Judge Mitchell L. Beckloff, Case 21STCP03429 2023-03-08 Tentative Ruling

Judge: Mitchell L. Beckloff, Case: 21STCP03429, Date: 2023-03-08 Tentative Ruling

Respondents, Los Angeles Unified School District, Superintendent Megan Reilly, and Los Angeles Unified School District Board Members George McKenna, Monica Garcia, Scott Schmerelson, Nick Melvoin, Jackie Goldberg, Kelly Gonez, and Tanya Ortiz Franklin (collectively, LAUSD), demurrer to the first, second, and third causes of action of the Third Amended Petition (TAP).

Petitioners, Children’s Health Defense, California Chapter and Protection of the Educational Rights of Kids (jointly, Petitioners), oppose the demurrer.

LAUSD requests judicial notice of Exhibits B through L pursuant to Evidence Code section 452, subdivision (c) and (h). Petitioners oppose the request.

Courts may take judicial notice of “[o]fficial acts of the legislative, executive, and judicial departments of the United States and of any state of the United States.” (Evid. Code, § 452, subd. (c).) “Official acts include records, reports and orders of administrative agencies.” (Rodas v. Spiegel (2001) 87 Cal.App.4th 513, 518; Hogen v. Valley Hospital (1983) 147 Cal.App.3d 119, 125; McGlothlen v. Department of Motor Vehicles (1977) 71 Cal.App.3d 1005; Agostini v. Strycula (1965) 231 Cal.App.2d 804, 806.)

The court finds judicial notice of Exhibits B through L is proper pursuant to Evidence Code section 452, subdivision (c) as official acts of a public agency.

Exhibits B, C and D all constitute public health orders and guidance policies issued by the California Department of Public Health (CDPH). In Midway Venture LLC v. County of San Diego (2021) 60 Cal.App.5th 58, the Court took judicial notice of a current local public health order. (Id. at 83, fn. 4.) Moreover, in Physicians Committee for Responsible Medicine v. Los Angeles Unified School Dist. (2019) 43 Cal.App.5th 175, 183, the Court held “school board actions can be official acts, and school board policies and regulations may be recognized by judicial notice.” (Id. at 183 [emphasis added].) As such, the request for judicial notice of these exhibits is granted.[1]

Exhibits G, H, I, J, K, and L are public health orders and guidance policies issued by the Los Angeles County Department of Public Health (LACDPH). For the same reasons, the court takes judicial notice.

Exhibits E and F are COVID-19 policies issued by LAUSD. The court takes judicial notice of these exhibits as well. (Physicians Committee for Responsible Medicine v. Los Angeles Unified School Dist., supra, 43 Cal.App.5th at 183; see also People v. Kelly (2013) 215 Cal.App.4th 297, 304, fn. 4 [judicial notice of frequently asked questions on Criminal Justice Realignment Resource Center's website].)[2]

Petitioners contend LAUSD’s request for judicial notice does not comply with California Rules of Court, Rule 3.1113, subdivision (l) based on LAUSD’s alleged failure to request judicial notice of the Index of Exhibits. LAUSD's request for judicial notice complies with California Rules of Court, rule 3.1113, subd. (l) because LAUSD requests the court to take judicial notice “of the following records attached to the Declaration of Keith A. Yeomans” and identifies Exhibits B through L by name.

Finally, Petitioners’ objection to Exhibit A is overruled; this exhibit—a letter to Petitioners’ counsel regarding the legal adequacy of the allegations in the TAP—demonstrates LAUSD’s meet and confer efforts as required by Code of Civil Procedure section 430.41.

The TAP seeks writ and declaratory relief based upon LAUSD enacted policies removing students from in-person benefits (services and schooling) based on a student’s failure to comply with various “health and safety” measures imposed by LAUSD. LAUSD’s removal of in person benefits for students required those students to obtain their education through LAUSD’s independent study program. The measures included forced masking, forced polymerase chain reaction (PCR) or other genetic testing for the COVID-19 virus or any of its variants, forced quarantining of healthy students under certain circumstances, and/or other restrictions or forced uptakes of experimental medical treatments to allegedly prevent infection or transmission of diseases (the Measures). (TAP ¶ 2.)

Petitioners argue the Measures conflict with applicable laws. Petitioners contend the Measures are discriminatory and/or fully pre-empted by existing laws, including laws regarding the removal of students from campus for defiance or for having an “infectious disease,” as well as laws regarding the placement of students into independent study programs. (TAP ¶ 5.)

