Judge: Theodore R. Howard, Case: 21-1233170, Date: 2022-09-22 Tentative Ruling
A) Second Amended Complaint
Defendant Gavin Newsom’s (“Defendant”) demurrer to plaintiffs Orange County Board of Education (“OCBE”); Children’s Health Defense (“CHD”); and Children’s Health Defense-California Chapter (“CHDCA” individually; Plaintiffs” together with OCBE and CHD) Second Amended Complaint (“SAC”) is SUSTAINED.
A demurrer challenges the defects appearing on the face of the pleading or from other matters properly subject to judicial notice. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) The issue is the sufficiency of the pleading, not the truth of the facts alleged. Thus, no matter how unlikely or improbable, the allegations made must be accepted as true for the purpose of ruling on the demurrer. (Del E. Webb Corporation v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604.) Absent court orders or other items subject to judicial notice, or items attached as exhibits to the complaint, the court may not consider the contents of pleadings or other exhibits when ruling on a demurrer. (Day v. Sharp (1975) 50 Cal.3d 904, 914; Sosinsky v. Grant (1992) 6 Cal.App.4th 1746, 1749.)
“In our examination of the complaint we are guided by the well settled principles governing the testing of its sufficiency by demurrer: A demurrer admits all material and issuable facts properly pleaded. [Citations omitted.] However, it does not admit contentions, deductions or conclusions of fact or law alleged therein. [Citations omitted.]” (Daar v. Yellow Cab Co. (1967) 67 Cal.2d 666, 672.)
Under CCP Section 430.10(e) the test is whether the complaint states any valid claim entitling plaintiff to relief, even if Plaintiff’s cause of action is improperly titled, or an improper remedy is stated. (Quelimane Co., Inc. v. Stewart Title Guar. Co. (1998) 19 Cal.4th 26, 38.)
Defendant demurs to both causes of action (“COA”) as they fail to state sufficient facts to constitute causes of action (Civ. Proc. Code § 430.10(e)) on the bases that 1) Plaintiffs lack standing; 2) the claims are not ripe; 3) Plaintiffs failed to state sufficient facts to entitle them to injunctive or declaratory relief or any relief terminating a duly proclaimed COVID-19 State of Emergency (“SOE”); 4) Plaintiffs fail to show the Emergency Service Act (“Act”) violates the California Constitution; and 5) generally as a whole fail to state sufficient facts constituting causes of action.
1) COA No. 1 – Declaratory and Injunctive Relief re Terminating State of Emergency
Plaintiffs request a judicial declaration and injunctive relief regarding Defendant allegedly violating his duty to terminate the SOE after 06/11/21. (SAC ¶ 48.) Plaintiffs allege, “[a] declaration of the parties’ respective rights and duties will serve the interests of efficiency and judicial economy by minimizing the need for duplicative litigation.” (Id.)
Regarding a SOE and the Act itself, “[t]he Emergency Act empowers the Governor to proclaim a state of emergency when conditions of “extreme peril” caused by, among other things, an “epidemic” are “likely to be beyond the control of the services, personnel, equipment, and facilities of any single county, city and county, or city ....” (§ 8558, subd. (b).) In those circumstances, the Governor has “complete authority over all agencies of the state government and the right to exercise within the area designated all police power vested in the state ... to effectuate the purposes of [the Emergency Act].” (§ 8627.) Police power includes “the power to legislate.” [Emphasis added.] (Newsom v. Superior Court (2021) 63 Cal.App.5th 1099, 1113.) Thus, under the Emergency Act the Governor may “make, amend and rescind orders and regulations” which “shall have the force and effect of law” and take effect immediately. (§ 8567, subd. (a).)” (640 Tenth, LP v. Newsom (2022) 78 Cal. App. 5th 840, 852.)
The state legislature empowered the Governor with the power to issue an SOE as long as Defendant found the circumstances described in Gov’t Code § 8558(b) exist and the Governor finds local authority is inadequate to cope with the emergency (in this instance). (Gov’t. Code § 8625.) Under Gov’t Code § 8558(b), ““State of Emergency” means the duly proclaimed existence of conditions of disaster or of extreme peril to the safety of persons and property within the state caused by conditions . . . epidemic . . . which, by reason of their magnitude, are or are likely to be beyond the control of the services, personnel, equipment, and facilities of any single county, city and county, or city and require the combined forces of a mutual aid region or regions to combat. . .” (Id.)
