposition, and reply, and renders the following tentative decision.

On March 24, 2025, Petitioner University filed the verified Petition seeking a writ of administrative mandamus against Respondent Bureau. On April 8, 2025, the University filed the verified FAP, which is the operative pleading, adding Department of Consumer Affairs (“Department”) as a Respondent. The FAP alleges in pertinent part as follows.

Respondent Bureau is an oversight bureau within Respondent Department created by statute (Ed. Code §94800 et seq.) that regulates private post-secondary educational institutions. FAP, ¶2.

Respondent Department is a state agency responsible for the authorization and management of education institutions and which regulates Respondent Bureau. FAP, ¶3.

On or about December 13, 2004, the Bureau and Department issued to the University an approval to operate. FAP, ¶10.

On or about December 5, 2024, following an Accusation (Bureau Case No. 22-592) and an evidentiary hearing with the Office of Administrative Hearings (“OAH”), Administrative Law Judge Debra D. Nye-Perkins (the “ALJ”) issued a Proposed Decision and Order revoking the University’s approval to operate as a private post-secondary educational institution. FAP, ¶11. Respondents adopted the Decision and Order (“Decision”) on or about December 10, 2024. FAP, ¶11, Ex. A.

The University contends the Bureau and Department (a) acted without or in excess of their jurisdiction, (b) failed to grant the University a fair hearing, (c) committed prejudicial abuses of discretion, including failing to proceed in the manner required by law, making a decision not supported by the findings, and making findings not supported by the evidence, and (d) issued a punitive and excessive decision. FAP, ¶12.

The University seeks a peremptory writ of administrative mandamus ordering the Bureau and Department to vacate and set aside the Decision and to reconsider the manner consistent with the court’s ruling, as well as fees and costs of suit and such other and further relief as the court deems proper.

No proof of service is on file. Respondent Bureau has generally appeared and the Department has specially appeared.

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) 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 section 411.35 or (i) by CCP section 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 §430.41(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 §430.41(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 §430.41(a)(3).

On April 8, 2025, the Bureau’s counsel emailed the University’s counsel stating an intent to file a demurrer t o the FAP. Mochon Decl., ¶3. Counsel exchanged emails between April 9-10, 2025, coordinating a telephone call to discuss the bases for the demurrer. Mochon Decl., ¶3.

On April 14, 2025, counsel spoke by telephone. The Bureau’s counsel stated that the FAP was not supported by any facts and that Respondent Department was not timely joined to the action. The 106-page Decision thoroughly summarized the events that occurred throughout the hearing and, despite receipt by the University’s counsel of the Administrative Record 30 days earlier, the FAP contained nominal information. Mochon Decl., ¶4. The Bureau’s counsel also explained that the Director of the Department is the proper party for the Department and that Petitioner is time-barred from further amending the amended petition to name the Director and also is time-barred in naming the Department. The parties were not able to reach an agreement about the issues raised in the demurrer. Mochon Decl., ¶5.

On March 24, 2025, the University timely filed the Petition against the Bureau. Maldonado Decl., ¶2. The University named the Bureau under the belief that it was the primary decisionmaker. The University had exclusively communicated with the Bureau during the investigation, the University had discussions with the Bureau both before and during the administrative hearing, the case against the University was labeled “BPPE Case No.: BPPE 22-592”, the Bureau’s name featured prominently at the top of the cover page memorializing the Decision, and the phrase “Deputy Director, Legal Affairs Division, Department of Consumer Affairs” only appeared on the Decision adopting the proposed decision initiated and prosecuted by the Bureau. Maldonado Decl., ¶4, Ex. B.

On March 28, 2025, the Bureau’s counsel sent Maldonado an email indicating that the Department is a necessary party. Maldonado Decl., ¶3, Ex. A. The Bureau’s counsel indicated that they were authorized to accept service on behalf of both the Bureau and the Department. Maldonado Decl., ¶5.

