Physicians Com. for Responsible etc. v. L.A. Unified School Dist. ( 2019 )

Filed 12/12/19
CERTIFIED FOR PUBLICATION
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
PHYSICIANS COMMITTEE FOR D073797
RESPONSIBLE MEDICINE et al.,
Plaintiffs and Appellants,
(Super. Ct. No. 37-2017-00013190-
v. CU-MC-CTL)
LOS ANGELES UNIFIED SCHOOL
DISTRICT et al.,
Defendants and Respondents.
APPEAL from a judgment of the Superior Court of San Diego County,
Gregory W. Pollack, Judge. Affirmed.
Evans & Page and Corey Allen Evans, for Plaintiffs and Appellants.
Gutierrez, Preciado & House, Calvin House and Arthur C. Preciado, for Defendant
and Respondent Los Angeles Unified School District.
Artiano Shinoff, Paul V. Carelli, IV and Justin C. Manganiello, for
Defendant and Respondent Poway Unified School District.
INTRODUCTION
Physicians Committee for Responsible Medicine (Physicians Committee) filed a
verified petition for writ of mandate seeking to prohibit local educational agencies Los
Angeles Unified School District (LAUSD) and Poway Unified School District (PUSD)
from serving processed meats in their schools and directing them to modify wellness
policies to reflect the goal of reducing or eliminating processed meats. The local
educational agencies demurred, arguing they were under no statutory obligation to reduce
or eliminate processed meat from schools. The trial court granted the demurrers.
Physicians Committee appeals, contending the local educational agencies' failure to
reduce or eliminate processed meat from schools abuses their discretion in developing
statutorily-mandated, local wellness policies. We disagree and affirm the judgment.
BACKGROUND
After exhausting administrative remedies, Physicians Committee filed a verified
petition for writ of mandate. Following an initial round of demurrers, Physicians
Committee filed a First Amended Verified Petition (FAVP) naming three defendants: the
California Department of Education (CDE),1 LAUSD, and PUSD. Its goal is to prevent
LAUSD and PUSD "from serving processed meat to children due to the recognized
association between eating processed meat (e.g. hotdogs, sausages, luncheon meat,
bacon, and turkey bacon) and developing cancer, diabetes, and cardiovascular disease."
1 The CDE is not a party to this appeal. Accordingly, the facts are limited to the
allegations raised against LAUSD and PUSD.
2
A. The FAVP Allegations
Paragraph 93 of the FAVP alleges that under the Child Nutrition and WIC
Reauthorization Act of 2004, and the Healthy, Hunger-Free Kids Act of 2010, local
educational agencies have a duty to issue local wellness policies that meet minimum
standards by including goals and basing the wellness policies on evidence and dietary
guidelines. Paragraph 95 of the FAVP alleges the local educational agencies serve
processed meats, and paragraph 96 alleges they fail to identify the serving of processed
meat as a problem or to discuss how and when processed meat will be reduced or phased
out of the school menus. Paragraph 97 alleges these failures violate the Healthy, Hunger-
Free Kids Act of 2010 and violate the school districts' local wellness policies. Paragraph
98 of the FAVP alleges PUSD violates its own wellness policy of promoting optimal
health and supporting student health and wellness.
The petition seeks injunctive and declaratory relief, directing LAUSD and PUSD
to stop serving meat to children in school meals and to modify their wellness policies to
remove processed meat from school lunches.
B. The Demurrers
LAUSD and PUSD separately demurred to the FAVP, arguing Physicians
Committee did not allege a clear, mandatory, statutory duty that they failed to perform.
Physicians Committee opposed the demurrers.
At the hearing, Physicians Committee claimed that federal law requires schools to
discuss and identify problem foods, based on evidence and the guidelines. It reasoned
that it was undisputed that processed meat is a problem food based on scientific literature
3
identified in the petition; thus, the absence of any discussion about it in the wellness
policies demonstrated a failure to comply with federal law.
