Hector F. v. El Centro Elementary School District

Filed 6/24/14


                        CERTIFIED FOR PARTIAL PUBLICATION*


                 COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                       DIVISION ONE

                                   STATE OF CALIFORNIA


HECTOR F.,                                         D064035

        Plaintiff and Appellant,

        v.                                         (Super. Ct. No. ECU06862)

EL CENTRO ELEMENTARY SCHOOL
DISTRICT et al.,

        Defendants and Respondents.



        APPEAL from a judgment of the Superior Court of Imperial County, Diane B.

Altamirano, Judge. Reversed.

        California Rural Legal Assistance, Cynthia L. Rice and Franchesca S. Gonzalez for

Plaintiff and Appellant.

        Stutz Artiano Shinoff & Holtz, Daniel R. Shinoff and Paul V. Carelli, IV, for

Respondents and Defendants.

        By way of its enactment of a scheme of interrelated statutes, the Legislature has

imposed on public schools in California an affirmative duty to protect public school students

*      Pursuant to California Rules of Court, rule 8.1110, this opinion is certified for
publication with the exception of part IV.
from discrimination and harassment engendered by race, gender, sexual orientation or

disability. (See Gov. Code, § 11135; Ed. Code §§ 201, 220, 32261, 32280, 32281 & 32282.)

In particular, Education Code section 32282 requires that public schools develop and

implement comprehensive school safety plans which include a discrimination and

harassment policy. (Ed. Code, § 32282, subd. (a)(2)(E).) The legislature has encouraged

schools to include in their safety plans, "to the extent that resources are available . . . policies

and procedures aimed at the prevention of bullying." (Ed. Code, § 32282, subd. (f).)

       Appellant Hector F. is the father of three children. While Hector's oldest son, Brian,

was a student at King Elementary School (King) and Kennedy Middle School (Kennedy), in

El Centro, Brian was diagnosed with a number of emotional disabilities. Although an

individualized education plan was developed for Brian, according to Hector's petition for a

writ of mandate, Brian was subjected to physical and verbal abuse by other children because

of his disabilities and the fact that English is his second language. In response to complaints

about the abuse Hector and his wife made, Hector alleges school officials did not intervene

and provide any protection for Brian, but instead suggested Brian change classrooms.

       Hector filed a complaint for damages and a petition for a writ of mandate in the trial

court. Hector, as guardian ad litem, sought damages on behalf of Brian and, on his own

behalf, relief in mandate and as a taxpayer requiring that respondent El Centro Elementary

School District (the district), which operates King and Kennedy, comply with the

requirements of the discrimination and harassment provisions of the Government Code and

the Education Code. In particular Hector alleged on information and belief that the district



                                                 2
has neither adopted nor implemented comprehensive safety plans for its schools that meet

the requirements of Education Code section 32282.

       Brian matriculated from Kennedy before these proceedings commenced and attends a

high school operated by a separate school district. However, Hector's younger two children

were enrolled at King at the time Hector filed his petition.

       The district filed a demurrer to that portion of Hector's complaint and petition in

which Hector sought relief on his own behalf. The district asserted that because Brian no

longer attends any school operated by the district and because Hector has not alleged his

other children have been subjected to discrimination or harassment, Hector does not have

standing to assert, as an individual, and on his own behalf, any violation of the statutory

provisions he relies upon. The trial court sustained the district's demurrer without leave to

amend and entered judgment in favor of the district on Hector's individual claims. We

reverse.

       As a citizen and taxpayer Hector has standing to seek enforcement of laws in which

there is an identified public as well as private interest. The statutory provisions asserted by

Hector articulate a well identified public interest in maintaining a system of taxpayer funded

public education which is free of the destructive influence of discrimination, harassment and

bullying.

       Because Hector has standing to bring his claims, we reverse the judgment and remand

for further proceedings.




