Judge: Mitchell L. Beckloff, Case: 21STCP03501, Date: 2022-08-24 Tentative Ruling
Case Number: 21STCP03501 Hearing Date: August 24, 2022 Dept: 86
CHATHAM v. BARGMANN, et al.
Case Number: 21STCP03501
Hearing Date: August 24, 2022
[Tentative] ORDER GRANTING MOTION FOR JUDGMENT ON THE PLEADINGS
On October 20, 2022, Petitioner, Aaron Chatham, by and through his guardian ad litem and conservator, Mary Jane Leonhardi, filed a petition against Respondents, Nancy Bargmann, in her official capacity as Director of the California Department of Developmental Services (DDS) and Los Angeles County Developmental Services Foundation, Inc., d/b/a Frank D. Lanterman Regional Center (FDLRC). FDLRC is also named as a Real Party in Interest. The petition sets forth two causes of action: (1) administrative mandate pursuant to Code of Civil Procedure section 1094.5 against DDS; and (2) ordinary mandate pursuant to Code of Civil Procedure section 1085 against both DDS and FDLRC.
DDS now moves for judgment on the pleadings on the second cause of action. DDS claims (1) the traditional mandate claim is moot; (2) Petitioner has alleged insufficient facts to constitute a cause of action; and (3) Petitioner’s only remedy here is through his first cause of action for administrative mandamus.
FDLRC joins DDS’s motion. While FDLRC’s joinder is untimely, the court nonetheless considers it. The court finds no prejudice to Petitioner in considering the joinder. (See Opposition fn. 1.)
The court grants DSS’ Request for Judicial Notice (RJN) of DSS guidance.
The motion and joinder are granted without leave to amend. Trial shall proceed on the first cause of action only.
RELEVANT STATUTORY FRAMEWORK
The Lanterman Developmental Disabilities Act (Lanterman Act), as codified in Welfare and Institutions Code sections 4500 through 4885, is a comprehensive statutory scheme intended by the Legislature to provide a “comprehensive scheme for providing services to people with developmental disabilities.” (Capitol People First v. State Dept. of Developmental Services (2007) 155 Cal.App.4th 676, 682.) Such services include locating developmentally disabled persons, assessing their needs, and selecting and providing services to meet disabled persons’ needs on an individual basis. (Welf. & Inst. Code, §§ 4641-4643, 4646, 4647).
“[T]he State Department of Developmental Services has jurisdiction over the execution of the laws relating to the care, custody, and treatment of developmentally disabled persons, as provided” under the Lanterman Act. (Id., § 4416.)
DDS is the state agency charged with implementing the Lanterman Act. To accomplish its charge, DDS contracts with 21 private non-profit corporations called regional centers. Regional centers help disabled consumers secure services and support. (Id., §§ 4434, 4629, 4635, 4640.7.) “Consumer” means “a person who has a disability that meets the definition of developmental disability set forth in subdivision (a)” of Welfare and Institutions Code section 4512. (Id., § 4512, subd. (d).)
Regional centers assess claimants for eligibility using diagnostic criteria. Regional centers develop a person-centered “individual program plan” (IPP) for each eligible consumer. (Id., §§ 4642, subd. (a)(1), 4646.)
The Legislature created the Self-Determination Program (SDP) to provide consumers and their families “increased flexibility and choice, and greater control over decisions, resources, and needed and desired services and supports to implement their IPP” in 2013. (Id., § 4685.8,
subd. (a).)
For each consumer participating in the SDP, the “IPP team shall determine the [consumer’s] initial and any revised individual budget.” (Id., § 4685.8, subd. (m)(1).) The SDP consumer’s individual budget “shall only fund services and supports” that “the federal Center for Medicare and Medicaid Services (CMMS) determines are eligible for federal financial participation.” (Id., § 4685.8, subd. (c)(3), (c)(6).) Services and supports “include, but are not limited to, . . . special living arrangements, . . . financial assistance, . . . [and] vouchers.” (Id., § 4512, subd. (b).) They also include rental subsidies for individuals who live in their own homes if the subsidy “is required to meet the specific care needs unique to the individual consumer as set forth in an addendum to the consumer’s [IPP], and is required when a consumer’s demonstrated medical, behavioral, or psychiatric condition presents a health and safety risk to himself or herself, or another.” (Id., § 4689, subd. (i).
ALLEGATIONS IN THE PETITION
Petitioner is a 46-year-old man with multiple diagnoses, including intellectual disability and schizoaffective disorder. Petitioner is a consumer of FDLRC. (Petition ¶¶ 10-11, 17, 52.)
