Judge Mitchell L. Beckloff, Case 22STCP00098 2023-01-20 Tentative Ruling

Judge: Mitchell L. Beckloff, Case: 22STCP00098, Date: 2023-01-20 Tentative Ruling

[Tentative] ORDER OVERRULING IN PART RESPONDENT’S DEMURRER TO THE SECOND AMENDED PETITION

[Tentative] ORDER STAYING THE MOTION TO STRIKE PORTIONS OF THE SECOND AMENDED PETITION

This proceeding arises out of an alleged denial of a reasonable accommodation request for a school psychologist, Petitioner, Diane Albertoni, who wishes to work remotely. Respondent, Los Angeles Unified School District, demurs to the second amended petition (SAP). Respondent also moves to strike allegations supporting a claim[1] for punitive damages and a prayer for attorney fees.

Petitioner opposes the demurrer with a late filed opposition. The court nonetheless considers the opposition. Petitioner has not opposed Respondent’s motion to strike.

On its own motion, the court stays the proceedings on Petitioner’s second cause of action, a non-writ claim.

Respondent is free to restore the demurrer as to the second cause of action and the motion to strike upon reassignment to an independent calendar court after resolution of Petitioner’s writ claims.

Petitioner is 63 years old and is employed by Respondent as a school psychologist at Edison Middle School. (SAP ¶¶ 1-2, 24.)

A school psychologist with Respondent can have many responsibilities; some of those responsibilities may include administering Respondent’s approved standardized tests to assess whether a child has special needs. Such testing requires the preparation of a written report. (SAP ¶¶ 26-35.) The written reports are frequently drafted off-site. (SAP ¶ 35.) As a matter of standard practice, school psychologists prepare the written report without having seen the student. (SAP ¶ 46.) Such off-site assessment is a “remote assessment.” (SAP ¶ 44.)

Respondent operates a virtual online school called the City of Angels.[2] (SAP ¶ 49.)

In June 2021, Petitioner worked under a reasonable accommodation granted by Respondent through June 30, 2021. (SAP ¶ 2.) On July 27, 2021, Respondent denied Petitioner’s second request for reasonable accommodation. (SAP ¶¶ 6-7, Ex. 2.)

Petitioner appealed the denial of reasonable accommodation, but that denial was affirmed. (SAP ¶ 8.)

Petitioner alleges Respondent committed numerous errors when it considered her second accommodation request. More specifically, Petitioner contends Respondent denied her a fair hearing and prejudicially abused its discretion because Respondent’s decision is not supported by the findings and the findings are not supported by the evidence. (See SAP ¶¶ 7, 11-20, 51-87.)

Petitioner obtained a right to sue letter from the Department of Fair Employment and Housing. (SAP ¶ 88, Ex. 3.)

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.)

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.)

Respondent demurs to the SAP on the grounds Petitioner (1) has failed to state a claim under Code of Civil Procedure sections 1085 and 1094.5, (2) has an adequate alternative remedy at law, (3) failed to comply with the government tort claim requirements thereby barring her claims, (4) failed to allege a duty for her negligence claim, and (5) is “hopelessly vague” with her declaratory relief claim. (Dem. 5:20-6:11.)

Petitioner seeks relief through traditional mandate under Code of Civil Procedure section 1085 or administrative mandate under Code of Civil Procedure section 1094.5.

“may be issued by any court to any . . . board . . . 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 such inferior tribunal, corporation, board, or person.” (Code Civ. Proc., § 1085, subd. (a).)

“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 “a public functionary is required to perform in a prescribed manner in obedience to the mandate of legal authority, without regard to his or her own judgment or opinion concerning the propriety of such act.” (Association of Deputy District Attorneys for Los Angeles County v. Gascon (2022) 79 Cal.App.5th 503, 528 [cleaned up].) “Mandamus does not lie to compel a public agency to exercise discretionary powers in a particular manner, only to compel it to exercise its discretion in some manner.” (California Public Records Research, Inc. v. County of Yolo (2016) 4 Cal.App.5th 150, 177.)

Additionally, a traditional writ of mandate will only issue when a petitioner has no plain, speedy, or adequate remedy at law. (Agosto v. Board of Trustees of the Grossmont-Cuyamaca Community College Dist. (2010) 189 Cal.App.4th 330, 336.) “A writ of mandate must not be issued where the petitioner’s rights are otherwise adequately protected.” (Ibid.)

