Judge: Mary H. Strobel, Case: 22STCP02303, Date: 2023-04-13 Tentative Ruling

Case Number: 22STCP02303    Hearing Date: April 13, 2023    Dept: 82

            Respondents City of Los Angeles and Michel Moore, Chief of Police (“Respondents”) generally demur to the petition for writ of mandate filed by Petitioner Michael Parks (“Petitioner”) pursuant to CCP section 1085.  Respondents also move to strike certain allegations in the petition. 

Background and Procedural History

            On June 17, 2022, Petitioner filed a verified petition for writ of mandate against Respondents pursuant to CCP sections 1094.5 and 1085. 

            In summary, the petition alleges that “Respondents terminated Petitioner’s employment with the LAPD for allegedly failing to comply with changed conditions of employment pertaining to new City-mandated vaccination requirement Respondents imposed on Petitioner.”  (Pet. ¶ 5.) 

            In the prayer, Petitioner seeks the following writ relief:

(a) set aside the termination of Petitioner, and restore him to his prior position with backpay,

(b) set aside the Board’s finding of guilt on the Count of misconduct, and

(c) remove the record of the Petitioner’s charge of misconduct, the proposed disciplinary penalty, any other adverse comments, and all references to the Complaint, investigation, and adjudication of these matters from Petitioner's personnel packages and all other department records, and to maintain said documents in sealed envelopes separate and apart from any and all of Petitioner's personnel and employment records….

(Pet. Prayer ¶ 1.)

            On October 6, 2022, the court held a trial setting conference, which was attended by counsel for Petitioner and Respondents.  The minute order states, in pertinent part: “Counsel for petitioner advise the court that the administrative record, comprising approximately 900 pages, has been prepared and will be sent to counsel for respondent for review.”  The court set the petition for hearing on July 25, 2023. 

On March 3, 2023, Respondents filed their demurrer, motion to strike, and meet and confer declaration.  The court has received Petitioner’s response and objection, and Respondents’ reply.

Analysis

Timeliness of Demurrer and Motion to Strike

            Petitioner contends that the demurrer and motion to strike were untimely filed pursuant to CCP section 1089.5 because Respondents had possession of the administrative record no later than October 5, 2022, and did not file the responsive pleading until March 3, 2023.  (Oppo. 2.)  Petitioner contends that the court should “dismiss, decline to hear, or otherwise dispose of Respondents’ Demurrer and Motion to Strike” on this basis.  (Oppo. 1.)

            CCP section 1089.5 provides, in full: “Where a petition for writ of mandate is filed in the trial court pursuant to Section 1088.5, and where a record of the proceedings to be reviewed has been filed with the petition or where no record of a proceeding is required, the respondent shall answer or otherwise respond within 30 days after service of the petition. However, where a record of the proceeding to be reviewed has been requested pursuant to Section 11523 of the Government Code, or otherwise, and has not been filed with the petition, the party upon whom the petition has been served, including any real party in interest, shall answer or otherwise respond within 30 days following receipt of a copy of the record.”

            The writ petition is brought pursuant to CCP section 1094.5.  Petitioner requested that Respondent LAPD prepare the record on June 22, 2022.  (Yacoubian Decl. ¶ 1.)  Petitioner received the record on September 8, 2022.  (Id. ¶ 4.)  On October 5, 2022, Petitioner sent an email to Respondents’ attorney providing a hyperlink to the record and indicating that Petitioner’s counsel would Bates-stamp the record if “acceptable” to Respondents.  (Id. ¶ 5, Exh. D.)

Neither party cites a published appellate decision stating when a record is “received” pursuant to section 1089.5.  Respondents’ citation to unpublished decisions is improper.  (Reply 3; Cal. Rules of Court, Rule 8.1115.)  Based on the plain language of section 1089.5, a colorable argument could be made that Respondents received a copy of the record no later than October 5, 2022, and Respondents were required to file their responsive pleading no later than 30 days from that date.  However, since Petitioner had not yet Bates-stamped the record, one could also argue that the 30-day deadline did not commence based on the emailing of a draft record on October 5, 2022. 

Assuming arguendo that the demurrer and motion to strike were untimely filed, Petitioner does not show he is entitled to a dismissal or other disposition on that basis.  Petitioner did not move to strike the demurrer and motion to strike on the grounds they were not timely filed pursuant to section 1089.5.  Moreover, a “writ cannot be granted by default.”  (CCP § 1088.)   Further, “[t]he court must, in every stage of an action, disregard any error, improper ruling, instruction, or defect, in the pleadings or proceedings which, in the opinion of said court, does not affect the substantial rights of the parties.”  (CCP § 475.) 

“Even assuming for argument's sake that the demurrer was filed late, the trial court nevertheless ha[s] discretion to entertain it. ‘There is no absolute right to have a pleading stricken for lack of timeliness in filing where no question of jurisdiction is involved, and where, as here, the late filing was a mere irregularity [citation]; the granting or denial of the motion is a matter which lies within the discretion of the court.’”  (McAllister v. Cnty. of Monterey (2007) 147 Cal. App. 4th 253, 281-282.)