Specifically, Petitioners’ TAP alleges LAUSD’s enforcement of the Measures violates: (1) state independent study laws (TAP, ¶¶ 61-72); (2) state laws governing compulsory attendance, suspension, expulsion, and removal of students with infectious diseases (TAP, ¶¶ 73-80);

(3) state anti-discrimination laws (TAP, ¶¶ 81-82); and (4) federal law governing products and treatment subject to the Food and Drug Administration’s (FDA) emergency use authorization. The TAP also alleges that the Measures are arbitrary and capricious. (TAP ¶ 84.)

The TAP alleges three 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;” and (3) “Declaratory and Injunctive Relief, Code Civ. Proc., §§ 527, 1060,” “Pre-emption and Conflicts with Existing Law.”

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. (Code Civil Proc., § 430.30, subd. (a); Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) “We assume the truth of the allegations in the complaint, but do not assume the truth of contentions, deductions, or conclusions of law.” (California Logistics, Inc. v. State (2008) 161 Cal.App.4th 242, 247.)

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, supra, 39 Cal.3d at 318.) Indeed, where the facts are not in dispute and the nature of the plaintiff's claim is clear, but no liability exists under substantive law and no amendment would change the result, the sustaining of a demurrer without leave to amend is proper. (City of Ceres v. City of Modesto (1969) 274 Cal. App. 2d 545, 554.) The burden is on the plaintiff to show how the complaint might be amended so as to cure the defect. (Association of Community Organizations for Reform Now v. Department of Industrial Relations (1995) 41 Cal.App.4th 298, 302.)

The TAP alleges LAUSD imposes the Measures pursuant to its authority under Education Code section 35160; “California Education Code section 35160 permits a governing board of any school district to carry on a program or act in any manner -- as long as it is not in conflict with or inconsistent with, or pre-empted by, any law.” (TAP ¶ 62.) “Respondents’ Measures and the associated Exclusion and Placement Practices are pre-empted by, inconsistent with and/or directly conflict with existing state laws which unequivocally dictate that school districts cannot unilaterally disenroll students from the schools they are already attending and then coercively “place” such students into independent study.” (TAP ¶ 64.)

All three causes of action are based on the same or similar allegations: LAUSD exceeded its authority in adopting the Measures because the Measures violate state educational laws limiting the authority of LAUSD to exclude non-compliant students from school.

The demurrer argues with the support of the judicially noticeable documents LAUSD’s conduct is consistent with and—in some cases—is required by the Health and Safety Code, state and local health code orders and policies, and the Education Code. Importantly, in response to LAUSD’s position, Petitioners identify no provision of the Measures that is in conflict with applicable laws.

The TAP identifies “forced masking, forced polymerase chain reaction [] . . . testing for COVID-19 or any of its variants, forced quarantining of healthy students following a determination of having a ‘close contact’ ” as impermissible under the law. (TAP, ¶ 2.) The TAP also makes vague references to other policies—for example, unspecified “genetic testing” as well as “other restrictions or forced uptakes of experimental medical treatments to allegedly prevent infection or transmission of diseases.” (Ibid.)

LAUSD demurs to these allegations on the grounds Petitioners have failed to state a claim because LAUSD’s actions are permitted under the policies and guidance of state and local public health officials, who have broad authority to issue orders and take action as may be necessary to prevent the spread of communicable diseases.

The court agrees the state and local public health officer’s powers are extremely broad. (See Health & Saf. Code, §§ 120140,[4] 120155, 120175, 120175.5, and 120220 [powers of a local health officer][5].)

“Each health officer knowing or having reason to believe that any case of the diseases made reportable by regulation of the department, or any other contagious, infectious or communicable disease exists, or has recently existed, within the territory under his or her jurisdiction, shall take measures as may be necessary to prevent the spread of the disease or occurrence of additional cases.”

“the local health officer may issue orders to other governmental entities within the local health officer's jurisdiction to take any action the local health officer deems necessary to control the spread of the communicable disease.”

Public health officers’ broad authority extends over school districts. (Health & Saf. Code,

§ 120230. [“No instructor, teacher, pupil, or child who resides where any contagious, infectious, or communicable disease exists or has recently existed, that is subject to strict isolation or quarantine of contacts, shall be permitted by any superintendent, principal, or teacher of any college, seminary, or public or private school to attend the college, seminary, or school, except by the written permission of the health officer.”])

