Judge Mitchell L. Beckloff, Case 21STCP03429 2022-10-26 Tentative Ruling

Judge: Mitchell L. Beckloff, Case: 21STCP03429, Date: 2022-10-26 Tentative Ruling

Respondents/Defendants, Los Angeles Unified School District, Megan Reilly, George McKenna, Monica Garcia, Scott Schmerelson, Nick Melvoin, Jackie Goldberg, Kelly Gonez, and Tanya Ortiz Franklin (collectively LAUSD), move to dismiss the second amended petition (SAP) filed by Petitioners, Children’s Health Defense and Protection of the Educational Rights of Kids, as moot consistent with Code of Civil Procedure section 581, subdivision (m) and the court’s inherent authority to dismiss a proceeding. Petitioners oppose the motion.

The motion to dismiss is granted. For this reason, LAUSD’s demurrer to Petitioners’ second amended petition is deemed moot.

LAUSD’s request for judicial notice and supplemental request (LAUSD RJN) are granted.

Code of Civil Procedure section 581 sets forth the grounds upon which a court may dismiss a pending matter. Code of Civil Procedure section 581, subdivision (m) states:

“The provisions of this section shall not be deemed to be an exclusive enumeration of the court's power to dismiss an action or dismiss a complaint as to a defendant.”

“In the absence of express statutory authority, a trial court may, under certain circumstances, invoke its limited, inherent discretionary power to dismiss claims with prejudice.” (Lyons v. Wickhorst (1986) 42 Cal.3d 911, 915.)[1] A motion to dismiss may be brought when claims become moot. (See Giraldo v. Department of Corrections & Rehabilitation (2008) 168 Cal.App.4th 231, 257.) “The pivotal question in determining if a case is moot is therefore whether the court can grant the plaintiff any effectual relief.”(Wilson & Wilson v. City Council of Redwood City (2011) 191 Cal.App.4th 1559, 1574.)

On September 9, 2021, at a special meeting of the Board of Education for LAUSD, LAUSD approved and adopted the Superintendent’s Resolution Requesting the Board of Education of the Los Angeles Unified School District to Require COVID-19 Vaccination for Eligible Students (the Resolution). (SAP ¶¶ 75,78, 80.) The Resolution requires all children who are 12 years of age and older “to provide proof of [COVID-19] vaccination . . . in order to be permitted on LAUSD school facilities, except for those students with qualified and approved exemptions and conditional admissions.” (SAP ¶ 82, Ex. A, [Resolution] p. 3.) The Resolution sets forth a child 12 years of age and older must be vaccinated against COVID-19 as “a mandatory precondition to accessing LAUSD school facilities.” (SAP Ex. B, [Resolution] p. 3.) Any child 12 years of age or older who does not provide proof of vaccination against COVID-19 as of January 10, 2022 will be excluded from campus. (SAP Ex. B, [Resolution] p. 3.; SAP ¶¶ 82-94.)

Petitioners’ action concerns LAUSD’s implementation and enforcement of the Resolution. The SAP contains the following causes of action:

(1) Writ of Mandate for Violation of Mandatory Duty, Proceeding Without or in Excess of Jurisdiction, Abuse of Discretion for Failure to Proceed in the Manner Required by Law [Code of Civ. Proc., §§ 1085, 1094.5];

(2) Writ of Mandate for Arbitrary and Capricious Agency Action, Abuse of Discretion, and Failure to Justify the Decision [Code Civ. Proc., § 1085];

(3) Declaratory and Injunctive Relief [Code Civ. Proc., §§ 527, 1060] – Pre-emption and Conflicts with Existing Law;[2]

(4) Declaratory and Injunctive Relief [Code Civ. Proc. §§ 527, 1060] – Violation of Right to Privacy;

(5) Declaratory and Injunctive Relief [Code Civ. Proc., §§ 527, 1060] – Violation of Article IX of the California Constitution;

(6) Declaratory and Injunctive Relief [Code Civ. Proc., §§ 527, 1060] – Violation of the Equal Protection Clause of the California Constitution;

(7) Declaratory and Injunctive Relief [Code Civ. Proc., §§ 527, 1060] – Violation of Government Code section 11135.