                                               3
                                  FACTUAL BACKGROUND

       Brian attended King and Kennedy between 2008 and 2011. According to the

allegations in Hector's complaint and petition for a writ of mandate, Brian is not a native

English speaker, and has been diagnosed with a number of emotional disabilities including

bipolar disorder, depression, attention deficit disorder and posttraumatic stress disorder.

According to Hector, while Brian was a student at Kennedy, Brian was forcibly restrained by

other students, beaten, kicked, and forced to endure derogatory comments, epithets and

ethnic slurs.

       Hector did not become aware of the harassment Brian was enduring until Brian was in

the 7th grade and Hector noticed large bruises and scratches on Brian's body. On

December 16, 2010, Hector and his wife reported the bruising and scratches to the Kennedy

vice-principal, who took photographs of Brian's injuries. Hector and his wife also reported

the injuries to Brian's bilingual teacher.

       Notwithstanding the reports Hector and his wife made, Brian continued to be harassed

and bullied. In April of 2011, Brian completed a three-page "Incident Report" which

identified the students who had been harassing him and described what he had endured.

Brian reported "routinely being hit and having objects thrown at him while in the classroom,

bathroom, hallways and recess areas." Brian further reported being subjected to "verbal

threats, taunting, and name calling."




                                               4
       On May 18, 2011, Brian was forcibly restrained during a physical education class and

kicked repeatedly in the legs. Following this assault, Brian filed a second "Incident Report"

which identified the students who attacked him and the particular student who led the others

in doing so.

       A week after the physical education incident Hector and his wife wrote a letter to the

Kennedy principal setting forth the problems Brian was experiencing. On May 31, 2011, the

principal met with Hector and his wife to discuss the problem. The principal suggested that

Brian be removed from the only bilingual classroom at Kennedy. Hector and his wife

rejected that proposal.

                                  PROCEDURAL HISTORY

       In January 2012, Hector, acting in pro per, filed a complaint against the district for

damages on behalf of Brian. The district demurred to the original complaint on the grounds

that, as a nonlawyer, Hector could not represent his son in Brian's action against the district.

In response to the district's demurrer, Hector obtained representation from a nonprofit legal

services organization, California Rural Legal Assistance, Inc. (CRLA).

       On behalf of Brian and Hector, CRLA eventually filed the operative pleading in this

case, the third amended complaint (TAC). The TAC alleged three causes of action which

seek relief by way of mandate, one cause of action for declaratory relief, one cause of action

which alleges the waste of taxpayer funds and one cause of action for negligence. The

mandate and declaratory relief causes of action alleged violations of the state's

antidiscrimination and antiharassment statutes; the mandate causes of action asked for an



                                                5
order compelling the district to comply with its statutory obligations and the declaratory

relief action asked for a determination the district violated those obligations.

       The taxpayer cause of action alleged the district wasted funds in responding to

harassment complaints because the district did so in a manner which discriminated against

Hispanic students and students with disabilities. The negligence cause of action alleged that

the district and individual employees of the district did not properly respond to complaints

that Brian was being subjected to physical and verbal abuse.

       The district filed a demurrer to the TAC in which it argued that neither Brian nor

Hector had standing to seek any mandatory or declaratory relief. The district also argued the

plaintiffs' taxpayer cause of action improperly sought an injunction preventing the district

from paying its employees. The demurrer did not challenge the plaintiffs' negligence cause

of action.

       The trial court sustained the demurrer without leave to amend and entered a judgment

of dismissal against Hector.

       Hector filed a notice of appeal after the trial court sustained the demurrer but before

entry of judgment against him. In the interests of justice and to prevent unnecessary delay,

we treat Hector's appeal as taken from the judgment. (Boyer v. Jensen (2005) 129

Cal.App.4th 62, 69.)

