Shaw v. L.A. Unified School Dist.

Filed 9/19/23
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
KESHARA SHAW et al., B315814
Plaintiffs and Appellants, Los Angeles County
Super. Ct. No.
v. 20STCV36489
LOS ANGELES UNIFIED
SCHOOL DISTRICT et al.,
Defendants and Respondents.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Yvette M. Palazuelos, Judge. Reversed in part,
affirmed in part, and remanded with directions.
Kirkland & Ellis, Mark C. Holscher, Sierra Elizabeth,
Edward S. Hillenbrand, Robert Carnes, Laura E. Uhlenhuth and
Kathryn Panish for Plaintiffs and Appellants.
Dannis Woliver Kelley, Sue Ann Salmon Evans, Ellen C.
Wu, Keith A. Yeomans, Luke L. Punnakanta and William Guy
Ash for Defendant and Respondent Los Angeles Unified School
District.
Bush Gottlieb, Ira L. Gottlieb, Lisa C. Demidovich, Michael
E. Plank and Dexter F. Rappleye for Relief Defendant and
Respondent United Teachers Los Angeles.
INTRODUCTION
Plaintiffs and appellants allege that during the COVID-19
pandemic, defendants and respondents Los Angeles Unified
School District (LAUSD or the District) and its then
Superintendent, Austin Beutner, adopted distance-learning
policies that discriminated against poor students and students of
color—and deprived all students of basic statewide educational
equality—in violation of the California Constitution. 1 Plaintiffs
rest their challenge on various side letter contract agreements
between LAUSD and the teachers union, defendant and
respondent United Teachers Los Angeles (UTLA), which
plaintiffs contend implemented the distance-learning framework
established by the Legislature in a discriminatory fashion. 2 Since
the suit was filed, however, the District has returned to in-person
instruction, and both the side letter agreements and the
statutory framework that authorized them have expired.
Nevertheless, plaintiffs continue to seek injunctive relief to
remedy what they contend are ongoing harms caused by the
allegedly unconstitutional policies.
1 Plaintiffs are Keshara Shaw, Alma Rosa Farias De Solano,
Josue Ricardo Gastelum-Campista, Maritza Gonzalez, Ronnie
Heard, Jr., Deyanira Hooper, Judith Larson, Vicenta Martinez,
and Akela Wroten, Jr., on behalf of themselves and a proposed
class of similarly situated people. On our own motion, we take
judicial notice that Austin Beutner is no longer Superintendent of
LAUSD.
2 Plaintiffs characterize UTLA as a relief defendant, which
we understand to mean that they sued it to allow the trial court
to afford complete relief.
2
The trial court sustained, with leave to amend, LAUSD’s
demurrer on mootness grounds and granted, with leave to
amend, its motion to strike the prayer for relief, reasoning that
the requested remedies would not be manageable on a class-wide
basis. The trial court also sustained, with leave to amend,
UTLA’s demurrer. Rather than amend, plaintiffs suffered
dismissal and now appeal. We conclude the court prematurely
struck the prayer for relief at the pleading stage,
notwithstanding the end of distance learning. Because the
plaintiffs propose a seemingly viable remedy for the past and
continuing harms they allege, their constitutional claims are not
moot. We therefore reverse in part, affirm in part, and remand
with instructions. 3
BACKGROUND
1. Summary of Distance Learning Framework
On March 4, 2020, Governor Gavin Newsom declared a
state of emergency in California due to the COVID-19 pandemic.
(County of Los Angeles Dept. of Public Health v. Superior Court
(2021) 61 Cal.App.5th 478, 484.) Los Angeles Mayor Eric Garcetti
declared a local state of emergency the same day.
On March 13, 2020, Governor Newsom signed Executive
Order N-26-20 relating to school district operations during the
crisis. Every LAUSD campus physically closed starting on
March 16, 2020. The following day, the Legislature enacted
Senate Bill No. 117, which, among other things, waived
attendance and statewide testing requirements for the 2019–
3 We affirm the judgment as to former Superintendent
Beutner on mootness grounds.
3
2020 school year for school districts that complied with the
Executive Order. (Sen. Bill No. 117 (2019–2020 Reg. Sess.) Stats.