The court asked Physicians Committee to point to a statute that requires a written
discussion of such foods to appear in local wellness policies, but Physicians Committee
never did.
The court granted the demurrers without leave to amend and entered a judgment of
dismissal. This appeal timely followed.
DISCUSSION
I.
Requests for Judicial Notice
Physicians Committee renews its opposition to the requests for judicial notice filed
by LAUSD and PUSD in support of their demurrers. The majority of Physicians
Committee's arguments center around procedural defects it contends should have
prevented the trial court from granting the requests. We review judicial notice rulings for
abuse of discretion (CREED-21 v. City of San Diego (2015) 234 Cal. App. 4th 488, 520),
and we conclude the trial court did not abuse its discretion by granting the requests for
judicial notice.2
2 LAUSD separately filed an unopposed request for judicial notice as part of the
appeal, citing Evidence Code section 459. It seeks judicial notice of the same documents
of which it sought judicial notice before the trial court. We deny this request as
unnecessary.
4
LAUSD filed a request for judicial notice, citing Evidence Code section 452,
subdivisions (a) and (c). The request stated it was attaching "Exhibits 1 through 8," but it
listed and attached nine documents. The ninth document was the LAUSD local wellness
policy.
PUSD also requested judicial notice. Its request cited Evidence Code section 452
and noted the relevant documents were regulations and legislative enactments issued
under the authority of a governmental entity or consisting of official acts of that entity. It
identified its Board Policy 5.31 (School Wellness Policy) and Administrative Procedure
5.31.1 (School Wellness Policy), and the CDE Nutrition Services Division Decision of
Appeal in the Physicians Committee matter (CDE Decision). PUSD attached the
documents to the memorandum in support of its demurrer, not to the request for judicial
notice.
Physicians Committee challenges LAUSD's request for judicial notice on three
grounds. First, it contends LAUSD's notice of demurrer violated Code of Civil Procedure
section 1010 because it did not state it was based on the request for judicial notice or on
facts of which the court could take judicial notice. However, LAUSD's notice of
demurrer substantially complied with Code of Civil Procedure section 1010 because it
apprised Physicians Committee of the documents upon which it would rely for its
demurrer by serving those documents with the related notice of motion and motion. (See
Broderick v. Cochran (1912) 18 Cal. App. 202, 204.)
Next, Physician's Committee contends LAUSD's request for judicial notice
violated Rule of Court number 3.1113(l) because, it alleges, LAUSD attached its
5
wellness policy to the request for judicial notice without mentioning that exhibit in the
request. However, LAUSD's request for judicial notice complies with California Rule of
Court number 3.113(l) because it asks the court to take judicial notice "of the following
documents" and identifies the wellness policy by name on the list of items it supplied.
Although it states that "the following documents . . . are attached as Exhibits 1 through 8
hereto," it lists nine documents, and nine documents are attached. Thus, the
typographical error is not procedurally fatal.
Finally, Physicians Committee argues that neither LAUSD nor PUSD provided a
specific argument for why their attachments, including their wellness policies, fell within
Evidence Code section 452, subdivisions (a) and (c).
The Constitution and the Legislature have ceded substantial discretionary control
over education to local school districts. (Ed. Code,3 §§ 35160, 35160.1, subd. (b),
35161; Governing Bd. of Ripon Unified School Dist. v. Commission on Professional
Competence (2009) 177 Cal. App. 4th 1379, 1385.) Thus, school board actions can be
official acts, and school board policies and regulations may be recognized by judicial
notice. (Evid. Code, § 452, subds. (a) & (c).) Physicians Committee does not actually
dispute that the adoption of wellness policies are official acts of a legislative agency.
Their adoption is appropriately judicially noticed under Evidence Code section 452,
subdivision (c). Physicians Committee also does not argue that the statutes and
regulations it referenced in its FAVP and which LAUSD attached to its request for
3 Further section references are to the Education Code unless otherwise specified.
6
judicial notice are not properly placed within Evidence Code section 452, subdivision (a).
