Judge Theresa M. Traber, Case 22STCV14001 2022-10-10 Tentative Ruling

Judge: Theresa M. Traber, Case: 22STCV14001, Date: 2022-10-10 Tentative Ruling

Case Number: 22STCV14001 Hearing Date: October 10, 2022 Dept: 47

Tentative Ruling

Judge Theresa M. Traber, Department 47

HEARING DATE: October 10, 2022 TRIAL DATE: NOT SET

CASE: S.J. and H.J., minors, through Nathan J. and Shari E., their guardians ad litem, v. Portola Charter Middle School, et al.

CASE NO.: 22STCV14001

DEMURRER AND MOTION TO STRIKE

MOVING PARTY: Defendant Los Angeles Unified School District

RESPONDING PARTY(S): Plaintiffs S.J. and H.J., minors, through Nathan J. and Shari

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

This is an action for injunctive relief filed on April 27, 2022. Plaintiffs allege that Defendants failed to offer independent study in violation of sections 51745 and 51747 of the Education Code.

Defendant demurs to the Complaint in its entirety and moves to strike portions of the Complaint.

TENTATIVE RULING:

Defendant Los Angeles Unified School District’s Demurrer to the Complaint is SUSTAINED with leave to amend.

Defendant’s Motion to Strike portions of the Complaint is DENIED AS MOOT.

DISCUSSION:

Demurrer to Complaint

Defendant demurs to the Complaint in its entirety for failure to state facts sufficient to constitute a cause of action and for uncertainty.

Legal Standard

A demurrer tests whether the complaint states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.) When considering demurrers, courts read the allegations liberally and in context. (Taylor v. City of Los Angeles Dept. of Water and Power (2006) 144 Cal.App.4th 1216, 1228.) In a demurrer proceeding, the defects must be apparent on the face of the pleading or via proper judicial notice. (Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) “A demurrer tests the pleadings alone and not the evidence or other extrinsic matters. Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed.” (SKF Farms v. Superior Court (1984) 153 Cal.App.3d 902, 905.) “The only issue involved in a demurrer hearing is whether the complaint, as it stands, unconnected with extraneous matters, states a cause of action.” (Hahn, supra, 147 Cal.App.4th at p. 747.) The ultimate facts alleged in the complaint must be deemed true, as well as all facts that may be implied or inferred from those expressly alleged. (Marshall v. Gibson, Dunn & Crutcher (1995) 37 Cal.App.4th 1397, 1403; see also Shields v. County of San Diego (1984) 155 Cal.App.3d 103, 133 [stating, “[o]n demurrer, pleadings are read liberally and allegations contained therein are assumed to be true”].) “This rule of liberal construction means that the reviewing court draws inferences favorable to the plaintiff, not the defendant.” (Perez v. Golden Empire Transit Dist. (2012) 209 Cal.App.4th 1228, 1238.)

Meet and Confer

Before filing a demurrer, the demurring party shall meet and confer in person or by telephone with the party who has filed the pleading subject to the demurrer and file a declaration detailing their meet and confer efforts. (Code Civ. Proc., § 430.41(a).) However, an insufficient meet and confer process is not grounds to overrule or sustain a demurrer. (Code Civ. Proc., § 430.41(a)(4).)

The Declaration of Kelly Kim states that between July 25 and July 28, 2022, the parties met and conferred telephonically and via email correspondence to attempt to resolve the disputes between the parties regarding the sufficiency of the allegations in the Complaint. (Declaration of Kelly Kim ISO Mot. ¶¶ 2-4, Exhs. A-B.) Defendant has therefore complied with the statutory meet and confer requirements.

First Cause of Action: Failure to State Sufficient Facts

Defendant contends that Plaintiff failed to state sufficient facts to support the first cause of action for violation of Education Code sections 51745 and 51747.

Education Code section 51745(a) provides:

Commencing with the 1990–91 school year, a local educational agency may offer independent study to meet the educational needs of pupils in accordance with the requirements of this article. For the 2021–22 school year only, the governing board of a school district or a county office of education shall offer independent study to meet the educational needs of pupils. Educational opportunities offered through independent study may include, but shall not be limited to, the following:

(1) Special assignments extending the content of regular courses of instruction.

(2) Individualized study in a particular area of interest or in a subject not currently available in the regular school curriculum.

(3) Continuing and special study during travel.

(4) Volunteer community service activities and leadership opportunities that support and strengthen pupil achievement.

(5) Individualized study for a pupil whose health would be put at risk by in-person instruction, as determined by the parent or guardian of the pupil, or a pupil who is unable to attend in-person instruction due to a quarantine due to exposure to, or infection with, COVID-19, pursuant to local or state public health guidance.

(Educ. Code § 51745(a).) The Complaint alleges that Defendant failed to provide an independent study program that was substantially equivalent to in-person education because it did not provide an independent study equivalent to an education program for highly gifted students. (See Complaint ¶¶31-38.)

Defendants argue that the Education Code does not require provision of a specialized curriculum to highly gifted students. Defendants argue that the Complaint does not plead specific facts showing in what way the education provided is inadequate, instead merely assuming that, because Defendant did not offer a specialized program for highly gifted students, the independent study program is inadequate as a matter of law. (See Complaint ¶ 38.) For a complaint against a public entity to state a cause of action sufficient to withstand demurrer, every fact material to the existence of its statutory liability must be pled with particularity. (Gonzalez vs. San Diego (1982) 130 Cal.App.3d 882, 890.)