After this email, the University filed the FAP naming the Department as a Respondent. Maldonado Decl., ¶6. After further discussions, the Bureau filed this Demurrer. Maldonado Decl., ¶7.

The Bureau demurs to the FAP on the ground that it (1) fails to timely join the Director and Department as necessary and indispensable parties; (2) fails to state facts sufficient to constitute a cause of action; and (3) is uncertain for failing to state facts in support of the FAP.^{^[2]}

The Bureau argues that the FAP fails to timely name two indispensable parties: the Department and the Director. The FAP acknowledges that the University received a copy of the Administrative Record on February 20, 2025. FAP, ¶9. As a result, the University had 30 days after receipt to file the Petition. Govt. Code §11523. The Petition was filed on March 24, 2025, but the Department was not added as a party in the FAP until April 4, 2025, which is beyond the statutory limitations period. Dem. at 8.

In addition, the FAP fails to name the Director. The Director has vested the Bureau with authority to regulate private post-secondary educational institutions, but the responsibility to implement the Act for public protection lies with the Director. Ed. Code §§ 94875, 94876. The FAP seeks mandamus to “remand the action for reconsideration in a manner deemed fit by this Court,” but a remand Bureau would be ineffectual because it lacks authority to reconsider the Director’s underlying Decision. Because the Director was not timely named a party, there are no measures that would allow this court to grant the relief sought. See CCP §389(b)(3); Welch v. Bodeman, (1986) 176 Cal.App.3d 833, 840. Dem. at 9.

The Bureau notes that it is a bureau within the Department. The Bureau regulates private post-secondary educational institutions through the powers granted, and duties imposed, by the Private Postsecondary Education Act. Ed. Code §94800 et. sq. (the “Act”). The powers and duties set forth in the Act are vested in the Director of the Department (“Bureau”), who may delegate them to a bureau chief, including the power to file accusations pursuant to Government (“Govt.”) Code section 11503. The Bureau chief is required to work in collaboration with the Director, but it is the Director who is responsible for the implementation of the Act. Ed. Code §94876(a). Dem. at 4.

The University initially responds that the Bureau is a proper Respondent. In South Baylo University v. Cal. Bureau for Private Postsecondary Education (2019) Cal. Super. LEXIS 86729, South Baylo sought administrative mandamus solely against the Bureau. The Bureau’s Decision and Order After Remand acknowledged the writ with no mention of the Department as a necessary party. Pet. RJN Ex. 1. Similarly, in Lone Star Security & Video, Inc. v. Bureau of Security & Investigative Services, (“Lone Star”) (2012) 209 Cal. App. 4th 445, the petitioners filed a petition for writ of administrative mandate against only the Bureau of Security and Investigative Services—a subdivision of the Department—after the bureau revoked a company’s license. The court did not expressly address the Department’s role or that of the Director, and instead addressed the merits of the petition. Id. at 450-59. These cases -- particularly South Baylo, which closely mirrors the facts here -- strongly support the University’s position that it is proper to name only the Bureau in this mandamus proceeding challenging license revocation. No legal framework requires that the Director or Department be named in order for the court to act. Opp. at 10.

The Bureau rebuts this argument. First, the University improperly relies on a superior court case, South Baylo, which cannot be cited as authority and also submits an incomplete copy of its Decision and Order for Remand. The Bureau was only one of several respondents and the Department’s Director and Deputy Director were expressly named parties. Second, the Stipulated Settlement and Order of Remand in South Baylo remanded the matter to the Director, not the Bureau. Resp. RJN Ex. 1. Third, the University’s reliance on Lone Star, supra, 209 Cal. App. 4th at 445, is misplaced because, as the University admits, the Lone Star court did not address the need for the Department or its Director to be a party. “[C]ases are not authority for propositions not considered.” B.B. v. County of Los Angeles, (2020) 10 Cal. 5th, 1, 11 (citation omitted). Reply at 5.