Relevant here, LAUSD points to CDPH’s public health orders pertaining to face masks, COVID-19 testing, and quarantine/isolation requirements.

A CDPH Health Order, dated October 14, 2022, states: “All individuals must follow the requirements in the Guidance for the Use of Face Coverings issued by the California Department of Public Health.” (RJN Ex. B.) The order continues: “All individuals must continue to follow the requirements in the current COVID19 Public Health Guidance for K-12 Schools in California and the current COVID-19 Public Health Guidance for Child Care Programs and Providers.” (RJN, Ex. B.)

The current version of CDPH’s Guidance for the Use of Face Coverings referenced in CDPH’s order generally provides that face masks are recommended and only compels masks be worn in certain high-risk settings, such as healthcare settings. (RJN, Ex. C [CDPH, Guidance for the Use of Face Masks (Sept. 20, 2022), pp. 2-4.)

The current version of CDPH’s COVID-19 Public Health Guidance for K-12 Schools in California also referenced in CDPH’s order recommends, but does not require, the wearing of face masks and regular COVID-19 antigen testing. (RJN, Ex. D [CDPH, COVID-19 Public Health Guidance for K–12 Schools to Support Safe In-Person Learning, 2022–2023 School Year (Sept. 30, 2022), pp. 3-4.) The CDPH similarly recommends quarantine and/or isolation for individuals with COVID-19 and those in close contact with someone infected with COVID-19. (Id. at pp. 5-7.)

Both the CDPH’s Guidance for the Use of Face Coverings and COVID-19 Public Health Guidance for K-12 Schools expressly permit local health authorities to exercise their discretion in adopting more stringent standards and requirements. (RJN, Ex. C, p. 5. [“Local health jurisdictions and entities may continue to implement additional requirements that go beyond this statewide guidance based on local circumstances”]; RJN, Ex. D, p. 2. [CDPH “affirms the authority of local health departments and local educational agencies to maintain or establish additional guidance, including required actions, for K–12 school settings in their respective jurisdictions.”])

The LACDPH’s public health orders and guidance are consistent with CDPH’s policies and guidance.

A LADPH Order, effective September 23, 2022, required all public and private schools (K-12) to implement the Protocols for K-12 Schools attached as Appendix T1 and the protocol for COVID-19 Exposure Management Plan in K-12 Schools, attached as T2. (RJN Ex. G, p. 83.) Appendix T1 states: “it is strongly recommended that all individuals wear well-fitting masks with good filtration when they are in indoor public settings, including K-12 schools. Schools and school districts are free to implement more restrictive masking policies than the current LA County guidance in order to provide a higher level of safety to all.” (RJN, Ex. H.)

The LADPH also required schools have a plan for students “who (1) have symptoms consistent with COVID-19, (2) were exposed at school, or (3) are at a school with an active public health investigation to have access to testing or be tested for COVID-19.” (RJN I, p. 103.) When there is a confirmed exposure, that student must follow “Home Isolation Instructions for COVID-19 (ph.lacounty.gov/covidisolation).” LADPH instructed:

“Students and staff with COVID-19 can end isolation after Day 5* ONLY if all of the following criteria are met: 1. A COVID-19 viral test** collected on Day 5 or later is negative, and 2. No fever for at least 24 hours without the use of fever-reducing medicine, and 3. Other symptoms are improving --or-- Isolation can end after Day 10 if no fever for at least 24 hours without the use of fever-reducing medicine. *For symptomatic students and staff, Day 0 is the first day of symptoms; Day 1 is the first full day after symptoms develop. For asymptomatic students and staff, Day 0 is the day the first positive test was collected; Day 1 is the first full day after the positive test was collected.”

Finally, LAUSD argues its policies—as set forth in part in judicially noticed exhibits E, I and K—are consistent with both state and local statutes, health orders and guidance.[6]

In response to the demurrer, Petitioners make several arguments. None are persuasive.

