Judge: Mitchell L. Beckloff, Case: 22STCP00098, Date: 2022-07-27 Tentative Ruling

Case Number: 22STCP00098    Hearing Date: July 27, 2022    Dept: 86

ALBERTONI v. LOS ANGELES UNIFIED SCHOOL DISTRICT

Case Number: 22STCP00098

Hearing Date: July 27, 2022

[Tentative]       ORDER SUSTAINING RESPONDENT’S DEMURRER TO THE FIRST AMENDED PETITION (WRIT CLAIM ONLY)

[Tentative]       ORDER STAYING CAUSES OF ACTION FOR DECLARATORY RELIEF, DAMAGES AND THE RELATED MOTION TO STRIKE PENDING RESOLUTION OF WRIT OF MANDATE CLAIM

This action arises out of an alleged denial of a reasonable accommodation request for a school psychologist who wishes to work remotely because of medical concerns.

On March 17, 2022, Petitioner/Plaintiff, Diane Albertoni, filed her first amended petition (1AP) against Respondent/Defendant, Los Angeles Unified School District (LAUSD), asserting causes of action for: (1) declaratory relief and (2) damages. While the 1AP is styled as a petition for writ of mandate with related causes of action, there is no express writ claim alleged. The 1AP’s prayer does request a court order requiring LAUSD “to allow petitioner to work off-site . . . .” (1AP, Prayer ¶ 1.)

LAUSD demurs to the 1AP for three reasons: First, LAUSD contends both causes of action are uncertain. Second, LAUSD asserts the first cause of action does not set forth sufficient facts to state a cause of action. Finally, LAUSD claims this court lacks jurisdiction as to the second cause of action.

LAUSD also moves to strike allegations supporting a claim[1] for punitive damages and Petitioner’s prayer for attorney fees.

Petitioner opposes the demurrer. Petitioner did not oppose LAUSD’s motion to strike.

LAUSD’s Request for Judicial Notice of Los Angeles Unified School District Policy Bulletin entitled “Reasonable Accommodation for Individuals with Disabilities,” BUL-4569.1, dated June 9, 2014, is granted.

The demurrer is sustained as to Petitioner’s request for writ relief.

Petitioner’s causes of action for declaratory relief (which appears unrelated to a purported writ of mandate claim) and damages are stayed pending resolution of Petitioner’s writ claim. Such causes of action are properly tried in an independent calendar court. The court makes no ruling on Respondent’s demurrer to those causes of action. Respondent’s demurrer as to those causes of action is stayed pending reassignment to an independent calendar court.

The motion to strike is also stayed pending resolution of Petitioner’s writ of mandate claim as it pertains to Petitioner’s damages claim.

ALLEGATIONS IN THE 1AP

Petitioner is 62 years old. Petitioner works for LAUSD as a school psychologist at the Edison Middle School. (1AP ¶¶ 1-2.)

School psychologists for LAUSD can have many responsibilities. For example, a school psychologist may prepare a written report about a student based on information in the student’s file. (Id. ¶¶ 4-11.) Such reports are frequently prepared off-site and do not require the psychologist to see the student. (Id. ¶ 11.) School psychologists may prepare written evaluations without personally seeing or testing the subject student. (Id. ¶ 16.) Preparing written evaluations offsite is termed a “remote assessment.” (Id. ¶ 17.)

LAUSD has a virtual online school called City of Angels. (Id. ¶ 20.)

Due to medical problems and as recommended by her doctors, Petitioner requires offsite work to avoid contact with others. Petitioner therefore applied for a reasonable accommodation to work offsite in July 2021. (Id. ¶¶ 22-23.) Petitioner could perform all typical tasks of LAUSD’s psychologists except for observing students even though she would be working offsite. (Id. ¶ 23.)

On July 27, 2021, LAUSD denied Petitioner’s application for reasonable accommodation. (Id. ¶¶ 24-25; Ex. 1.)

The reasonable accommodation application process included a committee meeting. According to Petitioner, LAUSD’s committee meeting was unfair because the committee heard from an Administrative Coordinator whom Petitioner did not have an opportunity to challenge. (Id. ¶¶ 26-28.) Petitioner would have challenged the Administrative Coordinator’s testimony opining the primary work of a school psychologist is testing and counseling. (Id. ¶¶ 29-48.)

