Judge: Marcella O. Mclaughlin, Case: 37-2023-00034825-CU-WM-CTL, Date: 2023-12-15 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - December 14, 2023

12/15/2023  01:30:00 PM  C-72 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Marcella O McLaughlin

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Civil - Unlimited  Writ of Mandate Demurrer / Motion to Strike 37-2023-00034825-CU-WM-CTL HARVEY VS CITY OF SAN DIEGO [IMAGED] CAUSAL DOCUMENT/DATE FILED: Demurrer, 09/26/2023

The unopposed demurrer to the petition for writ of administrative mandamus and writ of mandamus is SUSTAINED in part and OVERRULED in part.

A. The special demurrer to the entire petition based on misjoinder of parties is overruled.

'Demurrers on the ground of misjoinder lie only when the defect appears on the face of the complaint or matters judicially noticed.' Royal Surplus Lines Ins. Co. v. Ranger Ins. Co. (2002) 100 Cal.App.4th 193, 198. In this case, it is not clear from the face of the petition that respondents Conley, Thacker, Amezola, and Atkinson are improper parties. Further, no prejudice has been shown. See Anaya v. Superior Court (1984) 160 Cal.App.3d 228, 231 fn. 1.

B. The general demurrer to the entire petition based on the doctrine of laches is overruled.

'Laches may be raised by demurrer, but only if the complaint shows on its face unreasonable delay [p]lus prejudice or acquiescence.' Conti v. Board of Civil Service Commissioners (1969) 1 Cal.3d 351, 362. Here, no prejudice to respondents appears on the face of the petition. See Miller v. Eisenhower Medical Center (1980) 27 Cal.3d 614, 624 ('Generally speaking, the existence of laches is a question of fact to be determined by the trial court in light of all of the applicable circumstances[.]').

C. The general demurrer to count 2 is sustained with leave to amend.

Government Code section 54957(b)(1) permits a local legislative body to hold a closed session 'to consider the appointment, employment, evaluation of performance, discipline or dismissal of a public employee or to hear complaints or charges against the employee by another person or employee unless the employee requests a public session.' An employee must be given 24 hours notice of his or her right to request an open meeting if the public entity 'hear[s] complaints or charges brought against the employee by another person or employee[.]' Code Civ. Proc. § 54957(b)(2).

In this case, insufficient facts have been pled showing that the San Diego Civil Service Commission meeting on June 3, 2021 constituted a hearing of 'complaints or charges' for which advance notice to petitioner would have been required. Instead, petitioner concedes that the meeting was convened to 'deliberate' the termination decision. (See Pet. at ¶¶ 9, 30.) Notice is not required in such situations.

See Bollinger v. San Diego Civil Service Com. (1999) 71 Cal.App.4th 568, 575; Furtado v. Sierra Community College (1998) 68 Cal.App.4th 876, 881. Thus, petitioner has failed to state a claim for violation of the Brown Act. See Peter W. v. San Francisco Unified Sch. Dist. (1976) 60 Cal.App.3d 814, Calendar No.: Event ID:  TENTATIVE RULINGS

3038085  40 CASE NUMBER: CASE TITLE:  HARVEY VS CITY OF SAN DIEGO [IMAGED]  37-2023-00034825-CU-WM-CTL 819 ('[T]o state a cause of action against a public entity, every fact material to the existence of its statutory liability must be pleaded with particularity.').

D. 'Liberality in permitting amendment is the rule, if a fair opportunity to correct any defect has not been given.' Angie M. v. Superior Court (1995) 37 Cal.App.4th 1217, 1227. Accordingly, petitioner is granted leave to amend count 2. Petitioner must file and serve a first amended petition by December 26, 2023.

E. The court requests that the parties come to the hearing prepared to discuss a date for a merits hearing, as well as a briefing schedule (if they desire to depart from the default provisions in the Code of Civil Procedure).

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