LAUSD moves to dismiss the SAP as moot pursuant to Code of Civil Procedure section 581, subdivision (m), and/or the court’s inherent power to dismiss.

A claim of mootness requires the court to focus on whether there is a live controversy between the parties.

The first sentence of the SAP provides: “This is an action to enjoin [LAUSD] and its Respondent’s Board’s illegal vaccine requirement and the ongoing violations of state and federal law against ‘unvaccinated’ students within LAUSD.” (SAP, ¶ 1.) The SAP notes LAUSD’s enforcement delay of the Resolution and failure to rescind it, “Petitioners’ litigation continues for several reasons.” (SAP, ¶ 10.) Petitioners set forth five reasons it sought relief from the court: (1) LAUSD had no authority to enact the Resolution and LAUSD acted in excess of its jurisdiction; (2) “rogue school districts” cannot “add[] new vaccination requirements at the local level as a requirement for in-person admittance/schooling”; (3) “unique conditions” cannot be used to justify enforcement of the Resolution; (4) LAUSD lacks “all medical and scientific expertise to require experimental injections for hundreds of thousands of LAUSD children”; and (5) enforcement of the Resolution allows LAUSD to “continue their unlawful and discriminatory policies against LAUSD students who are not in compliance with [LAUSD’s] [Resolution].” (SAP, ¶¶ 11, 12, 15, 16, 18.)

The SAP also advises Petitioners “ask that this Court immediately vacate Respondent’s [Resolution] by issuing a writ of mandate . . . finding that the [Resolution] is fully pre-empted by the existing statutory scheme, and directly conflicts with this statutory scheme and other laws of this state and the federal government.” (SAP, ¶ 24.) Petitioners also seeks declaratory and injunctive relief "finding that [LAU’D's] [Resolution] violates Petitioners’ rights under existing state law, as well as the California and United States Constitution, and directing [LAUSD] to act in accordance with such laws.” (SAP, ¶ 24.)

LAUSD argues at issue in the SAP is a single event—LAUSD’s Board of Education’s adoption of the Resolution on September 9, 2021. As noted, the Resolution generally required students to obtain a COVID-19 vaccination to access LAUSD facilities. In fact, Petitioners brought this proceeding in October 2021 to invalidate the Resolution. Petitioners asserted “(1) Respondents lack any legal authority to mandate a new COVID-19 vaccination requirement as a condition to students’ in-person learning and benefits within LAUSD and (2) the Requirement was inconsistent with, in direct conflict with, and pre-empted by various state and federal laws, including laws against involuntary placement into remote or independent study programs.” (SAP ¶ 7.)

On July 5, 2022, this court ruled in a substantially similar proceeding, G. F. v. Los Angeles Unified School District, (Case Number: 21STCP03381) [G.F. v. LAUSD][3] as follows:

“[T]he court finds there is a conflict between the Resolution and state law such that the Resolution is preempted and void. (See O’Connell v. City of Stockton, supra, 41 Cal.4th at 1065 [preemption voids local legislation].)” (Evans Decl., ¶ 7, Ex. E; see also Evans Decl., ¶ 4, Ex. B.)

The court entered judgment in the G.F. v. LAUSD matter on September 13, 2022. LAUSD represents it will not appeal the judgment such that the court’s decision invalidating the Resolution is final.[4] (Evans Decl., ¶ 8, Ex. F.) Thus, LAUSD argues this court has issued a final ruling deeming the Resolution at issue in Petitioners’ case void and unenforceable. That is, the court invalidated the Resolution—the subject matter of this proceeding—such that the Resolution has no further force and effect.

Accordingly, LAUSD contends—because the Resolution is no longer in effect and has been finally determined invalid by the court—this proceeding on the SAP is moot as no effective relief may be granted related to the Resolution.

“An issue becomes moot when some event has occurred which ‘deprive[s] the controversy of its life.’ ” (Giraldo v. Department of Corrections & Rehabilitation, supra, 168 Cal.App.4hh at 257; Boccato v. City of Hermosa Beach (1984) 158 Cal.App.3d 804, 808.) “The policy behind a mootness dismissal is that ‘courts decide justiciable controversies and will normally not render advisory opinions.’ ” (Giraldo v. Department of Corrections & Rehabilitation, supra, 168 Cal.App.4th at 257; Ebensteiner Co., Inc. v. Chadmar Group (2006) 143 Cal.App.4th 1174, 1179.)