                                         DISCUSSION

                                                I

       "In reviewing the sufficiency of a complaint against a general demurrer, we are

guided by long-settled rules. 'We treat the demurrer as admitting all material facts properly

                                                6
pleaded, but not contentions, deductions or conclusions of fact or law. [Citation.] We also

consider matters which may be judicially noticed.' [Citation.] Further, we give the complaint

a reasonable interpretation, reading it as a whole and its parts in their context. [Citation.]

When a demurrer is sustained, we determine whether the complaint states facts sufficient to

constitute a cause of action. [Citation.] And when it is sustained without leave to amend, we

decide whether there is a reasonable possibility that the defect can be cured by amendment:

if it can be, the trial court has abused its discretion and we reverse; if not, there has been no

abuse of discretion and we affirm. [Citations.] The burden of proving such reasonable

possibility is squarely on the plaintiff." (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)

                                                 II

          As we noted at the outset, the Legislature has enacted a scheme of interrelated statutes

which attempt to protect public school students from discrimination and harassment

engendered by race, gender, sexual orientation or disability. (See Gov. Code,

§ 11135; Ed. Code, §§ 201, 220, 32261, 32280, 32281 & 32282.) By its terms Government

Code section 11135 subdivision (a) states in pertinent part: "No person in the State of

California shall, on the basis of race, national origin, ethnic group identification, religion,

age, sex, sexual orientation, color, genetic information, or disability, be unlawfully denied

full and equal access to the benefits of, or be unlawfully subjected to discrimination under,

any program or activity that is conducted, operated, or administered by the state or by any

state agency, is funded directly by the state, or receives any financial assistance from the

state."



                                                 7
       In turn, Education Code section 201 states in pertinent part:

       "(a) All pupils have the right to participate fully in the educational process, free from

discrimination and harassment.

       "(b) California's public schools have an affirmative obligation to combat racism,

sexism, and other forms of bias, and a responsibility to provide equal educational

opportunity.

       "(c) Harassment on school grounds directed at an individual on the basis of personal

characteristics or status creates a hostile environment and jeopardizes equal educational

opportunity as guaranteed by the California Constitution and the United States Constitution.

       "(d) There is an urgent need to prevent and respond to acts of hate violence and bias-

related incidents that are occurring at an increasing rate in California's public schools.

       "[¶] . . . [¶]

       "(f) It is the intent of the Legislature that each public school undertake educational

activities to counter discriminatory incidents on school grounds and, within constitutional

bounds, to minimize and eliminate a hostile environment on school grounds that impairs the

access of pupils to equal educational opportunity." (Ed. Code, § 201)

       As a means of implementing the right of students to be free of discrimination and

harassment set forth in Education Code section 201, Education Code section 32281

subdivision (a) provides that each school district is responsible for the development of

comprehensive school safety plans for each of its schools. Education Code section 32282,

subdivision (a)(2)(E) provides that, among other matters, each comprehensive school safety

plan shall include a discrimination and harassment policy consistent with the prohibition

                                                8
against discrimination contained in [Education Code section 201]." Education Code section

32282, subdivision (f) further provides that: "As comprehensive school safety plans are

reviewed and updated, the Legislature encourages all plans, to the extent that resources are

available, to include policies and procedures aimed at the prevention of bullying."

       As we explain, post, Hector had standing to seek enforcement of these

antidiscrimination and antiharassment enactments.

                                                 III

       In the seminal case of Green v. Obledo (1981) 29 Cal.3d 126, 144, the court set forth

the standing principles which govern Hector's mandate claims: "It is true that ordinarily the

writ of mandate will be issued only to persons who are 'beneficially interested.' (Code Civ.

Proc., § 1086.) Yet, in Bd. of Soc. Welfare v. County of L.A. (1945) 27 Cal.2d 98, this court

recognized an exception to the general rule ' "where the question is one of public right and

the object of the mandamus is to procure the enforcement of a public duty, the relator 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" ' (id., at

pp. 100-101). The exception promotes the policy of guaranteeing citizens the opportunity to

ensure that no governmental body impairs or defeats the purpose of legislation establishing a

public right. (Id. at p. 100.) It has often been invoked by California courts." (Green v.