The question becomes whether the Department -- which is named in the FAP but not timely so – or the Director – who is not named in the FAP -- are indispensable parties. CCP section 389 governs joinder of parties, and there are two types of parties to be joined: “necessary” and “indispensable”. CCP section 389(a) sets forth the requirements for determining a necessary party: “A person who is subject to service of process and whose joinder will not deprive the court of jurisdiction over the subject matter of the action shall be joined as a party in the action if (1) in his absence complete relief cannot be accorded among those already parties or (2) he claims an interest relating to the subject of the action and is so situated that the disposition of the action in his absence may (i) as a practical matter impair or impeded his ability to protect that interest or (ii) leave any of the person already parties subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations by reason of his claimed interest.”

The Director, not the Department, is a necessary party. The category of necessary parties “includes persons who are interested in the sense that they might possibly be affected by the decision, or whose interests in the subject matter or transaction are such that it cannot be finally and completely settled without them. Piedmont Publishing Co. v. Rogers, (1962) 193 Cal.App.2d 171, 181-82. The ALJ’s Proposed Decision was adopted by the Deputy Director on behalf of the Director. Ex. A, p. AR 1756. If the case is remanded, the Director, or his or her delegate, will be the person exercising discretion on how to proceed. This makes the Director a necessary party.

The University argues that the FAP’s addition of the Department relates back to the date of the filing of the Petition because the claim arises from the same set of facts. See Esparza v. Safeway, Inc., (2019) 36 Cal. App. 5th 42, 60 (“[t]he relation back doctrine allows a court to deem an amended complaint filed at the time of an earlier complaint if both complaints rest on the same general set of facts, involve the same injury, and refer to the same instrumentality,” emphasis added). As a general rule, “an amended complaint that adds a new defendant does not relate back to the date of filing the original complaint and the statute of limitations is applied as of the date the amended complaint is filed, not the date the original complaint is filed.” Hawkins v. Pacific Coast Building Products, Inc., (2004) 124 Cal. App. 4th 1497, 1503. An exception exists “where an amendment does not add a ‘new’ defendant, but simply corrects a misnomer….” Id. at 1503 (error in defendant’s name). This exception’s purpose is “to differentiate between erroneous description and change of identity . . . [and] . . . permit correction where the plaintiff has committed an excusable mistake attributable to dual entities . . .” Mayberry v. Coca-Cola Bottling Co. (1966) 244 Cal. App. 2d 350, 352-53. Opp. at 12.

The Department was not misidentified as the Bureau in the Petition. As a matter of law, they are legally distinct public entities with different statutory functions and responsibilities. Bus. & Prof. Code §§ 100 (“There is in the state government, in the Business, Consumer Services, and Housing Agency, a Department of Consumer Affairs”). The Department includes the Bureau within its organizational umbrella. Bus. & Prof. Code §101(k); Ed. Code §94820. Reply at 4.

The FAP does not relate back to the Petition for Respondent Department and the Director was never named at all.

A party found “necessary” pursuant to subdivision (a) may then be found “indispensable” pursuant to subdivision (b). County of Imperial v. Superior Court, (“Imperial”) (2007) 152 Cal.App.4th 13, 26. A determination that a party is necessary is the predicate for a determination of whether the party is indispensable. Deltakeeper v. Oakdale Irrigation Dist., (2001) 94 Cal.App.4th 1092, 1100. CCP section 389(b) provides: “If a person as described in paragraph (1) or (2) of subdivision (a) cannot be made a party, the court shall determine whether in equity and good conscience the action should proceed among the parties before it, or should be dismissed without prejudice, the absent person being thus regarded as indispensable. The factors to be considered by the court include: (1) to what extent a judgment rendered in the person’s absence might be prejudicial to him or those already parties; (2) the extent to which, by protective provisions in the judgment, by the shaping of relief, or other measures, the prejudice can be lessened or avoided; (3) whether a judgment rendered in the person’s absence will be adequate; (4) whether the plaintiff or cross-complainant will have an adequate remedy if the action is dismissed for nonjoinder.”