The court recognizes the SAP seeks multiple forms of relief. Almost all those forms of relief, however, directly refer to the Resolution (referred to as the Requirement in the SAP) and seek relief in relation to the Resolution.

Principles of collateral estoppel are extraneous to whether Petitioners’ claims before the court are moot. In fact, Petitioners concede in their motion for summary adjudication filed October 5, 2022, the court has already adjudicated the first, second and third causes of action.[5] Thus, there can be no dispute there is nothing further to adjudicate as to the first, second and third causes of action in the SAP.

Petitioners contend this proceeding is not moot because LAUSD has “broad discretion” under the Education Code. (Opposition 6:21.) Petitioners warn LAUSD has the authority to impose requirements or conditions impacting students’ ability to access campus and educational services. Petitioners report LAUSD has “forced almost 700,000 students to ‘take it or leave it’ without discussion or compromise.” (Opposition 6:23-24.) According to Petitioners, LAUSD now claims it “would ‘never do that – or something similar to that – again’ and ‘the Requirement is now void. What’s the big deal?’ ” (Opposition 7:1-2.)

Petitioners argue the court cannot dismiss their claims—claims not adjudicated in the G.F. v. LAUSD case. Specifically, Petitioners contend the court specifically declined to decide whether LAUSD’s practice of placing students into independent study program without their consent violated the Education Code because it was not necessary to resolve G.F. v. LAUSD. (RJN Ex. B, p. 9, fn. 11.) Petitioners also contend because LAUSD has refused to affirm that the Education Code requires consent from both students and families before a student can be placed in independent study, there remain viable claims to adjudicate.

Although Petitioners suggest there exists a claim tied to the Education Code and independent study that does not hinge on enforcement of the Resolution, the current pleading does not articulate such a claim.

As currently alleged in the SAP, the first cause of action (SAP ¶¶ 150-181), second cause of action (SAP ¶¶ 182-189), third cause of action (SAP ¶¶ 190-211), fourth cause of action (SAP ¶¶ 212-229), fifth cause of action (SAP ¶¶ 230-247), sixth cause of action (SAP ¶¶ 248-269), and the seventh cause of action (SAP 270-282) are all moot. The allegations underlying each of the causes of action turn on whether the Resolution is valid and enforceable. The validity of the Resolution itself is central to each claim.

“6. A declaration that students and their parents have rights under California Education Code sections 51747 and 51746, 51749.5, 51749.6 and California Code of Regulations, Title 5, section 11700 et seq. and Title 17, sections 6025 et seq. to provide consent to placement in independent study before such placement is made; . . .

8. A declaration that students cannot be falsely accused of having an infectious disease such as COVID-19 or any of its variants and removed from school on the basis that the student is a ‘clear and present danger’ under Education Code sections 48213, 49451, or Health & Safety Code section 120230 without an objective finding that the student is suffering from the identified infectious disease, and further that, if a student is objectively found to be suffering from an identified infectious disease, that the student must be allowed to return to in-person schooling as soon as it is determined that the student is no longer suffering from the infectious or contagious disease.

12. A declaration that students have the right to equal protection under the law and cannot be denied in-person educational benefits and other services given to other LAUSD students who are vaccinated or who are part of an arbitrary class of students exempt from the Requirement or any of its associated discriminatory policies;

13. A declaration that students and their parents have rights under California Education Code sections 51747 and 51746, 51749.5, 51749.6 and California Code of Regulations, Title 5, section 11700 et seq. and Title 17, sections 6025 et seq. to provide consent to placement in independent study before such placement is made; . . . .”

Paragraphs 6, 8, 12 and 13 in Petitioners’ prayer for relief are untethered to any particular cause of action in the SAP. To the extent Petitioners’ requested relief is tied to a cause of action, the claim is then intertwined with the validity of the Resolution.