First, Petitioners contend the demurrer’s argument is an improper “affirmative defense.” Petitioners’ claim is unsupported. Moreover, “[a]n affirmative defense is an allegation of new matter in the answer that is not responsive to an essential allegation in the complaint. In other words, an affirmative defense is an allegation relied on by the defendant that is not put in issue by the plaintiff's complaint.” (The Bank of New York Mellon v. Preciado (2013) 224 Cal.App.4th Supp. 1, 8.) LAUSD’s argument is not a new issue raised. Instead, the argument challenges the “truth” of Petitioners’ allegations and the legal underpinnings allegedly supporting Petitioners’ claim. (See ibid. [“Where the answer alleges facts showing that some essential allegation of the complaint is not true, those facts are not ‘new matter,’ but only a traverse.”])

Second, Petitioners appear to argue (1) the allegations are sufficient to show LAUSD’s enforcement of the various health orders resulted in the “improper placement of enrolled students in independent study, denial of in person services for defiance of health orders” (Opposition 4:4-7) and (2) the local health orders conflict with state law. (Opposition 6:1-22).

As to the conflict argument, Petitioners’ entire legal position in the pleadings appears to hinge on minimizing LAUSD’s authority under Education Code section 35160. (See TAP ¶¶ 2-4. [“However, Education Code section 35160 does not provide such sweeping punitive authority when it comes to excluding or otherwise removing school children from their compulsory education in the State, and specifically precludes Respondents from taking any actions that are otherwise preempted by, inconsistent with, and/or in direct conflict with, other existing state and federal laws.”])

“On and after January 1, 1976, the governing board of any school district may initiate and carry on any program, activity, or may otherwise act in any manner which is not in conflict with or inconsistent with, or preempted by, any law and which is not in conflict with the purposes for which school districts are established.”

In the face of the analysis of the laws relied upon by LAUSD on demurrer, Petitioners do not provide any specific analysis of any specific laws and any conflict. Moreover, as to the Measures Petitioners challenge in the TAP, LAUSD contends each specific Measure either mischaracterizes LAUSD’s actual policy and/or was in compliance with state and local public health orders:

Forced Masking: The TAP appears to allege LAUSD has a policy of “forced” “all-day” masking. (TAP ¶¶ 2, 34.) As an initial matter, LAUSD argues its masking policy only recommended masking, but masking was entirely optional—except in the context of its quarantine/isolation policy. (See RJN Ex. E. [“Indoor masking is strongly recommended at all Los Angeles Unified schools and workplaces. . . . Students who become symptomatic or ill while at school are required to wear a mask while being treated at the health office and waiting to be picked up by a parent/guardian”]; see also RJN, Ex. F, p. 66 [“Indoor masking is strongly recommended, but not required, for all employees, students and visitors.”] [“Per Los Angeles County Department of Public Health requirements, all individuals who are identified as close contacts are required to wear a highly protective mask indoors at school for 10 days after the last date of exposure.”])[7] LAUSD argues its optional masking policy and masking policy after close contact exposure is consistent with state and local health official policies. (RJN, Ex. I, p. 6 [“Actions for close contact”].) Petitioners do not clarify their allegations or otherwise address the specific “forced masking” measure.

Forced COVID-19 Testing: The TAP appears to allege LAUSD had a policy of forced testing. (TAP ¶ 2, 34.) As an initial matter, LAUSD notes it has discontinued its weekly COVID-19 testing requirements. (RJN, Ex. E, p. 2. [“Weekly asymptomatic COVID 19 testing is no longer required. Testing will only be required for those experiencing COVID-19 symptoms or those who have been in close contact with a person who has tested positive.”]) Instead, the judicially noticeable documents report LAUSD’s current testing policy is as follows: “Testing will only be required for those experiencing COVID-19 symptoms or those who have been in close contact with a person who has tested positive.” (RJN, Ex. E, p. 2.) LAUSD argues its required testing policy of symptomatic students and close contact students is compelled by LACDPH’s public health orders. (See RJN, Ex. G, p. 5 [compelling schools to comply with Appendices T1 & T2]; RJN, Ex. I [LACDPH, Order of the Health Officer: Appendix T2], pp. 2, 4; see also RJN, Ex. K [LACDPH, Order], pp. 1-2.) Petitioners do not clarify their allegations or otherwise address the specific “forced testing” measure.