A necessary party is regarded as indispensable if the court determines, in equity and good conscience, that the action must be dismissed in the party’s absence in light of, inter alia, whether a judgment rendered in the party’s absence will be adequate. TG Oceanside, L.P. v. City of Oceanside, (2007) 156 Cal.App.4th 1355, 1365-66. “Indispensable parties have been identified as those who are essential for ‘a complete determination of the controversy’” or “the ability of a court to enter ‘any effective judgment.’” Kaczorowski v. Mendocino County Board of Supervisors, (2001) 88 Cal.App.4th 564, 568.

The controlling test for whether a necessary party is also indispensable is whether “the plaintiff seeks some type of affirmative relief which, if granted, would injure or affect the interest of a third person not joined. Save Our Bay v. San Diego United Port District, (“Save Our Bay”) (1996) 42 Cal.App.4th 686, 692. In other words, a third party is indispensable if his or her rights must necessarily be affected by the judgment. Id. Each of the four factors in subdivision (b) must be considered, but “no factor is determinative or necessarily more persuasive than another.” Imperial, supra, 152 Cal.App. 4th at 35.

Failure to join an indispensable party is not a jurisdictional defect in the fundamental sense of jurisdiction. The court has the power to render a decision as to the parties before it in the absence of an indispensable party. It is for reasons of equity and convenience only that a court will not proceed with a case where it determines that an indispensable party is absent and cannot be joined. Save Our Bay, supra, 42 Cal.App.4th at 693.

The Bureau does not address the indispensable party analysis and the court does not find the Department or Director to be indispensable.

The first CCP section 389(b) factor is the extent a judgment rendered in the Director’s absence might be prejudicial to him or her. It would not. The Bureau is within the Department’s umbrella. A remand to the Bureau necessarily would result in a handover from the Bureau to the Director to exercise his or her discretion.

The second CCP section 389(b) factor is the extent to which the shaping of relief, or other measures, can lessen the Director’s prejudice. Should the FAP be granted, the court could direct the Bureau to turn the remand over to the Director to exercise his or her discretion.

The third CCP section 389(b) factor is whether a judgment rendered in the Director’s absence will be adequate. The above factors show that a judgment against the Bureau would suffice.

The fourth and final factor is whether the University will have an adequate remedy if the action is dismissed for nonjoinder. It will not. This factor works strongly in the University’s favor.

Moreover, there are facts supporting the University’s argument that it acted reasonably in suing the Bureau as Respondent. Maldonado Decl., ¶¶ 2, 4. It is true that the Decision was signed by the Deputy Director. FAP Ex. A, p. AR 2756. The cover letter for the Decision also states that it is “the Decision and Order of the Director of the Department of Consumer Affairs.” Ex. A, p. AR 2754. Other facts, however, support the University.

The ALJ’s Proposed Decision states that the Bureau issued the approvals to operate to the University. Ex. A, p. AR 2760. The University exclusively communicated with the Bureau during its investigation. Maldonado Decl., ¶4. Acting as complainant, the Bureau’s chief filed an Accusation against the University for various violations of the Act. See FAP, Ex. A, p. AR 2757. The complainant sought revocation of the University’s approval to operate as a post-secondary institution. The case against the University was labeled “BPPE Case No.: BPPE 22-592”, signaling that it was the Bureau's case.

The ALJ’s Proposed Decision revoking the University’s approval to operate stated that it was “BEFORE THE BUREAU FOR PRIVATE POSTSECONDARY EDUCATION DEPARTMENT OF CONSUMER AFFAIRS”. Ex. A, p. AR 2757. In her Proposed Decision, the ALJ explained the legislative history of the Bureau, which was created by the Act in 2009 within the Department of Consumer Affairs. To achieve its mission, the Bureau reviews and approves applications to operate private post-secondary educational institutions. The Bureau may deny the application or cite, revoke, suspend, place on probation, or bring an action for equitable relief against any approved institution. The Bureau utilizes services of the Department, the Office of the Attorney General, and OAH to ensure that disciplinary actions are handled in a fair and judicious manner. Ex. A, p. AR 2760.

