MALINOVSKY VS. SHASTA UNION HIGH SCHOOL DISTRICT, ET AL.

Merits. A demurrer can be used to challenge defects that appear on the face of the complaint or from matters that may be subject to judicial notice. Blank v. Kirwan (1985) 39 Cal. 3d 311, 318.

The party against whom a complaint or cross-complaint has been filed may object, by demurrer or answer as provided in Section 430.30, to the pleading on any one or more of the following grounds: (a) The court has no jurisdiction of the subject of the cause of action alleged in the pleading. (b) The person who filed the pleading does not have the legal capacity to sue. (c) There is another action pending between the same parties on the same cause of action. (d) There is a defect or misjoinder of parties. (e) The pleading does not state facts sufficient to constitute a cause of action. (f) The pleading is uncertain.

As used in this subdivision, “uncertain” includes ambiguous and unintelligible. (g) In an action founded upon a contract, it cannot be ascertained from the pleading whether the contract is written, is oral, or is implied by conduct. (h) No certificate was filed as required by Section 411.35. CCP § 430.10.

The Demurrer is brought on the grounds that the First Amended Petition fails to state facts sufficient to show that Respondents violated a ministerial duty, fails to state clear and certain allegations pursuant to CCP § 430.10, that Petitioner failed to exhaust his administrative remedies prior to filing his suit, and that Petitioner lacks standing and/or there is a misjoinder of parties. The First Amended Petition seeks a writ of mandate pursuant to CCP § 1085.

Standing and/or misjoinder of parties. Respondents argue that Petitioner is seeking to challenge a complaint made by his child and that therefore Petitioner does not have standing to sue on behalf of his child without legal representation and, to the extent Petitioner asserts the claims as his own, they demurrer based on misjoinder of parties. While the complaint is about alleged conduct directed towards his child, the complaint which initiated the investigation at issue was made by Petitioner. Respondents acknowledge that Petitioner had the right to file the complaint. It thus follows that Petitioner has the right for that complaint to be handled in compliance with SUHSD’s policies and procedures. The demurrer is OVERRULED on the grounds that Petitioner lacks standing 4

or there is a misjoinder of parties.

Violation of a ministerial duty. Respondents argue that the First Amended Petition fails to state facts sufficient to show Respondents failed to comply with the mandated reporting requirements of Penal Code § 11166. “[A] mandated reported shall make a report to an agency...whenever the mandated reporter, in the mandated reporter’s professional capacity or within the scope of the mandated reporter’s employment, has knowledge of or observes a child whom the mandated reporter knows or reasonably suspects has been the victim of child abuse or neglect.” Penal Code § 11166(a).

Respondents further argue that the First Amended Petition fails to state facts sufficient to show Respondents failed to comply with the mandated reporting requirements of Board Policy 1312.1. “While mandate lies to compel a public agency to comply with a ministerial duty, it usually does not lie to compel a public agency to exercise its discretion in a particular manner.” Citizens for Amending Proposition L v. City of Pomona (2018) 28 Cal.App.5th 1159. “A public entity has a ministerial duty to comply with its own rules and regulations where they are valid and unambiguous.” Gregory v. State Bd. of Control (1999) 73 Cal.App.4th 584.

Board Policy 1312.1 provides that any complaint of child abuse or neglect alleged against a district employee “shall be” reported to the local agencies in accordance with law and Board Policy 5141.1. The Board Policy created a ministerial duty to report “any complaint of child abuse or neglect.”

Petitioner argues that Respondents violated their ministerial duty by failing to report the complained of physical contact between the teacher and his minor son to the appropriate authorities as child abuse. However, as Respondents point out in their briefing, the policy and law only require reporting of abuse based on “reasonable suspicion.” This vests Respondents with significant discretion in their reporting requirements. Through the writ process, the court cannot “compel the exercise of that discretion in a particular manner or to reach a particular result.” (Daily Journal Corp. v. County of Los Angeles (2009) 172 Cal.App.4th 1550, 1555.)

Here, the First Amended Petition makes it clear that Respondents conducted an investigation. The fact that they conducted that investigation in a manner that Petitioner does not approve of does not create a violation of their ministerial duty.