Obledo, at p. 144.)

       In Green v. Obledo, the plaintiffs challenged a state regulation which limited the work

related expenses welfare recipients could exclude from their household income in calculating

the amount of their welfare grants. In particular the regulation provided a flat mileage rate

                                                  9
deduction for automobile use rather than a recipient's actual automobile costs. However the

regulation also imposed limitations on the amount of other work-related expenses that could

be deducted from household income.

       The plaintiffs alleged the regulation was in conflict with the federal law which

established and governed the welfare program and further that their actual transportation

costs exceeded the amount of the mileage allowance permitted under the regulation. The

plaintiffs, although they did not allege that the other work-expense limitations had affected

them, challenged the regulation in its entirety and sought relief in mandate from it.

       The trial court found the plaintiffs had standing to challenge the automobile expense

limitations, but no standing with respect to the remainder of the regulation. The Supreme

Court disagreed and found standing with respect to the entire statute: "There can be no

question that the proper calculation of AFDC benefits is a matter of public right [citation],

and plaintiffs herein are certainly citizens seeking to procure the enforcement of a public

duty. [Citation.] It follows that plaintiffs have standing to seek a writ of mandate

commanding defendants to cease enforcing [the regulation] in its entirety. The trial court

erred in ruling otherwise, and in limiting the scope of the evidentiary hearing accordingly.

Plaintiffs are therefore entitled to a new hearing on their cause of action for writ of mandate,

and to a determination of the validity of the remainder of the regulation." (Green v. Obledo,

supra, 29 Cal.3d at p. 145, fn. omitted.)

       Significantly, the public interest exception to the rule requiring litigants seeking

mandate have a beneficial interest in the relief they seek has been applied with respect to

duties imposed by the Legislature on schools and school districts. In Doe v. Albany Unified

                                               10
School District (2010) 190 Cal.App.4th 668 (Doe), the court considered relief available

under the provisions of Education Code section 51210, which require that public school

curriculum include not less than 200 minutes of physical education each 10 school days. In

finding the public interest exception applied to permit enforcement of the physical education

requirement by members of the public, the court stated: "As for plaintiff Donald D., if his

interest as the parent of plaintiff Doe in the latter's education is not a sufficient beneficial

interest in itself [citation], he certainly has an interest as a citizen in seeing that section

51210, subdivision (g), is properly enforced. 'The beneficial interest standard is so broad,

even citizen or taxpayer standing may be sufficient to obtain relief in mandamus. "[W]here a

public right is involved, and the object of the writ of mandate is to procure enforcement of a

public duty," a citizen is beneficially interested within the meaning of Code of Civil

Procedure section 1086 if "he is interested in having the public duty enforced." [Citation.]'

[Citation.] This public interest exception ' " 'promotes the policy of guaranteeing citizens the

opportunity to ensure that no governmental body impairs or defeats the purpose of legislation

establishing a public right.' " ' " (Doe, supra, 190 Cal.App.4th at p. 685.)

       At this juncture we hasten to point out the district's reliance on Tinsley v. Palo Alto

Unified School District (1979) 91 Cal.App.3d 871, 887-888 (Tinsley), is misplaced. In

Tinsley which was decided before Green v. Obledo, the court found the plaintiffs' interest as

parents and members of the public "may make them proper parties and justify their

intervention in [a school desegregation] action." (Tinsley, supra, 91 Cal.App.3d at p. 888.)

However the court held that if the parents could act as members of the public to assert

students rights to desegregated schools, on remand their children should also be joined as

                                                 11
party plaintiffs in the parents' action. (Ibid.) Thus, the holding in Tinsley does not suggest

members of the public do not have standing to enforce the educational rights of public school

students; rather the holding in Tinsley is to the contrary. Moreover in light of Green v.

