Judge: Malcolm Mackey, Case: 21STCP03671, Date: 2022-09-12 Tentative Ruling
Case Number: 21STCP03671 Hearing Date: September 12, 2022 Dept: 55
PADRES
BUSCANDO EL CAMBIO v. HARBOR DEVELOPMENTAL DISABILITIES FOUNDATION, INC. 21STCP03671
Hearing Date: 9/12/22,
Dept. 55
#3:
DEMURRER TO “VERIFIED
FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF.”
DEMURRER TO PLAINTIFF’S
FIRST AMENDED VERIFIED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF.
Notice: Okay
Opposition
MP:
Defendant
HARBOR DEVELOPMENTAL DISABILITIES FOUNDATION.
Defendant NANCY BARGMANN.
RP:
Plaintiff
Summary
On 11/8/21, Plaintiff filed a Complaint.
On 3/15/22, Plaintiff filed a First Amended Complaint alleging:
Plaintiff is an association of Hispanic/Latinx
families having developmentally disabled children entitled to state-funded
services, under the Lanterman Developmental Disabilities Services Act. Welf.
& Inst. Code §§ 4500 et seq.
Defendants Department of Developmental Services
Director Nancy Bargmann (DDS) and Harbor Developmental Disabilities Foundation,
Inc. are required to administer this state-mandated assistance in a
non-discriminatory manner.
Harbor is one of 21 state-funded regional centers.
Harbor is obligated to serve the geographical areas of southeast Los Angeles
County. As with other regional centers, Harbor provides fewer comprehensive
services and spends less money on Hispanic/Latinx children than white children.
DDS, which has control and oversight over every regional center statewide, failed
to adequately respond to and correct Harbor’s discriminatory actions, resulting
in disproportionate and adverse impacts on Hispanic/Latinx families in the
regional center system.
Defendants violated Gov’t Code § 11135, which
prohibits discrimination on the basis of disability, and the unlawful denial of full and equal
access to any program or activity conducted by the state or any agency funded
or receiving financial assistance from the state.
Plaintiff alleges the waste of public funds and the
illegal expenditure of taxpayer monies in its discriminatory administration of
Lanterman Act services. Plaintiff seeks a declaration that Defendants
administer Lanterman Act programs and services in a discriminatory manner in
violation of state law. Plaintiff also seeks injunctive relief enjoining
Defendants from further violating state discrimination laws and the Lanterman
Act, and illegally expending public funds, as well as an injunction mandating
Defendants to adopt and implement policies and procedures in legal compliance, free
from discrimination.
MP
Positions
Moving parties request an order sustaining two
demurrers to the Complaint, on grounds including the following:
·
The Court must follow the three-part Hunt
test to determine associational standing in California courts. See, Amalgamated
Transit Union, Local 1756, AFL-CIO v. Superior Court (2009) 46 Cal. 4th 993,
1004; Assn. for L.A. Deputy Sheriffs v.
Macias (2021) 63 Cal.App.5th 1007, 1020 [holding that an association has standing
only if “neither the claim asserted, nor the relief requested requires the
participation of individual members in the lawsuit.”].
·
It cannot be determined by the facts pled
by Plaintiff that any member of its association would have standing to sue on
their own. Plaintiff is not proceeding under a pseudonym to protect its members
from public disclosure nor has Plaintiff made claims that such disclosure is
protected as a right to so-called associational privacy.
·
Plaintiff has failed to allege sufficient
facts to support a finding that any single member of its association has
standing, much less the 6,000 non-members that it purports to represent.
·
Plaintiff has not alleged that its members
exhausted their remedies, so this Court lacks jurisdiction over plaintiff’s
taxpayer waste claim.
·
The availability of other legal remedies,
administrative and other, which deprives plaintiff of taxpayer standing.
(Animal Legal Defense Fund v. Cal. Exposition & State Fairs (2015) 239
Cal.App.4th 1286, 1297.)
·
In order to determine whether there has
been discrimination as to any individual, it will be necessary to determine
whether there are non-discriminatory reasons behind any service provision. In
order to make such a determination, it is necessary to inquire of individuals
alleged to have been affected by Defendants’ implementation of services.
·
Participation of individuals is required
to show discriminatory funding of services.
Brotherhood of Teamsters (1987) 190 Cal. App. 3d 1515, 1522.
·
HRC has discretion as to how to fund
services based on individual need and choice. (Association for Retarded
Citizens v. Department of Developmental Services (1985) 38 Cal. 3d 384, 389-390).
·
Plaintiff is asking this Court to require
defendant Director of the Department of Developmental Services’ discretion in
correcting Harbor’s allegedly discriminatory practice, but it cannot compel the
Director to exercise her discretion in a particular manner.