Petitioner unsuccessfully appealed the denial of reasonable accommodation. (Id. ¶ 49; Ex. 2.)

Petitioner obtained a right to sue letter from the Department of Fair Employment and Housing. (Id. ¶ 50, Ex. 3.)

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STANDARD OF REVIEW

Demurrer

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 to cure the defect. (Association of Community Organizations for Reform Now v. Department of Industrial Relations (1995) 41 Cal.App.4th 298, 302.)

Motion to Strike

Courts may, upon a motion, strike any irrelevant, false, or improper matter inserted in any pleading. (Code Civ. Proc., § 436, subd. (a).) Courts may also strike 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. (Id., subd. (b).) The grounds for moving to strike must appear on the face of the pleading or by way of judicial notice. (Id., § 437.)

ANALYSIS

Petitioner’s objection to the demurrer as unauthorized is overruled. Code of Civil Procedure section 1089 expressly permits LAUSD to file a demurrer.

DEMURRER

Insufficient Facts: Writ of Mandate

LAUSD argues the 1AP’s first cause of action fails to state a cause of action because she has not alleged sufficient facts to state a cause of action. LAUSD contends Petitioner has not met the legal standard for the issuance of a writ of mandate under Code of Civil Procedure section 1085, and Petitioner has an adequate remedy in law.

First, LAUSD alleges Petitioner has not identified any non-discretionary, ministerial duty LAUSD failed to perform.

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, mandate relief is unavailable unless there is abuse of discretion. (Mooney v. Garcia (2012) 207 Cal.App.4th 229, 235.)

Here, the court agrees with LAUSD. Petitioner has failed to allege a non-discretionary, ministerial duty with which LAUSD has failed to comply. Instead, Petitioner’s allegations show LAUSD undertook a discretionary decision-making process where it evaluated Petitioner’s request for accommodation based on the requirements of Petitioner’s position; LAUSD thereafter made a decision about Petitioner’s request based on the facts.

At issue is a discretionary decision by LAUSD. Nothing compelled—in the context of a mandatory duty—LAUSD to grant Petitioner’s request for reasonable accommodation. Petitioner does not identify any statute, ordinance, policy or regulation dictating a particular result. Petitioner’s reliance on LAUSD’s reasonable accommodation bulletin is misplaced. (RJN, Ex. A.) In fact, Petitioner’s allegations demonstrate a meeting occurred, the committee spoke to Petitioner and denied Petitioner’s request. (Pet., ¶¶ 24, 26.) While mandate may lie to require LAUSD to convene a meeting, the court cannot compel the results of the meeting because the court cannot control the exercise of LAUSD’s discretion.

Accordingly, the court sustains the demurrer on the basis Petitioner has failed to identify a non-discretionary mandatory duty with which LAUSD did not comply.

Petitioner also has an adequate remedy at law such that a traditional writ of mandate is not appropriate under these facts. Petitioner received a right to sue letter and her second cause of action is for money damages. Petitioner herself demonstrates she has an adequate remedy at law. To the extent LAUSD has wrongfully denied Petitioner reasonable accommodations, Petitioner may be awarded damages.

Accordingly, the court sustains the demurrer to traditional writ relief on the basis Petitioner has an adequate remedy at law.

CONCLUSION

Based on the foregoing, LAUSD’s demurrer to the 1AP is sustained as to Petitioner’s request for writ relief. Petitioner shall address how she might amend her petition to state a cause of action under Code of Civil Procedure section 1085 at the hearing.

To the extent Petitioner’s claim is merely one declaratory relief and for damages for a violation of FEHA, the causes of action are stayed. The court intends to transfer this matter to Department 1 for reassignment to an independent calendar court upon resolution of Petitioner’s purported writ claim.

IT IS SO ORDERED.

July 27, 2022                                                                          ________________________________

                                                                                                                   Hon. Mitchell Beckloff

                                                                                                                   Judge of the Superior Court