Judge Mitchell L. Beckloff, Case 22STCP02841 2023-01-27 Tentative Ruling

Judge: Mitchell L. Beckloff, Case: 22STCP02841, Date: 2023-01-27 Tentative Ruling

Respondent, the City of Los Angeles, demurs to the verified petition for peremptory writ of mandate. Petitioner, Barbara Riggs, opposes the demurrer. The City did not file a reply.

The City also moves to strike portions of the petition. Petitioner opposes the motion. The City did not file a reply.

The demurrer is sustained as to Petitioner’s Code of Civil Procedure section 1085 claim.

Petitioner’s request for judicial notice is denied. Neither the memorandum from the City Administrative Officer nor the claim for damages are judicially noticeable.

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 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, sustaining 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.)

Petitioner has not labeled her causes of action as required by California Rules of Court, Rule 2.112. Petitioner, according to the face of the petition, seeks both administrative and traditional mandamus. Petitioner confirms those claims in her opposition to the demurrer.

The City contends Petitioner has failed to state a claim for traditional mandate pursuant to Code of Civil Procedure section 1085. The City argues Petitioner has failed to allege facts necessary to support the claim.

Petitioner was a police officer employed by the City. (Pet., ¶ 1.) The City discharged Petitioner “for allegedly failing to comply with the changed conditions of employment pertaining to the new employer-mandated vaccination requirement [the City] imposed on Petitioner.” (Pet., ¶ 5.)

The City argues Petitioner cannot establish she had no plain, speedy, and adequate alternative remedy for her monetary relief claims.[1] The City also asserts Petitioner cannot establish the existence of a nondiscretionary, mandatory ministerial duty imposed on the City related to Petitioner’s discharge after a Board of Rights hearing.

According to the City, Petitioner has improperly alleged within her Code of Civil Procedure 1085 claim violations of the Labor and Government Codes. (Labor Code, §§ 2802, 2804, 1102.5; Gov. Code, § 12940, subd. (a).)

Traditional mandate under Code of Civil Procedure section 1085 is generally used to review an agency’s ministerial acts, quasi-legislative acts, and quasi-judicial decisions which do not meet the requirements for review under Code of Civil Procedure section 1094.5. (Bunnett v. Regents of University of California (1995) 35 Cal.App.4th 843, 848; Carrancho v. California Air Resources Board (2003) 111 Cal.App.4th 1255, 1264-1265.)

“may be issued by any court to . . . to compel the performance of an act which the law specially enjoins, as a duty resulting from an office, trust, or station.” (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.)

Here, the City argues that that Petitioner’s claim for wages could be remedied by an ordinary civil action for damages—citing Tevis v. City and County of San Francisco (1954) 43 Cal.2d 190, 198. The City’s characterization of Petitioner’s claim, however, is inaccurate. Petitioner does not merely seek monetary damages—assuming she seeks something more than backpay—she seeks to set aside her discharge and the Board of Rights’ finding of guilt as well as an order requiring the City to remove any finding of misconduct from her employment records. Petitioner’s claim seeks much more than monetary damages. (Again, it may be the monetary relief sought by Petitioner is merely backpay and other emoluments of her employment.) [2]

Petitioner’s remedies all appear to be available to her through her Code of Civil Procedure section 1094.5 claim. That is, her claim for traditional mandate—without regard to whether she has stated facts to support such a claim—will provide her with all the remedies she seeks in this lawsuit. (Pet., Prayer.) The administrative mandate claim allows her to challenge the process of the administrative proceedings leading to her discharge.

Ordinary mandate under section 1085 is available “where the petitioner has no plain, speedy and adequate alternative remedy; the respondent has a clear, present and usually ministerial duty to perform; and the petitioner has a clear, present, and beneficial right to performance. [Citations.] Where a petition challenges an agency's failure to perform an act required by law rather than the conduct or result of an administrative hearing, the remedy is by ordinary mandate pursuant to . . . section 1085, not by administrative mandate pursuant to section 1094.5. [Citation.]” (Conlan v. Bonta (2002) 102 Cal.App.4th 745, 752.)

Where a party may properly plead both claims for administrative and traditional mandate, as stated, Petitioner has not done so here. (See Conlan v. Bonta, supra, 102 Cal.App.4th at 752.)

Petitioner asserts paragraphs 21 and 23 of the petition demonstrate her entitlement to relief under Code of Civil Procedure section 1085. Paragraph 21 identifies various mandatory, nondiscretionary duties imposed on the City by way of the City of Los Angeles Charter (the Charter) and the Public Safety Officer Procedural Bill of Rights Act (the Act), Government Code section 3300, et seq. Paragraph 23 alleges the City violated Labor Code section 2802, subdivision (a) when it required her to pay for COVID-19 testing while the City considered her religious exemption request.

Even assuming the City violated Labor Code section 2802, subdivision (a), Petitioner’s “illegal” condition claim may be asserted in administrative mandamus as a claim the City failed to proceed as required by law. (Code Civ. Proc., § 1094.5, subd. (b).) Petitioner’s claim is based on the administrative proceeding—she should not have been discharged because the City illegally imposed a condition upon her.

Based on the foregoing, the demurrer is sustained—as to the claim and relief under Code of Civil Procedure section 1085 only—without leave to amend.

Code of Civil Procedure section 436 authorizes a court to “[s]trike out 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.” (Code Civ. Proc., § 436, subd. (b), [emphasis added].) Code of Civil Procedure section 431.10, subdivision (b)(3) defines an “immaterial allegation in a pleading” as “[a] demand for judgment requesting relief not supported by the allegations of the complaint or cross-complaint.” (Emphasis added.)

The City argues items 1 through 5 above are irrelevant to Petitioner’s only viable claim of administrative mandamus—citing Wences v. City of Los Angeles (2009) 177 Cal.App.4th 305, 313. The court disagrees.

While the statutory citations (expressly or implicitly referenced in items 1 through 4) may not directly form the basis of Petitioner’s claim before the court, they do inform on Petitioner’s legal theory. The citations advise how, in Petitioner’s view, the City abused its discretion and/or failed to proceed in the manner required by law. (Pet., ¶ 30.) As such, the motion to strike items 1 through 4 is denied.

As for attorney’s fees, the court cannot find the allegation is irrelevant, false or improper matter. The court cannot determine at this stage of the proceedings Petitioner is not—as a matter of law—entitled to attorney’s fees for this proceeding. (See, e.g., Code Civ. Proc.,

Based on the foregoing, the demurrer is sustained as to Petitioner’s claim for traditional mandate (Code Civ. Proc., § 1085.) The motion to strike is denied.

[1] The court assumes the “monetary claims” relate to Petitioner’s request for backpay. It is not clear from the petition.

[2] Adding the overall lack of clarity of Petitioner’s claims, she reports she filed a “Claim for Damages” on August 24, 2022, with the Clerk for the City of Los Angeles as a prerequisite to filing an “ordinary civil suit.” (Opp. 5:25-26.)