These claims for relief appear untethered to any specific cause of action and to the extent Petitioner claims they are tied to a cause of action, the claim itself would necessarily then hinge on adjudication of the existence of a valid Resolution.[7]

Based on the foregoing, the court finds the claims alleged in the SAP are moot based on the final order issued in G.F. v. LAUSD and LAUSD’s judicial admission it does not intend to appeal or enforce the Resolution.

Petitioners alternatively argue the court may still adjudicate moot issues when they are on a matter of public importance and the issue is likely to recur and evade judicial review.

The court declines to find an exception to the mootness doctrine exists under these facts.

“When an action involves a matter of continuing public interest that is likely to recur, a court may exercise an inherent discretion to resolve that issue, even if an event occurring during the pendency of the appeal normally would render the matter moot.” (Building a Better Redondo, Inc. v. City of Redondo Beach (2012) 203 Cal.App.4th 852, 867.)

The court is not inclined to find the issue here—a COVID-19 vaccination resolution at LAUSD—is likely to recur. The court’s final judgment in G.F. v. LAUSD necessarily means LAUSD cannot adopt a vaccine resolution. The court found its broad authority on the issue is preempted by state law. Thus, the issue of requiring a vaccine to be present on campus (other than those specified by state law) appears incapable of recurring. Moreover, the court declines to speculate how LAUSD might act with some unspecified virus and related emergency vaccine. The scenario is too unlikely to warrant review of issues that are moot.

Based on the foregoing, the court finds there is no applicable exception available such that the court should consider moot claims.

LAUSD also demurs to the first, third, fourth, fifth and seventh causes of action in the SAP on the grounds that these causes of action fail to state a claim.

Based on the court’s ruling on the motion to dismiss, the court finds the demurrer is moot.

Petitioners may address how, if at all, they might amend the SAP to state a claim given the court’s finding of mootness.

[1] A motion to dismiss is the “legal equivalent of a general demurrer.” (Citizens for Parental Rights v. San Mateo County Bd. of Education (1975) 51 Cal.App.3d 1, 38.) Demurrers may be sustained on mootness grounds. (See Committee for Sound & Land Development v. City of Seaside (2022) 79 Cal.App.5th 389, 405-406.)

[2] The third cause of action alleges, among other things, “the [Resolution] is also inconsistent with and/or directly conflicts with Education Code sections 51746, 51747, 51749.5, 51749.6 and California Code of Regulations title 5, section 11700, subs (d)(2)(A), which regulate a student’s placement into independent study and indicate that independent study must not be coerced; and California Code of Regulations Title 17, section 6025, which provides that schools shall give unconditional admittance to in-person schooling once a student complies with the existing statutory scheme’s mandatory immunization requirements or has received the applicable medical or personal belief exemptions as provided by law.” (SAP ¶ 198.)

[3] On November 30, 2021, the District filed a notice of related cases to have the court deem the matters related. (Evans Decl., ¶ 4, Ex. B.) As both matters had been assigned to this Department for hearing, the court did not rule on the notice of related cases.

[4] The court takes judicial notice of LAUSD’s Notice of Settlement in G.F. v. LAUSD filed September 28, 2022. The notice provides: “. . . the Parties have entered into a written settlement agreement wherein LAUSD has waived its right to appeal the Court’s Judgment entered September 13, 2022.”

[5] The court takes judicial notice of Petitioners’ notice and memorandum of points and authorities in support of motion for summary adjudication filed October 5, 2022.

[6] While Paragraphs 9, 10, 11 do not specially reference the Resolution, Petitioners appear to acknowledge they nonetheless directly relate to the Resolution. (Opposition 7:24-8:14.)

[7] Further, in the absence of a concrete set of facts by which to adjudicate the claim to obtain the requested relief, the ripeness of the claims is questionable. That Petitioners speculate about what action, if any, LAUSD might take to protect against monkeypox (Opposition 9:3-12) illustrates the ripeness issue. Moreover, Petitioners’ requests for declaratory relief through paragraphs 6, 8, 12 and 13 of the SAP prayer—essentially alleged in vacuum if they are untied to the validity of the Resolution—are not writ claims to be heard by this court. (Reply 11:4-12:6.) Without a concrete dispute, addressing the relief requested in paragraphs 6, 8, 12 and 13 of the prayer would be an advisory opinion.