Judge Mitchell L. Beckloff, Case 22STCP03042 2023-03-15 Tentative Ruling

Judge: Mitchell L. Beckloff, Case: 22STCP03042, Date: 2023-03-15 Tentative Ruling

Respondent, the City of Los Angeles, demurs to the verified petition for peremptory writ of mandate. Petitioner, Natalie Stringer, opposes the demurrer.

The City also moves to strike portions of the petition. Petitioner opposes the motion.

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

After the parties completed briefing on the motions, Petitioner filed a request for judicial notice. Petitioner requests the court take judicial notice of the Statement of Decision filed on September 30, 2022, in Los Angeles Police Protective League v. City of Los Angeles, LASC No. 21STCV39987[1] as well as Los Angeles City Council File No. 21-0921. The court denies the request on relevance grounds. Given that the request followed briefing, it is not clear how Petitioner intends to rely on the documents for these motions if the court judicially noticed them.

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 advises her petition contains two causes of action.[2] First, Petitioner alleges a cause of action under Code of Civil Procedure section 1094.5 requesting the City’s decision to terminate her employment after a Board of Rights hearing be set aside. She contends the City’s decision is contrary to law and unsupported by the evidence. Petitioner brings her second cause of action under Code of Civil Procedure section 1085 seeking an order “compelling [the City] to perform an act which the law specifically requires and to compel her admission to the use and enjoyment of the statutory rights spelled out in her Verified Petition.” (Opposition 4:11-15.)

The City contends Petitioner has failed to state a claim for traditional mandate under Code of Civil Procedure section 1085. Specifically, the City contends Petitioner cannot identify a ministerial, mandatory, nondiscretionary duty related to her discharge after a board of rights hearing. In addition, the City asserts Petitioner has a plain, speedy and adequate remedy at law for the monetary relief (backpay) she seeks. (See Pet., Prayer at ¶ 1. (a).)

“Petitioner . . . seeks to bootstrap claims for monetary relief into a section 1085 cause of action based upon alleged violations of Labor Code sections 2802, 2804, and 1102.5 and Government Code section 12940, subdivision (a) which are improper and not related to a mandamus cause of action.” (Demurrer 4:12-15.)

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 any . . . 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.)

Traditional mandate under Code of Civil Procedure 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.)

Here, the City argues that that Petitioner’s claim for wages could be remedied by an ordinary civil action for backpay—citing Tevis v. City and County of San Francisco (1954) 43 Cal.2d 190, 198. The City contends given Petitioner’s ability to proceed with a civil action against it, Petitioner cannot demonstrate she has no plain, speedy, and adequate alternative remedy at law. (Demurrer 5:10-14.) The City explains:

“In mandamus proceedings involving claims for wages by municipal employees or other remedy equivalent to a claim for monetary damages, it is generally held that an ordinary civil action for damages is adequate, and a writ of mandate will be denied. [Citation.]” (Demurrer 4:27-5:1.)

Petitioner’s monetary claim, however, does not merely concern backpay. Petitioner’s entitlement to backpay turns on her ability to demonstrate the City erred when it terminated her at the conclusion of the City’s administrative proceeding. Thus, Petitioner’s backpay claim is properly considered as part of her remedy in administrative mandate under Code of Civil Procedure section 1094.5. (Davis v. Los Angeles Unified School Dist. Personnel Com. (2007) 152 Cal.App.4th 1122, 1133. [“Back pay serves to make an employee whole for the employer’s wrongdoing.”] See also Code Civ. Proc., § 1095.)

Petitioner’s reliance on the Labor Code, Government Code, City of Los Angeles Charter and any applicable memorandum of understanding may all be asserted in her claim under Code of Civil Procedure section 1094.5 to demonstrate the City failed to proceed as required by law. (Code Civ. Proc., § 1094.5, subd. (b).) There is no need to assert them pursuant to Code of Civil Procedure section 1085. Petitioner’s claim is based on the administrative proceeding—she should not have been discharged because the City illegally imposed a condition on her.

Under certain circumstances, a petitioner may properly pled both claims for administrative and traditional mandate. Petitioner has not done so here, however. (See Conlan v. Bonta (2002) 102 Cal.App.4th 745, 752.) Accordingly, the demurrer is sustained—as to the claim under Code of Civil Procedure section 1085 only—without leave to amend. Petitioner may pursue her claim for backpay as a remedy through her Code of Civil Procedure section 1094.5 claim.

The City also moves for an order striking the following allegedly irrelevant or improper matters inserted into the petition:

1. On the face page of the petition (on the right side at about lines 13 through 14), the following clauses: “Labor Code §§ 2802, 2804, and 1102.5; Los Angeles City Charter § 1070.”

2. The entirety of paragraph 24 at page 6, at about lines 23 through 28, regarding allegations of violations of Labor Code section 2804 – specifically, the last sentence of the paragraph that states: “Additionally, employers who fire employees because they invoke their rights under California law can be liable for wrongful termination.”

3. The entirety of paragraph 25 at page 7, at about lines 1 through 10, regarding allegations of violations of Labor Code sections 2802, subdivision (a) and 1102.5, subdivision (c).

4. The entirety of paragraph 26 at page 7, at about lines 13 through 19, regarding allegations of violations of Government Code section 12940, subdivision (a).

5. As to the prayer, the entirety of paragraph 2 at page 9, at about lines 9 through 12, regarding an award of attorney’s fees.

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).) 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.”

The City argues items 1 through 5 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, the statutes inform on Petitioner’s legal theory. That is, the statutes relate to the City’s alleged abused of discretion and/or demonstrate how the City failed to proceed in the manner required by law. (Pet., ¶ 24-27, 28.) As such, the motion to strike is properly denied. The material is not improper or irrelevant.

Similarly, Petitioner’s prayer for attorney’s fees is not irrelevant, false or improper matter given the early stage of these proceedings. The court cannot determine today that Petitioner is not—as a matter of law—entitled to attorney’s fees for this proceeding. (See Code Civil Proc., § 1021.5)

The City’s demurrer as to Petitioner’s Code of Civil Procedure section 1085 claim is sustained without leave to amend.

[1] The court acknowledges the petition makes certain allegations related to the lawsuit. (See Pet., ¶ 9.

[2] As acknowledged by Petitioner in her opposition to the demurrer, the petition fails to label the causes of action as required by California Rules of Court, Rule 2.112.