2020, ch. 3.)
LAUSD and UTLA negotiated the impacts and effects of
the emergency closures and the shift to distance learning. The
resulting agreement, executed on April 8, 2020, was contained in
an April 2020 side letter to their collective bargaining agreement.
That side letter expired on June 30, 2020.
On June 29, 2020, the Legislature enacted Senate Bill
No. 98, which, among other things, established requirements for
distance learning during the 2020–2021 school year. (Sen. Bill
No. 98 (SB 98) (2019–2020 Reg. Sess.) Stats. 2020, ch. 24, § 34,
enacting, e.g., Ed. Code, 4 former §§ 43501 [minimum
instructional minutes], 43503 [distance learning requirements],
43504 [documenting attendance and progress], and 43509
[procedures for establishing distance learning policies].)
Section 43501 reduced the minimum required instructional
time for a school day. The reduced times varied by grade: 180
minutes for kindergarteners (§ 43501, subd. (a)), 230 minutes for
first through third graders (id., subd. (b)), and 240 minutes for
fourth through 12th graders (id., subd. (c)). Section 43503
established the requirements for distance learning, including
“[c]ontent aligned to grade level standards that is provided at a
level of quality and intellectual challenge substantially
equivalent to in-person instruction.” (§ 43503, subd. (b)(2).) 5
4 All undesignated statutory references are to the Education
Code.
5 Although the minimum instructional time set forth in
section 43501 does not appear to distinguish between
4
Section 43504 required school districts to document daily student
participation and engagement. (§ 43504, subd. (d)(1); see id.,
subd. (e) [“Each local educational agency shall ensure that a
weekly engagement record is completed for each pupil
documenting synchronous or asynchronous instruction for each
whole or partial day of distance learning, verifying daily
participation, and tracking assignments.”].) It also laid out
requirements for tracking and mitigating absenteeism. (Id.,
subd. (f).) The distance learning provisions went into effect on
June 29, 2020. (Stats. 2020, ch. 24, § 124.)
LAUSD and UTLA negotiated the impacts and effects of
this new regimen. Their agreement governing the fall 2020
semester was contained in an August 2020 side letter, which
expired on December 31, 2020. LAUSD and UTLA then
negotiated a December 2020 side letter to govern the spring 2021
semester.
On May 25, 2021, the LAUSD board terminated the
superintendent’s emergency authority to take actions necessary
to respond to the pandemic. Governor Newsom terminated his
own executive orders on June 15, 2021. Finally, on June 30, 2021,
the state laws authorizing and delineating the contours of
distance learning, including section 43503, expired. (Stats. 2020,
ch. 24, § 34, enacting former § 43511, subd. (b) [“This part shall
synchronous and asynchronous instructional time, section 43503
required daily live interaction between students and teachers.
(Former § 43503, subd. (b)(6).) Synchronous instruction occurs
when the teacher provides direct instruction; asynchronous
instruction occurs when students work independently on
assigned work or receive instruction via means other than direct
instruction from a teacher, such as by watching a video.
5
become inoperative on June 30, 2021, and, as of January 1, 2022,
is repealed.”].) The December 2020 side letter expired the same
day.
2. Proceedings Below
2.1. First Amended Complaint
Plaintiffs filed their original class action complaint on
September 24, 2020. On October 7, 2020, they filed a first
amended complaint, which added UTLA as a relief defendant. 6
On April 9, 2021, the trial court overruled LAUSD’s
demurrer to the first amended complaint but granted LAUSD’s
motion to strike language concerning the failure to provide
students with special education instruction and services. The
court held that the case was not moot because school closures
were ongoing and could recur, thereby perpetuating the alleged
side-letter problems, and section 43503 had not yet expired. It
also observed that the complaint had requested only prospective
relief; the court thus invited plaintiffs to revise it to include a
prayer for remedial (or “retrospective”) relief. The court warned,
however, that “retrospective relief on a class-wide basis may
create commonality and typicality problems because each
student’s educational shortfalls may be highly individualized.”
2.2. Second Amended Complaint
Plaintiffs filed the operative second amended class action
complaint on May 12, 2021. It asserted eight causes of action:
6 They did so because LAUSD had taken the position that
UTLA is an indispensable party because it was a party to the
challenged side letters—but plaintiffs stated that they were “not
bringing any claims against the UTLA.”
