LOZANO SMITH One Capitol Mall, Suite 640 Sacramento, California 95814 Tel 916- 329-7433 Fax 916-329-9050 Facsimile: Attorneys for Respondents BUCKEYE UNION ELEMENTARY SCHOOL DISTRICT, CLOVIS UNIFIED SCHOOL DISTRICT, ELK GROVE UNIFIED . SCHOOL DISTRICT, FOLSOM CORDOVA UNIFIED SCHOOL DISTRICT, MILPITAS UNIFIED SCHOOL DISTRICT, PAJARO VALLEY UNIFIED SCHOOL DISTRICT, DISTRICT, ET AL. Sloan-R. Simmons, State Bar 23375-2 Steve Ngo, State Bar 233317 Anne L. Collins, State Bar 244287 LOZANO SMITH One Capitol Mall, Suite 640 Sacramento, CA 95814 Telephone: (916) 329-7433 (916) 329-9050 LECT RON LCAL LY FILED Superior Court of Caiifomia, County of San Francisco Clerk of the RISK Deputy Clerk SACRAMENTO CITY UNIFIED SCHOOL DISTRICT, SAN JUAN UNIFIED SCHOOL DISTRICT, TULARE CITY UNIFIED SCHOOL DISTRICT, TWIN RIVERS UNIFIED SCHOOL DISTRICT, UNION ELEMENTARY SCHOOL DISTRICT, and WESTERN PLACER UNIFIED SCHOOL DISTRICT SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF SAN FRANCISCO CAL200 and MARC EABIN, . Case NO. CPF-15-514477 MEMORANDUM IN SUPPORT OF DEMURRERS BY RESPONDENTS BUCKEYE UNION ELEMENTARY SCHOOL DISTRICT, CLOVIS UNIFIED SCHOOL DISTRICT, ELK GROVE UNIFIED SCHOOL DISTRICT, FOLSOM C-ORDOVA UNIFIED SCHOOL DISTRICT, MILPITAS UNIFIED SCHOOL DISTRICT, PAJARO VALLEY UNIFIED SCHOOL DISTRICT, SACRAMENTO CITY UNIFIED SCHOOL DISTRICT, SAN JUAN UNIFIED SCHOOL DISTRICT, TULARE CITY UNIFIED SCHOOL DISTRICT, TWIN RIVERS. UNIFIED SCHOOL DISTRICT, UNION ELEMENTARY SCHOOL DISTRICT, AND WESTERN PLACER UNIFIED SCHOOL DISTRICT TO PETITIONERS CALzoo AND MARC PETITION FOR MANDAMUS AND INJUNCTIVE RELIEF Date: March 30, 2016' Time: 9:30 am. - Dept: 302 ReservatiOn'No.: 1 1040330406. (Exempt from ?ling fees under Gov. Code, 6103) Petitioners, vs. APPLE VALLEY UNIFIED SCHOOL Respondents. CALZOO AND. MARC BABIN V. AVUSDET ALL. CASE NO. MEM. IN SUPP..OF .DEMURRERS TO PET. FOR- MANDAMUS LOZANO SMITH One Capitol Mall, Suite 640 Sacramento, California 95814 Te1916- 329-7433 Fax 916-329-9050 my u?A r?i r?d r?t i-?211:: MEMORANDUM TABLE OF CONTENTS TABLE OF AUTHORITIES .. i INTRODUCTION ..1 STATEMENT OF FACTS .. ..1 GOVERNING LAW ..3 ARGUMENT ..4 I. THE COURT IS WITHOUT JURISDICTION TO GRANT PETITIONERS RELIEF DUE TO THEIR FAILURE TO EXHAUST ADMINISTRATIVE REMEDIES AND, FOR THE SAME REASON, PETITIONERS FAIL TO STATE SUFFICIENT FACTS TO SUPPORT A CLAIM FOR RELIEF UNDER THE FIRST CAUSE OF ACTION ..4 A. The UCP Provides an Adequate Administrative Remedy, Which Petitioners Failed to Exhaust. ..5 B. Petitioners Must Fully Exhaust Their Administrative Remedies Once Invoked. ..9 II. THE PETITION FAILS TO STATE FACTS SUFFICIENT TO SUPPORT THE FIRST CAUSE OF ACTION, INSTEAD RELYING ON INFORMATION AND BELIEF. ..11 THE PETITION FAILS TO STATE A CLAIM FOR RELIEF BECAUSE IT DOES NOT ADDRESS THE LEGAL PRINCIPLE THAT THE SUBSTANTIAL COMPLIANCE WITH EDUCATION CODE SECTION 51210 SATISFIES THE .. ..12 . CONCLUSION ..14 mm; min-gm ma Magma as ear. M-?w??miu? masher); AM) mam: mans; amuse Erma." ease-w. err. mar LOZANO SMITH One Capitol Mall, Suite 640 Sacramento, California 95814 i??b-?h?li?l wNv?to Tel 916- 329-7433 Fax 916-329-9050 TABLE 0F AUTHGRITIES Cases Abelleira v. District Court of Appeal (1941) 17 Ca1.2d 4, 5, 7, 9,10 Alta Loma School Dist. v. San Bernardino County Com. on School Dist. Reorganization (1981) 124 Ca1.App.3d 542 ..10 Barratt American, Inc. v. City of San Diego (2004) 117 Cal.App.4th 809 ..4 Bernstein v. Pillar (1950) .98 Ca1.App.2d 44.1 ..3 Bleeck v. State Bd. of Optometry (1971).18 Ca1.App.3d 415 ..4 Bockover v. Perko (1994)-28 Ca1.App.4th 479 ..8 Cal. Correctional Peace Ojftcers Assn. v. State Personnel Bd. (1995) 10 Ca1.4th 1133 ..4, 5, 6 Cal?Air Conditioning, Inc. v. Auburn Union School Dist. 1 (1993) 21 Ca1,App.4th 655 ..13 City of Compton v. Bunner (1988) 197 Cal.app.3d 662 ..7 City of Santa Cruz v. Municipal Ct. (1989) 49 Cal.3d 74 Coachella Valley Mosquito Vector Control Dist. v. Cal. Pub. EmplOyment Relations Bd. (2-005)-35 Ca1.-4th 1072 ..9 County-ofLos Angeles v. Farmers Ins. Exchange (1982) 132 Cal.App.3d 77 ..7 Defend Our Waterfront 1). State Lands Corn. (2015) 240 Cal.App.4th 570' ..5 Doe v. City of Los Angeles Ca12.4th 531 ..11 . Donovan v; Poway Unified School Dist. (2008). 1.67 Ca1.App.4th 567 ..5 Edgren v. Regents of'Univ. ofCal; (1984) 158 Ca1.-App.3d 515 Feitelb'erg v. Credit. Suisse First Boston, LLC (2005) 134 Cal.App.4th 997 ..3 MEM. IN SUPP. OF DEMURRERS TO PET. ii CAL200 AND MARC ET AL.. FOR MANDAMUS CASE NO. LOZANO SMITH One Capitol-Mall, Suite 640 Sacramento, California 95814 Tel 916- 329-7433 Fax 916-329-9050 r?l 00 U1 p?ut ~51 Gay v. Torrance (1904) 145 Cal. 144 ..11 Goodman v. Kennedy (1976) 18 Ca1.3d 335 ..4 . Grossmont Union High School DiSt. v. Cal. Dep ?t of Ed. (2008) 169 Cal.App.4th 869 ..9 Guardianship of Ariana K. (2004) i120 Ca1.App.4th 690 ..3 - Gutierrez v. Super. Ct. (1966) 243 Ca1.App.2d 710 ..12 I Hood v. Hacienda La Puente Uni?ed School Dist. (1998) 65 Cal.App.4th 435 ..4 Kramer v. Intuit (2004) 121 Ca.l.App.4th 574 ..3 La Costa Beach Homeowners Assn. v. Wayne (1979) 89 Ca1.App.3d 327 ..10 Larson v. City of Redondo Beach (1972) 27 Cal.App.3d 332 ..3 McHugh v. County of Santa Cruz (1973) 33 Cal.App.3d 533 ..4 Miller-Leigh LLC v. Henson (2007). 152 Ca1.App.4th 1143 ..3 Morton v. Super. Ct. (1970):9 Ca1.App..3d 977 ..8 . Neilson v. City ofCal. City (2005) 133 Ca1.App.4th Pelegrinelli v..McCloud RiverLumber Co. 593 People v. Beaumont Investment, Ltd. (2003) 1'11 Ca1.A'pp.4th 102 ..4 People v. Carroll (2014): 222 Ca1.App.4th 1406' ..12, 1'3 People V- HOag(2000) 83 Ca1.App.4th 1198 .13 People v, Super. Ct. (Zamudio) (2000) 23 Ca1.4th 183 .. Pridonojj?v. Balokovich . MEM. 1N OF TO PET. CALZOO AND MARC BABIN v. AVUSD ET AL. FOR MANDAMUS CASE: NO. 14477 LOZANO SMITH One Capitol- Mall, Suite 640 Sacramento, California 95814 Tel 916- 329-7433 Fax 916-329-9050 Pulaski 12. Occupational Safety Health Stds. Ed. (1999) 75 Ca1..App.4th 1315 ..13 Rakestraw Cal. Physicians? Service (2000) 81 Ca1.App.4th 39 ..13 Roth v. City of Los Angeles' (1975) 53 Cal.