Judge: Jon R. Takasugi, Case: 21STCV45243, Date: 2023-05-03 Tentative Ruling

Case Number: 21STCV45243    Hearing Date: May 3, 2023    Dept: 17

Superior Court of California

County of Los Angeles

DEPARTMENT 17

TENTATIVE RULING

Defendants’ demurrers are SUSTAINED, WITHOUT LEAVE TO AMEND. 

On 12/13/2021, Freedom to Choose L.A. and 4,499 other Plaintiffs filed suit against 80 Defendants alleging 15 causes of action related to COVID-19 mandates.

Now, Defendants Los Angeles Unified School District (LAUSD), LAUSD’s individual Board Members (Kelly Gonez, George Mckenna, Monica Garcia, Scott Schmerelson, Nick Melvoi, Tonya Ortiz, and Franklin and Jackie Goldberg), and Superintendent (Megan Reilly in her official capacity as Superintendent of LAUSD) (collectively, Defendants) demur to Plaintiff’s SAC.

Discussion

            Defendants argue that the same deficiencies identified in Plaintiff’s previous Complaints remain, i.e., the SAC continues to be fatally uncertain.

The Court agrees. Despite this being Plaintiff’s third opportunity to file a code-compliant and legally cognizable Complaint, the following deficiencies remain:

-         The SAC is purportedly filed on behalf of thousands of Plaintiffs, members of FREEDOMTOCHOSE LA, and their dependents, yet many of these parties are still not named in a manner that allows their identities to be ascertained. This makes it impossible for Defendants to determine who exactly the Plaintiffs are, whether they have standing to bring this lawsuit, and whether they properly exhausted the administrative requirements.

-         It is still unclear from the SAC whether the claims are brought on behalf of or by students, and which students; or whether the claims are brought by LAUSD employees, a prerequisite for most of the employee related claims it appears Plaintiffs are trying to allege.

As for the first point, Defendants’ demurrer explains this uncertainty in depth:

In footnote 2 of the SAC, Plaintiffs indicate that Appendix “A” “details the names of all F2C Members asserting Constitutional Claims embodied in the 1st through 4th Causes of Action, as well as requesting Declaratory Relief and a Writ of Mandate listed in the 50th and 51st Causes of Action, respectively, against all Defendants….” Ten of those individuals listed reference LAUSD as their “employer.” In footnote 2 of the SAC, Plaintiffs indicate that the individuals listed in Appendix E are “all F2C Members employed by and asserting DFEH and Whistleblowing Claims against the Los Angeles Unified School District and if applicable, its elected leaders, Superintendent, Site Personnel, managers, and supervisors. These Causes of Action involving the LAUSD-related Defendants are set forth in the 7th, 12th, 17th, 22th, 27th, 32nd, 37th, 42nd, and 47th Causes of Action.” Listed in Appendix “E” to the SAC are 27 individuals who “authorized” the lawsuit against LAUSD (these include the ten listed in Appendix “A”). Based on these allegations and the 2 Appendices, 27 current and former employees appear to be bringing claims against the LAUSD Defendants.

A closer review, however, shows that all is not so clear.

For instance, Paragraph 35 creates confusion as to which Plaintiffs worked for LAUSD. Plaintiffs allege that “the Defendants named in this action, as well as the fictitiously named Defendants, and each of them, were agents and employees of the remaining Defendants and in so doing the things hereinafter complained of, were acting within the course and scope of such agency and/or employment and with the knowledge and consent of the remaining Defendants.” (Emphasis added.)

Further, on the second page of Appendix “A,” immediately under the title “Alphabetized Listing Of Data Sheets,” is a listing of names. That list uses language throughout that creates uncertainty as to whether Appendices “A” and “E” are complete lists of the Plaintiffs or if there are more of them that are unlisted. (See, e.g., “All Plaintiffs listed in Appendix “A”, including FREEDOMTOCHOOSEL.A. (F2LA) and its Members, including NEIL and KIMBERLY STILLER… RICHARD McDONALD, and their spouses, significant others and dependents of TRACY BARON, identified as JB, AB, JB;…) (Emphasis added.) Further adding to the confusion are allegations such as that in Paragraph 22 alleges that the “All Lead Plaintiffs and those identified in Appendix “A” are also speaking out on behalf of their children and grandchildren.…” (Emphasis added.) As such, it is unclear if all of the individuals listed as dependents in Appendix “A” are also Plaintiffs, let alone which claims are being brought on their behalf.