·
To exhaust remedies, Plaintiff was
required to follow its Welfare and Institutions Code Section 4731 Complaint
process to conclusion.
·
The Lanterman Act’s Fair Hearing processes
available under sections 4710.5 and 4712 “are a claimant’s exclusive remedy for
issues relating to the provision of services, which must first be exhausted
before seeking judicial relief in the superior court.” (Harbor Reg’l Ctr. v.
Office of Admn. Hearings (2012) 210 Cal. App. 4th 293, 312); Conservatorship of Whitley (2007) 155
Cal.App.4th 1447, 1463). The Lanterman
Act does not exempt “systemic” claims from the fair hearing procedure.
·
Declarative relief is not appropriate, as
in the present case, when the action in question is the discretionary
administration of a legal policy. (See, Stearn v. County of San Bernardino
(2009) 170 Cal. App. 4th 434, 439 [in which the Court sustained Real Party in
Interest’s demurrer to causes of action for declaratory relief, injunctive
relief, and traditional mandate on the ground that the discretionary land use
decisions of a governmental agency can only be reviewed by administrative
mandate pursuant to Code of Civil Procedure section 1094.5]; see also Public
Employees’ Retirement System v. Santa Clara Valley Transportation Authority
(2018) 23 Cal.App.5th 1040, 1045.)
RP
Positions
Opposing party advocates overruling both demurrers, or
leave to amend, for reasons including the following:
·
A Welf. & Inst. Code Section 4731
complaint was the proper avenue for Padres to raise its systemic claim, because
it served to provide the requisite notice and exhaust alternative remedies
before raising its discrimination and taxpayer claims in this forum. .
·
Neither Padres as an association, nor any
of its individual members, must exhaust the administrative remedies designed to
resolve individual disputes between the regional center and the consumer about
the consumer’s IPP. Rather, the Lanterman Act offers a separate process under
Section 4731 for raising broad systemic claims involving the rights of regional
center consumers without engaging in the fair hearing procedure. Padres invoked
the Section 4731 complaint process before filing this action under Government
Code Section 11135. First Amended Complaint (FAC), ¶¶ 91-94.
·
Padres tried and was unable to resolve its
dispute with defendants Padres gave
repeated notice of discriminatory and retaliatory treatment to both Harbor and
DDS, providing defendants ample opportunity to correct their wrongs. See FAC,
¶¶ 84-87, 91-110; see also FAC, Ex. 1 at 1-2, 5-14. Accordingly, Padres adequately
met any exhaustion requirement under Section 4731.
·
Section 4731(a) provides that “[e]ach
consumer or any representative acting on behalf of any consumer or consumers, who
believes that any right to which a consumer is entitled has been abused,
punitively withheld, or improperly or unreasonably denied by a regional center
. . . may pursue a complaint as provided in this section.” (Emphasis added.)
Unlike the administrative fair hearing procedures (sections 4710-4713) which
apply to a claim based “on the failure to deliver services pursuant to [the
claimant’s] IPP”, Section 4731 governs any claims that involve “the right of
equal access to [regional center] services.” Melton by and through Mosier v.
California Dep’t of Developmental Service (N.D. Cal., Nov. 5, 2021) No.
20-CV06613-YGR, 2021 WL 5161929, at *5-6
·
Equitable relief is the proper remedy to
address an agency’s policy of ignoring or violating applicable laws. Venice Town Council, Inc. v. City of Los
Angeles (1996) 47 Cal.App.4th 1547.
·
Defendant does not have any discretion to
allow discrimination in its state-funded program. See Gov’t Code § 11135
(prohibiting discrimination and the unlawful denial of full and equal access to
any program or activity that is “conducted, operated, or administered by the
state or by any state agency, [ ] funded directly by the state, or receives any
financial assistance from the state.”).
·
DDS’s failure to comply with mandatory
duties when expending state dollars constitutes waste. Vasquez
v. State of California (2003) 105 Cal.App.4th 849, 856.
·
DDE’s letter about taking corrective
actions is not authorized for judicial notice, and does not address or negate Padres’
claims.
Tentative
Ruling
Both demurrers are overruled.
Twenty days to answer.
Procedure
Defendants err in encouraging the Court to require
allegations supporting standing.
Plaintiffs have no such burden. A
demurrer lies if the lack of standing already appears from the complaint.
Where the lack of standing does not appear from the
face of the complaint, it cannot be resolved by way of a demurrer. Pillsbury v. Karmgard (1994) 22 Cal.
App. 4th 743, 758. “Where the complaint
shows the plaintiff does not possess the substantive right or standing to
prosecute the action, ‘it is vulnerable to a general demurrer on the ground
that it fails to state a cause of action.’”