Forced Quarantining: The TAP alleges LAUSD has a policy of “forced quarantining of healthy students following a determination of being in ‘close contact.’ ” (TAP ¶ 2.) Contrary to the other measures, LAUSD concedes it has a quarantine and isolation policy materially similar to the policy alleged in the TAP. (Demurrer 17:13-18:23 [describing LAUSD’s quarantine policy].) That is, LAUSD acknowledges its quarantine and isolation policy is mandatory and potentially requires students to stay home from school for a period of up to 10 days. Again, however, LAUSD’s judicially noticeable exhibits make clear LAUSD’s policy is entirely consistent with the applicable and controlling health orders. (See RJN, Exs. I, p. 2, 4; Ex. K, p. 1-2, 4; Ex. H, p. 4.)

Other “Measures:” The demurrer argues “the references to ‘other required genetic testing’ and ‘forced uptakes of experimental medical treatments to allegedly prevent infection or transmission of diseases’ are, frankly, too vague to adequately inform LAUSD of the policies and/or practices subject to challenge.” (Reply 8:12-16.) The court is inclined to agree; it is entirely unclear what specific LAUSD “policy” Petitioners challenge as other measures.

Forced Independent Study:[8] While the TAP may allege LAUSD’s challenged policies involve some aspect of involuntary independent study, this allegation is inconsistent with LAUSD’s written policies and LACDPH’s applicable health orders. Given the judicially noticeable documents, the court is inclined to find Petitioners do not allege the specific LAUSD policy that violates or conflicts with any law. Petitioners’ vague allegations regarding independent study, masking and testing are inconsistent with the judicially noticeable LAUSD policy. (Fundin v. Chicago Pneumatic Tool Co. (1984) 152 Cal.App.3d 951, 955. [“While allegations of the complaint are deemed to be true in ruling on the demurrers, where an allegation is contrary to law or to a fact of which a court may take judicial notice, it is to be treated as a nullity.”])

Ambiguous and vague allegations do not survive demurrer. Petitioners quote paragraph 59 of the TAP:

“Respondents and their agents continue to selectively discriminate against, exclude, remove, and improperly deny in-person benefits, services, and learning to students who fail to comply with one or more of the Measures, and/or continue to threaten students with suspension, expulsion, and/or removal from in-person services, benefits, and learning, as well as involuntary “placement” into independent study all in violation of the Education Code.” (TAP ¶ 59.)

“Respondents’ Exclusion and Placement Practices and actions in denying access to in-person services and benefits and in disenrolling, suspending, expelling, and/or otherwise removing students who do not comply with one or more of the Measures and placing them into independent study are also pre-empted by, inconsistent with, and/or in direct conflict with Education Code, sections 51746, 51747, 51749.5, 51749.6; California Code of Regulations Title 5, section 11700, subs (d)(2)(A)” (TAP ¶ 138.)

Such allegations lack clarity about how LAUSD engaged in unlawful conduct in any specific instance, and/or whether LAUSD maintained an unlawful policy. However, to the extent Petitioners’ allegations are an attempt to challenge a LAUSD policy (as opposed to a specific instance of conduct), the judicially noticeable documents undermine Petitioners’ vague and generalized allegations.

Seemingly in acknowledgement of LAUSD’s controlling legal authorities, Petitioners argue “a local school district must comply with the Education Code even when there are conflicting directives coming from a local health agency, because the Education Code trumps local health orders when such issues are specifically addressed in the Code.” (Opposition 2:2-5.) This argument—unsupported by legal authority—represents a pivot in Petitioners’ claims in response to LAUSD’s position on demurrer.

Finally, the demurrer contends that, not only do the applicable public health orders have the force and effect of law, they are within state and local health officials’ authority to issue, and compliance with them by school districts is mandatory. (Reply 9:4-14.) LAUSD’s argument informs on the reasonable likelihood of Petitioners’ ability to amend to state a claim.

LAUSD also argues the CDPH and LACDPH are indispensable parties under Code of Civil Procedure section 389. LAUSD argues the TAP challenges the agencies’ respective health orders.

Subdivision (a) of Code of Civil Procedure section 389 defines persons who should be joined in a lawsuit if possible, and are thus deemed necessary to the action. (County of San Joaquin v. State Water Resources Control Bd. (1997) 54 Cal.App.4th 1144, 1149.) A person subject to service of process whose joinder will not deprive the court of subject matter jurisdiction “shall be joined as a party in the action if (1) in his absence complete relief cannot be accorded among those already parties or (2) he claims an interest relating to the subject of the action and is so situated that the disposition of the action in his absence may (i) as a practical matter impair or impede his ability to protect that interest or (ii) leave any of the persons already parties subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations by reason of his claimed interest.” (Civ. Pro. Code, § 389, subd. (a).) The inquiry under subdivision (a)(2), applicable here, is “whether the person is one whose rights must necessarily be affected by the judgment in the proceeding.” (Save Our Bay, Inc. v. San Diego Unified Port Dist. (1996) 42 Cal.App.4th 686, 696.)