-App.3d 679 ..8 Schifando v. City of Los. Angeles (2003) 31 Ca1.4th 1074 ..5 Serrano v. Priest (1971) 5 Ca1.3d 584 ..3 Star Motor Imports, Inc. v. Super. Ct. (1979) 88 Ca1.App.3d 201 ..11, 12 Tri-County Special Educ. Local Plan Area v. County of uolumne (2004) 123 Ca1.App.4th 56.3 ..4, 8 Unnamed Physician v. Bd. of Trustees of Saint Agnes Med. Ctr. (2001) 93 Ca1.App.4th 607 ..9 Western States Petroleum Assn. 12. Bd. of Equal ization (2013) 57 Ca1.4th 401 ..1-3 Wilkinson v. Norcal Mutual Ins. Co. (1979) 98 Cal.App.3d 307 ..10 Williams v. Housing Authority of Los Angeles (2004) 121 Cal.App.4th 708 ..5 Woodard v; Broadway Fed. S. L. Ass-n. (1.952).111 Ca1.App.2d 218 ..10 Yamaha Motor Corp. Super. Ct, (1986) 185 Ca1.App.3d- 1232 . Young v. Gannon (2002)'97 Cal-.App.-4th 209 Statutes and Regulations- Caliifiomia Code of Regulations Cal. Code Regs, ?t 5, f? 4600 et Seq. ..6, 10 Cal.- Code Regs, tit. 5, ..6 Cal. Code Regs, 5, 4622 ..6 Cal. Code Regs, 5, 4631 ..9 Cal; Code Reg-5., tit. 5, 4631 ..7, 9 Cal. Code Regs? tit. 5, 4632 ..7, 9, 10 Cal; Code Regs, tit. 5, 4633 ..7, 9,10 IN SUP-P. OF DEMURRERS TO PET. FOR MANDAMUS iv CAL200 AND MARC BABIN v. AVUSD ET AL. CASE NO. LOZANO SMITH One Capitol Mall, Suite 640 Sacramento, California 95314 Tel 916- 329-7433 Fax 916-329-9050 Ln p?I ?3.16 00.x) ON 121 A 14.) $43 22 2-3 2.4 25. 26- 327 1?28 45- 99.1.9 ?40 Code of Civil Procedure Code Civ. Proc., 430.10 ..3, 14 Code Civ. Proc., 1086 ..11 Education Code 5 Ed. Code, 51210 "1,2,15,13, 14 M'Egvi; Aim MARE 811131151 11111113111111.113me mm $514413; LOZANO SMITH One Capitol Mall, Suite 640 Sacramento, California 95814 MEMORANDUM OF POINTS AND AUTHORITIES On or about September 11, 2015, Petitioners ?led their Petition in San Francisco County Sliperior COurt against the Districts and 75 other school district respondents located throughout the State, as well as the California Department of Education and 200 Does, seeking mandamus and i-njunctive relief. As established below, the Petition falls short on numerous grounds and cannot withstand the Districts? Demurrers. First, on its face, the Petition makes clear that Petitioners failed to 8 i exhaust available and adequate administrative remedies, which divests this Court of jurisdiction over the 9 i First Cause of Action (and only cause of action) stated against the Districts. Indeed, Petitioners admit r?Ar?Ir?Ir?A Tel 916- 329-7433 Fax 916-329-9050 that they began the administrative remedy process under the Uniform Complaint Procedures an acknowledgement of the applicability to the purported disputes between the parties in this case and adequacy to resolve those disputes?but Petitioners did not pursue those remedies to their regulatory and directed conclusion. For the same failure to exhaust administrative remedies, but distinct from an absence of jurisdiction, the Petition fails to state suf?cient facts to support the First Cause of Action against the Districts. Third, the Petition lacks sufficient facts to state a claim under the First Cause of Action because the material allegations purportedly in support of said claim are entirely based i upon information and belief. Such allegations are based on hearsay and cannot withstand demurrer. Finally, the Petition?s First Cause of Action fails to allege suf?cient facts to state a claim for relief because the Petition does not acknowledge that substantial compliance with Education Code section 51210, subdivision satisfies the requirements of that statute, or otherwise allege-that the Districts have failed to substantially comply with section 51210. On these bases, the Petition is fatally inadequate, and the Court should sustain the D-istricts? Demurrers in ?Jll. STATEMENT OF FACTS Education Code seetion 51210,'subdivision provides that the adopted course of study for grades 1 'thrOugh 6 must include ?[p]hysical education, with emphasis upon the physical activities-for the pupils that may be conducive to health and vigor of body and mind, for a-total period of time of notless . than 200 minutes each '10 schoold'ays, exclusive of recesses and the lunch period.? (Pet. 11 9.) The statute itself 'is silent with regard to monitoring or tracking physical education instructional CALZOO AND MARC BABIN v. AVUSD ET AL. CASE NO. CPF 15-514477 MEM. TN SUPP. OF DEMURRERS TO PET. FOR MANDAMUS LOZANO SMITH One Capitol Mall, Suite 640 Sacramento, California 95814 Tel 916- 329-7433 Fax 916-329-9050 iminutes. (See Ed. Code, 51210.) The California Department of Education monitors school district compliance with Education Code sections, including Education Code section 51210, subdivision (Pet. 10.). Petitioners .allege, on information and belief, that none of the Respondents, including the Districts, Will comply with Education Code section 51210, subdivision without judicial intervention. (Pet. 11 18.) The Petition does not allege facts regarding how the Districts do not currently comply with the relevant Education Code provision or will fail to do so without court intervention. (See generally Pet.) The Petition contains two causes of action. (Pet. 32?5 1.) The First Cause of Action is stated i against the Districts for alleged violation of Education Code section 51210, subdivision and seeks mandamus and injunctive relief. (Pet. 1111 32?36.) The allegations upon which the First Cause of Action is based??the only cause of action in the Petition asserted against the Districts?are based solely-on information and belief, including allegations that: the Districts fail to comply with Education Code section 51210, subdivision will continue to violate the Education