“During a state of emergency the Governor shall, to the extent he deems necessary, have complete authority over all agencies of the state government and the right to exercise within the area designated all police power vested in the state by the Constitution and laws of the State of California in order to effectuate the purposes of this chapter. In exercise thereof, he shall promulgate, issue, and enforce such orders and regulations as he deems necessary, in accordance with the provisions of Section 8567.” [Emphasis added.] (Gov't Code § 8627.) Defendant has been given broad and complete authority over SOE in California, which includes all agencies of the state government and the ability to enforce such orders and regulations Defendant deems necessary. (Gov't Code § 8627.) Under the Act, Defendant has been given the both power to determine when to institute an SOE and when to terminate an SOE. (Gov't Code §§ 8625 and 8629.)
Regarding ending an SOE, under Gov’t. Code § 8629, “[t]he Governor shall proclaim the termination of a state of emergency at the earliest possible date that conditions warrant. All of the powers granted the Governor by this chapter with respect to a state of emergency shall terminate when the state of emergency has been terminated by proclamation of the Governor or by concurrent resolution of the Legislature declaring it at an end.” [Emphasis added.] (Gov't Code § 8629.)
Again, Plaintiffs seek a judicial declaration and injunctive relief regarding Defendant’s alleged duty to terminate an SOE. “ ’ “To obtain an injunction, a party must show injury as to himself.” [Citation.] Likewise, where declaratory relief is sought, there must be an “actual controversy relating to the legal rights and duties of the respective parties.” (Code Civ. Proc., § 1060.) “[T]he fact that an issue raised in an action for declaratory relief is of broad general interest is not enough for the courts to grant such relief in the absence of a true justiciable controversy [citations].” ‘ “ (People ex rel. Becerra v. Superior Ct. (2018) 29 Cal. App. 5th 486, 496 (“Becerra”).)
In the present matter, Plaintiffs allege OCBE is, “in an irreconcilable position where they must choose between complying with the ever-changing directives from state public health officials, in violation of the constitutional rights of their students, or upholding the Constitution by doing what is best for their students, subjecting themselves to criminal culpability, expulsion from office, and loss of funding. OCBE has been adversely affected by emergency government orders that have dictated the conditions under which children in their schools can be educated.” (SAC ¶ 5.) Plaintiffs also alleged that most children in California had to attend school virtually for the 2020-2021 school year, which negatively impacted children, and that children had to wear masks during school, which allegedly stunted their educational and emotional development. (SAC ¶ 23.) Plaintiffs allege, “[t]he OCBE has had to follow mandates from Sacramento that the Board has little information about and which it had no say about. It could lose funding from the State if it defies the mandates.” [Emphasis added.] (SAC ¶ 34.)
The only mandate(s) Plaintiffs have alleged in this matter were from approximately two years ago. Plaintiffs have not alleged mandates regarding virtual school attendance or students wearing masks are still in effect, nor have they alleged any other mandates that Plaintiffs themselves are currently required to abide by, enforce, or which are causing actual harm to Plaintiffs. Plaintiffs have failed to allege any actual or imminent harm (e.g. losing specific forms of funding due to not abiding by mandate XYZ, or incarceration pursuant to Penal Code § XYZ and statements made by Defendant supporting incarceration). Plaintiffs have failed to allege an actual controversy exists regarding any legal rights and duties between Plaintiffs and Defendant. The SAC does not identify how or why the ongoing SOE is injuring Plaintiffs. The SAC has not alleged standing on the part of OCBE as no harm and no controversy regarding any legal rights and duties have been alleged. To the extent that there are some sort of current mandates that presently required to enforce, there might be standing on the part of OCBE, but those have not been pled. There is also a question of ripeness as again, no actual current harm has been pled.
