Judge: Loren G. Freestone, Case: 37-2022-00004032-CU-WM-CTL, Date: 2023-10-20 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - October 19, 2023

10/20/2023  10:30:00 AM  C-64 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Loren G. Freestone

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Civil - Unlimited  Writ of Mandate Demurrer / Motion to Strike 37-2022-00004032-CU-WM-CTL PETITION OF J [IMAGED] CAUSAL DOCUMENT/DATE FILED:

TENTATIVE RULING Respondent California Department of Social Services' demurrer, and Respondent County of San Diego's demurer, to Petitioners Yolanda J. and Curtis H.'s second amended petition are both SUSTAINED as set forth below.

The court takes judicial notice of the RFA directives (Versions 5.0, 6.0, 6.1, 7, and 8) as publicly posted on the California Department of Social Services website. (See Evid. Code, §§ 452, 455.) Administrative Writ of Mandate Petitioners' first cause of action is for a writ of administrative mandate (Code Civ. Proc., § 1094.5).

Respondents collectively argue (1) the juvenile court decisions removing Isaiah and N.B. from Petitioners' home were not final administrative decisions subject to review by way of a petition for administrative mandate; and (2) Petitioners have not exhausted their administrative remedies as to the license revocation/exclusion proceeding pending before the Office of Administrative Hearings.

Petitioners do not dispute that the juvenile court decisions are not reviewable by way of administrative mandate and indicate they will be dismissing 'all claims relating to Na'Lyhia B and the Juvenile Court proceeding.' Petitioners do argue that they have exhausted their administrative remedies because they completed an eight-day hearing on September 27, 2023. Petitioners argue that there is no requirement a final decision be issued before they pursue their petition.

'A demurrer may properly be sustained based on the failure to adequately plead exhaustion of administrative remedies.' (Tejon Real Estate, LLC v. City of Los Angeles (2014) 223 Cal.App.4th 149, 156; accord Berger v. Cal. Ins. Guarantee Assn. (2005) 128 Cal.App.4th 989, 1006; Breneric Associates v. City of Del Mar (1998) 69 Cal.App.4th 166, 188–189.

'In the context of administrative proceedings, a controversy is not ripe for adjudication until the administrative process is completed and the agency makes a final decision that results in a direct and immediate impact on the parties.' (Tejon, supra, 223 Cal.App.4th at p. 156, emphasis added; accord McAllister v. County of Monterey (2007) 147 Cal.App.4th 253, 274; Santa Barbara County Flower & Nursery Growers Assn. v. County of Santa Barbara (2004) 121 Cal.App.4th 864, 875.) 'The petitioner must obtain a final decision on the merits at the highest available administrative level before seeking Calendar No.: Event ID:  TENTATIVE RULINGS

3013200  34 CASE NUMBER: CASE TITLE:  PETITION OF J [IMAGED]  37-2022-00004032-CU-WM-CTL judicial review.' (McAllister, supra, 147 Cal.App.4th at pp. 284–285.) Until then, a trial court lacks jurisdiction over the matter. (Horack v. Franchise Tax Board (1971) 18 Cal.App.3d 363, 368.) Here, the operative petition alleges that the administrative proceedings are stayed. Thus, the petition itself reveals that it is premature. Even accepting Petitioners' opposition as a proffer that they could amend to allege that the stay was lifted and the hearing held, they concede that a proposed decision has not yet been issued. After it is issued, Respondents then have another 100 days to adopt/reject/change the proposed decision. Petitioner also do not dispute that they are entitled to request a rehearing within 30 days after receiving the final decision and potentially have other procedures to be exhausted. As such, there is no reasonable possibility that Petitioners can amend to allege that the petition for an administrative writ is ripe. The demurrer to the first cause of action is therefore sustained and the cause of action dismissed as not ripe.

Writ of Prohibition Petitioners' second cause of action is for a writ of prohibition.

Respondents collectively argue: (1) there is no basis to issue a writ of prohibition to the juvenile court, which is not an inferior tribunal; and (2) there is no threatened judicial taken that will be taken without jurisdiction in the administrative proceeding.

