Judge: Mary H. Strobel, Case: 21STCP03664, Date: 2022-10-11 Tentative Ruling

Case Number: 21STCP03664    Hearing Date: October 11, 2022    Dept: 82

             Respondent County of Los Angeles, Department of Children & Family Services (“Respondent”) generally and specially demurs to the second amended petition filed by Petitioner Trean L. Martin (“Petitioner”) for failure to state a cause of action and for uncertainty. 

Judicial Notice

Respondent’s RJN Exhibit A – Granted. 

Relevant Procedural History

On November 8, 2021, and February 22, 2022, Petitioner filed her petition and first amended petition for writ of mandate pursuant to CCP section 1094.5.  Petitioner is self-represented in this action.

At a trial setting conference on February 22, 2022, Petitioner advised the court that she is suing the Department of Children’s Services.  The caption to the first amended petition named Department of Children Family Services as a respondent. 

On March 28, 2022, Petitioner filed the operative, second amended petition for writ of mandate pursuant to CCP section 1094.5. 

            On June 30, 2022, Respondent filed the instant demurrer.

            On September 9, 2022, Petitioner filed an opposition to the demurrer.  There is no proof of service attached to the opposition, and the court has not found a proof of service in the court file showing service of the opposition on Respondent.  The court reaches the same result on the demurrer whether or not the opposition is considered.  The court finds any defect in service to be non-prejudicial to Respondent. 

            Respondent has not filed a reply.

Analysis

A demurrer tests the sufficiency of a pleading, and the grounds for a demurrer must appear on the face of the pleading or from judicially noticeable matters.  The demurrer admits all material facts properly pleaded.  (CCP 430.30(a); Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)  “A demurrer must dispose of an entire cause of action to be sustained.”  (Poizner v. Fremont General Corp. (2007) 148 Cal.App.4th 97, 119.)

A demurrer accepts as true “all material facts properly pleaded and matters subject to judicial notice, but not deductions, contentions, or conclusions of law or fact.” (Stonehouse Homes LLC v. City of Sierra Madre (2008) 167 Cal. App. 4th 531, 538.) 

General Demurrer

The petition is brought pursuant to CCP section 1094.5.  A petition under section 1094.5 may be brought to inquire “into the validity of any final administrative order or decision.”  (§ 1094.5(a).) “[J]udicial review via administrative mandate is available ‘only if the decision[] resulted from a 'proceeding in which by law: 1) a hearing is required to be given, 2) evidence is required to be taken, and 3) discretion in the determination of facts is vested in the agency.’”  (Bunnett v. Regents of University of California (1995) 35 Cal.App.4th 843, 848.)  Under CCP section 1094.5(b), the pertinent issues are whether the respondent has proceeded without jurisdiction, whether there was a fair trial, and whether there was a prejudicial abuse of discretion.  An abuse of discretion is established if the agency has not proceeded in the manner required by law, the decision is not supported by the findings, or the findings are not supported by the evidence.  (CCP § 1094.5(b).)

Respondent contends that the second amended petition (“SAP”) does not allege a basis for administrative mandate against it.  (Dem. 3-4.)  The court agrees.  The SAP alleges that Petitioner is “…asking the Department of Social Services State Hearing Division Children Services to reverse the decision on an old charge against me a decade ago, I am trying to get my granddaughter Eliza Turner for she won’t be adopted away.”  (SAP p. 1.)  Plaintiff alleges she “…did everything Edmund Children’s Court asked me to do, and they gave me my son my mother had legal guardianship of my other children, and then she released them back to me years later, every time I had appealed the State Hearing division would deny me, I kept appealing.”  (Id. pp. 1-2.)

The SAP does not allege that Respondent County of Los Angeles, Department of Children & Family Services issued any final administrative decision, after a hearing, that Petitioner challenges.  Nor does the SAP identify Respondent as a real party in interest to some final administrative decision. 

In opposition to the demurrer, Petition states that the Department of Children Services came to her home on October 25, 2019 and denied her request for family approval (RFA).  Petitioner states she appealed several times, “but they kept denying me state hearing Division.”  She also states she filed a writ of mandate and that “the hearing date was February 1, 2021 at 1:00 p.m., hearing No. 104636059.” These statements identifying a hearing date and number are not pled in the SAP.  The court can consider only the allegations in the Petition in ruling on a demurrer.  Hahn v. Mirda (2007) 147 Cal.App.4^th 740, 747.

Even if the court could consider evidence stated in the opposition brief, it is unclear from these statements the nature of the hearing on February 1, 2021.  It is possible that this was an administrative hearing from which a writ could be taken, and Respondent may be the Real Party in Interest.  However, that conclusion is far from clear, as the SAP and the opposition to the demurrer also discuss other decisions concerning Petitioner’s children and grandchild. 

Demurrer for Uncertainty

Demurrers for uncertainty apply where defendants cannot reasonably determine what issues or claims are stated.  (Khoury v. Maly’s of Cal., Inc. (1993) 14 Cal.App.4^th 612, 616.) 

Respondent contends that the SAP is uncertain because: “the petitioner does not specify the administrative decision at issue nor does she reference anything specific about when it occurred, in what venue nor does she indicate the grounds for review, nor what entity made the decision. It is unclear if the Department of Children & Family Services should be a party to this action.”  (Dem. 4.)  The court agrees.

For the same reasons stated above, the Petition is uncertain.  Respondent cannot reasonably determine from the SAP the basis upon which it has been sued.

Leave to Amend

A demurrer may be sustained without leave to amend when there is no reasonable possibility that the defect can be cured by amendment.  (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)  Courts generally allow at least one time to amend a complaint after sustaining a demurrer.  (McDonald v. Superior Court (1986) 180 Cal.App.3d 297, 303.) 

            This is the court’s first ruling on a demurrer to the petition.  Also, Respondent is agreeable to Petitioner amending the petition.  (Gysler Decl. ¶¶ 1-2.)  The court grants leave to amend.  Petitioner must allege all relevant facts against Respondent in an amended petition. 

Conclusion

 The general demurrer and special demurrer for uncertainty are SUSTAINED with leave to amend.