The trial court did not abuse its discretion when taking judicial notice of these
documents. Accordingly, we likewise take judicial notice over the statutory and
regulatory materials, as well as the wellness policies. (Evid. Code, § 459.)
Physicians Committee argues additionally that judicial notice of the CDE Decision
was improper because it only supports PUSD's position if its contents are considered for
their truth. We need not reach a conclusion as to whether its consideration was an abuse
of discretion because we affirm the court's judgment independently and without reference
to the CDE Decision.4
II.
Demurrers
At issue is whether the duties alleged in the FAVP were discretionary or
mandatory, and if discretionary whether the school districts abused their discretion. We
conclude the FAVP fails to identify any mandatory duties with which the local
educational agencies failed to comply. We further conclude the FAVP does not
adequately allege an abuse of discretion, and we affirm the judgment.
A.
Legal Principles
4 Although the trial court granted judicial notice of the CDE Decision and identified
it as notable, it is not clear that the trial court relied on this document in reaching its
conclusion.
7
"A writ of mandate will lie to 'compel the performance of an act which the law
specifically enjoins, as a duty resulting from an office, trust, or station' (Code Civ. Proc.,
§ 1085) 'upon the verified petition of the party beneficially interested,' in cases 'where
there is not a plain, speedy, and adequate remedy, in the ordinary course of law.' (Code
of Civ. Proc., § 1086.)" (People ex rel. Younger v. County of El Dorado (1971) 5 Cal. 3d
480, 490-491.)
"The petitioner must demonstrate the public official or entity had a ministerial
duty to perform, and the petitioner had a clear and beneficial right to performance."
(AIDS Healthcare Foundation v. Los Angeles County Dept. of Public Health (2011)
197 Cal. App. 4th 693, 700 (AIDS Healthcare).) " 'A ministerial act is an act that a public
officer is required to perform in a prescribed manner in obedience to the mandate of legal
authority and without regard to his [or her] own judgment or opinion concerning such
act's propriety or impropriety, when a given state of facts exists. Discretion . . . is the
power conferred on public functionaries to act officially according to the dictates of their
own judgment. [Citation.]' [Citations.]" (Ibid.) "A statute is deemed to impose a
mandatory duty on a public official only if the statute affirmatively imposes the duty and
provides implementing guidelines." (O'Toole v. Superior Court (2006) 140 Cal. App. 4th
488, 510 (O'Toole).)
"[A]bsent a clear duty imposed by law . . . mandamus is not a proper vehicle for
resolution for the asserted grievance." (Shamsian v. Department of Conservation (2006)
136 Cal. App. 4th 621, 640 (Shamsian).) Moreover, "[m]andamus does not lie to compel a
public agency to exercise discretionary powers in a particular manner, only to compel it
8
to exercise its discretion in some manner. [Citation.]" (AIDS Healthcare, supra, 197
Cal.App.4th at pp. 700-701.) Finally, " '[w]hether a particular statute is intended to
impose a mandatory duty . . . is a question of statutory interpretation for the courts.'
[Citation.]" (O'Toole, supra, 140 Cal.App.4th at p. 510.)
On appeal from a motion for a writ, we resolve questions of law, including those
of statutory interpretation, de novo. (Marquez v. State Dept. of Health Care Services
(2015) 240 Cal. App. 4th 87, 103, citing County of San Diego v. State of California (1997)
15 Cal. 4th 68, 109.) Because the dismissal of the petition followed the trial court's
granting of a demurrer, we consider the properly-pleaded material facts (AIDS
Healthcare, supra, 197 Cal.App.4th at p. 698), as well as matters that may be judicially
noticed. (Zelig v. County of Los Angeles (2002) 27 Cal. 4th 1112, 1126.) Additionally,
we will affirm a judgment of dismissal after a demurrer has been sustained without leave
to amend if doing so is proper on any ground stated in the demurrer, regardless of
whether the court acted on that ground. (Carman v. Alvord (1982) 31 Cal. 3d 318, 324.)
