Judge: Mary H. Strobel, Case: 22STCP01620, Date: 2022-09-13 Tentative Ruling

Case Number: 22STCP01620    Hearing Date: September 13, 2022    Dept: 82

             Respondents California Department of Housing and Community Development (“HCD” or “Department”) and Gustavo Velasquez, Director of HCD (“Director”; collectively “Respondents”) generally demur to the first, second, and third causes of action in the petition for writ of mandate filed by Petitioners Strategic Actions for a Just Economy and Alliance of Californians for Community Empowerment (“Petitioners”).

Judicial Notice

Respondents’ Request for Judicial Notice (“RJN”) Exhibits 1-7 – Granted in part and denied in part.  The court judicially notices the existence of these official records.  The court does not judicially notice the truth of any factual or hearsay statements in the records; nor does the court judicially notice any particular interpretation of the records.  (See Joslin v. H.A.S. Ins. Brokerage (1986) 184 Cal.App.3d 369, 374 [“Taking judicial notice of a document is not the same as accepting the truth of its contents or accepting a particular interpretation of its meaning.”]; Childs v. State of California (1983) 144 Cal.App.3d 155, 162-163 [“The court cannot take judicial notice of self-serving hearsay allegations”]; New Livable California v. Association of Bay Area Governments (2020) 59 Cal.App.5th 709, 716 [“a court cannot by means of judicial notice convert a demurrer into an incomplete evidentiary hearing in which the demurring party can present documentary evidence and the opposing party is bound by what that evidence appears to show”].) 

Petitioners’ RJN Exhibit 1 – Denied.  (Cal. Rules of Court, Rule 8.1115(a); B.F. v. Sup.Ct. (2012) 207 Cal.App.4th 621, 627, fn. 2 [denying judicial notice because “trial court decisions are not precedent”].)

Background

Statutory Background

            This action concerns HCD’s implementation of the Emergency Rental Assistance Program (“ERAP”), which was created by the federal government to assist individuals facing evictions and rental debt arising from the COVID-19 pandemic. (15 U.S.C. § 9058a.)  In two rounds of funding, Congress appropriated a total of $46.55 billion nationwide (15 U.S.C. § 9058a; 15 U.S.C § 9058c) “to provide financial assistance and housing stability services to eligible households.” (15 U.S.C. § 9058a(c)(1).)  Allocations from the first round of rental assistance funds remain available to eligible grantees through September 30, 2022, and allocations from the second round of funding remain available through September 30, 2025. (15 U.S.C. § 9058a(e)(1); 15 U.S.C. § 9058c(g).)

On January 29, 2021, the California Governor signed Senate Bill 91, establishing the State Rental Assistance Program.  (S. B. No. 91 (2020-2021 Reg. Sess.), Stats. 2021, ch. 2, § 24.)  HCD was charged with administering the program and distributing federal rental assistance funds.  (Health & Safety Code § 50897.1(a)(1), (k)(1).)

Six months later, the State Rental Assistance Program and COVID-19-related tenant protections were modified by Assembly Bill 832.  (A. B. No. 832 (2020-2021 Reg. Sess.), Stats. 2021, ch. 27.) The Legislature enacted protections limiting landlords’ ability to evict tenants for nonpayment of rent that would ultimately be covered by ERAP.  (Code Civ. Proc. §§ 1179.11, 1179.13; Health & Safety Code § 50897.3(e)(2).)

The statutes enacting the State Rental Assistance Program do not contain a specific date for the rental assistance program to end, or a date through which the program must be kept open.  (§§ 50897-50897.6.)  Assembly Bill 832 removed a specific end date for Covid-19 rental assistance coverage. Section 50897.1(d)(1) had previously provided that “Assistance for rental arrears shall be limited to compensation of 80 percent of an eligible household’s unpaid rental debt accumulated from April 1, 2020, to March 31, 2021, inclusive, per eligible household.”  (S. B. No. 91 (2020-2021 Reg. Sess.), Stats. 2021, ch. 2, § 24.)  Five months later, Assembly Bill 832 amended § 50897.1(d)(1) to require that, when distributing funds to eligible tenants, “[a]ssistance for rental arrears shall be set at compensation of 100 percent of an eligible household's unpaid rental debt accumulated on or after April 1, 2020.”  (Health & Safety Code § 50897.1(d)(1).)