The SAC is also not sufficiently pled to support any sort of standing (or ripeness) on the part CHD and/or CHDCA. The SAC indicates CHD it is a “membership organization incorporated under the laws of the State of Georgia, and headquartered in Peachtree, Georgia.” (SAC ¶ 6.) It was formed to “educate the public about risks and harmful effects of chemical exposures upon prenatal and children’s health and to advocate for social change both legislatively and through judicial action.” (Id.) CHDCA is incorporated under the laws of the State of California and headquartered in Ross, California. (SAC ¶ 7.) The SAC alleges no California SOE mandates that are applicable to an out-of-state entity, nor how an SOE in the State of California can and does affect an entity in the State of Georgia. As to CHDCA, which is a California based entity and which might in theory be able to be affected in some way by the California SOE, the SAC does not allege how the SOE affects CHCA specifically. Additionally, there are no allegations of any injury to CHD/CHDCA as a result of the SOE, or any rights or duties that are at issue between CHD/CHDCA and Defendant. The SAC is largely silent as to any facts regarding CHD/CHDCA and Defendant’s arguments regarding lack of standing are well taken.
To the extent the SAC alleges CHD/CHDCA “represent” parents (SAC ¶¶ 34, 38), this may be an attempt to allege third-party standing on behalf of members. ““ ‘ As a general rule, a third party does not have standing to bring a claim asserting a violation of someone else's rights. [Citation.]” [Citation.] However, an exception to this general rule applies when “ ‘(1) the litigant suffers a distinct and palpable injury in fact, thus giving him or her a concrete interest in the outcome of the dispute; (2) the litigant has a close relationship to the third party such that the two share a common interest; and (3) there is some hindrance to the third party's ability to protect his or her own interests.” ‘ “ (Becerra, supra, 29 Cal. App. 5th at 499–500.) Even if the parents CHD/CHDCA allege they represent were members, thus meeting the second requirement of “third-party standing,” Plaintiffs have failed to allege the first and third requirements. Again, the SAC is silent as to any distinct and palpable injury to CHD/CHDCA due to the ongoing SOE giving CHD/CHDCA an interest in the outcome. Additionally, the SAC does not allege any hinderance to any specific parent(s) ability to protect their own interest or to join as party of this lawsuit. The SAC fails to state sufficient facts to support CHD/CHDCA’s standing based on third-party representation.
Plaintiffs’ opposition contends CHD/CHDCA have standing as they are, “non-profits dedicated to advocating for the rights of children and parents whose daily activities have been controlled by Sacramento bureaucrats during the pandemic.” (Opposition, 13:23-26; SAC ¶ 6-7.) The type of standing argued in the opposition appears to be a “public interest” standing, which is not proper. ““Notwithstanding the arguments for broad ‘public interest’ standing, though, [the Supreme Court] ha[s] continued to recognize the need for limits” in other cases. (Ibid.) A general “public interest” exception to standing requirements would turn us into a super-legislature, able to overturn a statute enacted by the People's duly elected representatives, despite the absence of any parties who can show that they are being harmed. [¶] It has been said that “[i]f the issue of justiciability is in doubt, it should be resolved in favor of justiciability in cases of great public interest. [Citations.]” [Citation.] A court cannot resort to this rule, however, when it has no doubt that standing is absent.” (Becerra, supra, 29 Cal. App. 5th at 497.) “We are unaware of any case holding that the plaintiff did, in fact, lack standing yet allowing the action to proceed based solely on the public interest.” [Emphasis added.] (Id., at 498.)