B.
Ministerial Duties
Physicians Committee contends the court's determination that the local educational
agencies did not have a ministerial duty was improper because it did not consider all the
mandatory duties alleged in the FAVP. Our independent review of the allegations in the
FAVP and the corresponding law confirms the trial court's conclusion.
As an initial observation, Physicians Committee brought its petition for a writ of
mandate "to prevent the Los Angeles Unified School District ('LAUSD') and the Poway
9
Unified School District ('PUSD') from serving processed meat to children due to the
recognized association between eating processed meat (e.g., hotdogs, sausages, luncheon
meat, bacon, and turkey bacon) and developing cancer, diabetes, and cardiovascular
disease." However, as we discuss more fully below, none of the statutes identified by the
Physicians Committee requires schools to eliminate or reduce the amount of processed
meats or to label or identify processed meats as unhealthy; therefore, Physicians
Committee fails to meet the first requirement for issuance of a writ of mandate.
1. National School Lunch Program
The FAVP cites the National School Lunch Program as part of its description of
the statutory framework that controls school food service. The National School Lunch
Program, title 42 United States Code section 1758, requires lunches served by schools
participating in the program to meet minimum nutritional requirements prescribed by the
Secretary of Agriculture; those requirements are based on tested nutritional research. (42
U.S.C. §§ 1758(a)(1)(A), 1752.) Although the FAVP alleges California schools
participate in the National School Lunch Program, it does not allege the schools violate
any particular statutory requirement contained in this law, including meeting nutritional
requirements.
2. Healthy, Hunger-Free Kids Act of 2010
The Healthy, Hunger-Free Kids Act of 2010 is a reauthorization of the Child
Nutrition Act. (Pub.L. No. 111-296 (Dec. 13, 2010) 124 Stat. 3183 (HHFKA).) Among
other things, it gives the U.S Department of Agriculture the authority to set science-based
nutrition standards for food sold in schools. (HHFKA, Pub.L. No. 111-296, § 208 (Dec.
10
13, 2010) 124 Stat. 3221; 42 U.S.C. § 1758(a)(1).) It also requires all participating local
educational agencies to establish a local school wellness policy (HHFKA, Pub.L. No.
111-296, § 204 (Dec. 13, 2010) 124 Stat. 3216; 42 U.S.C. § 1758b(a)) and to permit
parents, students, school food authority representatives, P.E. teachers, school health
professionals, school administrators, the general public, and the school board to
participate in the development, implementation, and periodic review of the wellness
policy. (HHFKA, Pub.L. No. 111-296, § 204 (Dec. 13, 2010) 124 Stat. 3217; 42 U.S.C.
§ 1758b(b)(4).) The HHFKA provides for local discretion, requiring local educational
agencies to use guidelines promulgated by the Secretary of Agriculture "to determine
specific policies appropriate for the schools" under their jurisdiction. (HHFKA, Pub.L.
No. 111-296, § 204 (Dec. 13, 2010) Stat. 3217; 42 U.S.C. § 1758b(c).)
This law establishes a ministerial duty to develop wellness policies. (HHFKA,
Pub.L. No. 111-296, § 204 (Dec. 13, 2010) 124 Stat. 3216; 42 U.S.C. § 1758b(a).)
However, it does not detail what must be included in the wellness policies other than a
directive to use federal guidelines, which presumably take into consideration science-
based nutrition standards, as required by law. (42 U.S.C. §§ 1758(a)(1) and 1758b(c).)
The law does not direct schools to address the reduction or elimination of processed
meats. The law does not mandate obedience without regard to a local educational
agency's own judgment. It even includes a provision requiring local discretion (42
U.S.C. § 1758b(c)), making clear it does not create a mandatory duty to address the
reduction or elimination of processed meat. (See AIDS Healthcare, supra, 197
Cal.App.4th at pp. 700-701.) Because a writ cannot be used to control discretion that has
11
been conferred on a public agency, this law does not provide a statutory basis for the
petition. (Shamsian, supra, 136 Cal.App.4th at p. 640.)