Section 50897.1(k)(1) confers discretion on HCD to “adopt, amend, and repeal rules, guidelines, or procedures necessary to carry out the purposes of this chapter, including guidelines regarding the administration of federal rental assistance funds received under Subtitle A of Title V of Division N of the federal Consolidated Appropriations Act, 2021 (Public Law 116-260) or the administration of federal rental assistance funds received under Section 3201 of Subtitle B of Title III of the American Rescue Plan Act of 2021 (Public Law 117-2) that are consistent with the requirements of that federal law and any regulations promulgated pursuant to that federal law.” 

“The adoption, amendment, or repeal of rules, guidelines, or procedures authorized by this subdivision is exempt from the rulemaking provisions of the Administrative Procedure Act.”  (§ 50897.1(k)(2).)

Brief Summary of Petition

            Petitioners allege that HCD “distributed California’s share of rental assistance dollars through the Housing is Key website beginning in March 2021. With less than a month’s notice, HCD closed the rental assistance program to new applications on March 31, 2022, while more than 300,000 tenants and landlords were still waiting to receive help.”  (Pet. ¶ 3.)

            In the first cause of action, Petitioners allege: “There is no statutory basis for the Department’s decision to withhold assistance for rent arrears incurred after March 31, 2022, when these arrears are part of an eligible household's rent debt at the time the Department makes a determination on an application for rental assistance. HCD’s policy of refusing to pay rental assistance covering months after March 2022 violates both the statute and its own regulatory guidance…. The statutory language makes clear that HCD must cover 100 percent of the rental debt accrued at the time payment is made; with the passage of AB 832, the legislature removed the end date from Health and Safety Code sections 508971.1(d)(1) and (e)(1) and required HCD to pay the household’s entire debt, subject to the 18-month cap in federal law…. HCD has a clear, present, ministerial duty to comply with the Health and Safety Code and provide tenants with 100 percent of their rental debt accrued after April 2020.”  (Pet. ¶¶ 33-38.)

            In the second cause of action, Petitioners allege: “Federal and state law both mandate that HCD prioritize very low-income tenants who earn less than 50 percent of area median income for assistance.  However HCD’s policies deny these tenants prospective rental assistance while providing higher income tenants with funds for rent arrears.   HCD is prioritizing rental arrears for all tenants over prospective rental assistance for very low-income tenants, violating the state and federal prioritization requirements.  Despite Petitioners’ demand to HCD to reverse its unlawful policy and comply with its statutory mandate, HCD has refused to comply.”  (Pet. ¶¶ 45-47.)

            Petitioners pray for a “writ of mandate and preliminary and permanent injunctive relief prohibiting Respondents from implementing their unlawful policy of refusing to provide assistance for all rental debt incurred beginning April 2020.”  Petitioners also pray for a “writ of mandate and preliminary and permanent injunctive relief prohibiting Respondents from implementing their unlawful policy of failing to prioritize payments to very low-income tenants.”  (Prayer ¶¶ 1-2.)

Relevant Procedural History

            On May 2, 2022, Petitioners filed a verified petition for writ of ordinary mandate and complaint for declaratory and injunctive relief against Respondents. 

            On May 25, 2022, the court denied Petitioners’ ex parte application for a temporary restraining order and order to show cause re preliminary injunction.

On June 10, 2022, Respondents filed the instant demurrer and a meet and confer declaration.  The court has received Petitioners’ opposition and Respondents’ reply. 

            On August 18, 2022, at a trial setting conference, the court stayed Petitioners’ third cause of action for declaratory relief until the writ causes of action are resolved. 

Legal Standard – Demurrer

A demurrer tests the sufficiency of a pleading, and the grounds for demurrer must appear on the face of the pleading or from judicially noticeable matters.  (Blank v. Kirwan (1985) 39 Cal.3d 311, 318; Saltarelli & Steponovich v. Douglas (1995) 40 Cal.App.4^th 1, 5.)  “A demurrer tests the pleadings alone and not the evidence or other extrinsic matters.”  (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.) 

The allegations in the petition must be liberally construed in favor of Petitioner on demurrer.  (Mobil Oil Corp. v Exxon Corp. (1986) 177 Cal.App.3d 942, 947.)  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.)  “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.)

Analysis

The first and second causes of action are for writ of ordinary mandate.  In the demurrer, Respondents argue that, for various reasons, Petitioners have not alleged sufficient facts to state a cause of action for mandate.