Petitioner does not identify any ministerial duty with which Respondent failed to comply. Instead, Petitioner alleges Respondent undertook a discretionary decision-making process when it evaluated Petitioner’s request for accommodation. Respondent considered Petitioner’s request in the context of the requirements of Petitioner’s position and then decided the issue based on its evaluation the facts. (SAP ¶ 6, Ex. 2.) Respondent denied the accommodation and explained:

“After reviewing and taking into consideration all the documentation you submitted as part of your request, the information you presented during the meeting, and reviewing alternate accommodations, the Committee, unfortunately, is unable to approve your request to continue to work remotely from home, while you observe students via Zoom as a proper assessment of a student needs to be done face-to-face. Your request for another psychologist to perform a part of your essential function of assessment of a student, while you observe the student and psychologist via the internet is not a reasonable accommodation.” (SAP, Ex. 2.)

Petitioner alleges—not a violation of mandatory, ministerial duty and nondiscretionary duty—but a disagreement with Respondent’s discretionary decision.

That is, Petitioner does not show any mandatory duty compelling Respondent under the facts alleged to grant a reasonable accommodation. Nor does Petitioner otherwise identify any statute or ordinance defining specific duties or a course of conduct Respondent was required to follow. Petitioner’s allegations are insufficient to state a claim under Code of Civil Procedure section 1085.

Further, according to the demurrer, the SAP contains allegations that appear to allege Respondent:

“did not follow its policy in evaluating Plaintiff’s request for a reasonable accommodation to her detriment for the following reasons: prior to the committing meeting, there was no determination that an accommodation cannot be made at the local work site [Petition, ¶ 11]; the School District did not identify any potential accommodations or document the results of that discussion [Petition, ¶ 12]; the School District should have considered whether Plaintiff could work at an alternative work site [Petition, ¶ 13]; Plaintiff was unaware that the School District gathered information related to her request outside of her presence [Petition, ¶¶ 14-16]; Plaintiff was not invited to hear what others said about her request or ask them questions [Petition, ¶¶ 17, 20]; those that provided further information did not provide that information under oath [Petition, ¶¶ 18, 19]; the statements provided by others were not transcribed [Petition, ¶ 19]; and Plaintiff did not have an opportunity to respond to that information [Petition, ¶ 20]” (Dem. 8:14-25.)

While the court previously ruled the Policy does not contain ministerial duties but duties that require an exercise of discretion or judgment. Nonetheless, the court need not reevaluate its prior determination because traditional mandamus will not lie where, as here, Petitioner has an alternative remedy at law.

First, Respondent notes Petitioner is, in fact, pursuing her alterative remedy; Petitioner has sued Respondent for damages stemming from the denial of her request for an employment accommodation. (Dem. 11:17-19; SAP ¶¶ 94-100 (second cause of action); see also SAP ¶ 91, Ex. 4 [FEHA right-to-sue].) More importantly, however, Petitioner has a legal remedy through the Fair Employment and Housing Act to compel Respondent to “evaluate and implement accommodations that are reasonable and necessary . . . .” (Gov. Code, § 12965, subd. (d).)

Petitioner’s concern “being required to work under conditions which petitioner’s doctors indicate are dangerous to petitioner’s life and health, or else lose health and retirement benefits, is not a situation that can be remedied in law if petitioner should die,” does not address the relief she seeks through traditional mandate—an order compelling Respondent to “evaluate and implement accommodations that are reasonable and necessary . . . .” (Opposition 7:27-8:2; SAP, Prayer ¶ 2.)

Accordingly, Petitioner’s first cause of action to the extent it is based on Code of Civil Procedure section 1085 fails because Petitioner has an alternative “adequate remedy, in the ordinary course of law.” (Code Civ. Proc. § 1086.)

On the same allegations, Petitioner seeks relief pursuant to Code of Civil Procedure section 1094.5. Petitioner claims Respondent did not provide her with a fair hearing. She also contends Respondent prejudicially abused its discretion because the evidence does not support the findings and the findings do not support Respondent’s decision.[3]

Under Code of Civil Procedure section 1094.5, “a petition seeking a writ of administrative mandate must show the agency . . . (1) acted without, or in excess of, its jurisdiction, (2) deprived the petitioner a fair administrative hearing, or (3) committed a prejudicial abuse of discretion.” (Doe v. Regents of University of California (2021) 70 Cal.App.5th 521, 532.)