Petitioners again do not dispute either argument. Rather, they indicate they 'will be filing a Notice of Dismissal regarding the Writ of Prohibition.' A writ of prohibition will lie to arrest the proceedings of an inferior tribunal when the proceedings are in excess of its jurisdiction and there is not a plain, speedy, and adequate remedy in the ordinary course of the law. (Code Civ. Proc., §§ 1102–1103.) 'An act is only 'in excess' of jurisdiction, such that prohibition will lie, if the act exceeds the defined power of the court or other tribunal in any instance, whether that power be defined by constitutional provisions, express statutory declaration, or rules developed by the courts and followed under the doctrine of stare decisis.' (Agricultural Labor Relations Board v. Superior Court (1994) 29 Cal.App.4th 688, 695.) 'Courts are not entitled to enjoin the holding of administrative proceedings based on a party's assertion that the charge on which the complaint rests is groundless and that the mere holding of the prescribed administrative hearing would result in irreparable damage.' (Id.

at p. 696.) The administrative proceeding is governed by Welfare and Institutions Code section 16519.6 and the Administrative Procedure Act. There are no allegations indicating that the Office of Administrative Hearings is acting in excess of its authority pursuant to those statutes. Petitioners' failure to oppose this claim on the merits and express intent to dismiss the claim is essentially a concession that the demurrer to this claim is meritorious. (See Super. Ct. San Diego County, Local Rules, rule 2.1.19.B.) As such, the demurrer to the second cause of action is sustained without leave to amend.

Traditional Writ of Mandate Petitioners' third cause of action is for a traditional writ of mandate (Code Civ. Proc., § 1085).

Respondents collectively argue: (1) the only challenge is to the decision to revoke the license and exclude them from resource family homes, which must be reviewed by administrative mandate; and (2) there was no failure to perform a ministerial duty.

Petitioners argue that the RFA directives imposed a ministerial duty upon Respondents to provide her with due process before taking action to revoke the license and exclude them.

Respondents' first argument is not persuasive. 'Where a petition challenges an agency's failure to perform an act required by law rather than the conduct or result of an administrative hearing, the remedy Calendar No.: Event ID:  TENTATIVE RULINGS

3013200  34 CASE NUMBER: CASE TITLE:  PETITION OF J [IMAGED]  37-2022-00004032-CU-WM-CTL is by ordinary mandate pursuant to Code of Civil Procedure section 1085, not by administrative mandate pursuant to section 1094.5.' (Conlan v. Bonta (2002) 102 Cal.App.4th 745, 752; accord City of Hesperia v. Lake Arrowhead Community Services Dist. (2019) 37 Cal.App.5th 734, 746–747.) Here, as pled, the claim for a traditional writ does not seek to review the outcome of the administrative proceeding. Rather, it alleges that Respondents had a mandatory duty to take certain steps pursuant to the RFA directives before pursuing enforcement action. A writ of mandate may lie in such circumstances to compel compliance with such directives.

However, Respondents' second argument is persuasive. A petition for a traditional writ 'seeks to enforce a mandatory and ministerial duty to act on the part of an administrative agency or its officers. . . .

A ministerial act is one that a public functionary is required to perform in a prescribed manner in obedience to the mandate of legal authority without regard to his or her own judgment or opinion concerning the propriety of such act. In order to construe a statute as imposing a mandatory duty, the mandatory nature of the duty must be phrased in explicit and forceful language. . . . Even if mandatory language appears in the statute creating a duty, the duty is discretionary if the entity must exercise significant discretion to perform the duty.' (Collins v. Thurmond (2019) 41 Cal.App.5th 879, 914–915; see also County of Los Angeles v. Superior Court (2002) 102 Cal.App.4th 627, 639–643.) Petitioners assert that before rescinding the approval of a resource family, or excluding an individual from a resource family home, the RFA directives state that the County/Department 'shall provide the applicable individual with due process as specified in Welfare and Institutions Code section 16519.5 et seq. and Article 12. (RFA Directives, 10-01A(c)(1)–(2).) The issue is therefore whether Respondents failed to comply with a mandatory duty set forth in the applicable sections of the Welfare and Institutions Code or Article 12 of the RFA directives.

As to Welfare and Institutions Code section 16519.5 et seq., the operative petition is silent as to any mandatory duties that Respondents failed to perform. Petitioners do not cite to any such duties in their opposition either.