Paragraph 97 alleges that LAUSD and PUSD violate the HHFKA by "failing to
identify processed meat as a problem" and by "fail[ing] to discuss how and when
processed meat will be reduced and/or phased out of school meals." However, accepting
this factual allegation as true does not provide a basis for the writ because there is no
mandatory obligation to discuss how and when processed meat will be reduced and/or
phased out.
Similarly, paragraph 25 of the FAVP alleges the National School Lunch Act
requires school meals to reflect the latest Dietary Guidelines for Americans. However,
Physicians Committee does not allege that the guidelines prohibit eating processed meat
or require its reduction in schools. Nor is there an allegation that the school meals fail to
reflect the dietary guidelines or fail to comply with the nutritional standards promulgated
by the Department of Agriculture. (See 42 U.S.C. § 1758(a)(1).) Moreover, because
nothing in the HHFKA requires the districts to identify processed meat as a problem or to
discuss how and when processed meat will be reduced or eliminated, the absence of this
discussion from the substance of the wellness policies does not constitute a violation of
the local educational agencies' ministerial duties under this act.
3. Child Nutrition and WIC Reauthorization Act of 2004
The Child Nutrition and WIC Reauthorization Act of 2004 amended the National
School Lunch Act (42 U.S.C. § 1751 et seq.) and the Child Nutrition Act of 1966
(42 U.S.C. § 1771 et seq.) to simplify programs, improve management, and reauthorize
12
programs. (Pub.L. 108-265 (June 30, 2004) 118 Stat. 729, [204].) This act requires local
educational agencies participating in the National School Lunch Act or the Child
Nutrition Act of 1966 to establish a local school wellness policy that "(1) includes goals
for nutrition education, physical activity, and other school-based activities that are
designed to promote student wellness in a manner that the local educational agency
determines is appropriate; [¶] (2) includes nutrition guidelines selected by the local
educational agency for all foods available on each school campus . . . with the objectives
of promoting student health and reducing childhood obesity; [¶] (3) provides an
assurance that guidelines for reimbursable school meals shall not be less restrictive than
regulations and guidance issued by the Secretary of Agriculture . . . ; [¶] (4) establishes
a plan for measuring implementation of the local wellness policy . . . ; and [¶]
(5) involves parents, students, and representatives of the school food authority, the school
board, school administrators, and the public in the development of the school wellness
policy." (HHFKA, Pub.L. 108-265, § 204, subd. (a)(1)-(5) (June 30, 2004) 118 Stat. 780-
781.)
Although the Child Nutrition and WIC Reauthorization Act of 2004 requires local
educational agencies to establish wellness policies that have the goals of promoting
health and reducing obesity, the specific details of those policies are discretionary.
(Child Nutrition and WIC Reauthorization Act of 2004, § 204, subd. (a)(1).) Nothing
cited by Physicians Committee requires schools to promote health by reducing or
eliminating processed meats on school campuses. The first requirement permits local
13
educational agencies to determine goals for education and activities in a manner
appropriate to the individual local educational agency, a discretionary duty.
The second requirement is addressed in the FAVP, which alleges that LAUSD and
PUSD "have a clear public duty to issue local wellness policies that meet the minimum
legal standards of promoting health and addressing childhood obesity by including
specific goals for nutrition promotion and education and basing said policies on evidence
and dietary guidelines." However, this too permits discretion because the local
educational agencies can determine the manner they use to achieve the objectives; they
are not required to do so by reducing or eliminating processed meats. There are no
allegations in the FAVP that LASUD or PUSD fail to fulfill the requirements of this act,
only that the school districts did not do so in the particular way Physicians Committee
would prefer, i.e., by banning or reducing the distribution of processed meats.