Summary of Applicable Law

            Writ of Ordinary Mandate

There are two essential requirements to the issuance of an ordinary writ of mandate under Code of Civil Procedure section 1085: (1) a clear, present, and ministerial duty on the part of the respondent, and (2) a clear, present, and beneficial right on the part of the petitioner to the performance of that duty. (California Ass’n for Health Services at Home v. Department of Health Services (2007) 148 Cal.App.4th 696, 704.) “An action in ordinary mandamus is proper where … the claim is that an agency has failed to act as required by law.” (Id. at 705.)

“Generally, mandamus is available to compel a public agency's performance or to correct an agency's abuse of discretion when the action being compelled or corrected is ministerial.”  (AIDS Healthcare Foundation v. Los Angeles County Dept. of Public Health (2011) 197 Cal.App.4th 693, 700.)  “A ministerial act is an act that a public officer is required to perform in a prescribed manner in obedience to the mandate of legal authority and without regard to his own judgment or opinion concerning such act's propriety or impropriety, when a given state of facts exists.”  (Kavanaugh v. West Sonoma County Union High School Dist. (2003) 29 Cal.4th 911, 916.)   

“However, [mandamus] will lie to correct abuses of discretion. In determining whether a public agency has abused its discretion, the court may not substitute its judgment for that of the agency, and if reasonable minds may disagree as to the wisdom of the agency's action, its determination must be upheld. A court must ask whether the public agency's action was arbitrary, capricious, or entirely lacking in evidentiary support, or whether the agency failed to follow the procedure and give the notices the law requires.”  (County of Los Angeles v. City of Los Angeles (2013) 214 Cal.App.4th 643, 654.) 

“Courts exercise limited review in ordinary mandamus proceedings. They may not reweigh the evidence or substitute their judgment for that of the agency.”  (Ridgecrest Charter School v. Sierra Sands Unified School Dist. (2005) 130 Cal.App.4th 986, 1002-03.)  “In reviewing the action of a public agency in an ordinary mandamus proceeding, [the] court must ensure that the agency ‘has adequately considered all relevant factors, and has demonstrated a rational connection between those factors, the choice made, and the purposes of the enabling statute.’”  (Id. at 1006.) 

Statutory Construction

The petition and demurrer raise questions of statutory construction.  “The rules governing statutory construction are well settled. We begin with the fundamental premise that the objective of statutory interpretation is to ascertain and effectuate legislative intent. [Citations.] To determine legislative intent, we turn first to the words of the statute, giving them their usual and ordinary meaning. [Citations.] When the language of a statute is clear, we need go no further. However, when the language is susceptible of more than one reasonable interpretation, we look to a variety of extrinsic aids, including the ostensible objects to be achieved, the evils to be remedied, the legislative history, public policy, contemporaneous administrative construction, and the statutory scheme of which the statute is a part.”  (Nolan v. City of Anaheim (2004) 33 Cal.4th 335, 340.) 

When interpreting a statute, the court must construe the statute, if possible to achieve harmony among its parts.  (People v. Hull (1991) 1 Cal. 4th 266, 272.)   “When interpreting statutory language, we may neither insert language which has been omitted nor ignore language which has been inserted.”  (See People v. National Auto. and Cas. Ins. Co. (2002) 98 Cal.App.4th 277, 282.)  “[I]nterpretations which render any part of a statute superfluous are to be avoided.”  (Young v. McCoy (2007) 147 Cal.App.4th 1078, 1083.)  The court “must select the construction that comports most closely with the apparent intent of the Legislature, with a view to promoting rather than defeating the general purpose of the statute, and avoid an interpretation that would lead to absurd consequences.”  (People v. Jenkins (1995) 10 Cal.4th 234, 246.) 

“‘[T]he construction of a statute by officials charged with its administration, including their interpretation of the authority invested in them to implement and carry out its provisions, is entitled to great weight ....’ Nevertheless, ‘[w]hatever the force of administrative construction, ... final responsibility for the interpretation of the law rests with the courts.’”  (Association for Retarded Citizens v. Dept. of Developmental Services (1985) 38 Cal.3d 384, 391.)  “Administrative action that is not authorized by, or is inconsistent with, acts of the Legislature is void.”  (Ibid.)

First Cause of Action – Writ of Mandate

Have Petitioners Alleged a Ministerial Duty Owed by HCD or an Abuse of Discretion by HCD?