Additionally, lines 1701-2816 of Appendix “A” each refer to individuals but do not indicate who are their employers or where they reside, preventing LAUSD from being able to determine if they have standing to bring the claims alleged on behalf of their dependents. Also, Footnote 17 indicates that “identified on Appendix “A” “[are] students subject to the mandates now and in the future by referencing the students’ either by name or by initials placed in the column next to their parents, grandparents or guardians name.” (Emphasis added.) Plaintiffs’ reference to “in the future,” use of initials and vague identifiers in lieu of names for many of the 1626 listed “dependents” (e.g., “prefer not to answer,” “private,” “Child,” “Grandchild,” “Son,” “Daughter,” “K-12: 5 yrs. & 10 yrs.”), result in the SAC being fatally unclear as to which students are actually involved in the lawsuit.

As a result of these and other flawed allegations, the LAUSD Defendants cannot determine who are all the Plaintiffs, who are all the individuals on behalf of whom claims are being asserted, if they went to a school or reside in LAUSD’s district, if administrative prerequisites have been exhausted, whether there are applicable settlement, collective bargaining or arbitration agreements precluding them from bring such a legal action, and whether their claims are timely.

(SAC Demurrer, 13:5-14: 21.)

            As for the second point, as noted by Defendant, “The factual assertions made by Plaintiffs are vastly overbroad and their relevance unclear. They range from discussions of political disputes, to supposed scientific studies, to general assertions of motive.” Moreover,

In fact, the relevance to this action of some of the allegations appears non-existent. For instance, Plaintiffs’ one-sided narrative includes references to: airline pilots (SAC ¶ 5); the Chinese Communist Party (Id.); various firefighters (not associated with this action) (Id. at ¶ 69); school districts other than LAUSD (Id. at ¶ 190); a basketball player and musician (Id. at ¶ 42, fn. 18); the federal military (Id. at ¶ 44, fn. 19); the Department of Defense (Id. at ¶ 44, fn. 20); and the First Lady of the United States (Id. at ¶ 79.)

The LAUSD Defendants are not required to sift through the extensive assertions presently set forth and guess at which of their specific policies, practices or conduct are being challenged and on what basis. The LAUSD Defendants have simply not been provided with clear notice of the accusations against them or their alleged factual foundations. Consequently, for this separate reason, the demurer based on uncertainty should be sustained.

(SAC Demurrer, 15: 14-24.)

Furthermore, Defendants contend that Plaintiff’s SAC suffers from the following substantive defects:

-          Individual members of LAUSD’s Board and the Superintendent are immune from suit.

-         Plaintiffs fail to assert a statutory basis for liability against the District in the 3rd, 17th, 50th and 51st causes of action.

-         Plaintiffs failed to properly exhaust the Tort Claims Act.

-          The 1st claim for invasion of privacy fails due to supervening public concerns.

-         The allegations in the SAC are insufficient to state the 2nd cause of action for denial of equal protection.

-         The 4th cause of action for violation of the right to refuse medical treatment fails as the Cal. Health & Safety Code § 1262.6(a)(3) does not apply to the LAUSD Defendants.

-         The 17th claim for forced genetic testing fails as the SAC provides no legal basis for it.

-          The FEHA claims fail as:

§  The 7th claim alleging that Plaintiffs were discriminated against by associating with those among them who made complaints is insufficiently pled.

§  The 32th and 37th cause of action fails as being unvaccinated is not a protected disability.

§  The allegations of harassment in the 22th claim are insufficiently pled.

§  Declaratory relief cannot form the basis for the separate 50th cause of action.

§  The 51st cause of action for writ of mandate fails as Plaintiffs have not alleged facts from which one could conclude there was an official act which was required by law but which was not performed, or an abuse of discretion.

After two rounds of amendment, Plaintiffs’ pleadings remain fatally uncertain as to the parties and the underlying claims. The SAC, which runs at 724 pages, is vastly overbroad with numerous allegations bearing no facially apparent connection to this action, and is pled in a manner that impedes Defendants’ ability to be on notice of the accusations against them or their alleged factual foundations. Moreover, even assuming these procedural deficiencies were resolved, there is nothing in Plaintiffs’ opposition that indicates that the substantive issues identified above could be resolved.

The Court previously warned that this would be Plaintiffs’ last opportunity to allege sufficient facts to state a claim. Plaintiffs’ SAC remains fatally uncertain.

