Judge Richard Y. Lee, Case 30-2021-01220678 2022-08-18 Tentative Ruling

Judge: Richard Y. Lee, Case: 30-2021-01220678, Date: 2022-08-18 Tentative Ruling

Plaintiffs/Petitioners, Peggy Hall (“Hall”) and Children’s Health Defense – California Chapter (“CHD-CA”) (collectively, “Petitioners”) apply, pursuant to Code of Civil Procedure, sections 1087 and 1107, for an alternative writ of traditional mandate and administrative mandate directing Respondents, County of Orange (“Orange”) and Orange County Board of Supervisors (“Board”) (collectively, “Respondents”) to:

1. Rescind their Abdication Vote of June 22, 2021 and reclaim their statutory duties under Government Code, section 8630, and/or Health & Safety Code, section 101080, to review local, County conditions to determine whether such conditions warrant terminating the local state of emergency and/or local health emergency (hereinafter collectively “Emergencies”) declared by Respondents on February 26, 2020, and to terminate the local state of emergency and/or local health emergency if such conditions warrant; or

2. To show cause in this Court why Respondents have refused to satisfy their legal duties as the governing authority of the County to both review the local conditions and/or terminate the local emergency and/or local health emergency “at the earliest possible date” conditions warrant.

Petitioners contend that Respondents have a clear, present, ministerial, and mandatory duty to terminate the Emergencies

under Government Code sections 8630(d) and Health and Safety Code section 101080, and that Respondents’ obligation is not discretionary. Specifically, Petitioners contend that Respondents improperly delegated their quasi-legislative authority and statutory duties and failed to satisfy their statutory obligations and ministerial duties by refusing to review local conditions since June 22, 2021, when Respondent Board, as the governing body for Respondent County, voted to abdicate all of its legal duties to assess local conditions and determine whether these justify ongoing declarations of a local emergency and/or local health emergency based on Governor Newsom’s March 4, 2020 proclamation of a state-wide emergency which temporarily suspended the 30 and 60 day intervals in which local governing bodies must review local conditions of emergency (the “Proclamation”). Petitioners argue that the Proclamation did not, and could not remove a local governing body’s affirmative, mandatory duty to review local conditions and/or terminate the Emergencies at the earliest possible dates, and that the Proclamation itself indicates that the local governing body retains this duty to determine when to terminate its respective local emergency.

Petitioners additionally argue that Respondents failed to terminate the Emergencies at the “earliest date” that conditions have warranted, and that Respondents’ delegation of their quasi-legislative authority to review and terminate the Emergencies to the Governor violates the California Constitution’s Separation of Powers and non-delegation doctrine. Petitioners further contend that even if Respondents had discretionary authority to determine when to end the Emergencies, which they do not, Respondents have engaged in arbitrary and capricious decision-making, and abused their discretion, by declaring these Emergencies when no conditions existed justifying it, and then continuing them for reasons not permitted under the applicable statutory provisions.

Respondents contend that this is actually Petitioners’ fourth amended petition; that Petitioners have no right, as a matter of course, to the issuance of a writ ordering Respondents to comply with the relief Petitioners request or to show cause as to why the relief should not be granted; and that the Application should be denied because it is procedurally improper and Petitioners cannot establish that this case is appropriate for writ relief, as briefed in Respondents’ Demurrer filed on 7/5/22 (ROA 111) and set for hearing on 9/22/22 (ROA 112), including lack of standing.

A petitioner has “no right, as a matter of course, to the issuance of [an] alternative writ of mandate.” [Citations.]” (Wine v. Council of City of Los Angeles (1960) 177 Cal.App.2d 157, 164, disapproved on other grounds in The Pines v. City of Santa Monica (1981) 29 Cal.3d 656, 660, 664.) A trial court may properly deny the issuance of a writ where a petitioner does not have standing or the petition fails to show a sufficient basis for the issuance of the requested writ. (Ibid.) An alternative writ or order to show cause is not required to be issued “in every instance in which a timely, procedurally sufficient, but apparently meritless writ petition is filed.” (Landau v. Superior Court (1998) 81 Cal.App.4th 191, 206.)

The Court notes that its Minute Order dated April 14, 2022, sustained a demurrer to Petitioner’s First Amended Petition, with 20 days’ leave to amend, and stated, “Counsel are advised if the defect is not cured, the Court will sustain any further demurrer without leave to amend.” (ROA 58.)

On May 4, 2022, a Second Amended Verified Petition for Writs of Traditional and Administrative Mandate and Complaint for Declaratory and Injunctive Relief (“SAVP”) was filed, adding CHD-CA as a plaintiff/petitioner and adding causes of action. (ROA 63.)

The instant Application for Alternative Writ of Mandate (“Application”) was filed on May 23, 2022. (ROA 71.)

In light of the foregoing, and Respondents’ reference to and reliance on arguments made their Demurrer to the SAVP, the Court CONTINUES the instant Application to September 22, 2022, to be heard concurrently with the Demurrer.

Petitioners to give notice.