6
wealth discrimination, in violation of the equal protection clauses
of the California Constitution (first cause of action); racial
discrimination, in violation of the equal protection clauses of the
California Constitution (second cause of action); violation of the
privileges and immunities clause of the California Constitution
(third cause of action); violation of article IX, sections 1 and 5 of
the California Constitution (fourth cause of action); violation of
Government Code section 11135 (fifth cause of action); violation
of section 43503 (sixth cause of action); declaratory relief (seventh
cause of action); and failure to provide basic educational equality,
in violation of the equal protection clauses of the California
Constitution (eighth cause of action). 7 The first, second, and
eighth causes of action asserted that the constitutional violations
stemmed from the April, August, and December 2020 side letter
agreements between LAUSD and UTLA, which implemented
statutory distance learning policies in the District.
Plaintiffs’ second amended complaint also sought remedial
injunctive relief. The prayer for relief requested, in part:
“Retrospective relief to address the ongoing, cumulative, and
irreparable harms already suffered by LAUSD students,
including but not limited to non-individualized forms of relief
such as (1) additional live instructional minutes delivered by
certified teachers, (2) mandatory assessments to evaluate student
learning loss, (3) the provision of small group and one-on-one
tutoring services to subclasses of students disproportionately
impacted by the LAUSD’s distance learning policies,
7 Only the first, second, and eighth causes of action are at
issue in this appeal. We refer to them collectively as the
“constitutional claims” or “constitutional causes of action.”
7
(4) mandatory training for teachers specific to remediating
learning loss that students suffered as a result of the LAUSD’s
distance learning policies, and (5) affirmative outreach measures
to counter the student truancy trends that developed as a result
of the LAUSD’s distance learning policies.”
2.3. Demurrers and Motions to Strike
LAUSD demurred to all of the causes of action on mootness
grounds. The District asserted that each cause of action failed to
state a claim because: the challenged side letters, SB 98, and
section 43503 had all expired (see former § 43511, subd. (b));
intervening events rendered the present controversy unlikely to
recur; and plaintiffs’ constitutional and discrimination claims and
the statewide standard on which they rested were dependent
upon an expired law. 8
Separately, LAUSD also moved to strike the language
concerning retrospective injunctive relief, arguing that such relief
was improper as a matter of law and could not be maintained on
a class-wide basis.
UTLA demurred to and moved to strike the class
allegations in the second amended complaint on the ground that
plaintiffs could not establish a well-defined community of interest
among class members. It also joined LAUSD’s demurrer on
mootness grounds.
8 LAUSD also filed a request for judicial notice of various
documents concerning post-pandemic return to learning and
mitigation policies, which the court granted as to their existence
but not as to the truth of any reasonably disputable matters
therein.
8
2.4. Trial Court’s Ruling
The trial court sustained both demurrers with leave to
amend and granted the motion to strike with leave to amend. The
court also struck the class allegations regarding retrospective
relief with leave to amend.
The court held that changes in circumstance—namely, the
expiration of SB 98 and the operative side letters, the return to
in-person instruction, and LAUSD’s adoption of post-pandemic
remedial policies—rendered plaintiffs’ claims moot, and the
issues raised were not likely to recur. In light of its conclusion
that distance learning was unlikely to resume, at least in its past
form, the court rejected plaintiffs’ argument that the matter
remained relevant to the general public interest. As to plaintiffs’
constitutional claims, the court held that because SB 98 and
section 43503 had expired, plaintiffs could not establish the
required “prevailing statewide standards” element of their
claims. As such, they could no longer state facts sufficient to
constitute a viable cause of action. 9
Finally, the court held that even if the expiration of the
side letters and section 43503 did not moot plaintiffs’ claims,
their request for remedial injunctive relief would not be
manageable on a class-wide basis because it would require
9 As discussed below, when addressing the constitutional
claims, the court did not distinguish the eighth cause of action,
which required plaintiffs to prove that that “the actual quality of
the district’s program, viewed as a whole, falls fundamentally
below prevailing statewide standards” (Butt v. State of California
(1992) 4 Cal.4th 668, 686–687 (Butt)), from the first and second
causes of action, which appellants contend do not share this
requirement.