The demurrer is SUSTAINED on the grounds that the First Amended Petition fails to state facts sufficient that Respondents violated a ministerial duty.

Exhaustion of administrative remedies. Respondents argue that Petitioner has failed to state facts to show he has exhausted all administrative remedies available. Specifically, they allege that Petitioner failed to challenge the investigation’s findings and determination by appealing to the Board prior to filing suit pursuant to Board Policy 1312.1.

“The writ must be issued in all cases where there is not a plain, speedy, and adequate remedy, in the ordinary course of law.” CCP § 1086. “[T]he exhaustion of administrative remedies, including “‘internal grievance procedures’” provided by a public entity, is a jurisdictional prerequisite to filing an action in court.” Romero v. County of Kern (2025) 116 Cal.App.5th 1189. “This is so even though the administrative remedy is couched in permissive language; an aggrieved party is not required to file a grievance or protest if he does not wish to do so, but if he does wish to seek relief, he must first pursue an available administrative remedy before he may resort to the judicial process.” Yamaha Motor Corp. v. Superior Court (1986) 185 Cal.App.3d 1232.

Board Policy 1312.1 provides that, “[i]f either the complainant or the employee submits an appeal of the Superintendent’s decision to the Board, the Board shall determine whether to uphold the Superintendent’s decision without hearing the complaint, appoint an appeals committee to advise the Board, or hear the appeal 5

itself.”

While the appeal of a complaint is permissive, it is clear Petitioner is first required to pursue an appeal to the Board. The First Amended Petition fails to allege facts that this prerequisite has been satisfied.

Petitioner argues that an appeal to the Board is precluded by the futility doctrine. Exceptions to exhaustion of administrative remedies occurs “when the administrative remedy is unavailable, when it is inadequate, or when it would be futile to pursue it.” SJCBC LLC v. Horwedel (2011) 201 Cal.App.4th 339. “The futility exception to the requirement of exhaustion of administrative remedies is a very narrow one.” County of Contra Costa v. State of California (1986) 177 Cal.App.3d 62. “The futility exception requires that the party invoking the exception can positively state that the [agency] has declared what its ruling will be on a particular case.” Jonathan Neil & Assoc., Inc. v. Jones (2004) 33 Cal.4th 917. The First Amended Petition and Opposition fail to positively state that the Board has declared what its ruling would be on this particular case.

The demurrer is SUSTAINED on the grounds of Petitioner’s failure to exhaust administrative remedies. Leave to file an amended petition is denied considering Petitioner has not complied with appeal requirements of Board Policy 1312.1. Thus the filing of an amended Petition would be ineffective.

Failure to state clear and certain allegations. Respondents contend that the First Amended Petition is vague, conclusory, and that inconsistent allegations obscure the factual basis and conflates legal theories.

A traditional writ of mandate under CCP §1085 is available when the petitioner has no plain, speedy, and adequate 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. Conlan v. Bonta (2002) 102 Cal. App. 4th 745, 748; Unnamed Physician v Board of Trustees (2001) 93 Cal. App. 4th 607, 618. Two basic requirements are essential to the issuance of the writ: (1) a clear, present and usually ministerial duty upon the part of the respondent, and (2) a clear, present and beneficial right in the petitioner to the performance of that duty.

The First Amended Petition alleges Respondents have a duty under Penal Code § 11166 and Board Policy 1312.1 to report allegations involving physical contact and a ministerial duty to produce an objective investigation free from fraud. The First Amended Petition further alleges that Petitioner submitted a complaint and Respondents failed to discharge these duties in relation to that complaint. The demurrer is OVERRULED on the grounds that the First Amended Petition fails to state clear and certain allegations.

The Demurrer is SUSTAINED without leave to amend. Considering the demurrer is sustained without leave to amend and the Petition will therefore be dismissed, the motion to strike is DENIED as moot. Respondents provided proposed Orders that will be modified to reflect the Court’s ruling. The clerk is directed to close the file and vacate any future hearing dates upon processing of the order.

PHILLIPS, ET AL. VS. PRIME HEALTHCARE SERVICES, INC., ET AL.