Code unless otherwise required, and the CDE aids and abets the Districts. (Pet. 1111 32?36.) The Petition is silent with regard to any facts or information that the Districts have actually violated the law. (Pet. 1111 32?36.) The Second Cause of Action in the Petition is asserted against CDE only, for alleged violation of the California Public I Records Act, and seeks mandamus, injunctive, and declaratory relief. (Pet. 111] 37?51.) The Petition; concedes that,?the Uniform Complaint process was and is the only administrative process potentially available to petitioners for challenging respondent school districts? noncompliance with Education Code section (Pet. 26.) Petitioners also allege that the UCP administrative process is futile, will cause irreparable harm, and does not comport with due process. (Pet. 1H) 24, 25.) The Petition alleges that in December 2014,.Petitioners sought administrative relief from all of the respondent school districts by sending each a UCP Complaint. (Pet. 27.) The Petition asserts that some sChool' districts found merit to PetitiOners? UCP complaint, but that such districts continue to I violate the law (without Speci?cs as to how or Why); some districts denied Petitioners? UCP complaint; and others still denied having an administrative procedure to address such claims. (Pet. 28?30.) The Petition does not allege (nor can it) that Petitioners appealed any adverse UCP deCisiOn to the CDE, or CAL200 AND MARC v. AVUSD ET CASE NO. IN SUPP. OF DEMURRERS TO PET. - 2 - FOR MANDAMUS LOZANO SMITH One Capitol Mall, Suite 640 Sacramento, California 95814 Tel 916- 329-7433 Fax 916-329-9050 p?l L11 p?A that Petitioners sought relief from the CDE in the UCP process after-a-d-istrict purportedly failed to 1 address- their UCP complaint. (See Pet. 1111 24?3 1.) GOVERNING LAW A demurrer can raise any legal defect apparent on the face of a writ petition. (See, Larson v. City of Redondo Beach (1972) 2-7 Ca1.App.3d 332, 337.) Among others, this includes the defect of lack of jurisdiction: A party may demur to a complaint on the basis that the trial court ?has no jurisdiction of the subject of the cause of action alleged in the pleading.? 430.10, subd. ??Subject matter jurisdiction . . . is the power of the court over a cause of action or to act in a particular way.? [Citations] By contrast, the lack of subject matter jurisdiction means the entire absence of power to hear or determine a case; an absence of authority over the subject matter.? (Guardianship of Ariana K. (2004) 120 Ca1.App.4th 690, 701 . . . see also Abelleira v. District Court oprpeal (1941) 17 Ca1.2d 280, 288? 91 . . . .). (Miller-Leigh LLC v. Henson (2007) 152 Ca1.App.4th 1143, 1148-49.) Defects subjecting the Petition to i demurrer also include the failure to allege suf?cient facts to state a claim for relief. (Code Civ. Proc., 430.10, subd. To withstand the Districts? Demurrers, Petitioners must allege facts in the Petition that entitle 1 them to relief as a matter of law. (See eitelberg v. Credit Suisse First Boston, LLC (2005) 134 Ca1.App.4th 997, 1008.) Accordingly, Petitioners ?must set forth factual allegations that suf?ciently state all required elements of that cause of action.? (Rakestraw v. Cal. Physicians? Service (2000) 81 Ca1.App.4th 39, 43.) ?Allegations mus-t be factual and speci?c, not vague or c-onc-lusionary.? (Id. at 44.) I The Court ?may not consider contentions, deductions or conclusions of facts or law.? (Young v. Gannon (2002') 97 Ca1.App.4th 209', 220.) Petitioner must also allege essential facts with ?clearness' and precision so nothing is left to surmise,? and these ?allegations of material facts which are left to surmise are subject to special demurrer for uncertainty.? (Bernstein v. Pillar (1950) 98 Ca1.App.2d 441, 444-; see also Code Civ. Proc., 430; 10, subd. ?Doubt in the complaint may be resolved against [petitioner] and facts not alleged are. presumed: not to exist.? (Kramer v. Intuit (2004) 121 Ca1.App.4th 574, 578.) The instant Demurrers are'treated as ?admitting all material facts properly pleaded, but not contentions, deductions, or conclusions of fact or law.? (Serrano v. Priest (1971) 5 Cal.3d 584, 591.) IN SUPP. OF DEMURRERS TO PET. - 3 - CAL200 AND MARC v. AVUSD ET AL. FOR MANDAMUS CASE NO. CPF 15-514477 Leeann SMITH Om: Capital Matt, Sane Ml) Sacramenta, Ceii-fataia-?S??s 14 Tel til-?: 329-7433 Ears: mas-3399050 The Court ?assumesthe truth of . i . all facts properly pleaded by the [Petitioners] . all facts that are properly the subject ofj-udicial notice,- and . . . all facts that reasonably may be inferred from the foregoing facts.? (Neilson v. City of Cal. City (2005:) 133 Cal.App.4th 1296, 1305; see also Barratt . American, Inc. v. City of San Diego (2004) 117 Cal.App.4th 809, 812, fn. 2.) The Court may sustain the Districts? Demurrers without leave to amend, unless there is a reasonable probability that the petitioners can cure by amendment. (Goodman v. Kennedy (1976) 18 3 case 335, 349;} Petitieners aisle hear the burden-aishnwing ?it: What manner [they] can amend .. and haw that: amendmentwili change the 0f [their] pleading.? (Id, ARGUMENT I. THE COURT IS WITHOUT JURISDICTION TO GRANT PETITIONERS RELIEF DUE - TO THEIR FAILURE TO EXHAUST ADMINISTRATIVE REMEDIES AND, FOR THE SAME REASON, FAIL TO STATE SUFFICIENT FACTS T0 SUPPORT A CLAIM FOR RELIEF UNDER THE FIRST CAUSE OF ACTION. Petitioners may only resort to this Court when there is no other plain, speedy or adequate remedy, including administrative remedies. (T ri?Coa'nty Special Educ. Local Plan Area v. County of uolumne (2004) 123 Cal.App.4th 563, 577.) Put another way, exhausting administrative remedies is a - jurisdictional prerequisite to accessing the courts. (Abelleira v. District Court of Appeal (1941) 17 Cal.2d 280, 293.) Courts have defined the exhaustion of administrative remedies doctrine as ?the requirement that administrative remedies be pursued as a jurisdictional prerequisite to seeking judicial relief from an adminiStraftive action.? (Cali CorrectiOnal Peace O?icers AsSn. v; State Personnel 30?. (1995)]0 Cal.4th 1133, 1148.) As such, ?