In opposition, Plaintiffs contend that the legal theory of the Complaint is correct, relying upon Education Code section 51476, which states:

It is the intent of the Legislature that school districts and county offices of education offering independent study shall provide appropriate existing services and resources to enable pupils to complete their independent study successfully and shall ensure the same access to all existing services and resources in the school in which the pupil is enrolled pursuant to Section 51748 as is available to all other pupils in the school. In addition, the services and resources may include, but need not be limited to, any of the following:

(a) A designated learning center or study area staffed by appropriately trained personnel.

(b) The services of qualified personnel to assess the achievement, abilities, interests, aptitudes, and needs of participating pupils to determine each of the following:

(1) Whether full-time independent study is the most appropriate placement for the pupil being referred.

(2) If the answer to paragraph (1) is affirmative, the determination of the most appropriate individualized plan and resources to be made available to pupils enrolled in full-time independent study.

(Educ. Code § 51746.) Plaintiffs argue that, as the legal theory of the Complaint is sufficient, Plaintiffs have stated sufficient specific facts by alleging that the District did not provide a specialized program for highly gifted students.

Plaintiffs’ argument is not persuasive. First, as Defendant correctly observes in reply, the use of the word “may” in sections 51745 and 51746 indicates that the Legislature did not mandate the inclusion of any specific services or resources as part of an Independent Study program. Plaintiff cites no precedent nor legislative materials that indicate a contrary interpretation. Furthermore, as Defendant also notes, the Complaint alleges that Plaintiffs last received independent instruction from the City of Angels Program. (Complaint ¶ 46.) Plaintiffs therefore cannot claim to be entitled to an equivalent to programs offered in-person at Portola Charter Middle School under section 51746 because they have admitted in the Complaint that they are no longer enrolled in Portola Charter Middle School. Plaintiff have not shown that Defendant was required to provide a specialized education program for highly gifted students under the Education Code. As this is the entire basis for the Complaint, the Court therefore finds that, for the foregoing reasons, Plaintiffs have failed to state facts sufficient to constitute a cause of action for violation of the Education Code.

First Cause of Action: Uncertainty

Defendant also demurs to the Complaint in its entirety as uncertain.

A demurrer for uncertainty is strictly construed, even where a pleading is in some respects uncertain, because ambiguities can be clarified under modern discovery procedures. (See Khoury v. Maly's of California, Inc. (1993) 14 Cal.App.4th 612, 616.) A demurrer for uncertainty will be sustained only where the pleading is so bad that defendant cannot reasonably respond--i.e., he or she cannot reasonably determine what issues must be admitted or denied, or what counts or claims are directed against him or her. (See Weil & Brown, Civil Procedure Before Trial (The Rutter Group) § 7:85 (emphasis in original).) "The objection of uncertainty does not go to the failure to allege sufficient facts." (Brea v. McGlashan (1934) 3 Cal.App.2d 454, 459.)

Defendant makes no effort to address this ground for the demurrer in its moving papers or reply. Defendant has therefore failed to show that the first cause of action is uncertain.

Second Cause of Action: Declaratory Relief

As Plaintiff’s second cause of action for declaratory relief is entirely contingent on the first cause of action, the second cause of action likewise fails to state facts sufficient to constitute a cause of action as a matter of law, for the reasons stated above.

Leave to Amend

When a demurrer is sustained, the Court determines whether there is a reasonable possibility that the defect can be cured by amendment. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318). When a plaintiff “has pleaded the general set of facts upon which his cause of action is based,” the court should give the plaintiff an opportunity to amend his complaint, since plaintiff should not “be deprived of his right to maintain his action on the ground that his pleadings were defective for lack of particulars.” (Reed v. Norman (1957) 152 Cal.App.2d 892, 900.) Accordingly, California law imposes the burden on the plaintiffs to demonstrate the manner in which they can amend their pleadings to state their claims against a defendant. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 349.) “Denial of leave to amend constitutes an abuse of discretion unless the complaint shows on its face it is incapable of amendment. [Citation.] Liberality in permitting amendment is the rule, if a fair opportunity to correct any defect has not been given." (Angie M. v. Superior Court (1995) 37 Cal.App.4th 1217, 1227.)

Plaintiff has not clearly shown how the allegations in the FAC might be amended to cure the defective causes of action. However, given the liberal presumption in favor of leave to amend, the Court will exercise its discretion to grant Plaintiffs an opportunity to amend the Complaint to allege facts or a legal theory which might entitle them to relief.

Conclusion

Accordingly, Defendant Los Angeles Unified School District’s Demurrer is SUSTAINED with leave to amend.

Motion to Strike

As the Court has sustained Defendant’s demurrer to the Complaint, the Motion to Strike is DENIED AS MOOT.

CONCLUSION:

Accordingly, Defendant Los Angeles Unified School District’s Demurrer to the Complaint is SUSTAINED with leave to amend.

Defendant’s Motion to Strike portions of the Complaint is DENIED AS MOOT.

Moving Party to give notice.

IT IS SO ORDERED.

Dated: October 10, 2022 ___________________________________

Theresa M. Traber

Judge of the Superior Court

Any party may submit on the tentative ruling by contacting the courtroom via email at Smcdept47@lacourt.org by no later than 4:00 p.m. the day before the hearing. All interested parties must be copied on the email. It should be noted that if you submit on a tentative ruling the court will still conduct a hearing if any party appears. By submitting on the tentative you have, in essence, waived your right to be present at the hearing, and you should be aware that the court may not adopt the tentative, and may issue an order which modifies the tentative ruling in whole or in part.