Accordingly, this statute does not provide a basis for a ministerial duty that has not been
performed.
4. California Education Code
Finally, the FAVP identifies several sections of the Education Code that it
contends create mandatory duties for the local educational agencies. We address these
below.
a. Section 49530
Section 49530 of the Education Code states, "The Legislature finds that . . . the
proper nutrition of children is a matter of highest state priority. . . ." (§ 49530,
subd. (a)(1).) Moreover, because of the relationship between nutritious food and the
14
capacity to develop and learn, students at all income levels should be taught principles of
good nutrition to help develop "the proper eating habits essential for lifelong good health
and productivity." (§ 49530, subds. (a)(2) & (3).) Accordingly, the Child Nutrition Act
of 1974 was established to obligate schools and child development programs to provide
for the nutritional needs and education of students. (§ 49530, subd. (b).)
However, a statute's statement of legislative intent does not create any affirmative
duty that is enforceable via writ of mandate. (Common Cause v. Board of Supervisors
(1989) 49 Cal. 3d 432, 444 (Common Cause) [declaration of intent cannot be viewed as
independently creating substantive duties]; Shamsian, supra, 136 Cal.App.4th at pp. 640-
641.) Thus, this statute does not provide a basis for this suit.
b. Section 49531
Section 49531 allows local educational agencies to apply to their state departments
of education for federal and state funds in order to provide "a nutritionally adequate
breakfast or lunch, or both" to students. (§ 49531, subd. (a).) It defines nutritionally
adequate breakfasts as those that qualify for reimbursement under the most current meal
patterns defined by federal regulations, incorporate the United States Dietary Guidelines
for Americans, and meet a minimum of one-fourth of the Recommended Dietary
Allowance set by the National Research Council.5 (§ 49531, subds. (a) & (b).) A
nutritionally adequate lunch must qualify for reimbursement under federal regulations,
5 The CDE is tasked with developing and maintaining nutrition guidelines for
breakfast and lunch that are consistent with the meal patterns defined by federal
regulation. (§ 49531.1.)
15
must incorporate the United States Dietary Guidelines for Americans, and must meet
one-third of the Recommended Dietary Allowance set by the National Research Council.
(Ibid.)
Section 49531 establishes a duty for school districts that use the federal and state
funds to provide breakfasts and lunches for qualifying students, but the duty it creates is
one of nutritional adequacy. Thus, local educational agencies that apply for state and
federal funds comply with the duties created here when they serve nutritionally adequate
food. Notably, state and federal guidelines include the option of serving lean meat. (Cal.
Code Regs., tit. 5, § 15558; 7 C.F.R. § 210.10; 7 C.F.R. § 220.8.)
Although the FAVP alleges LAUSD and PUSD receive funding from the CDE for
meals that satisfy the National School Lunch Program, it does not allege LAUSD or
PUSD neglect to provide nutritionally adequate meals. It also does not allege the school
districts fail to comply with state and federal nutrition guidelines, fail to meet the
minimum required Recommended Dietary Allowances, or fail to incorporate the United
States Dietary Guidelines for Americans in their food service programs. Thus, the FAVP
does not state a cause of action upon which relief can be granted against the local
educational agencies under this portion of the Education Code.6
6 The FAVP alleges the CDE is out of compliance with sections 495901 and
49531.1. The allegations against the CDE are not the subject of this appeal, and we do
not address their substance.
16
c. Section 32060
The FAVP also references part 19, article 6 of the Education Code, which
addresses toxic art supplies in schools. Section 32060 offers the Legislature's finding and
declaration that "art supplies which contain toxic substances or which are potential
human carcinogens pose a significant danger to the health and safety of school children,"
who "are not sufficiently protected by present health laws" because they fail to require
labels for materials which may be seriously harmful. (§ 32060, subd. (a).)