Respondent argues Petitioner “has not met the legal standard for the issuance of a writ of mandate under Code of Civil Procedure section 1094.5.” (Dem. 9:25-26.) Of course, the court cannot determine until it conducts a trial whether Petitioner can meet the legal standard to obtain relief. The court finds for purposes of demurrer, Petitioner has sufficiently alleged ultimate facts that state a claim for relief in administrative mandamus. As noted, Petitioner alleges numerous procedural and substantive errors by Respondent when it considered her second reasonable accommodation request. (SAP ¶¶ 7,11-17, 19-20, 51-87; Dem. 8:14-25.) The demurrer is overruled.

[More importantly, the parties should be prepared to discuss whether Respondent’s decision is subject to review under Code of Civil Procedure section 1094.5. That is, was Respondent’s decision “made as the result of a proceeding in which by law a hearing is required to be given, evidence is required to be taken, and discretion in the determination of facts is vested in the . . . board . . . .” (Code Civ. Proc., § 1094.5, subd. (a).) If not, the matter is properly not heard in administrative mandamus. Additional briefing may be required.]

The demurrer alleges that Petitioner’s claim seeking compensatory and punitive damages is barred by Petitioner’s failure to comply with the Government Tort Claims Act. Respondent’s argument applies to Petitioner’s claim for damages, a non-writ claim. Accordingly, this claim is stayed until resolution of Petitioner’s writ claim. The court makes no determination on Respondent’s demurrer to the second cause of action.

With respect to the third cause of action, Respondent argues although Plaintiff appears to seek a declaration, she “never defines what she is seeking.” (Dem. 13:4-5; see also SAP ¶ 102.) Respondent argues as a result, “the cause of action is hopelessly uncertain and ambiguous, and on that basis, the demurrer should be sustained.” (Dem. 13:10-12.)

“Any person interested under a written instrument, excluding a will or a trust, or under a contract, or who desires a declaration of his or her rights or duties with respect to another, or in respect to, in, over or upon property, or with respect to the location of the natural channel of a watercourse, may, in cases of actual controversy relating to the legal rights and duties of the respective parties, bring an original action or cross-complaint in the superior court for a declaration of his or her rights and duties in the premises, including a determination of any question of construction or validity arising under the instrument or contract . . . .”

The court, in liberally construing the pleadings (as it must), finds Petitioner has adequately stated a claim for relief seeking a declaration that Respondent could have made the reasonable accommodations Petitioner sought. Thus, the demurrer is unpersuasive and overruled. (The court notes, however, the claim is duplicative of Petitioner’s claim under Code of Civil Procedure section 1094.5.)

Respondent moves to strike Petitioner’s allegations alleging punitive damages and the request for attorney fees.

Civil Code section 3294 authorizes punitive damages upon a showing of malice, fraud, or oppression, which are defined as follows:

(1) “Malice” means conduct which is intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others.

(2) “Oppression” means despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person’s rights.

(3) “Fraud” means an intentional misrepresentation, deceit, or concealment of a material fact known to the defendant with the intention on the part of the defendant of thereby depriving a person of property or legal rights or otherwise causing injury.

Punitive damages thus require more than the mere commission of a tort. (See Taylor v. Superior Court (1979) 24 Cal.3d 890, 894-95.) Specific facts must be pled in support of punitive damages. (Hillard v. A.H. Robins Co. (1983) 148 Cal.App.3d 374, 391-392.)

Here, the court notes the request for punitive damages arises from the tort claim. As the court has stayed the tort claim, it is appropriate to stay the motion to strike punitive damages.

Code of Civil Procedure section 1033.5, subdivision (a)(10)(A) through (C), allows recovery of attorney fees as costs only when authorized by contract, statute or law.

Petitioner has alleged no applicable contract, statute or law permitting her to recover attorney’s fees. Petitioner also failed to oppose the motion and therefore does not argue otherwise. As the court has stayed the litigation of certain claims, the court is not inclined to strike this relief which may be appropriate as to Petitioner’s stayed claim.

Based on the foregoing, the demurrer to the SAP is overruled as to the first and third causes of action and stayed as to the second cause of action. The motion to strike is also stayed.

[The court will address the need for further briefing on Code of Civil Procedure section 1094.5 during the hearing.]

[1] Petitioner’s prayer does not include a prayer for punitive damages, but the body of the SAP indicates Petitioner is seeking such relief. (SAP ¶ 98.)

[2] The SAP misspells Angels as “Angles.”

[3] Petitioner also asserts in paragraph 12 of the SAP Respondent’s Reasonable Accommodation Committee lacked jurisdiction because Petitioner’s supervisor did not complete her duties under Respondent’s policy.