[e]xhaustion of administrative remedies usually contemplate-s termination of all available, no-ndup-licative administrative review procedures.? (Hood v. Hacienda La Puente Unified School'Dist. '(1998)i65 Cal;App.4th 435, 440-41, emphasis added; see People v. Beaumont InVes'tment, Ltd; (2003) 111 Ca1'.Ap.p.4th. 102, 124 [the administrative process must ?ruu its course?]; McHugh v. ?County ofSanta' Cruz (1973) 33 Cal.App=.3di 533, 538439 [exhaustion ?re-quires that a party must not only initially raise the issue in the administrative forum, but he must proceed through the entire proceeding to a ?nal decision on the merits of the entire controversy?]; Bleeck v. State Bd. of Optometry (1971). 18 Cal-.App.3d 415, 43.2 [exhaustion requires ?a full presentation to the administrative agency upon all issues of the case and at all prescribed stages of the'administrati've Among MEM. IN SUPP. OF DEMURRERS TO PET. - 4 CAL200 AND MARCBABIN v. AVUSD ET AL. FOR MANDAMUS CASE NO. CPF 15-51-4477 SMITH ?nite ?24ii__$acranientm Cali-titans 958-! 4-- 3393433 Fit-A Mai-t, if}- Tel 953 One ?ap-fiat I other compelling justi?cations, exhaustion of administrative remedies not only preserves the Court?s resources, but also those of the parties. (See, e. Donovan v. Poway Uni?ed School District (2008) 167 Cal.App.4th 567, 608', fn. 2'0 procedures provide a means for the parties to resolve and ef?ciently complaints of prohibited discrimination'before resorting to ligation, thus ensuring our state?s education resources are not unnecessarily A. The UCP Provides an Adequate Administrative Remedy, Which Petitioners Failed to Exhaust. Here, Petitioners failure to exhaust an available and adequate administrative remedy, the UCP, is dispositivei This Failure is jurisdictionaland?the'Coart should. thus sustain. the. DiS?Eriets? ?atness"er an this-basis Abelleira v. District Court of Appeal, supra, sets forth California?s rules regarding exhaustion of administrative remedies. In Abelleira, employers sought to bypass the administrative procedure regarding unemployment claims. (Abelleira, 17 Cal.2d at 283?84.) Rather than appealing a referee?s decision to the California Employment Commission, the employers directly challenged the decision in the court system. (Id. at 284.) The California Supreme Court found that until the speci?ed administrative procedure was ?invoked and completed? the courts could not review any decision and the employers had no standing to seek relief. (Id. at 291 .) The court found that the employers still needed I to appeal to-the commission before bririging "an extraordinary Writ'ia the courts. (id. at 291-M92.) In doing so, California?s high court established the following basic rule: ?[W]here an administrative remedy is provided by statute, relief must be-sought from the administrative body and this remedy exhausted before the courts will act.? (Id. at- 292; see-also Williams v. Housing Authority of Los Angeles (2004.) 121 Cal.App.4th 708, 722; Schifando v. City-ofLos Ange-[es (2003) 31 Ca1.4th 1074, 1094; Defend Our Waterfront v. State Lands Com. (21015:) 240' Cal.App.4th 570, 581.) Simply allovvifng judicial review before completion of the administrative process destroys the effectiveness of the administrative remedy provided through the relevant administrative-body. (Abelleira, 17 Cal-.2d-at 292.) Examples of Abel-leira is application direct for the proper outcome in this. instance?sustaining of the Districts? subject Demurrers. In California Correctional Peace O?z?cers Association, supra, the Court addressed exhaustion of administrative remedies in the context of correctional department MEM. IN SUPP. OF DEMURRERS TO PET. FOR MANDAMUS - 5 - CALZOO AND MARC BABIN V. ET AL. CASE NO. CPF 15?514477 LOZANO SMITH One Capitol- Mall, Suite 640 Sacramento, California 95814 Tel 916- 329-7433 Fax 916-329-9050 h?l r?I v?I i?A p?i p?I appeal was specifically .set forth by statute, and if the decision was not rendered within that time the employee Was deemed to have e'xhaUsted his? or her administrative remedies. (Id. at 1138'.) Once the either (1) remaining in the administrative appeal system, or (2) seeking direct judicial review of the I adverse action. (Id. at 1147.) The appellate court concluded that, as a jurisdictional requirement, exhausting administrative remedies ?usually contemplates termination of all available nonduplicative administrative review procedures.? (Id. at 1151.) Any judicial intervention before resolution by the I (Pet. 1H 27, 29.) The Petition also concedes that the UCP ?was and is the only administrative process potentially available to petitioners for challenging respondent school districts? noncompliance with accordance with the procedures set out in this chapter and in accordance with the policies and disciplinary actions and appeals to the California State Personnel Board. (Cal. Correctional Peace O?icers Assn, 10 Cal.4th at 1137-38.) There, the deadline to render a decision regarding an employee?s .. statutory timeframe lapsed without a decision by the administrative agency, employees had the option of administrative agency ?would constitute an interference with the jurisdiction of another tribunal.? Here, Petitioners allege that they filed a complaint under the UCP-against each of the Districts. Education Code section (Pet. 1[ 26, emphasis added.) Yet, the Petition sets forth no allegations that Petitioners fully exhausted the UCP administrative process, that after ?ling their respective and identical or nearly identical copies of UCP complaints with each of the respective Districts, they not only waited for a final decision on. their complaints from each of the. Districts, but also appealed'to the Di'st'riCtS? respective governing board, and then appealed to i the CDE each and every UCP decision by the very Districts they now sue here, assuming Petitioners in fact disagreed'with the Districts? UCP decision. (See Pet. 1111 24?36.) It- is without question that the UCP permits for and calls for the right to-appeal a local educational agency?s decision on a UCP complaint. (Cal. Code: Regs, tit. 5, ??