9
individualized inquiries into which students required what
interventions. The court rejected plaintiffs’ assertion that they
sought only non-individualized relief. Accordingly, the court
sustained UTLA’s demurrer with leave to amend, granted
LAUSD’s motion to strike the prayer for relief with leave to
amend, and struck the class allegations regarding retrospective
relief with leave to amend.
Ultimately, although the court had granted plaintiffs leave
to amend to cure the defects it perceived in the second amended
complaint, they declined to do so. The case was dismissed with
prejudice on September 15, 2021. Appellants filed a timely notice
of appeal.
CONTENTIONS
On appeal, appellants challenge only the dismissal of their
constitutional claims—the first, second, and eighth causes of
action—and the striking of their prayer for remedial injunctive
relief. They concede that the court properly dismissed the third,
fourth, fifth, sixth, and seventh causes of action.
Specifically, appellants contend the trial court erred by
sustaining the demurrers because the second amended complaint
alleged facts sufficient to state claims for race-, wealth-, and
inter-district discrimination. Next, they argue that the court
erred by striking the request for remedial class-wide injunctive
relief. They contend the court misconstrued the relief sought as
individualized rather than systemic and argue that it is improper
to strike class allegations at the demurrer stage. Finally,
appellants argue that the complex civil court’s supposed
unwritten automatic-stay rule is invalid and unlawfully
prevented them from obtaining preliminary injunctive relief.
10
LAUSD contends the judgment of dismissal must be
affirmed because appellants do not challenge the trial court’s
mootness ruling on appeal. On the merits, it argues that the first
and second causes of action failed to state a claim because
appellants did not establish causation—namely, that it was the
District’s distance-learning policies that caused discrimination—
and the eighth cause of action failed to state a claim because
appellants did not provide sufficient evidence of educational
quality elsewhere in the state. As to the prayer for class-wide
relief, in addition to contesting appellants’ arguments,
respondents contend the court properly struck the allegations
because injunctions may not operate retrospectively, and the
requested relief violates the separation of powers doctrine.
Finally, concerning the asserted automatic-stay rule, respondents
argue that appellants have forfeited the claim by failing to
challenge the rule below, and, in any event, any delay was caused
not by court policy but by appellants’ own actions and strategic
choices.
In addition to the issues asserted by LAUSD, UTLA
contends that the entire appeal of the rulings it obtained below
has been forfeited because appellants do not clearly challenge the
court’s ruling sustaining UTLA’s demurrer. It also argues that
even if changed circumstances do not moot the entire case, UTLA
should be dismissed because the expiration of the side letters
extinguishes the reason for its presence.
DISCUSSION
1. Standard of Review
When, as here, a demurrer to a complaint is sustained with
leave to amend and the plaintiffs elect not to amend the
11
complaint, the plaintiffs may test the validity of the order
sustaining the demurrer by appealing from the ensuing judgment
of dismissal. (County of Santa Clara v. Atlantic Richfield Co.
(2006) 137 Cal.App.4th 292, 312 [when a plaintiff chooses to
stand on his or her pleading and not amend after a demurrer is
sustained with leave to amend, “an appeal from the ensuing
dismissal order may challenge the validity of the intermediate
ruling sustaining the demurrer. [Citation.] On the other hand,
where the plaintiff chooses to amend, any error in the sustaining
of the demurrer is ordinarily waived.”].)
In reviewing a demurrer order, we independently evaluate
the challenged pleading, construing it liberally, giving it a
reasonable interpretation, reading it as a whole, and viewing its
parts in context. (Milligan v. Golden Gate Bridge Highway &
Transportation Dist. (2004) 120 Cal.App.4th 1, 5–6 (Milligan).)
We treat the demurrer as admitting all material facts properly
pleaded, but we do not assume the accuracy of contentions,
deductions, or conclusions of law. (Aubry v. Tri–City Hospital
Dist. (1992) 2 Cal.4th 962, 966–967.)