As to Article 12, the operative petition and opposition both cite to directive 12-03 ('Resolution Prior to Formal Administrative Action') from Versions 7 and 8. That directive states, in pertinent part: 'A County shall use best efforts to address any concerns with an applicant or a Resource Family prior to or in lieu of issuing a Notice of Action, Accusation, or Statement of Issues in order to assist an applicant or Resource Family in obtaining or maintaining approvals. A County may require a Resource Parent, applicant, or associated individual to participate in any of the following: - Conformance conferences or meetings.

- Correction of any condition in the home that may adversely impact the health and safety, protection, or well-being of a child or nonminor dependent.

- Submission of any required documentation.

- The completion of classes, trainings, or counseling.

- Any other action deemed necessary by the County.' Terms such as 'best efforts,' 'may,' and 'any other action deemed necessary by the County' are words and phrases that indicate the County is vested with discretion to determine precisely what steps to take under a given set of circumstances. They denote a discretionary duty, not a ministerial duty.

Other directives cited in the operative petition, which were not raised in the opposition, are similarly discretionary. For example, directive 10-01A(e) that that a 'County shall attempt to resolve areas of concern, if possible, prior to . . . rescinding approval' (emphasis added). This directive leaves it to the County to determine what is and is not possible, and accordingly whether to act.

Finally, the operative petition (but not the opposition) cites directive 9-06B(f), which states, in pertinent Calendar No.: Event ID:  TENTATIVE RULINGS

3013200  34 CASE NUMBER: CASE TITLE:  PETITION OF J [IMAGED]  37-2022-00004032-CU-WM-CTL part: 'Upon completion of an incident investigation, a County shall . . . if applicable, develop a corrective action plan by completing form RFA 809C: Resource Family Visit – Corrective Action Plan for the Resource Family to correct any identified deficiencies. If a County determines that it is not possible to correct an identified deficiency, then the County shall document the deficiency and may proceed with the necessary administrative procedures pursuant to Article 12.' To the extent directive 9-06B(f) establishes a mandatory duty, the County complied with it. The operative petition alleges that the County provided a CAP at the conclusion of the April 2019 in-home visit, identifying two deficiencies: (1) 'conduct inimical', and (2) 'foster child exposed to arguments in home.' Petitioner alleges that the 'CAP does not state, specify or otherwise explain how Petitioner might be able to correct or remedy either of the alleged deficiencies,' but the directive states it is sufficient for the County to merely document the deficiency if it determines it cannot be corrected.

Petitioners did not request leave to file a third amended petition or otherwise demonstrate a reasonable possibility that they could amend this claim to render it viable. Accordingly, the demurrer to the third cause of action is sustained without leave to amend.

Alternative Writ Petitioners' fourth cause of action is for an alternative writ.

Respondents collectively argue that an alternative writ is not a cause of action.

Petitioners argue that 'the existence of a live writ of mandate claim makes issuance of the alternative writ mandatory.' There are two ways to obtain a hearing on the merits of a writ petition: (1) the alternative writ procedure, and (2) the noticed motion procedure. (See Cal. Civil Writ Practice (Cont.Ed.Bar 4th ed. 2022) § 5.9.) Under the alternative writ procedure, the petitioner commences the proceeding by filing a writ petition, an application for an alternative writ, supporting memoranda, and any supporting evidence, and submits them to the court on an ex parte basis. The court can deny the application if it is procedurally defective or meritless on its face. Alternatively, it can grant the application, issue the alternative writ, and set the dates for the return and the hearing on the merits of the writ petition. (Cal. Civil Writ Practice, supra, § 5.15.) Under the noticed motion procedure, the petitioner files the petition and serves it on the respondent in the same manner as an ordinary civil proceeding. The respondent answers or otherwise responds to the writ petition. When the petitioner is ready, he or she filed a noticed motion for issuance of the requested writ. (Cal. Civil Writ Practice, supra, § 5.10.) The local rules state that when 'seeking mandamus or prohibition relief, it is not necessary to obtain an alternative writ. The noticed motion procedure should be used whenever possible.' (Super Ct. San Diego County, Local Rules, rule 2.4.8.A) Thus, an alternative writ is not itself a cause of action. Rather, it is merely a method by which Respondents could have been brought into court to address the merits of the petition-a method that Petitioners never utilized. Instead, Petitioners opted to follow the noticed motion procedure.

Accordingly, the demurrer to the fourth cause of action is sustained without leave to amend.