-4-600 et seq., 4620 [?Each LEA shall have the-primary responsibility to insure compliance with applicable state and federal laws and regulatidns. Each LEA shall investigate complaints alleging; failure to comply with applicable state'and federal laws and regulations and/or alleging discrimination, harassment, intimidation or bullying and seek to resolve those complaints in procedures of the governing board-?L 4622 [?Each LEA shall annually notify in writing, as appliCable, its students, employees, parents or guardians of its students, the district advisory committee, school FOR MANDAMUS MEM. TN SUPP. OF DEMURRERS TO PET. 6 - CAL200 AND MARC BABIN AVUSD ET AL. CASE NO. CPF 15-514477 GOO-40 NHL: LOZANO SMITH One Capitol Mali, Suite 640 Sacramento, California 95814 Tel 916- 329-7433 Fax 916?329-9050 p?d DJ advisory committees, appropriate private school of?cials or representatives, and other interested parties of their LEA complaint procedures, including the opportunity to appeal to the CDE and the provisions of this chapter . . . 4631, subd. ["?The LEA should issue a Decision (the Decision) based on the evidence. The Decision shall be in writing and sent to the complainant within 60 days from receipt of the complaint by the LEA. The Decision should contain: (1) the ?ndings of fact based on the evidence 3 gathered, (2) conclusion of law, (3) disposition of the complaint, (4) the rationale for such disposition, (5) corrective actions, if they are warranted . . . (6) notice of the complainant?s right to appeal the LEA Decision to the CDE, and (7) procedures to be followed for initiating an appeal to the 4632 [governing grounds for UCP decision appeal to CDE en LEA decision], 4633 [governing procedures for UCP decisions appeals to CDE on LEA decisions].) Again, as noted, Petitioners concede in their Petition that the UCP applies to and can address the disputes raised in this case. (Pet. 11 26.) If that was 3 not so?with regulatory authority clearly provides for a complete remedy for Petitioners?why submit such complaints or allege as much in the Petition? Petitioners? failure to exhaust the UCP on their P.E. minutes disputes at issue under the Petition divests this Court of any jurisdiction because the available administrative remedy was not fully exhausted. Allowing Petitioners to proceed with this action without regard to the principles of administrative exhaustion eviscerates the Districts.? and ability to resolve complaints and to address and redress Petitioners" concerns and requested relief without the need for timely, costly, and unnecessary litigation and judicial intervention. Involving this Court before exhaustion of the not only contrary to Petitioners? own assertions in the Petition, but the law and California?s jurisdictional bar where administrative remedies remain unexhausted; Moreover, building: from Ab-elleira, courts have found relief must be sought via the administrative remedy ?even where. the administrative remedy is couChed in_pemissive language.? (County ofLos Angeles v. Farmers Iris, Exchange'(1982) 1'32 Ca1.'App.3d 77, 85-86, overruled on'other grounds in City of Compton v. Bu'nr'ze'r (1988') '197'Cal.app.3d 662', 109-11.) As set forth above, whether - a party has exhausted administrative remedies is not a matter of judicial discretion, rather it is a jurisdictional prerequisite, which holds even when the administrative remedy is permissive. (Yamaha Motor Corp. 12. Super. Ct. (19.86).185 Cal.A_pp.3d 1232, 1240.) In other words, ?an aggrieved party is MEM. 1N OF DEMURRERS TO PET. FOR MANDAMUS - 7 - CALZOO AND MARC BABIN v. AVUSD ET AL. CASE NO. CPF 15-51447? LOZANO SMITH One Capitol Mall, Suite 640 Sacramento, California 95814 Tel 916- 329-7433 Fax 916-329-9050 43oxen not required to ?le a grievance or protest if 'he does not wish to- do so, but if he-does wish to seek relief, he must ?rst pursue an available administrative remedy before he may resort to the judicial process.? (Id) Accordingly, the rule is well-established that ?if an administrative remedy is available it must be exhausted eVen though the administrative remedy is c'ouched in permissive language.? (Morton v. Super. Ct. (1970) 9 Cal.App.3d 977, 982, emphasis added.) For example, in Morton, the City of Fresno established an employment grievance procedure that employees ?may? use. (1d. at 980.) The employeesargued that they could utilize the judicial process without going through the grievance procedure because they were not required to ?le a grievance. (Id. at 982.) While the Court of Appeal acknowledged that the grievance procedure was ?somewhat cumbersome,? the administrative procedure could have resolved the employees? complaints. (Id. at 983.) Thus, although only a permissive administrative remedy existed, the court still held that the 3 employees needed to exhaust that procedure, because it was available. (1d. at 982..) .Here, as in Morton, even if use of the UCP was arguably not explicitly required, it is an available administrative remedy and must be utilized before resorting to the courts. With this controlling authority in mind, in an attempt'to distract from the fact that they failed to exhaust administrative remedies, Petitioners argue that the ?no respondent provides an