            Respondents contend that “the relevant statutes vest HCD with broad discretion on how to implement the ERAP program” and “nothing in the statute requires HCD to accept applications after March 31, 2022, or pay rental debts accrued after the application deadline.”  (Dem. 19.)  Respondents contend that Petitioners do not allege sufficient facts to state a claim that HCD abused its discretion.  (Dem. 20-21.)

            Petitioners interpret the statutory scheme differently.  They allege: “The statutory language makes clear that HCD must cover 100 percent of the rental debt accrued at the time payment is made; with the passage of AB 832, the legislature removed the end date from Health and Safety Code sections 508971.1(d)(1) and (e)(1) and required HCD to pay the household’s entire debt, subject to the 18-month cap in federal law.”  (Pet. ¶ 35.)  In this allegation and in their opposition brief, Petitioners imply that there is no “end date” for HCD’s implementation of ERAP.  (Oppo. 11:20-21.)  According to Petitioners, HCD must continue indefinitely to “cover 100 percent of the rental debt accrued at the time payment is made.”

            Contrary to Petitioners’ assertion, the statutory scheme enacting the State Rental Assistance Program cannot be reasonably interpreted to mandate HCD to provide Covid-19 rental assistance indefinitely.  ERAP is an “emergency,” temporary program intended to prevent evictions and address housing instability due to the Covid-19 pandemic.  Congress allocated a finite amount of funding for ERAP.  (15 U.S.C. § 9058a; 15 U.S.C § 9058c.)  In creating the ERAP program, SB 91 noted that “[t]his bill would establish a program for providing rental assistance, using funding made available pursuant to the above-described federal law.” (S.B. No. 91 (2020-2021 Reg. Sess.), Stats. 2021, ch. 2, § 24 [bold italics added].) Indeed, HCD can only administer the ERAP program as long as there are “funds available” for HCD to disburse. (§ 50897.1(a)(1).)

            In the opposition brief, Petitioners appear to acknowledge that HCD can only administer ERAP in California if federal or state funding for the program is available.  (Oppo. 14-15.)  Petitioners contend that “[n]owhere does the Petition allege a lack of funding.”  (Oppo. 13.)  Petitioners contend that Respondents improperly seek to prove the lack of funding for ERAP based on their requests for judicial notice.  (Oppo. 13-14.)

            The court agrees that Respondents cannot prove by judicial notice that funds for ERAP have been exhausted.  Respondents request judicial notice of State Rental Assistance Program Guidelines, monthly reports made to the Joint Legislative Budget Committee, a memorandum, and a press release of HCD.  While the court judicially notices the existence of these official records, the court does not judicially notice the truth of factual statements in them concerning the current availability of state or federal funds for ERAP.  (See Joslin v. H.A.S. Ins. Brokerage (1986) 184 Cal.App.3d 369, 374 [“Taking judicial notice of a document is not the same as accepting the truth of its contents or accepting a particular interpretation of its meaning.”].) 

            Nonetheless, Petitioners, as the parties seeking a writ, have the initial burden of pleading all elements of their claim.  As discussed, Petitioners do not show that Respondents have a ministerial duty to continue ERAP indefinitely.  Based on the plain language of the statutes and clear legislative intent, if state or federal ERAP funds are not available, HCD would not have a ministerial duty to continue the program.  Section 50897.1(a)(1) provides that “Funds available for rental assistance … shall be administered by the department,” and sets forth rules on how to do so. (see also S.B. No. 91 (2020-2021 Reg. Sess.), Stats. 2021, ch. 2, § 24 [state program established to use funding made available by federal law].)  The direction to use funds in a certain way is premised on funds being made available from the specific federal appropriations. 

            Petitioners do not plead that funds have been made available to fund applications received after March 31, 2022.  In the petition, Petitioners allege that “[p]rovision of assistance for months after March 2022 was also contemplated by a recent state budget bill, SB 115, which provides funding for applications ‘received on or before March 31, 2022.’”  (Pet. ¶ 36.)   SB 115 states, in relevant part:

1.(a) The Department of Finance shall allocate funds from the General Fund for cashflow loans in fiscal year 2021-22 for the purposes of local implementation of emergency rental assistance programs administering funding made available from the Secretary of the Treasury pursuant to Section 501 of Subtitle A of Title V of Division N of the federal Consolidated Appropriations Act, 2021 (Public Law 116-260) and Section 3201 of Subtitle B of Title III of the federal American Rescue Plan Act of 2021 (Public Law 117-2).