Injunctive and Declaratory Relief Petitioners' fifth cause of action is for injunctive relief. Petitioners' sixth cause of action is for declaratory relief.

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3013200  34 CASE NUMBER: CASE TITLE:  PETITION OF J [IMAGED]  37-2022-00004032-CU-WM-CTL Respondents collectively argue: (1) injunctive relief and declaratory relief are remedies that depend on the existence of a viable cause of action; (2) such relief will not lie to challenge an administrative decision and cannot be joined with a petition for a writ of administrative mandate; and (3) a petitioner cannot circumvent the administrative exhaustion requirement by prematurely pursuing such claims in court.

Petitioners argue that a complaint alleging such claims may be construed as seeking writ relief. They also argue that these claims are viable to the extent the writ claims are viable.

When there is a pending administrative proceeding, a party 'may not evade the exhaustion requirement by filing an action for declaratory or injunctive relief.' (Contractors' State License Bd. v. Superior Court 2018) 28 Cal.App.5th 771, 780–782 & fn. 4.) Once administrative remedies are exhausted, the administrative decision may not be reviewed by way of a claim for declaratory relief, but rather may be reviewed only by way of a petition for writ of administrative mandate. (City of Pasadena v. Cohen (2014) 228 Cal.App.4th 1461, 1466–1467.) As set forth above, Petitioners have not exhausted their administrative remedies. Even if they had, review of the ultimate decision must be by way of administrative mandate.

As Petitioners note, courts may-but are not required-to construe a claim for declaratory relief in this context as a request for a traditional writ of mandate. (See City of Pasadena, supra, 228 Cal.App.4th at p. 1467.) However, Petitioners have already alleged a claim for such a writ. Construing the claim in this manner would merely result in a duplicative claim. (See Palm Springs Villas II Homeowners Assn., Inc.

v. Parth (2016) 248 Cal.App.4th 268, 290 [court may sustain demurrer to duplicative cause of action].) Moreover, as Respondents note, 'injunctive and declaratory relief are equitable remedies, not causes of action,' and they depend on the existence of a viable predicate. (Faunce v. Cate (2013) 222 Cal.App.4th 166, 173.) As set forth above, neither the administrative writ nor the traditional writ claims are viable.

Accordingly, the demurrer to the fifth and sixth causes of action are sustained and dismissed as not ripe.

Due Process Petitioners' seventh cause of action is for due process.

Respondents collectively argue: (1) this is not a valid cause of action, and (2) this claim cannot be used to circumvent the administrative hearing and need to file a writ of administrative mandate.

Petitioners argue that the RFA regulations and the administrative process entitle them to due process, though they concede this claim will 'rise and fall on the merits of the primary writ claims.' 'The essence of a due process claim is that the State has deprived an individual of life, liberty or property, without due process of law.' (Agricultural Labor Relations Bd. v. Superior Court (1994) 29 Cal.App.4th 688, 695.) A party cannot state a due process claim absent an actual deprivation. (Id. at p. 696.) Moreover, the 'doctrine of exhaustion of administrative remedies applies despite a plaintiff's asserted denial of procedural due process.' (Los Globos Corp. v. City of Los Angeles (2017) 17 Cal.App.5th 627, 634–635; Edgren v. Regents of University of California (1984) 158 Cal.App.3d 515, 522–523.) As set forth above, the primary writ claims fail. Petitioners failed to allege that Respondents denied them of due process under the RFA directives by failing to perform a mandatory duty before taking enforcement action. And as to any allege deprivation of due process in the administrative proceeding, a decision has not yet been rendered. Assuming the eventual decision is against Petitioners, the issue of whether they received a 'fair trial' will be reviewable by way of a subsequent petition for writ of Calendar No.: Event ID:  TENTATIVE RULINGS

3013200  34 CASE NUMBER: CASE TITLE:  PETITION OF J [IMAGED]  37-2022-00004032-CU-WM-CTL administrative mandate. (See Code Civ. Proc., § 1094.5, subd. (b).) Accordingly, the demurrer to the seventh cause of action is sustained without leave to amend.

Conclusion For the reasons set forth above, the demurrers are sustained without leave to amend where indicated.

The court orders the case dismissed without prejudice to Petitioners' right to refile a petition for writ of administrative mandate if/when they exhaust all administrative remedies.

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