administrative - process that comports with. due process.? (Pet. ii 25.) Such speculative allegationsdo not excuse Petitioners? from UCP eXhaustion. (See Edgren v. Regents ofUniv. of Cal. (1984) 158 Cal.App.3d 515, 522 [?The doctrine of exhaustion of administrative remedies applies despite plaintiffs? asserted denial of I procedural due Roth v. City of Los Angeles (1975) 53- Cal.App.3-d 679, 687 [-?Asserted denial of due process . . . is not ordinarily an excuse for failure to exhaust administrative citation . omitted; see also Boo/cover- Perko- (.1994): 28-Cal.App.4th 479, 486 [?If the [administrative remedy] provides for reasonable notice and a reasonable opportunity to be heard, that is all that is citation omitted.) In faCt, courts have expressly found that that the UCP is ?fully capable of providing complete relief.? (T ri-County Special Education Local Plan Area, 123 Cal.Ap-p.4th at 577.) C-orrespondingly, there are no allegations- in the Petition to even remotely suggest that full exhaustion of the UCP-process could not have resulted in the complete relief Petitioner's seek under the Petition. MEM. IN SUPP. OF DEMURRERS TO PET. FOR MANDAMUS CAL200 AND MARC BABIN v. ET AL. CASE NO. CPF 15-514477 LOZANO SMITH One Capitol Mall, Suite 640 Sacramento,-Califomia 95814 NON v?tp?tu?A Tel 916- 329-7433 Fax 916-329?9050 ?irther pursuit of such process ?will do irreparable harm.? Yet, the futility exception is narrow and ?applies only when it can be shown that an agency?s decision is certain'to be adverse.? (Grossm'om? . Union High School Dist. Cal. Dep "t of Ed. (2008) 169 Cal.App.4th 869, 885-; see also Coachella Valley Mosquito Vector Control Dist. v. Cal. Pub. Employment Relations Ed. (2005) 35 Cal.4th 1072, 1080 ?the futility exception does not apply . . . when the District did not show the outcome of those Petitioners also alleges without context or support that the administrative process is ?futile? and proceedings was known in Here, Petitioners do not allege that they have obtained a ?nal response regarding their UCP complaints from the Districts. (Pet. 28-30) do they allege that they have appealed any complaints to the CDE. (See generally Pet.) Nor do they allege that any UCP appeal to the CDE was certain to be adverse. (See generally Pet.) Because Petitioners do not know how i the CDE would respond to their appeals of the Districts? UCP decisions, the futility exception cannot apply, and there are no allegations in the Petition that can prop up a futilitytheory relative to the UCP. With regard to irreparable harm, ?inconvenience does not equal irreparable injury.? (Unnamed Physician v. Bd. of Trustees of Saint Agnes Med. Ctr. "(2001) 93 Cal.App.4th 607, 620.) The Petition fails to specify any irreparable harm that would be incurred by completing the administrative process. (See Pet. 24.) Any theoretical harm would constitute the dz?erence (if any) between the RE. instructional-minutes provided for in the statute and what is presently provided by any of the DistriCts. That any such. conceivable harm is irreparable is also gpure speculation. MereOVer, the timeline from receiving complete relief under the UCP process, including following an appeal to the CDE, is much more" concise than seeking relief through the courts (see Cal. Code Regs, tit. 5, 4630, 4631, 4632, 4633); thus indisputably undercutting Petitioners? irreparable harm theory and allegation. The.refore, Petitioners. cannot avoid exhaustion of remedies doctrine under the irreparable harm exception. B. Petitioners. Must Fully Exhaust Their Administrative Remedies Once Invoked. Once the adminis'tratiVe remedy process is initiated, a petitioner must complete the-process prior to bringing suit. In Abellez'ra, an initial administrative determination-was made by an adjustment unit. (Abelleira, 17- Cal.2d at 283-.) Then if an employer appealed the initial decision, a referee was appointed who made written ?ndings and a decision. An appeal Conld then be taken to a commiSSion, which . made its own ?ndings of fact and rendered a decision. (Id. at 284.) In A'belleim,'the employers sought a IMEM. IN SUPP. OF- DEMURRERS TO PET. - 9 - CAL200 AND MARC BABIN v. AVUSD ET AL. FOR MANDAMUS CASE NO. CPF 15-514477 WNH Tel 916- 329?7433 Fax 916-329-9050 p?d LOZANO SMITH One Capitol Mall, Suite 640 Sacramento, California 95814 i?a I?l - ON Ln writ of mandate after the referee?s decision.- The California Supreme Court highlighted that the i employers ?still have their appeal to the commission, which appeal has not yet been decided adversely to them, and prior to the prosecution of this. appeal they have no right to demand an extraordinary writ from a court.? (Id. at 291-92.) Side by side, the facts in Abelleira are all but on point with this case. As in Abelleiro, Petitioners - ?sought administrative relief from each named district respondent?s noncompliance with Education Code section 51210(g) by sending each a Uniform Complaint.? (Pet. ii 27.) The UCP process . (governing by long-standing regulations noted above, Cal. Code Regs, 4600 et seq.) speci?cally allow for an appeal of a school district?s decision to the CDE. (Cal. Code Regs, tit. 5, 4632-33.) Petitioners, however, do not allege that they appealed any UCP decisions to the CDE (because they did not). This situation is identical to the-employers? failure to appeal the referee?s decision to the commission in Abelleim, which resulted in the Supreme Court?s conclusion that the employers failed to . exhaust administrative remedies. Thus, while Petitioners commenced the UCP process, they failed to exhaust the process and obtain a ?nal decision from the CDE, and for some failed to even pursue a ?nal decision from a given school district or its governing board. (See Pet. 24?3 1.) In fact, other courts have held that ?