Based on the foregoing, Defendants’ demurrer is sustained, without leave to amend.

It is so ordered.

Dated:  May    , 2023

   Hon. Jon R. Takasugi
   Judge of the Superior Court

Parties who intend to submit on this tentative must send an email to the court at smcdept17@lacourt.org by 4 p.m. the day prior as directed by the instructions provided on the court website at www.lacourt.org.  If a party submits on the tentative, the party’s email must include the case number and must identify the party submitting on the tentative.  If all parties to a motion submit, the court will adopt this tentative as the final order.  If the department does not receive an email indicating the parties are submitting on the tentative and there are no appearances at the hearing, the motion may be placed off calendar. 

            Due to Covid-19, the court is strongly discouraging in-person appearances.  Parties, counsel, and court reporters present are subject to temperature checks and health inquiries, and will be denied entry if admission could create a public health risk.  The court encourages the parties wishing to argue to appear via L.A. Court Connect.  For more information, please contact the court clerk at (213) 633-0517.  Your understanding during these difficult times is appreciated.

Superior
Court of California

County of Los Angeles

DEPARTMENT
17

TENTATIVE
RULING

Defendants’ demurrers
are SUSTAINED, WITHOUT LEAVE TO AMEND. 

On
12/13/2021, Freedom to Choose L.A. and 4,499 other Plaintiffs filed suit
against 80 Defendants alleging 15 causes of action related to COVID-19
mandates.

            Now,
Defendants Los Angeles County Office of Education and Los Angeles County
Superintendent of Schools Debra Duardo demur to Plaintiff’s SAC.

Discussion

            Defendants
argue that the same deficiencies identified in Plaintiff’s previous Complaints
remain, i.e., the SAC continues to be fatally uncertain.

The Court
agrees. Despite this being Plaintiff’s third opportunity to file a
code-compliant and legally cognizable Complaint, the following deficiencies
remain:

(1)  
the SAC fails to allege compliance with
the Government Claims Act;

(2)  
the DFEH Complaint includes only
general and vague allegations that fall short of the specifics required by the
Government Claims Act;

 (3) The SAC fails to allege compliance with
the DFEH Exhaustion Requirement (“the DFEH complaint does not set forth in
detail which of the over 4,000 plaintiffs – named and unnamed – are bringing
the claim as against the LACOE Defendants (80+ other defendants are named in
the DFEH complaint). Given the sheer number of plaintiffs and defendants, the
allegations also failed to put the LACOE Defendants on notice of the claims
being brought against it, since every possible FEHA violation appears to have
been checked off by F2C in the DFEH complaint and the DFEH complaint only
included general allegations against all defendants.”)

Plaintiffs’
opposition does not persuasively show that these deficiencies have been
resolved. While Plaintiffs argue that compliance with the Government Claims Act
does not apply to equity claims, this entirely ignores the fact that Plaintiffs
seek monetary damages against Defendants here. (See Complaint, Prayer
for Relief) Moreover, the Court agrees that on its face, Plaintiffs’ DFEH
Complaint falls short of what is required by the Government Claims Act, and
Plaintiffs have not alleged facts which could show compliance with the DFEH
Exhaustion Requirement.

The Court
previously warned that this would be Plaintiffs’ last opportunity to allege
sufficient facts to state a claim. Plaintiffs’ SAC remains fatally uncertain.

Based on the
foregoing, Defendants’ demurrer is sustained, without leave to amend.

It is so ordered.

Dated:  May   
, 2023

   Hon. Jon R.
Takasugi

   Judge of the
Superior Court

Parties who intend to submit on this tentative must
send an email to the court at smcdept17@lacourt.org
by 4 p.m. the day prior as directed by the instructions provided on the court
website at www.lacourt.org.  If a party submits
on the tentative, the party’s email must include the case number and must
identify the party submitting on the tentative. 
If all parties to a motion submit, the court will adopt this
tentative as the final order.  If the department
does not receive an email indicating the parties are submitting on the
tentative and there are no appearances at the hearing, the motion may be placed
off calendar. 

            Due to Covid-19, the court is
strongly discouraging in-person appearances.  Parties, counsel, and court reporters present
are subject to temperature checks and health inquiries, and will be denied
entry if admission could create a public health risk.  The court encourages the parties wishing to
argue to appear via L.A. Court Connect. 
For more information, please contact the court clerk at (213)
633-0517.  Your understanding during
these difficult times is appreciated.