….[¶¶]

2. ….

(b) The Department of Housing and Community Development shall use funding for a cashflow loan for Emergency Rental Assistance Program expenditures for complete, eligible applications by households described in paragraphs (1) through (3), inclusive, of subdivision (b) of Section 50897.1 that were received on or before March 31, 2022…. [¶¶]

4. It is the intent of the Legislature to provide a temporary cashflow loan to the state or a local program for the purpose of providing immediate cash to the program to maximize rental relief to all eligible households described in paragraphs (1) through (3), inclusive, of subdivision (b) of Section 50897.1 of the Health and Safety Code, as the state or local program awaits additional federal administering funding made available from the Secretary of the Treasury pursuant to Section 501 of Subtitle A of Title V of Division N of the federal Consolidated Appropriations Act, 2021 (Public Law 116-260) and Section 3201 of Subtitle B of Title III of the federal American Rescue Plan Act of 2021 (Public Law 117-2).

(2021 CA S.B. 115 (NS).) 

            SB 115 makes clear that availability of federal funds is a present issue for HCD, requiring the issuance of a cash loan from the state.  SB 115 made funding available for the State Rental Assistance Program to expend on eligible applications received on or before March 31, 2022.  SB 115 also directed HCD to file a report to the Joint Legislative Budget Committee by July 31, 2022, addressing several items, including “The total amount of cashflow loans that are unrecoverable due to unmaterialized federal administering funds.”  Petitioners do not allege that the contents of that report show funding was available for rental arrears accruing after March 31, 2022.

            Section 50897.1 sets forth the manner in which funds that have been “made available for rental assistance” through the specified federal appropriations are to be administered.  A threshold requirement for creating any mandatory duty under the statute is that in fact federal funds have been made available to be administered in the way Petitioners contends.  Petitioners have not so alleged 

Petitioners allege “Federal law requires that round one rental assistance funds remain available to eligible government entities through September 30, 2022, and round two funds remain available through September 30, 2025.”  (Pet. ¶ 16.) 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.)  Paragraph 16 does not allege the fact that federal or state funds are presently available to HCD to be expended on applications for rental arrears or prospective rent accruing after March 31, 2022.

            Petitioners do not allege any other ultimate facts in the petition supporting a claim that funding is presently and sufficiently available for the State Rental Assistance Program to provide financial assistance for rental arrears accruing after March 31, 2022.  In light of SB 115 and the limited availability of federal and state funds for Covid-19 rental assistance, the court does not assume, absent some ultimate facts in the petition, that funding is currently available to HCD.  Petitioners, not Respondents, have the initial burden to plead those facts.  Accordingly, the court concludes that Petitioners’ allegations do not show Respondents have a ministerial duty to continue administering ERAP for rental arrears accruing after March 31, 2022. 

Petitioners next contend that “[e]ven if payment for post-March 2022 rental debt threatened to exhaust HCD’s available funds, the Department would not have discretion to impose restrictions on assistance that the Legislature refused to impose.”  (Oppo. 15.)  Relatedly, Petitioners contend that “HCD must provide rental assistance according to the statutory scheme as long as funding remains and if funding dissipates may ask the Legislature for an appropriation.”  (Ibid.)  Section 50897.1(k)(1) confers broad discretion on HCD to “adopt, amend, and repeal rules, guidelines, or procedures necessary to carry out the purposes of this chapter….”  The court interprets that provision to grant discretion to HCD to cease (or not make) payments under the state program if insufficient funds are available to make the payments.  Stated simply, HCD cannot make payments of funds it does not have.  Petitioners cite no statutory language or legislative history that might support a different interpretation.  Petitioners also do not cite any language from the statutory scheme that supports the contention that HCD has a duty to request appropriations from the legislature for the State Rental Assistance Program.  As discussed, the plain language and clear legislative intent shows that if state or federal ERAP funds are not available, HCD would not have a ministerial duty to continue the program.  (§ 50897.1(a)(1); (S.B. No. 91 (2020-2021 Reg. Sess.), Stats. 2021, ch. 2, § 24.) 