This law contains mandatory, prohibitory language; it prohibits schools from
purchasing art or craft materials containing toxic substances for use by first through sixth
graders, and it prohibits the purchase of art or craft materials containing toxic substances
for use by seventh through twelfth grade students unless the materials are properly
labeled.7 (§ 32064, subds. (a) & (b).)
The FAVP cites to this portion of the Education Code to define toxic substances
causing chronic illnesses and to include human carcinogens within the definition of toxic
substances. It then explains that processed meats are a human carcinogen that can
increase risk for cancer.8 Physicians Committee implies because schools are prohibited
7 There are exemptions which allow the purchase of the art or craft supplies if the
chronically toxic carcinogenic or radioactive substance contained in the product cannot
be ingested, inhaled, or otherwise absorbed into the human body. (§ 32064, subd. (c).)
Otherwise, art or craft materials that contain at least one percent of a toxic substance
causing chronic illness must have affixed warning labels containing information "on the
health-related dangers of the art or craft material." (§ 32065, subd. (b).)
8 There are also allegations that processed meats increase the likelihood of diabetes,
high blood pressure, cardiovascular disease, and obesity.
17
from purchasing art supplies with toxic substances, they must also be prohibited from
purchasing food that contains human carcinogens or must be required to provide warning
labels. Although the FAVP treats section 32060 as prohibiting the purchase of any toxic
substance causing chronic illness unless labeling standards are met, subsection (b)
references the definitions provided in subdivision (a), which are specific to art or craft
materials. (§ 32064, subds. (a) & (b).)
We read article 6 to apply to school art supplies and nothing more. Sections
32064 and 32065 repeatedly reference art supplies or craft materials, not food (see
§ 32064), and the legislative intent is specific to art supplies (§ 32060, subd. (a)).
Accordingly, this section of the Education Code does not supply a mandatory statutory
duty for school nutritional policies.
5. Local Wellness Policies
Paragraph 97 of the FAVP alleges that LAUSD and PUSD violate their local
wellness policies, but it does not contain any allegations identifying an action LAUSD
has taken in violation of its wellness policy. Nor does it put forth any argument in its
briefing that challenges LAUSD with being out of compliance with its own wellness
policy. Accordingly, the FAVP does not state a cause of against LAUSD on this basis.
Paragraph 97(b) of the FAVP alleges the PUSD wellness policy "states that food
available to children should promote 'optimal health' and its goal and purpose is to
support 'student health and wellness.' " It also alleges: "PUSD served processed meat,
which causes negative health effects [], and PUSD continues to serve processed meat
18
despite being aware of the negative health effects. PUSD is not providing food that
promotes a child's 'optimal health.' "
Physicians Committee contends PUSD violated its wellness policy to promote
optimal health and support student health and wellness because it serves processed meat
and does not explain how it will reduce the amounts of processed meats it will serve in
the future.
The wellness policy language quoted in the FAVP does not mandate any particular
action on the part of PUSD. It states that food should promote optimal health, not that it
must. Moreover, this language is a statement of intent, and such a statement cannot be
viewed as creating a substantive duty. (See, e.g., Common Cause, supra, 49 Cal.3d at
p. 444 [declaration of intent cannot be viewed as independently creating substantive
duties]; Shamsian, supra, 136 Cal.App.4th at pp. 640-641.) At best, this language creates
a discretionary duty for PUSD to promote optimal health in the way it sees fit.
Because the FAVP does not identify ministerial duties which it alleges have been
violated, we conclude a writ is not appropriate. "Mandamus does not lie to compel a
public agency to exercise discretionary powers in a particular manner, only to compel it
to exercise its discretion in some manner. [Citation.]" (AIDS Healthcare, supra, 197
Cal.App.4th at pp. 700-701.) Although Physicians Committee repeatedly points to its
allegation that the wellness policies fail to discuss how and when processed meat will be
reduced and/or phased out of school, absent a showing that the wellness policies are
obligated to do so, this cannot be a basis upon which relief can be granted. (See ibid.)
