Judge Kerry Bensinger, Case Number: 24STCV00958, Date: 2024-09-24 Tentative Ruling

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RESPONDING PARTY: Plaintiffs Protection of the Educational Rights of Kids, et al.

The Willows Community School (The Willows or Defendant) is a private school in Culver City. Tuition costs between $32,525 and $45,000 per year. Dee and Paul Barshon (the Barshons) son and Shira Aflalo (Aflalo) and Yotam Shochat’s (Schochat) daughter (collectively, Individual Plaintiffs) were students at The Willows.

In 2019, the Covid-19 pandemic began. Like other schools, The Willows transitioned from in-person to remote instruction. For the 2021-2022 school year, The Willows returned to in-person instruction. Individual Plaintiffs signed enrollment contracts prior to the start of the 2021-2022 school year. During the fall of 2021, The Willows issued a policy requiring students (ages 5 to 11) to take the Covid-19 vaccine series to attend school in person. Students were required to have taken or at least begun the vaccine series by February 1, 2022. Further, the policy required parents to release The Willows from liability for any claims associated with exposure to Covid-19, and to agree to testing, screening, and quarantine requirements, as well as other safety precautions. All exemption requests were denied. The 2021-2022 enrollment contract did not contain a Covid vaccine policy.

As of February 1, 2022, the Barshons’ son was effectively kicked out of The Willows because he had not received or started the Coivd vaccine series, and The Willows refused to offer the independent study program through Zoom. (The Willows had been providing children who did not receive the Covid shot with the program.)

During the 2021 winter break, Aflalo and Shochat’s daughter became sick with Covid-19 and was prohibited from taking the Covid shot. Despite furnishing a doctor’s note stating she was medically unable to take the Covid shot for ninety days, The Willows refused to allow Aflalo and Shochat’s daughter to attend in person after April 22, 2022. Aflalo and Shochat’s daughter finished the school year remotely and were effectively excluded from of The Willows due to the Covid policy. Individual Plaintiffs’ children are no longer students at The Willows.

On January 12, 2024, Individual Plaintiffs and nonprofit corporation Protection of the Educational Rights of Kids (PERK) (collectively, Plaintiffs) commenced this action against The Willows. On May 22, 2024, Plaintiffs filed the operative Second Amended Complaint (SAC) for (1) Breach of Contract and (2) Declaratory Relief re Enrollment Contract. The first cause of action is asserted by Individual Plaintiffs only. The enrollment contract is attached as an exhibit to the SAC.

A demurrer for sufficiency tests whether the complaint states a cause of action.¿ (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.)¿ When considering demurrers, courts read the allegations liberally and in context, accepting the alleged facts as true.¿ (Nolte v. Cedars-Sinai Medical Center (2015) 236 Cal.App.4th 1401, 1406.)¿ “Because a demurrer challenges defects on the face of the complaint, it can only refer to matters outside the pleading that are subject to judicial notice.”¿ (Arce ex rel. Arce v. Kaiser Found. Health Plan, Inc. (2010) 181 Cal.App.4th 471, 556.)

The Willows demurs to each cause of action. The parties begin by addressing the declaratory relief claim. The court follows suit.

Plaintiffs’ declaratory relief claim is based on the contention that an actual controversy exists between the parties regarding The Willows’ authority to modify the enrollment contract at any point in the future to include a Covid-19 vaccine mandate or any requirement that students get a vaccination that state law does not require. (SAC, ¶¶ 36, 38, 40, 41.)

“To qualify for declaratory relief, a party would have to demonstrate its action presented two essential elements: (1) a proper subject of declaratory relief, and (2) an actual controversy involving justiciable questions relating to the party’s rights or obligations.” (Jolley v. Chase Home Finance, LLC (2013) 213 Cal.App.4th 872, 909, quotation marks and brackets omitted.)¿

A cause of action for declaratory relief should not be used as a duplicate cause of action for the determination of identical issues raised in another cause of action. (General of America Insurance Co. v. Lilly (1968) 258 Cal.App.2d 465, 470.)¿¿Further, “there is no basis for declaratory relief where only past wrongs are involved.”¿ (Osseous Technologies of America, Inc. v. DiscoveryOrtho Partners LLC (2010) 191 Cal.App.4th 357, 366, quotation marks omitted.) Declaratory relief is “to be used in the interests of preventive justice, to declare rights rather than execute them.” (Cordoba Corp. v. City of Industry (2023) 87 Cal.App.5th 145, 157 quoting Babb v. Superior Court (1971) 3 Cal.3d 841, 848.)

The Willows argue Plaintiffs lack standing to prosecute this claim. The court agrees. To have standing, “a party must be beneficially interested in the controversy; that is, he or she must have ‘some special interest to be served or some particular right to be preserved or protected over and above the interest held in common with the public at large.’ [Citations Omitted.] Moreover, the party must be able to demonstrate that he or she has some such beneficial interest that is concrete and actual, and not conjectural or hypothetical.” (Teal v. Superior Court (2014) 60 Cal.4th 595, 599, quoting Holmes v. California Nat. Guard (2001) 90 Cal.App.4th 297, 314-315.) Associational standing exists when: (a) [the association's] members would otherwise have standing to sue in their own right; (b) the interests [the association] seeks to protect are germane to the organization's purpose; and (c) neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit. (Amalgamated Transit Union, Local 1756, AFL-CIO v. Superior Court (2009) 46 Cal.4th 993, 1004.)