Schauer v. Mandarin Gems of Cal., Inc. (2005) 125 Cal. App. 4th
949, 955. Accord Estate of Bowles
(2008) 169 Cal.App.4th 684, 690 (“Where someone other than the real party in
interest files suit, the complaint is subject to a general demurrer.”); Martin v. Bridgeport Community Ass'n, Inc. (2009) 173 Cal.App.4th 1024, 1031 (“lack of standing
may be raised by demurrer.”); Peterson
v. Cellco Partnership (2008) 164 Cal.App.4th 1583, 1589 (“‘lack of standing
may be raised by demurrer….’”).
Modernly, a demurrer based upon a defense lies only
where it was revealed on the face of the complaint or by judicial notice. E.g., Union Carbide Corp. v. Sup. Ct.
(1984) 36 Cal. 3d 15, 25 (rejecting motion to strike based on uncertainty as to
whether Statute of Limitations applied).
Further, identifying members in discovery is a
different procedure than testing pleading allegations. “[S]pecific dates and details . . . are
properly addressed during discovery, not on demurrer.” People v. Highland Fed. Sav. & Loan
(1993) 14 Cal. App. 4th 1692, 1716.
As for applicable law, independent research revealed a
dearth of California case law on point.
The cited federal authorities do not govern, and are advisory, at
most. Federal case law is not binding
upon California courts, and may be only persuasive in some circumstances. Alameida v. State Personnel Bd. (2004)
120 Cal. App. 4th 46, 61. California
courts are not bound to follow decisions of lower federal courts. People v. Sup. Ct. (2002) 103 Cal.
App. 4th 409, 431. California courts
follow procedures governing litigation in their courts, and are not bound by
federal procedural law. Rosenthal v.
Great Western Fin. Securities Corp. (1996) 14 Cal. 4th 394, 409.
So, here, the Court is largely given the task to
interpret statutes, as issues of first impression. Legislative interpretation begins by
examination of the language of the statute, giving the words their ordinary
meaning and considering them in the context of the statutory framework. Barnes
v. Dept. of Corrections (1999) 74 Cal. App. 4th 126, 131. Judges should not disregard express statutory
language, or add language that is not there.
Yao v. Sup. Ct. (2002) 104 Cal. App. 4th 327, 333. Issues of legislative interpretation involve
pure questions of law that the reviewing courts independently review de novo,
without any according any deference to the lower courts. E.g., Wolf v. CDS Devco (2010) 185
Cal.App.4th 903, 913; Regents of
Univ. of Cal. v. Sup. Ct. (1999) 20 Cal.4th 509, 531.
Standing
Associational
The Court concludes that the lack of associational
standing is not revealed by the pleading.
If a statute accords standing, then the Court need not
apply associational standing requirements.
Applicable statutory requirements for standing overcome associational
standing elements. Amalgamated
Transit Union, Loc. 1756, AFL-CIO v. Superior Ct. (2009) 46 Cal. 4th 993,
1005. As analyzed below, this
representative case is expressly authorized by statute.
In nonbinding federal case law, plaintiffs have been
allowed associational standing in cases challenging reduced benefits to
disabled individuals, including under the Lanterman Act, even involving
reference to individualized proof in the post-pleading stages. E.g., Arc of California v. Douglas, 757 F.3d
975, 978–79 (9th Cir. 2014) (“plaintiffs
in this case, Arc of California and the United Cerebral Palsy Association of
San Diego (together, *979 “Arc”)—non-profit organizations representing
developmentally disabled persons, their families, and the organizations that
serve them—allege that California's implementation of those statutes was
inconsistent with the Medicaid Act; violated the federal Americans with
Disabilities Act (“ADA”), 42 U.S.C. § 12132, and the federal Rehabilitation
Act, 29 U.S.C. § 794(a); and was invalid under California's Lanterman
Developmental Disabilities Services Act,….”).
Taxpayer
The Complaint sufficiently alleges race-based, and
disability-based, discrimination in violation of various statutory provisions
clearly outlawing such discrimination, in order for courts to accord taxpayer
standing.
“Cases that challenge the legality or
constitutionality of governmental actions fall squarely within the purview of
section 526a.” California Dui Laws.
Ass'n v. California Dep't of Motor Vehicles (2018) 20 Cal. App. 5th
1247, 1261.
Exhaustion
Complainants are allowed to bring representative
actions, without exhaustion as to individual claims. “Each consumer or any representative acting
on behalf of any consumer or consumers, who believes that any right to which a
consumer is entitled has been abused, punitively withheld, or improperly or
unreasonably denied by a regional center, state-operated facility, or service
provider, may pursue a complaint as provided in this section.” Welfare and
Institutions Code Sections 4731(a).