Thus, there are facts from which the University could reasonably conclude that the Bureau both issues and revokes approvals to operate private post-secondary educational institutions. While the Director is a necessary party, the court’s determination, in equity and good conscience, is that the action need not be dismissed because the Director’s presence is not essential for a complete determination of the controversy or to enter an effective judgment. See Kaczorowski v. Mendocino County Board of Supervisors, supra, 88 Cal.App.4th at 568.

The Bureau argues that the FAP fails to allege any factual basis for its mandamus claim. The FAP acknowledges that the University received the Administrative Record 30 days prior to filing the Petition but offers no factual basis to justify its challenge of the Decision. FAP, ¶¶ 8-9. The FAP fails to allege any facts that the Bureau acted without, or in excess of, its jurisdiction. See FAP ¶12. The FAP fails to allege any facts that the Bureau did not proceed in the manner required by law, that the Decision is not supported by the findings, or that the findings are not supported by the evidence. See FAP ¶12. Indeed, the FAP attaches a copy of the 106-page Decision that thoroughly analyzed the evidence presented, the testimony given, and the legal analysis for each finding by the ALJ regarding each finding for each cause for discipline imposed. FAP, Ex. A. The FAP's failure to set forth any facts in support of its Amended Petition also renders it uncertain. Dem. at 6-7.

The University relies on a superior court decision, Escalante v. Civil Serv. Comm'n of Los Angeles, (2017) Cal. Super. LEXIS 18051, *6-7, which overruled the Los Angeles County Sheriff's Department (“LASD”) demurrer to an administrative mandamus cause of action. LASD contended that the petitioner had not alleged a claim because “Petitioner did not present any facts to show that the findings of the Commission are not supported by the weight of the evidence.” Id. at 6. The petitioner alleged, inter alia, that the Commission abused its discretion in that it did not proceed in the manner required by law, and the resulting discharge was an excessive penalty. Id. at 7. The trial court held that the petitioner was not required to establish that the weight of the evidence did not support the decision in his pleading. Id. at 6. The court noted that, “[c]onsidering the petition as a whole, sufficient facts are alleged to state a claim under section 1094.5.” Id.

The University argues that the FAP alleges, similar to the petition in Escalante, that “Respondents’ decision is punitive and excessive.” FAP, ¶12. At this early stage, the University is not required to establish that the agency’s findings are not supported by the weight of the evidence. Under the liberal pleading standard applicable to writ petitions and California case law, the FAP satisfies the requirements of a valid cause of action. Opp. at 7-8.

The court does not agree. As the Bureau replies, Escalante is a superior court ruling that cannot be cited as authority. The FAP offers nothing but conclusions -- which may be disregarded -- without supplying ultimate facts.^{^[3]} The demurrer must be sustained for failure to state facts and as uncertain.

The Bureau’s demurrer is sustained for misjoinder of the Department, failure to state facts, and as uncertain but the court declines to dismiss the action. At the Department’s election, the case may be dismissed against it as an untimely named Respondent and the case would then proceed without the Director and Department as parties. Alternatively, the Director may participate as a Real Party-in-Interest. The University has 20 days leave to amend to state facts sufficient for a cause of action.

^{^[1]} The University requests judicial notice of the Decision and Order After Remand issued by the Bureau in In the Matter of the First Amended Accusation Against South Baylo University RJN Ex. A). The request is granted. Evid. Code. 452(c).

In reply, the Bureau requests judicial notice of the Stipulated Settlement and Order of Remand, South Baylo University v. California Bureau for Private Postsecondary Education et al. Superior Court of Orange County No. 30-2018-01034139-CU-WM-CJC, filed on October 24, 2019 (Resp. RJN Ex. 1). The request is granted. Evid. Code 452(d).