Petitioner has shown no prejudice even if the demurrer and motion to strike were untimely filed.  The parties met and conferred regarding the demurrer and motion to strike.  (Collins Decl. ¶¶ 3-4.)  Petitioner was properly and timely served pursuant to CCP section 1005 and he could have opposed the demurrer and motion to strike on the merits.  Trial is set for July 25, 2023.  Petitioner’s opening brief has not yet been filed.    If the court were to overrule the demurrer, Respondents could raise the same argument by motion for judgment on the pleadings.  There is no benefit to the court or parties from delaying an adjudication of the issues raised. In these circumstances, the court exercises its discretion to consider the demurrer and motion to strike, even if they were untimely filed.

Petitioner’s objection to the demurrer and motion to strike is denied.

Demurrer

Respondents contend that Petitioner has not pleaded a cause of action for writ of ordinary mandate pursuant to CCP section 1085.  The court agrees. 

“[J]udicial review via administrative mandate [pursuant to section 1094.5] 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.’ Thus, ordinary mandate is used to review adjudicatory actions or decisions when the agency was not required to hold an evidentiary hearing.”  (Bunnett v. Regents of University of California (1995) 35 Cal.App.4th 843, 848.)

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.) A writ of ordinary mandate is only available “where the petitioner has no plain, speedy and adequate alternative remedy.”  (Conlan v. Bonta (2002) 102 Cal.App.4th 745, 752.)

 “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.)   

 The petition alleges that “Respondents terminated Petitioner’s employment with the LAPD for allegedly failing to comply with changed conditions of employment pertaining to new City-mandated vaccination requirement Respondents imposed on Petitioner.”  (Pet. ¶ 5.)  Petitioner received a Board of Rights hearing to challenge the proposed termination.  (Id. ¶¶ 13-16.)  “On March 21, 2022, the Board found Petitioner guilty of failing to comply with a condition of employment and recommended to Chief Moore that Petitioner be removed from his position as a Police Officer.”  (Id. ¶ 17.)  “On March 30, 2022, Chief Moore signed the ‘Execution of the Order,’ Form 1.73.00, removing Petitioner from his position as Police Officer in the Los Angeles Police Department, which was mailed to Petitioner on March 31, 2022.”  (Id. ¶ 18.) “Petitioner seeks a Peremptory Writ of Mandate overturning his termination and reinstating him to his position as Police Officer in the Los Angeles Police Department with backpay, or other appropriate relief.”  (Id. ¶ 19.)

Here, Petitioner challenges a discretionary, final administrative decision that was issued after an evidentiary hearing that was required by law.  Accordingly, his petition is properly brought under CCP section 1094.5, not section 1085.  Petitioner has not alleged any ministerial duty that could be enforced by ordinary mandate pursuant to section 1085.  To the extent Petitioner seeks monetary damages arising from his termination not incidental to the petition for writ of administrative mandate, he has adequate remedies at law. 

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.)  Petitioner has not substantively opposed the demurrer and he shows no reasonable probability of amendment to state a cause of action under section 1085. 

The demurrer to the petition brought pursuant to CCP section 1085 is sustained without leave to amend.

Motion to Strike

Upon motion, the court may “strike out any irrelevant, false, or improper matter inserted in any pleading” or “[s]trike out all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court.  (CCP § 436.)  Courts take a “cautious” approach to motions to strike.  “We have no intention of creating a procedural ‘line item veto’ for the civil defendant.”  (PH II, Inc. v. Superior Court (1995) 33 Cal. App. 4th 1680, 1683.)

In light of the court’s ruling on demurrer, the references to CCP section 1085 in the petition are irrelevant.  Accordingly, the motion to strike any references to CCP section 1085 is granted without leave to amend.

In addition, the following sentence in paragraph 24 is irrelevant to any issue in the pleading or in this writ action: “Additionally, employers who fire employees because they invoke their rights under California law can be liable for wrongful termination.”  The motion to strike that sentence is granted without leave to amend.

In all other respects, the motion to strike is denied.   Labor Code §§ 2802, 2804, and 1102.5 and Los Angeles City Charter § 1070 could have relevance to Petitioner’s arguments in the petition for writ of administrative mandate.  The court cannot determine otherwise from the face of the pleading.

Conclusion

The demurrer to the petition brought pursuant to CCP section 1085 is sustained without leave to amend.

The motion to strike “any reference to Code of Civil Procedure 1085 (page/lines: 1:13-14, 6:23-25 and 8:10- 14)” is granted without leave to amend.

The motion to strike the last sentence of paragraph 24 (page 5, lines 24-25) is granted without leave to amend.

The motion to strike is denied in all other respects.