            Ass’n for Retarded Citizens (ARC) v. Dept. of Developmental Services (1985) 38 Cal.3d 384 is inapposite. In ARC, the Court determined that the Department of Developmental Services’ (DSS) directives to the regional centers to cut services were inconsistent with the purpose of Lanterman Act, because the Act clearly defined the right of developmentally disabled persons to be provided with services.  Here, unlike the obligations under the Lanterman Act discussed in ARC, the State Rental Assistance Program was not intended to be an ongoing obligation of the state or HCD.  All statutes and legislative history cited by the parties show that the statutory scheme, including the cash loan granted by SB 115, was contingent upon available and appropriated funds.  ARC does not support the proposition that HCD has a duty to request additional appropriations from the legislature. 

            Petitioners state that ERAP is “closely intertwined with statutory protections for tenants facing evictions for nonpayment of rent.”  (Oppo. 11.)  Petitioners contend that “HCD’s policy robs tenants of [eviction] protections if the tenants are only approved for rental arrears up to March 31, 2022, even if they had not yet maxed out their 18 months of assistance.”  (Oppo. 12.)  Petitioners point out, correctly, that the purpose of the rental assistance statute is “stabilizing households and preventing evictions.”  (Health & Safety Code § 50897.6.)  However, the eviction-related statutes cited by Petitioners do not include any language suggesting that HCD has a duty to provide rental assistance indefinitely or if funding is not available.  (See CCP § 1179.13; Health & Safety Code § 50897.3(e)(2).)  Moreover, as noted in reply, California passed legislation in March 2022 to place end dates on certain Covid-19 eviction protections.  (Reply 8; citing A.B. No 2179, (2021-2022 Reg. Sess.), Stats. 2022, ch. 13 and § 50897.3(e)(2).)

            Based on the foregoing, Petitioners’ allegations do not show HCD has a ministerial duty to administer ERAP indefinitely or that HCD abused its discretion in ceasing to provide rental assistance for rental arrears incurred after March 31, 2022.

            The demurrer to the first cause of action is SUSTAINED. 

Second Cause of Action – Writ of Mandate

            In the second cause of action, Petitioners allege, in general terms, that “HCD is prioritizing rental arrears for all tenants over prospective rental assistance for very low-income tenants, violating the state and federal prioritization requirements.”  (Pet. ¶ 46.)  The petition was verified April 30, 2022, after HCD “implemented a policy of not providing any rental assistance for months after March 2022.”  (Id. ¶ 29.)  Petitioners do not allege that the alleged improper prioritization applies to pending applications for rent accrued prior to March 31, 2022.  Indeed, the second cause of action seeks payment of “prospective rental assistance for very low-income tenants.”  (Id. ¶ 46 [bold italics added].)  Such prospective rental assistance must necessarily apply to rents accruing after March 31, 2022.  As pleaded, the second cause of action suffers the same defect discussed above for the first cause action.  Further, Petitioners have not sufficiently alleged or developed an argument that HCD has a duty to not pay rental arrears for eligible participants accrued prior to March 31, 2022 so that prospective rent for very low- income tenants accruing after March 31, 2022 may be paid.  Accordingly, the demurrer to the second cause of action is SUSTAINED.

Third Cause of Action – Declaratory Relief

Pursuant to the local rules which designate that Department 82 is a specialized Writs and Receivers department and not a general civil department, only those special proceedings stated in the rule (including for writ of mandate) are properly assigned to this department.  (LASC Local Rules 2.8(d) and 2.9.)  Local Rules 2.8(d) and 2.9 do not include a claim for declaratory relief as special proceedings assigned to the writs departments. 

            On August 18, 2022, at a trial setting conference, the court stayed Petitioners’ third cause of action for declaratory relief until the writ causes of action are resolved.  If anything remains to be tried after the writ is resolved, the court will transfer the case to Department One for reassignment to an individual calendar court. Because the third cause of action is stayed, the court does not rule on Respondents’ demurrer to the third cause of action for declaratory relief.

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.)  In assessing whether leave to amend should be granted, the burden is on the complainant to show the court that a pleading can be amended successfully.  (Goodman v.  Kennedy (1976) 18 Cal.3d 335, 348-349.) 

            This is the court’s first ruling on demurrer, which weighs generally for granting leave to amend.  Counsel should address at the hearing whether leave to amend should be granted and how Petitioners could amend to state a cause of action within the statutory framework discussed above. 

Conclusion

The demurrer to the first and second causes of action is SUSTAINED.  Counsel should address at the hearing whether leave to amend should be granted.

Because the third cause of action is stayed, the court does not rule on Respondents’ demurrer to the third cause of action for declaratory relief.  (LASC Local Rules 2.8(d) and 2.9.)