Obledo, the requirement imposed in Tinsley that in such cases students be joined as parties is

subject to question.

       The public interest exception is not unlimited and does not provide the public

standing in all contexts. Indeed the court in Green v. Obledo, supra, 29 Cal.3d at p. 145

recognized the public interest exception "may be outweighed in a proper case by competing

considerations of a more urgent nature." In Carsten v. Psychology Examining Com. (1980)

27 Cal.3d 793 (Carsten), a member of the board of the administrative agency responsible for

licensing psychologists disagreed with the board's decision to approve applicants who had

achieved a passing grade on a national examination rather than the 75 percent grade

expressly required under the terms of a previous version of Business & Professions Code

section 2942. (Carsten, at p. 804.) In finding the public interest exception did not provide

standing to the dissenting board member, the court expressly recognized "there are

circumstances under which a citizen-taxpayer may compel a governmental instrumentality to

comply with its constitutional or statutory duty." (Id. at p. 797.) However, in light of the

board member's participation in the very decision she was challenging, the court found that

providing her standing would unduly undermine the administrative process:

"Unquestionably the ready availability of court litigation will be disruptive to the

administrative process and antithetical to its underlying purpose of providing expeditious

disposition of problems in a specialized field without recourse to the judiciary. Board

                                               12
members will be compelled to testify against each other, to attack members with conflicting

views and justify their own positions taken in administrative hearings, and to reveal internal

discussions and deliberations. Litigation—even the threat of litigation—is certain to affect

the working relationship among board members. In addition, the defense of lawsuits brought

by dissident board members—and such suits would undoubtedly be frequent—will severely

tax the limited budgetary resources of most public agencies." (Carsten, at p. 799.)

       In Sacramento County Fire Protection Dist. v. Sacramento County Assessment

Appeals Bd. (1999) 75 Cal.App.4th 327, 330-335 (Sacramento County Fire Protection

Dist.), a local assessment appeals board accepted a stipulation between a county assessor and

a landowner substantially reducing the value of a large tract of land that had been

contaminated. By virtue of the reduction a local fire district was required to pay the

landowner a substantial refund of taxes the district had collected. The court found the

district had no special interest in the assessment over and above the interest of the public at

large and that allowing the district to challenge the reduced assessment by mandate under the

public interest exception would undermine the assessment process in which the district's

interests was adequately represented by the county. (Id. at pp. 331-334.)

       Here, there is a manifest public interest in enforcing the antidiscrimination and

antiharassment statutes Hector asserts. Indeed in enacting the statutes the Legislature itself

has articulated that interest: "It is the policy of the State of California to afford all persons in

public schools, regardless of their disability, gender, gender identity, gender expression,

nationality, race or ethnicity, religion, sexual orientation, or any other characteristic . . . equal

rights and opportunities in the educational institutions of the state. The purpose of this

                                                 13
chapter is to prohibit acts that are contrary to that policy and to provide remedies therefor."

(Ed. Code, § 200.) More particularly in enacting Education Code section 201, the

Legislature found both that: "(c) Harassment on school grounds directed at an individual on

the basis of personal characteristics or status creates a hostile environment and jeopardizes

equal educational opportunity as guaranteed by the California Constituion and the United

States Constitution" and "(d) There is an urgent need to prevent and respond to acts of hate

violence and bias-related incidents that are occurring at an increasing rate in California's

public schools." (Id. at subds. (c) & (d).)

       Plainly the public interest in ensuring public schools are free from discrimination,

harassment and bullying as articulated in Government Code section 11135, and Education

Code sections 200, 201, 220, 32261, 32280, 32281 and 32282, is as great or greater than the

public interest in assuring schools provide the mandated minimum number of hours of

physical education the court considered in Doe. Thus a strong argument can be made that if

the public interest exception permits members of the public to enforce the relatively narrow

physical education requirements of Education Code 51210, members of the public may also

enforce the broader provisions protecting students from discrimination, harassment and

bullying.