DDS is the state agency charged with implementing the Lanterman Act. DDS therefore has a mandatory ministerial duty to ensure that it and its contractors comply with the Lanterman Act. (Id. ¶¶ 19, 90, 92.)
FDLRC is a California nonprofit corporation who contracts with DDS to provide services and support to Lanterman Act consumers. (Id. ¶ 20.) Regional centers are responsible for working with individual consumers to carry out the provision of services and support under the Lanterman Act. FDLRC therefore has a mandatory ministerial duty to comply with the Lanterman Act. (Id. ¶¶ 3, 28, 35.)
Petitioner receives services and support pursuant to his IPP that are funded by FDLRC. (Id. ¶¶ 52, 55.) The services and support help him live independently in his home in the La Crescenta-Montrose area, a suburb in northern Los Angeles where he grew up. (Id. ¶ 52.) Petitioner frequently eloped to return to this area during times when he lived in other areas of Los Angeles. (Id. ¶¶ 53-54.) Since 2008, Petitioner has lived in the La Crescenta-Montrose area with his brother, with whom he shares the cost of rent. (Id. ¶ 55.) Petitioner’s monthly disability benefits alone are insufficient to cover his share of the rent. (Id. ¶ 56.) FDLRC agreed in 2011 to provide Petitioner with a rental subsidy to cover the remaining portion of his share of the rent, acknowledging that the incidents of elopement combined with Petitioner’s intellectual disabilities posed a risk to his safety. (Id. ¶¶ 53-54, 56.) FDLRC recognized the continued health and safety need and renewed Petitioner’s rental subsidy in accordance with Welfare and Institutions Code section 4689, subdivision (i)(1) until Petitioner entered the SDP. (Id. ¶ 57.)
FDLRC made the decision to no longer fund Petitioner’s rental subsidy in concert with DDS. DDS informed FDLRC that regional centers may not fund rental subsidies for SDP participants. (Id. ¶ 64.) DDS’s “Individual Budget Calculation and Certification Tool,” used by regional centers (including FDLRC), did not provide or allow for the provision of rental subsidies to the SDP participants. (Id. ¶ 70.)
Petitioner entered the SDP and lost his rental subsidy. (Id. ¶ 67.)
After an unsuccessful administrative appeal, this proceeding ensued.
STANDARD OF REVIEW
A motion for judgment on the pleadings has the same function as a general demurrer but is made after the time for demurrer has expired. Except as provided by statute, the rules governing demurrers apply. (Cloud v. Northrop Grumman Corp. (1998) 67 Cal.App.4th 995, 999.)
Like a general demurrer, “ordinarily, a [motion for judgment on the pleadings] does not lie as to a portion of a cause of action, and if any part of a cause of action is properly pleaded, the [motion] will be overruled.” (Fire Ins. Exchange v. Superior Court (2004) 116 Cal.App.4th 446, 452.) In considering a motion for judgment on the pleadings, courts consider whether properly pled factual allegations—assumed to be true and liberally construed—are sufficient to constitute a cause of action. (Stone Street Capital, LLC v. Cal. State Lottery Com’n (2008) 165 Cal.App.4th 109, 116.)
ANALYSIS
Petitioner’s second cause of action seeks a writ of traditional mandate. Petitioner argues DSS violated its ministerial duties by implementing a policy precluding SDP participants from receiving rental subsidies. Similarly, Petitioner contends FDLRC violates its own duty by following DSS’s policy. (Petition ¶ 93.) Petitioner prays for a writ of mandate commanding Respondents to:
“i. Refrain from violating the Lanterman Act, Welf. & Inst. Code §§ 4500–4885, by refusing to provide rental subsidies to all regional center consumers who meet the requirements to receive them;
ii. Implement the necessary policies, directives, and guidance to provide rental subsidies to all regional center consumers who meet the requirements to receive them, id. § 4639.6; and
iii. Ensure regional center compliance with Respondent Bargmann’s policies, directives, and guidance ensuring rental subsidies are provided to all regional center consumers who meet the requirements to receive them, id. §§ 4639.6, 4434, 4629.” (Id. at Prayer, ¶ (B).)
DDS moves for judgment on the pleadings on the second cause of action for three reasons: It claims (1) the traditional mandate claim is moot; (2) Petitioner has alleged insufficient facts to constitute a cause of action; and (3) Petitioner’s only remedy here is through his first cause of action for administrative mandamus.
Mootness
DSS argues that the second cause of action is moot. The court agrees.