[t]he exhaustion doctrine precludes review of an intermediate i or interlocutory action of an administrative agency.? (Alto Lomo School Dist. v. San Bernardino County Com. on School Dist. Reorganization (1981), 1.24 Cal.App.3d 542, 554.) Indeed, parties must ?proceed through the full administrative process ?to a decision on the merits?? (Id, quoting La Costa Beach Homeowners Assn. 12. Wayne (197-9) 89 Cal.App-.3d 327, 330.) That is, all administrative-proceedings- should be completed before issuing a judicial writ. (Id) Accordingly, exhaustion of administrative remedies ?requires not merely the initiation of prescribed administrative procedures; it requires pursuing them to their appropriate conclusion and awaiting. their ?nal outcome before seeking judicial I interVentiOn.? (Wilkinson v. Norc'al Mutual Ins. Co. (1979) 98 307, 313-14, quoting Woodard v. Broadway Fed. S. L. Assn. (1952) 111 Cal.App.2-d 218, 221.) Petitioners cannot simply initiate the UCP process and then seek relief from-this Court without pursuing the-process to its appropriate concluSion?appeal to the CDE, through a ?nal decision by the CDE and corrective action (if ordered by the CDE). Seeking review after a school district has received CALZOO AND MARC BABIN v. AVUSD ET AL. CASE NO. CPF 15-514477 MEM. IN SUPP. OF DEMURRERS TO PET. FOR MANDAMUS -10- LQKANQ One Capitol ans, ?nite ?340 tisummer-no~ California 9531+ Tel-+31% 329-4433 Fer: 91o?3i?4?030 and/or responded to a- complaint, but before ?nal and complete conclusion of the process, is the equivalent of seeking review of an intermediate action of an administrative agency. Thus, once Petitioners initiated UCP complaints with the Districts, Petitioners were legally compelled to pursue those complaints and the appeal process to ?nality before initiating this action. Failure to do so violates the doctrine of exhaustion of administrative remedies and constitutes undeniable grounds upon which to I sustain the Dis-tricts? ?rst and second Demurrers under Code :of Civil Procedure section 430.10, subdivisions and II. THE PETITION FAILS TO STATE FACTS SUFFICIENT TO SUPPORT THE FIRST CAUSE OF ACTION, INSTEAD RELYING ON INFORMATION AND BELIEF. A pleading made on and, belief is if it merelyesserts the; fact so alleges: without alleging information that leads the plaintiff to believe that the allegations are true. (Doe v. City ofLos Angeles (2007) 42 Cal.4th 531, 551, fn. 5; Pr-idono?v. Balokovich (1951) 36 Cal.2d 788, 792.) The information leading the pleading party to believe that the allegations are true mustbe supported by facts, as the Court?s ruling cannot be premised on plaintiffs? mere belief in the absence of such facts. (Star Motor Imports, Inc. v. Super. Ct. (1979) 88 Cal.App.3d 201, 204-05.) Correspondineg here, Code of Civil Procedure section 1086 requires writs ?be used upon the veri?ed petition of the party bene?cially interested.? A valid petition for writ of mandate ordinarily states facts, veri?ed under Code of Civil Procedure section 1086, calling for judicial relief. (Id. at 204.) ?An af?davit in support of a petition for writ of mandate must be based on personal knowledge.? (City of Santa Cruz v. Municipal Ct. (1989) 49 Cal.3d 74, 87, citation omitted and emphasis added.) Star Motor Imports, Inc. v. Superior Court, supra, is illustrative. There, the Court of Appeal dismissed a writ of mandate because the petitioner failed to verify the petition, merely verifying upon 3 information and belief. (Star Motor Imports, Inc., 88 Cal.App.3d at 203-05.) The court reasoned that ?an affidavit based on ?information and belief" is hearsay and must be disregarded . . . and it is ?unavailing for any purpose? whatsoever.? (Id. at 204, quoting Gay v. Torrance (1904) 145 Cal. 144, 151.) This is especially true in the context of a petition for writ of "mandate, where the court?s decision ?is to be based upon facts which may be presented to it, and not upon the belief of the af?ant.? (Id, quoting Pelegrinelli. v. McCloud River Lumber Co. (1905) 1 Cal.App. 593, 597.) Because a petition for I CAL-200 AND MARC BABIN v. AVUSD .ET AL. CASE NO. CPF 15-514477i MEM. IN SUPP. OF DEMURRERS TO PET. FOR MANDAMUS LOZANO SMITH One Capitol Mall, Suite 640 Sacramento, California 95814 Tel 916- 329-7433 Fax 916-329-9050 pwrit of mandate is often resolved on the parties? veri?ed pleadings, such evidence included there in must be ?positive, direct and not based upon hearsay.? (Id. at 205, quoting Gutierrez v. Super. Ct. (1966) 243 Cal.App.2d 710, 725.) Here, Petitioners use the phrase ?on information and belief? at least ?fteen (15) times in the brief I Petition. (Pet. 12, 17-18, 24?26, 31, 33-35, 45.) Most importantly, many of, if not most or all of, Petitioners? most crucial allegations against the Districts are based entirely upon ?information and belief.? For example, the only cause of action against the Districts wholly relies on allegations based information and belief? that the Districts violated Education Code section 51210, subdivision and will continue such violations. (Pet. 1111 33, 34.) Petitioners? First Cause of Action does not set forth any factual allegations that the Districts have actually violated any law. Importantly, and similarly to the 3 writ petition dismissed by the court in Star Motor Imports, Ina, Petitioner?s veri?cation states: know . the allegations of the petition to be true of my own knowledge except as to those matters based on information or belief and, as to those matters, I believe them to be true.? (Pet. at 13:6-8, emphasis added.) As set forth above, af?davits or veri?cations attached to writ petitions must be based on personal knowledge, not information and belief. Accordingly, because the entirety of the allegations against the Districts and the corresponding veri?cation are based solely on information and belief, the Petition