In contrast, Welfare and
Institutions Code Sections 4710 et seq. expressly addresses complaints by
individuals for their own experiences, which is not the alleged basis of the
instant pleading.
It is immaterial that statutory mechanisms exist for
Plaintiff to work towards resolution outside of court, where applicable
statutory provisions do not mandate that.
The mere opportunity to participate in administrative resolution
efforts, does not equate with administrative exhaustion requirements. Lindelli v. Town of San Anselmo (2003)
111 Cal. App. 4th 1099, 1106.
Additionally, whether taxpayer exhaustion is required,
depends on the underlying statutory provisions.
See Collins v. Thurmond (2019) 41 Cal. App. 5th 879,
912–13 (“But the plain language of the
provision suggests just the opposite, the filing of an administrative complaint
is a requirement to resolving allegations of discrimination and the provision
only provides that once a complaint is filed, the parties can submit it to an
alternate method for resolution.”).
Here, a specifically applicable statutory section does not require
administrative exhaustion before a court case--
Welfare and Institutions Code Sections 4731.
Thus, the subject complaint involves an exception to
exhaustion requirements.
Plaintiffs have the burden to plead and prove
administrative exhaustion, or exceptions thereto. Holland v. Union Pacific R. Co. (2007) 154 Cal.App.4th 940, 945. “[T]he administrative remedies exhaustion
rule has several exceptions, including, but not limited to…: (1) when the
administrative agency cannot provide an adequate remedy, and (2) when the
subject of controversy lies outside the agency's jurisdiction” Campbell v. Regents of Univ. of Cal.
(2005) 35 Cal. 4th 311, 322.
Declaratory
Relief
Discretion in funding can be the subject of a claim
for declaratory relief, as opposed to a petition for writ of mandate, where ongoing
discrimination allegedly is involved, as distinguished from one administrative
handling. “Declaratory relief has been held to be the
proper remedy when it is alleged an agency has a policy of ignoring or
violating applicable laws.” Venice
Town Council, Inc. v. City of Los Angeles (1996) 47 Cal. App. 4th 1547,
1566.
Procedurally, with exceptions, a demurrer must be
overruled, if an actual controversy is alleged, even if plaintiffs are not
entitled to a judgment in their favor. Nede
Mgmt. Inc. v. Aspen American Ins. Co. (2021) 68 Cal. App. 5th 1121,
1132 (where complainants adequately
allege an actual controversy in support of a declaratory relief claim,
demurrers technically should be
overruled, but sustaining and declaring adversely is nonprejudicial error, when
the pleading fails to allege entitlement to relief on the merits, as questions
of law based on undisputed allegations.);
Osseous Technologies of Amer., Inc. v. DiscoveryOrtho Partners LLC
(2010) 191 Cal.App.4th 357, 364 (judges
lack discretion to dismiss claims for declaratory relief where complaints are
sufficiently alleged and reveal that the relief is entirely appropriate); Lockheed Martin Corp. v. Continental Ins.
Co., (2005) 134 Cal. App. 4th 187, 221, disapproved
on other grounds by State v.
Allstate Ins. Co. (2009) 45 Cal.4th 1008, 1036 n.11; Ludgate Ins. Co. v. Lockheed Martin Corp.
(2000) 82 Cal.App.4th 592, 606;
Farmers Ins. Exchange v. Zerin (1997) 53 Cal. App. 4th 445, 460
(“Strictly speaking, a demurrer is not an appropriate weapon to attack a claim
for declaratory relief inasmuch as the plaintiff is entitled to a declaration
of its rights, even if adverse.”). See
also Osseous Technologies of Amer., Inc. v. DiscoveryOrtho Partners LLC (2010) 191 Cal.App.4th 357, 364 ("'The
mere circumstance that another remedy is available is an insufficient ground
for refusing declaratory relief, and doubts regarding the propriety of an
action for declaratory relief ... generally are resolved in favor of granting
relief.'” ); Cal. Ins. Guar. Ass'n v. Sup. Ct. (1991) 231 Cal.
App. 3d 1617, 1624 (“availability of another form of relief that is adequate
will usually justify refusal to grant declaratory relief” but “[t]he refusal to
exercise the power is within the court's legal discretion….”); Pellegrini v.
Weiss (2008) 165 Cal.App.4th 515, 529 (“The question whether declaratory
relief is appropriate in a given case is addressed to the trial court’s
discretion.”).
***IF ALL PARTIES SUBMIT ON THE COURT’S TENTTIVE
RULING, PLEASE CALL 213-633-0655 TO INFORM THE CLERK.