DSS’s RJN demonstrates DSS updated its guidance. The judicially noticeable documents demonstrate rental subsidies are now available for qualified SDP participants. That is, rental subsidies are not longer precluded based on mere participation in the SDP. (RJN Ex. A at p. 4; Ex. B at pp. 4-5; Ex. C; Ex. D at Encl. B at p. 4). The updates eliminate any ambiguity whether a qualified SDP participant may receive rental payments consistent with Welfare and Institutions Code section 4689, subdivision (i), as part of his or her services and support. The guidance makes clear such rental assistance is available outside of the individual budget.
While Petitioner complains despite his “attempts to resolve this matter without the need for litigation, Respondents waited until after [Petitioner] filed his writ petition to take any steps toward rectifying the issues he raises.” (Opposition 1:13-15.) Nonetheless, the guidance makes clear no live controversy exists—a change in circumstances has eliminated the actual controversy that existed at the time Petitioner initiated this proceeding.
Here, subsequent to this proceeding, DDS published express guidance clarifying that rental subsidies are available for qualified SDP participants. There is no practical impact by ordering DDS to: (i) refrain from violating the Lanterman Act when it is not doing so; (ii) implement corrective practices when it already has done so; and (iii) ensure regional center compliance when it already published guidance on this issue. (See Petition at Prayer, ¶ B.) Accordingly, there is no longer an active controversy for this court to decide.
Petitioner’s arguments otherwise are not persuasive.
First, Petitioner contends the court should deny DDS’s RJN because it presents extrinsic evidence not proper for a motion for judgment on the pleadings. The court disagrees. The documents are official acts of DSS, including published guidance. (Evid. Code, §§ 452, subd. (c), 453.) There is no hearsay issue for the documents—they have independent legal significance. The documents are official acts by DSS and in satisfaction of its statutory duties to develop policies and practices to ensure uniform enforcement of the Lanterman Act. (Welf. & Inst. Code, § 4620.3.)
There is also no issue of the contents of the judicially noticeable documents because Petitioner does not dispute the truth of the contents, i.e., that DSS has updated its guidance that regional centers shall not deny a qualified consumer rental subsidies solely based on enrollment in SDP. The court can determine a live controversy no longer exists based on the petition and judicially noticeable documents.
Second, Petitioner contends DDS’s new guidance does not resolve the relief it seeks. Petitioner asserts it can obtain relief through these proceedings that DDS be compelled to ensure regional centers actually comply with its revised guidance. The court disagrees. DSS published the new guidance through several different methods to inform regional centers so the regional centers would be informed and follow its guidance. Nothing suggests FDLRC does not intend to comply with the guidance. DDS has satisfied its duty, and a writ of mandate cannot issue based on speculation about future events.
Third, Petitioner argues that the court should exercise its discretion to decide the issue because there are exceptions to the mootness doctrine, specifically the exception of an issue of broad public interest that is likely to recur. (Edelstein v. City and County of San Francisco (2002) 29 Cal.4th 164, 172.) The court disagrees.
Again, Petitioner cannot rely on a theoretical future change by DSS to prohibit funding rental subsidies for SDP participants. Certainly, DSS could reverse itself—why it would do so under these circumstances escapes the court. Nonetheless, it is improper for the court to issue a writ of mandate in anticipation of a dispute not yet in existence. (State Bd. of Education v. Honig (1993) 13 Cal.App.4th 720, 748.) Petitioner’s argument about the “material questions” exception (Opposition 9:19-10:4) fails for similar reasons—no material question exists where DSS has adopted a position and published guidance on it. Declaratory relief here is irrelevant given the petition.
Accordingly, the motion for judgment on the pleadings is granted.
For completeness, the court addresses DSS’s alternative arguments.
Insufficient Facts to State a Cause of Action
Respondents argue Petitioner has not sufficiently pled a violation of a ministerial duty.
Code of Civil Procedure section 1085, subdivision (a) provides in relevant part:
A writ of mandate may be issued by any court to any inferior tribunal, corporation, board, or person, to compel the performance of an act which the law specially enjoins, as a duty resulting from an office, trust, or station, or to compel the admission of a party to the use and enjoyment of a right or office to which the party is entitled, and from which the party is unlawfully precluded by that inferior tribunal, corporation, board, or person.
A “traditional writ of mandate . . . is a way to compel a public entity to perform a legal, typically, ministerial duty.” (Weiss v. City of Los Angeles (2016) 2 Cal.App.5th 194, 204.)
“There are two essential requirements to the issuance of a traditional writ of mandate: (1) a clear, present and usually 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.) “Generally, a writ will lie when there is no plain, speedy, and adequate alternative remedy . . . .” (Pomona Police Officers’ Ass’n v. City of Pomona (1997) 58 Cal.App.4th 578, 583-584.)