“In mandate cases, the Supreme Court has held that “ ‘ “where the question is one of public right and the object of the mandamus is to procure the enforcement of a public duty, the [petitioner] need not show that he has any legal or special interest in the result, since it is sufficient that he is interested as a citizen in having the laws executed and the duty in question enforced.” ’ [Citation.] ... We refer to this variety of standing as ‘public interest standing.’ [Citation.]” [Citation.] [¶] Public-interest standing, however, is available only in a mandate proceeding, not in an ordinary civil action. [Citation.] Here, the complaint does not include a cause of action for a writ of mandate. It is hard to see how it could. A mandate petition must allege that the respondent is failing to perform a ministerial duty. (Code Civ. Proc., § 1085, subd. (a); Orange Unified School Dist. v. Rancho Santiago Community College Dist. (1997) 54 Cal.App.4th 750, 765 [A petition for a writ of mandate pursuant to Code of Civil Procedure section 1085 “must plead facts showing that a public body or official has a clear legal and usually ministerial duty and that the appellant has a beneficial interest in or right to the performance of that duty. [Citations.] A writ of mandate is not available to control the discretion of that public body or official. Although a court may order a public body to exercise its discretion in the first instance when it has refused to act at all, the court will not compel the exercise of that discretion in a particular manner or to reach a particular result.”) “ ‘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.’ [Citation.]” [Emphasis added.] (Becerra, supra, 29 Cal. App. 5th at 503.) “Mandamus will lie to compel a public official to perform an official act required by law. (Code Civ. Proc., § 1085.) Mandamus will not lie to control an exercise of discretion, i.e., to compel an official to exercise discretion in a particular manner. Mandamus may issue, however, to compel an official both to exercise his discretion (if he is required by law to do so) and to exercise it under a proper interpretation of the applicable law.” (Common Cause v. Bd. of Supervisors (1989) 49 Cal. 3d 432, 442.)
As there is no COA for a writ of mandate and as ending a SOE is not ministerial but lies solely within the discretion of Defendant (Gov't Code § 8627; Ministerial duty is, “[a] duty that requires neither the exercise of official discretion nor judgment” (DUTY, Black's Law Dictionary (11th ed. 2019).), Plaintiffs have failed to plead public-interest standing. The SAC failed to plead sufficient facts supporting standing on the part of CHD/CHDCA.
COA No. 1 for Declaratory and Injunctive Relief re Terminating State of Emergency does not state sufficient facts to support a COA generally, on standing, or on ripeness.
The Demurrer is SUSTAINED as to this COA.
2) COA No. 2 – Declaratory and Injunctive Relief re Constitutionality of Emergency Services Act
The same issues present in COA No. 1 are present for COA No. 2 and the analysis discussed above applies here as well.
COA No. 2 for Declaratory and Injunctive Relief re Constitutionality of Emergency Services Act does not state sufficient facts to support a COA generally, on standing, or on ripeness.
The Demurrer is SUSTAINED as to this COA.
3) Request to Take Judicial Notice
The court takes judicial notice of Defendant’s Exs. 1 through 57 pursuant to Evid. Code § 452(b) and/or (c).
B) Complaint-in-Intervention
Defendants’ demurrer to plaintiffs-in-Intervention Rocklin Unified School District and Golden Valley Unified School District’s (“Districts” together) Complaint-in-Intervention (“CII”) is SUSTAINED.
The court must first note that in granting Districts’ Motion for Leave to Intervene, the court ordered Districts to file their CII within five-days of the hearing and to include the exhibits that had been left out of the proposed CII. (ROA #194.) Districts failed to file their CII within the timeframe ordered by the court. Instead, Districts did not file their CII until 28-days after it was due and only after the demurrer and opposition had been filed. (ROA #226.) Districts also failed to file the exhibits with the CII as ordered by the court. It appears Defendant at some point did receive a copy of the CII and was able to prepare a responsive pleading, however, Districts are warned to abide by the court’s rulings or the court will consider sanctions against Districts up to and including dismissal of Districts’ claims against Defendant.
As to the demurrer, the CII and the SAC are identical with the exception that Districts were added as parties. (CII ¶¶ 8-9.) The arguments in the CII demurrer and the SAC demurrer are by and large the same as well, with some additional arguments that do not change the court’s opinions regarding sufficiency of the allegations. Districts, as school districts in their respective cities, are in the same position as OCBE, and the CII fails for the same reasons the SAC failed as to OCBE (supra). The CII fails to state sufficient facts to support either COA generally, on standing, and on ripeness.
The demurrer to the CII is SUSTAINED with leave to amend.
Plaintiffs and Districts are given leave to filed a Third Amended Complaint within 10-days of the hearing, which is 10/03/22. The court also sets an OSC Re Dismissal of Claims for 10/06/22. If Plaintiffs/Districts timely file amended pleadings, the OSC will be taken off calendar. If Plaintiffs/Districts fail to file amended and complete pleadings by 10/03/22, the court will presume the parties have abandoned their claims and dismiss this action.
Counsel for Defendants to give notice.