fails to state a claim-for relief against the Districts. THE PETITION AELS T0 STATE A CLAIM FOR RELIEF BECAUSE IT DOES NOT ADDRESS THE LEGAL- PRINCIPLE THAT THE SUBSTANTIAL COMPLIANCE WITH EDUCATION CODE SECTION 51210 SATISFIES THE LAW. Apart from the above compelling bases for sustaining other of the Di-stricts? Demurrers, the Petition also fails to allege-suf?cient facts to state-a-cause of action because of the absence of allegations addressing. the legal proposition and reality that apart from-their full compliance with Education Code section 51210,. subdivision the Districts satisfy the law due to substantial compliance and therefore cannOt'be 'subjeCt to" the mandate relief 'sOu?ght by Petitionersunde'r the Petition. Substantial compliance has been de?ned as ?actual compliance in respect to the substance essential to every reasonable objective of the statute, as distinguished from mere technical imperfections of form.? (People v. Carroll (2014) 222 Cal.App.4th 1406, 1421.) ?Even if a statute is considered mandatory, substantial compliance may suf?ce in some circumstances if the purpose of the statute is CAL200 AND MARC BABIN v. AVUSD ET AL.- CASE NO. CPF 15-514477 MEM. IN SUPP. OF DEMURRERS TO PET. FOR MANDAMUS -12.. LOZANO SMITH One Capitol Mall, Suite 640 Sacramento, California 95814 h?i?r?n p?a (4) Tel 916- 329-7433 Fax 916-329-9050 O?l r?i i? u?a satis?ed.? (Id; at 1420 compliance with even mandatory provisions may be legally Courts look to whether, under the circumstances, the statute?s underlying policies were . served. (Id) That is, where a party substantively complies with at statute, ?technical deviations are not to be given the stature of noncompliance.? (Id. at 1421, quoting Cal-Air Conditioning, Inc. v. Auburn Union School Dist. (1993) 21 Cal.App.4th 655, 667.) Where a party attempts to substantially comply, every reasonable objective of a statute is satis?ed. (Cal-Air Conditioning, Inc, 21 Cal.App.4th at 668.) Put plainly, ?[s]ubstance prevails over form.? (Id) For example, in People v. Superior Court (Zamudio) (2000) 23 Cal.4th 183, 188, the California Supreme Court addressed substantial compliance in the context of a Penal Code requirement. Speci?cally, the trial court failed to notify the defendant of one of three required advisements before - pleading guilty or no contest. (Id. at 191.) Notwithstanding the statutory language stating the trial court I ?shall? administer the advisement, the California Supreme Court concluded that the trial court I . substantially complied with the statute by mentioning two of the three required advisements. (Id. at 208.) As in Zomudio, courts routinely hold that mandatory statutory language is subject to the doctrine of substantial compliance. (See, Western States Petroleum Assn. v. Bd. of Equalization (2013) 57 Cal.4th 401, 426 [substantial compliance with Administrative Procedures Act sufficient for adopting regulations]; Pulaski v. Occupational Safety Health Stds. Ed. (1999) 75 Cal..App.4th 1315, 1328 [same]; People v. HOag (2000) 83 Cal.App.4th 1198, 1211?12 [police of?cers substantially complied with knock-notice requirement before entering residence].) Here, the objective of Education Code section 51210, subdivision is to ensure P.E. instruction in schools includes an ?emphasis- upon the physical activities for the pupils that may be conducive to health and vigor of body and mind.? (Ed. Code, 51210, subd. Assuming a given district has a program and plan in place to meet the instructional minutes requirement, and assuming arguendo it falls short title to factOrs beyond its control (like a rainy or bad-air day), such a district is still' in substantial compliance with the statute. The objective of ensuring the quality and quantity of PE. instruction is still met, albeit while technically deviating unexpectedly from the exact minute requirements. Accordingly, regular and substantial compliance with the statute satis?es the underlying policy goals. CAL200 AND MARC BABIN v. AVUSD ET AL.- CASE CPF 15-514477 MEM. IN SUPP. OF DEMURRERS TO PET. FOR MANDAMUS -13- LOZANO SMITH One Capitol Mall, Suite 640 Sacramento, California 95814 Tel 916- 329-7433 Fax 916-329-9050 NNt?Ir??I?lb??b?ib??D??l??I?The Petition entirely fails to address substantial compliance and its satisfaction of Education Code section 51210. Indeed, nowhere does the Petition even mention that the Districts have not substantially complied with the statute. Where the Districts are, in fact, in full, or substantial compliance, with Education Code section 51210, subdivision a writ of mandate cannot lie because courts look to form over substance, even when a mandatory statutory obligation is involved. The absence of allegations that the Districts are not in substantial compliance is thus another defect compelling this Court to sustain the Districts? Demurrer under Code of Civil Procedure section 430.10, subdivision CONCLUSION Based on the foregoing, the Districts respectfully request that this Court sustain the Districts? Demurrers in full, without leave to amend in all respects, and to dismiss the Petition as it pertains to the Districts. Dated: November 6, 2015 Respectfully submitted, LOZANO SMITH in Sloan R. Simmons Steve Ngo Anne L. Collins Attorneys for Respondents BUCKEYE UNION ELEMENTARY SCHOOL DISTRICT, CLOVIS UNIFIED SCHOOL DISTRICT, ELK GROVE UNIFIED SCHOOL DISTRICT, FOLSOM CORDOVA UNIFIED SCHOOL DISTRICT, MILPITAS UNIFIED SCHOOL DISTRICT, PAJARO VALLEY UNIFIED SCHOOL DISTRICT, SACRAMENTO CITY UNIFIED SCHOOL DISTRICT, SAN JUAN UNIFIED SCHOOL DISTRICT, TULARE CITY UNIFIED SCHOOL DISTRICT, TWIN RIVERS UNIFIED SCHOOL DISTRICT, UNION ELEMENTARY SCHOOL DISTRICT, and WESTERN PLACER UNIFIED SCHOOL DISTRICT MEM. IN SUPP. OF DEMURRERS TO PET. FOR MANDAMUS - 14 - CAL200 AND MARC BABIN v. AVUSD ET AL. CASE NO. CPF 15-514477