As alleged, Plaintiffs do not have a beneficial interest in this controversy. Individual Plaintiffs’ children are no longer students at the Willows. (See SAC, ¶ 45.) Further, there are no allegations that the members of PERK are current families at The Willows. A judicial declaration in Plaintiffs’ favor would not benefit them.

Even if Plaintiffs had standing, the second cause of action is unsupported by facts sufficient to state a claim for declaratory relief. The allegations concern a past wrong—specifically, The Willows’ imposition of a mandatory Covid-19 vaccination policy which deprived the Individual Plaintiffs’ children of an in-person education after February 1, 2022, and April 22, 2022. There are no allegations that the Individual Plaintiffs plan to re-enroll in The Willows. Similarly, there are no allegations identifying a restrictive policy akin to the Covid-19 vaccination policy that The Willows will or is currently implementing. And, as discussed above, there are no allegations the members of PERK are current families at The Willows. Without such allegations, there is no actual controversy or ongoing dispute, only a hypothetical one. Plaintiffs’ opposition only proves these points. (See Opp. p. 13:9-18 citing Doe v. Albany Unified Sch. Dist. (2010) 190 Cal.App.4th 668, 685 (holding the father of a child who was a current student at the time the lawsuit had a beneficial interest in the enforcement of the law by a public school); Collins v. Thurmond (2019) 41 Cal.App.5th 879, 917 (noting an organization had standing to sue a public school district for racial discrimination because some of its members were parents of the school district or have been subject to or may in the future be subjected to discriminatory disciplinary action).)

Individual Plaintiffs’ breach of contract claim is based on the following allegations. In February 2021, the Individual Plaintiffs entered into a contract with The Willows for the 2021-2022 school year (the “Enrollment Contract”). Per the terms of that contract, the Individual Plaintiffs promised to pay in excess of $30,000. In exchange, The Willows promised to provide the Individual Plaintiffs’ children with an education that was equivalent to the education it provided to all other students whose families signed the Enrollment Contract. The contract did not include a requirement that the Individual Plaintiffs’ children take the Covid-19 shot to receive that education. (SAC, ¶ 27.) The Individual Plaintiffs paid the required fee, and they performed all other obligations they had under the terms of the Enrollment Contract. (SAC, ¶ 28.) The Willows breached the Enrollment Contract by unilaterally attempting to modify the agreement to require that the Individual Plaintiffs’ children (who were intended third-party beneficiaries of the Enrollment Contract) take the Covid-19 shot to receive the education they were contractually entitled to and by providing the Individual Plaintiffs’ children with an inferior education during the 2021-2022 school year. (SAC, ¶ 29.)

To state a cause of action for breach of contract, a party must be able to establish “(1) the existence of the contract, (2) plaintiff’s performance or excuse for nonperformance, (3) defendant’s breach, and (4) the resulting damages to the plaintiff.” (Oasis West Realty, LLC v. Goldman (2011) 51 Cal.4th 811, 821.)

The Willows argues the breach of contract claim fails because Individual Plaintiffs do not identify any provision or term of the enrollment contract that was breached by the issuance of the Covid-19 vaccination policy. In support, The Willows points out that the enrollment contract empowered it to modify its infectious disease policies and protocols at any time. As relevant here, the enrollment contract states: ““By entering this Agreement, I, on behalf of myself and Student, agree to accept and abide by the School’s Infectious disease policies and protocols, including those related to COVID-19, each of which may be modified from time to time.” (SAC, Ex. A.) The force majeure clause further states: “I understand that School shall be entitled, in its sole discretion, to immediately and without notice: (2) change the facilities in which School’s education program, including classes, programs, activities, and events (“Program”) are held; (3) change the manner and format of the Program, including, but not limited to changing to an online electronic format, independent or parent-guided study, or any other format or manner; or (4) postpone or cease all or part of its operations and its duties, obligations, and performance under this agreement.” (Id.) The Individual Plaintiffs also agreed that “Parents, as well as students, are required and agree to abide by and support School rules and regulations, as amended by the School, in its sole discretion, periodically.” (Id.) Finally, the Individual Plaintiffs agreed that “To the full extent permitted by law, I voluntarily release and covenant not to sue the School, including its Released Parties, from any and all claims and liabilities that arise out of, or relate to this Enrollment Agreement, my child’s enrollment in or dismissal from the School . . .” (Id.)

Individual Plaintiffs argue the enrollment contract is ambiguous because the mandatory Covid policy does not fall within the reasonable expectations of the contracting parties when they signed the agreement. “[W]here an ambiguous contract is the basis of an action, it is proper, if not essential, for a plaintiff to allege its own construction of the agreement.” (Aragon-Haas v. Family Security Ins. Servs., Inc. (1991) 231 Cal.App.3d 232, 239.) Indeed, the mandatory Covid policy does not appear in the enrollment contract. (See SAC, Ex. A.) In essence, whether the parties contemplated the possibility of a vaccine requirement when signing the agreement is a factual dispute improper for resolution at the demurrer stage. Further, contrary to The Willows’ position, Individual Plaintiffs do allege a breach. (See SAC, ¶ 29.) Individual Plaintiffs also allege that the mandatory Covid policy exceeded The Willows’ authority because the Legislature or the California Department of Public Health are entrusted with setting vaccination requirements for students. (See SAC, ¶ 12.) The Willows also improperly refused to provide Covid exemptions. (See SAC, ¶ 13.)

The Demurrer to the First Cause of Action is OVERRULED. The Demurrer to the Second Cause of Action is SUSTAINED. Leave to amend is DENIED.

Defendant is ordered to file and serve their Answer to the Second Amended Complaint within 10 days of the date of this order.

Kerry Bensinger

Judge of the Superior Court