       Moreover, unlike the unique positions occupied by the plaintiffs in Carsten, supra, 27

Cal.3d at p. 799, and Sacramento County Fire Protection Dist., supra, 75 Cal.App.4th at

pp. 332-335, and the more urgent considerations which consequently arose in those cases,

here there are no similar competing considerations which outweigh the public's well

articulated interest in protecting public school students from bullying. Hector is not a

                                               14
member of the board of trustees of the district or a responsible officer of the district charged

with enforcing the duties he asserts. Thus, the conflicts of interest and perpetuation of

litigation which were of concern in Carsten are not present here. Hector is not a public

agency attempting to challenge an agreement made by another agency with a third party.

Thus Hector's challenge to the district does not create the risk of undermining a carefully

developed statutory scheme which delegates responsibility among local agencies, as was the

case in Sacramento County Fire Protection Dist. Rather, Hector is like the individual

plaintiffs in Green v. Obeldo and Doe: an individual citizen who is attempting to compel a

public agency to perform duties he believes the law mandates.

       In sum then, Hector's attempt to enforce the antidiscrimination and antiharassment

statutes adopted by the Legislature falls squarely within the public interest exception to the

rule which otherwise requires a beneficial interest in mandate actions. There is a manifest

public interest in enforcing the antibullying statutes and there are no urgent competing

interests which outweigh that public interest. Thus, the trial court erred in sustaining the

district's demurrer on the grounds Hector lacked standing.

       In particular, Hector had standing to assert his first three causes of action, which

expressly seek relief in mandate. The public interest in enforcing the antidiscrimination and

antiharassment statutes also provides Hector with standing to bring a taxpayer action under




                                               15
Code of Civil Procedure section 526a. (See Connerly v. State Personnel Board (2001) 92

Cal.App.4th 16, 29.)1

                                               IV

       For the first time on appeal, the district argues that in any event Hector's complaint is

defective because it does not allege the breach of a mandatory, ministerial duty. We may, of

course, affirm a judgment on any grounds which appear in the record, notwithstanding the

reasoning urged in or adopted by the trial court. (See Stratton v. First Nat. Life Ins. Co.

(1989) 210 Cal.App.3d 1071, 1083.) Here, however, we decline to do so because Hector's

complaint arguably alleges breach of a mandatory duty. (See Redwood Coast Watershed

Alliance v. State Board of Forests, supra, 70 Cal.App.4th at pp. 962-969.) Moreover, even if

the TAC did not explicitly allege breach of a mandatory duty, it is reasonably probable that

Hector could amend the complaint to do so. (Id. at p. 965.)




1        Because Hector's declaratory relief action is largely duplicative of his mandate causes
of action, arguably he also has standing to seek declaratory relief. However, we have not
been able to find any case which has definitively extended the public interest exception to
claims for declaratory relief. (See In re Marriage Cases (2008) 43 Cal.4th 757, 790-791; but
see also Redwood Coast Watershed Alliance v. State Board of Forestry (1999) 70
Cal.App.4th 962, 969.) We also note that the district has not had the opportunity to assert, as
an alternative argument, that the public interest exception does not extend to declaratory
relief actions. In light of these circumstances, rather than deciding the issue, which may be
of little practical consequence to the parties, our remand will be without prejudice to the
district's right to argue in the trial court that, notwithstanding our determination Hector has
standing to seek mandate and as a taxpayer, he lacks standing to maintain a declaratory relief
action.

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                                        DISPOSITION

       The judgment dismissing Hector's claim is reversed with instructions to vacate the

order sustaining the district's demurrer. 2 Hector is to recover his costs of appeal.



                                                                           BENKE, Acting P. J.

WE CONCUR:


McDONALD, J.


O'ROURKE, J.




2      Our disposition is without prejudice to the district's right to challenge Hector's
standing, as a member of the public, to seek declaratory relief.

                                               17