“To obtain a writ of mandate under Code of Civil Procedure section 1085, the petitioner has the burden of proving a clear, present, and usually ministerial duty on the part of the respondent, and a clear, present, and beneficial right in the petitioner for the performance of that duty.” (Marquez v. State Dept. of Health Care Services (2015) 240 Cal.App.4th 87, 103.) “A ministerial duty is one that is required to be performed in a prescribed manner under the mandate of legal authority without the exercise of discretion or judgment.” (County of San Diego v. State of California (2008) 164 Cal.App.4th 580, 593.)
If the duty in question is not ministerial, relief through a traditional writ of mandate is unavailable absent an abuse of discretion. (Mooney v. Garcia (2012) 207 Cal.App.4th 229, 235.)
Respondents argue Petitioner fails to allege a ministerial duty. Respondents argue that Petitioner seeks to compel Respondents to provide rental subsidies to all qualified consumers regardless of whether they participate in SDP. (Id. at Prayer, subd. (B)(ii).) It is true that Respondents have no discretion and have a duty to comply with Lanterman Act. But the duty on how to provide supports and services, including rent payments, is a discretionary duty. (Association for Retarded Citizens v. Department of Developmental Services (1985) 38 Cal.3d 384, 389-390; Welf. & Inst. Code, § 4689, subd. (i).)
Petitioner seeks an order required DSS to:
“ii. Implement the necessary policies, directives, and guidance to provide rental subsidies to all regional center consumers who meet the requirements to receive them, id. § 4639.6;” (Petition at Prayer, para. B.)
Importantly, Petitioner does not seek a court order forcing Respondents to provide rental subsidies to all consumers. Instead, Petitioner seeks an order requiring Respondent to provide such benefit to those who meet the legal requirements to receive them regardless of their program status. Said differently, Petitioner seeks an order requiring Respondents to address each consumer individually with no categorical exclusions or fixed policy. On this point, Petitioner persuasively cites Williams v. Macomber (1990) 226 Cal.App.3d 225 (1990) and Arc v. Department of Developmental Services (1985) 38 Cal.3d 384 (Opposition 11:10-12:17), both of which DSS does not attempt to distinguish in its Reply.
Nonetheless, DSS persuasively argues both federal and state law do not impose a ministerial, mandatory duty upon it. The SDP may fund services and support that “the federal Centers for Medicare and Medicaid Services determines are eligible for federal financial participation.” (Welf. & Inst. Code, § 4685.8, subd. (c)(6).) Federal law prohibits using a consumer’s SDP funds to pay for “room and board,” which includes property related costs like rental of real estate. (42 U.S.C. 1396n, subd. (c)(1).) A duty cannot arise to fund rental subsidies under federal law for where such funding is precluded, and Petitioner identifies no federal law or regulation requiring rental subsidies be provided to SDP participants.
Similarly, state law does not mandate rental subsidies. The Lanterman Act species the SPD shall fund services and support eligible for federal funding. (Welf & Inst. Code § 4685.8, subd. (c)(6).) The decision of whether to provide a consumer with rental subsidies is a discretionary decision under the Lanterman Act. (Welf. & Inst. Code, § 4689, subd. (i)(1).) That such funding is discretionary undermines Petitioner’s claim of duty.
Accordingly, the motion is granted on this basis as well.
Exclusive Remedy
DSS contends Petitioner’s exclusive remedy is through administrative mandate. The court disagrees.
Petitioner’s claim is not merely a challenge to FDLRC’s decision he is not entitled to rental assistance. Petitioner challenges Respondents’ policy on rental assistance and the SDP.
Such a challenge is appropriate for an ordinary mandate claim. (Michelle K. v. Superior Court (2013) 221 Cal.App.4th 409, 423-424.) Contrary to Respondents’ arguments, there are sufficient facts alleged showing an improper broad policy as claimed. (See Opposition 15:1-10 [discussing petition ¶¶ 14, 70, 93].) Finally, Respondents’ characterizations of the relief sought by Petitioner is inaccurate—Petitioner’s prayer is focused on a broad attack on the policy and not the decision after Petitioner’s hearing.
Accordingly, the motion is denied on the grounds administrative mandate is Petitioner’s exclusive remedy.
Leave to Amend
The court denies leave to amend. Petitioner has the burden to show how he might amend the petition to cure the defect. Petitioner does not do so in his briefing, and how he could plead around the mootness issue eludes the court.
CONCLUSION
Based on the foregoing, the motion for judgment on the pleadings is granted without leave to amend. Petitioner’s second cause of action is dismissed.
IT IS SO ORDERED.
August 24, 2022 ________________________________
Hon. Mitchell Beckloff
Judge of the Superior Court