^{^[2]} On April 14, 2025, the Bureau’s counsel met and conferred telephonically with the University’s counsel and informed him of the basis for demurrer. Mochon Decl., ¶¶ 4-5. They were unable to reach an agreement. Mochon Decl., ¶5. The Bureau has complied with its meet and confer obligation under CCP section 430.41.

^{^[3]} The Bureau also points out that Escalante did not hold that factual allegations are unnecessary. In fact, the Escalante petitioner provided facts to support an administrative mandamus claim. Reply at 3.

Specially Appearing Respondent Department of Consumer Affairs (“Department”) moves to strike to the First Amended Petition for Writ of Mandate (“FAP”) filed by Petitioner Olivet University (“University”), or in the alternative demurs to the FAP.

The court has read and considered the moving papers, opposition, and reply, and renders the following tentative decision.

Respondent Bureau is an oversight bureau within Respondent Department created by statute (Ed. Code §94800 et seq.) that regulates private post-secondary educational institutions. FAP, ¶2.

Respondent Department is a state agency responsible for the authorization and management of education institutions and which regulates Respondent Bureau. FAP, ¶3.

On or about December 13, 2004, the Bureau and Department issued to the University an approval to operate. FAP, ¶10.

No proof of service is on file. Respondent Bureau has generally appeared and the Department has specially appeared.

On April 8, 2025, the Department’s counsel emailed the University’s counsel stating an intent to file a demurrer t o the FAP. Mochon Decl., ¶3. Counsel exchanged emails between April 9-10, 2025, coordinating a telephone call to discuss the bases for the demurrer. Mochon Decl., ¶3.

On April 14, 2025, counsel spoke by telephone. The Department’s counsel stated that the FAP was not supported by any facts and that Respondent Department was not timely joined to the action. The 106-page Decision thoroughly summarized the events that occurred throughout the hearing and, despite receipt by the University’s counsel of the Administrative Record 30 days earlier, the FAP contained nominal information. Mochon Decl., ¶4. The Department’s counsel also explained that the Director of the Department (“Director”) is the proper party for the Department and that Petitioner is time-barred from further amending the amended petition to name the Director and also is time-barred in naming the Department. The parties were not able to reach an agreement about the issues raised in the demurrer. Mochon Decl., ¶5.

After this email, the University filed the FAP naming the Department as a Respondent. Maldonado Decl., ¶6. After further discussions, the Bureau filed this Demurrer. Maldonado Decl., ¶7.

The Department moves to strike the FAP on the ground that it fails to timely join the Department. Alternatively, the Department demurs on the ground that the FAP (1) fails to timely join the Department and Director as necessary and indispensable parties; (2) fails to state facts sufficient to constitute a cause of action; and (3) is uncertain for failing to state facts in support of the FAP.^{^[2]}

The Department argues that the FAP fails to timely name it. The FAP acknowledges that the University received a copy of the Administrative Record on February 20, 2025. FAP, ¶9. As a result, the University had 30 days after receipt to file the Petition. Govt. Code §11523. The Petition was filed on March 24, 2025, but the Department was not added as a party in the FAP until April 4, 2025, which is beyond the statutory limitations period. Dem. at 6-7.

Alternatively, the FAP fails to name the Director as an indispensable party. The Director has vested the Bureau with authority to regulate private post-secondary educational institutions, but the responsibility to implement the Act for public protection lies with the Director. Ed. Code §§ 94875, 94876. The FAP seeks mandamus to “remand the action for reconsideration in a manner deemed fit by this Court,” but a remand to the Bureau would be ineffectual because it lacks authority to reconsider the Director’s underlying Decision. Because the Director was not timely named a party, there are no measures that would allow this court to grant the relief sought. See CCP §389(b)(3); Welch v. Bodeman, (1986) 176 Cal.App.3d 833, 840. Dem. at 8-9.