19
D.
Abuse of Discretion
Physicians Committee contends that even if LAUSD and PUSD were exercising
discretion, their actions abused discretion. The crux of Physicians Committee's argument
is that LAUSD's and PUSD's wellness policies are irrational because the school districts
serve processed meat to children, and this irrationality can only be challenged by
evidence which is not available for consideration at the demurrer stage because it would
require review of the entire administrative record.
A traditional writ may be appropriate to correct an abuse of discretion, and it can
force a particular action if the law clearly establishes a right to the particular action
sought. (Miller Family Home, Inc. v. Department of Social Services (1997) 57
Cal. App. 4th 488, 491.) "It is well-settled in mandamus proceedings (Code Civ. Proc.,
§ 1085) that the party seeking review 'must make some showing that the body invested
with discretion has acted arbitrarily, capriciously, fraudulently, or without due regard for
his rights and that the action was prejudicial to him. [Citations.]' [Citations.]"
(Huntington Park Redevelopment Agency v. Duncan (1983) 142 Cal. App. 3d 17, 25.)
Physicians Committee focuses on a federal regulation that requires schools
participating in the National School Lunch Program and/or Breakfast Program to
establish a wellness policy that ensures food and beverages made available on school
campuses are consistent with applicable minimum federal standards. (7 C.F.R.
§ 210.31(a).) The regulation requires local educational agencies to "review and consider
evidence-based strategies and techniques." (7 C.F.R. § 210.31(c)(1).)
20
Physicians Committee argues that a reviewing court must ensure the agency
" ' adequately considered all relevant factors, and has demonstrated a rational connection
between those factors, the choice made, and the purposes of the enabling statute.'
[Citation.]" (McGill v. Regents of University of California (1996) 44 Cal. App. 4th 1776,
1786.) It further argues that to do so, a court must consider the administrative record
before the agency at the time of the rule-making.
The FAVP does not directly allege the local educational agencies failed to
consider evidence-based strategies in developing their wellness policies. It does not seek
review of the local educational agencies' processes at all. It asks the court to direct the
local educational agencies to stop serving processed meat to children in schools and to
require LAUSD and PUSD to modify their wellness policies to remove processed meat
from school lunches.
Physicians Committee contends that a wellness policy drafted after consideration
of evidence-based strategies and techniques could not rationally decide to serve
processed meats. We disagree that no rational person could have reviewed evidence-
based strategies and nonetheless decided to serve processed meats or to omit reference to
its reduction in a wellness policy. For example, the National School Lunch Program
requires the use of science-based nutritional standards and tested nutritional research (42
U.S.C. § 1758(a)(1)), but the related regulations do not prohibit processed meats or even
require or recommend schools reduce use of processed meats over current amounts (see 7
C.F.R. § 210.10; 7 C.F.R. § 220.8).
21
The petitioner bears the burden of showing an amendment could cure the defect in
the pleading. (See Schifando v. City of Los Angeles (2003) 31 Cal. 4th 1074, 1081).
Physicians Committee offers in its appellate reply brief to amend the FAVP to include the
words "arbitrary and capricious" or "abuse of discretion." This argument is not properly
before us because it was not included in the opening brief. (Reichardt v. Hoffman (1997)
52 Cal. App. 4th 754, 764-765.) Even assuming it were, such an amendment would be
insufficient because it would not add factual allegations, and we disregard legal
conclusions in reviewing the adequacy of the petition. (See Moore v. Regents of
University of California (1990) 51 Cal. 3d 120, 125.)
Given the presumption that agencies have performed their official duties (Evid.
Code, § 664) and the lack of any direct allegation to the contrary, we conclude there is no
basis for the claim the local educational agencies abused their discretion here.
22
DISPOSITION
The judgment is affirmed. Costs are awarded to respondents on appeal.
HUFFMAN, J.
WE CONCUR:
McCONNELL, P. J.
GUERRERO, J.
23