“If a person [or entity] is determined to qualify as a ‘necessary’ party under one of the standards outlined above [under Code of Civil Procedure section 389, subd. (a)], courts then determine if the party is also ‘indispensable.’ ” (City of San Diego v. San Diego City Employees' Retirement System (2010) 186 Cal.App.4th 69, 83-84.)

If a necessary person cannot be joined as a party, the trial court considers specific factors to “determine whether in equity and good conscience the action should proceed among the parties before it, or should be dismissed without prejudice, the absent person being thus regarded as indispensable.” (Code Civ. Proc. § 389, subd. (b).) Those factors are: “(1) to what extent a judgment rendered in the person's absence might be prejudicial to him or those already parties; (2) the extent to which, by protective provisions in the judgment, by the shaping of relief, or other measures, the prejudice can be lessened or avoided; (3) whether a judgment rendered in the person's absence will be adequate; (4) whether the plaintiff or cross-complainant will have an adequate remedy if the action is dismissed for nonjoinder.” (Ibid.)

The court finds the misjoinder argument is premature. That is, the TAP—as pled—does not currently challenge CDPH or LACDPH’s respective health orders. LAUSD put the health orders at issue through its demurrer. Thus, unless Petitioners decide to challenge the health orders relied upon by LAUSD under some legal theory, neither CDPH nor LACDPH appear to be necessary or indispensable parties.

Accordingly, the demurrer is sustained. The court will hear argument on whether to grant leave to amend.

[1] The court recognizes the request for judicial notice in Midway Venture LLC v. County of San Diego was unopposed. Similarly, in Physicians Committee for Responsible Medicine v. Los Angeles Unified School Dist., there was no dispute the adoption of wellness policies are official acts of a legislative agency.

[2] The Criminal Justice Realignment Resource Center is an ad hoc steering committee created by the Administrative Office of the Courts to provide information concerning the Realignment Act. (See id. at 303.)

[3] The demurrer notes the original petition and first two amended variations of it focused on LAUSD’s former COVID-19 resolution and vaccines. By contrast, the TAP challenges distinct LAUSD COVID-19 policies and safety measures.

[4] Health and Safety Code section 120140 states: “Upon being informed by a health officer of any contagious, infectious, or communicable disease the department may take measures as are necessary to ascertain the nature of the disease and prevent its spread. To that end, the department may, if it considers it proper, take possession or control of the body of any living person, or the corpse of any deceased person.”

[5] Health and Safety Code section 120220 states: “When quarantine or isolation, either strict or modified, is established by a health officer, all persons shall obey his or her rules, orders, and regulations.”

[6] In response to LAUSD’s reliance on these exhibits as support for its demurrer, Petitioners argue the court should not consider the evidence as it is “extrinsic evidence.” Citing Knickerbocker v. City of Stockton (1988) 199 Cal. App. 3d 235, 239 n. 2, Petitioners argue on demurrer, the court “looks only to the face of the pleadings and matters judicially noticeable, not to the evidence or other extrinsic matters.” The court, however, took judicial notice of Exhibits B through L and may properly consider the judicially noticeable documents along with Petitioners’ allegations.

[7] It is unclear whether Petitioners allegations acknowledge “forced” masking is limited to instances of an exposure and in the context of LAUSD’s quarantine/isolation policy. (See TAP ¶ 14. [“Both California and Los Angeles County remain under declared states of emergency for COVID-19 and Los Angeles County is still under a local mask mandate from the LA County Department of Health (‘LACDPH’) that is enforced in LAUSD schools requiring children to mask for 10 days after a purported ‘exposure’ to COVID-19. Enrolled students who fail or refuse to comply with the mask policy are excluded from campus and sent home unless and until they comply with the policy.”])

[8] As argued by LAUSD in reply, to the extent Petitioners’ claims are premised on LAUSD’s policies in place for the past school year of 2021-2022, those policies are moot.