The Department notes that the Bureau is a bureau within the Department. The Bureau regulates private post-secondary educational institutions through the powers granted, and duties imposed, by the Private Postsecondary Education Act. Ed. Code §94800 et. sq. (the “Act”). The powers and duties set forth in the Act are vested in the Director of the Department (“Bureau”), who may delegate them to a bureau chief, including the power to file accusations pursuant to Government (“Govt.”) Code section 11503. The Bureau chief is required to work in collaboration with the Director, but it is the Director who is responsible for the implementation of the Act. Ed. Code §94876(a). Dem. at 4.

The Department rebuts this argument. First, the University improperly relies on a superior court case, South Baylo, which cannot be cited as authority and also submits an incomplete copy of its Decision and Order for Remand. The Bureau was only one of several respondents and the Department’s Director and Deputy Director were expressly named parties. Second, the Stipulated Settlement and Order of Remand in South Baylo remanded the matter to the Director, not the Bureau. Resp. RJN Ex. 1. Third, the University’s reliance on Lone Star, supra, 209 Cal. App. 4th at 445, is misplaced because, as the University admits, the Lone Star court did not address the need for the Department or its Director to be a party. “[C]ases are not authority for propositions not considered.” B.B. v. County of Los Angeles, (2020) 10 Cal. 5th, 1, 11 (citation omitted). Reply at 3-4.

The FAP does not relate back to the Petition for Respondent Department and the Director was never named at all.

The Department does not specifically address the indispensable party analysis and the court does not find either the Department or Director to be indispensable.

The third CCP section 389(b) factor is whether a judgment rendered in the Director’s absence will be adequate. The above factors show that a judgment against the Bureau would suffice.

The fourth and final factor is whether the University will have an adequate remedy if the action is dismissed for nonjoinder. It will not. This factor works strongly in the University’s favor.

The Department argues that the FAP fails to allege any factual basis for its mandamus claim. The FAP acknowledges that the University received the Administrative Record 30 days prior to filing the Petition but offers no factual basis to justify its challenge of the Decision. FAP, ¶¶ 8-9. The FAP fails to allege any facts that the Bureau acted without, or in excess of, its jurisdiction. See FAP ¶12. The FAP fails to allege any facts that the Bureau did not proceed in the manner required by law, that the Decision is not supported by the findings, or that the findings are not supported by the evidence. See FAP ¶12. Indeed, the FAP attaches a copy of the 106-page Decision that thoroughly analyzed the evidence presented, the testimony given, and the legal analysis for each finding by the ALJ regarding each finding for each cause for discipline imposed. FAP, Ex. A. The FAP's failure to set forth any facts in support of its Amended Petition also renders it uncertain. Dem. at 10-11.

The court does not agree. As the Department replies, Escalante is a superior court ruling that cannot be cited as authority. The FAP offers nothing but conclusions -- which may be disregarded -- without supplying ultimate facts.^{^[3]} The demurrer must be sustained for failure to state facts and as uncertain.

The Department’s motion to strike is denied. The demurrer is sustained for misjoinder of the Department, failure to state facts, and as uncertain but the court declines to dismiss the action. At the Department’s election, the case may be dismissed against it as an untimely named Respondent and the case would then proceed without the Director and Department as parties. Alternatively, the Director may participate as a Real Party-in-Interest. The University has 20 days leave to amend to state facts sufficient for a cause of action.

The Department requests judicial notice that the FAP was filed on April 8, 2025 and that the proof of service was filed on the same date. Judicial notice is not required for documents in the court file.

In reply, the Department requests judicial notice of the Stipulated Settlement and Order of Remand, South Baylo University v. California Bureau for Private Postsecondary Education et al. Superior Court of Orange County No. 30-2018-01034139-CU-WM-CJC, filed on October 24, 2019 (Resp. RJN Ex. 1). The request is granted. Evid. Code 452(d).

^{^[3]} The Department also points out that Escalante did not hold that factual allegations are unnecessary. In fact, the Escalante petitioner provided facts to support an administrative mandamus claim. Reply at 5.