Typically, the failure to amend a complaint constitutes an
admission that the plaintiffs have stated the case as strongly as
they could have, and no additional facts could be alleged to cure
the defect. (Le Mere v. Los Angeles Unified School Dist. (2019) 35
Cal.App.5th 237, 244.) Thus, on appeal, we treat failure to amend
as a waiver of un-pled allegations. (See Estate of Pryor (2009) 177
Cal.App.4th 1466, 1470.) We determine de novo whether the
factual allegations of the challenged pleading adequately state a
cause of action under any legal theory. (Milligan, supra, 120
Cal.App.4th at p. 6.)
12
The plaintiffs bear the burden of demonstrating that the
trial court erroneously sustained the demurrer. (Friends of
Shingle Springs Interchange, Inc. v. County of El Dorado (2011)
200 Cal.App.4th 1470, 1485.) We will affirm the judgment if
proper on any grounds stated in the demurrer, whether or not the
trial court acted on that ground. (Carman v. Alvord (1982) 31
Cal.3d 318, 324.)
It is the parties’ responsibility to support claims of error
with meaningful argument and citation to authority. (Cal. Rules
of Court, rule 8.204(a)(1)(B); Badie v. Bank of America (1998) 67
Cal.App.4th 779, 784–785.) When they do not furnish legal
argument with citation to authority on a particular point, we may
treat the point as forfeited and pass it without consideration.
(Okasaki v. City of Elk Grove (2012) 203 Cal.App.4th 1043, 1045,
fn. 1; Keyes v. Bowen (2010) 189 Cal.App.4th 647, 656.) In
addition, citing cases without any discussion of their application
to the present case results in forfeiture. (Nelson v. Avondale
Homeowners Assn. (2009) 172 Cal.App.4th 857, 862; Tilbury
Constructors, Inc. v. State Comp. Ins. Fund (2006) 137
Cal.App.4th 466, 482–483.) We are not required to examine
undeveloped claims or to supply arguments for the litigants.
(Maral v. City of Live Oak (2013) 221 Cal.App.4th 975, 984–985;
Mansell v. Board of Administration (1994) 30 Cal.App.4th 539,
546 [it is not the court’s function to serve as the appellant’s
backup counsel].)
Moreover, we do not consider points raised for the first time
in the reply brief absent a showing of good cause for the failure to
present them earlier. (Garcia v. McCutchen (1997) 16 Cal.4th
469, 482, fn. 10.) This rule is based on considerations of
fairness—withholding a point until the closing brief deprives the
13
opposing party of the opportunity to file a written response
unless supplemental briefing is ordered. (Neighbours v. Buzz
Oates Enterprises (1990) 217 Cal.App.3d 325, 335, fn. 8.)
2. Forfeiture
Appellants contend the court erred by sustaining the
demurrers to their constitutional claims—the first, second, and
eighth causes of action. The first cause of action asserted that the
side letter agreements discriminated on the basis of wealth; the
second cause of action asserted that the side letter agreements
discriminated on the basis of race; and the eighth cause of action
asserted that the side letter agreements denied LAUSD students
an education basically equivalent to that provided elsewhere in
the state.
LAUSD argues that appellants have failed to challenge the
court’s holding that the constitutional causes of action are moot,
and as such, have forfeited the appellate claim that the court
erred by sustaining the demurrers. Likewise, UTLA argues that
appellants concede by abandonment that the bulk of their case
has become moot. UTLA also contends appellants’ appeal is
forfeited in its entirety because it does not clearly encompass
UTLA’s demurrer.
Appellants respond that LAUSD did not demur to the
constitutional claims on mootness grounds, and the court did not
sustain the demurrer on that basis. They also contend they have
adequately challenged the issues raised in UTLA’s demurrer.
As discussed below, we conclude that although appellants’
briefs are not a model of clarity, they have preserved their
challenges to both demurrers.
14
2.1. Appellants adequately address the court’s
mootness ruling.
LAUSD demurred to each cause of action in the second
amended complaint—including the constitutional claims at issue
here—on mootness grounds. By sustaining LAUSD’s demurrer,
the trial court necessarily held that all three constitutional
causes of action were moot. Although the court devoted scant
attention to that question in its order, appellants were
nonetheless required to challenge the ruling on appeal. (See E.L.
White, Inc. v. City of Huntington Beach (1978) 21 Cal.3d 497, 504,
fn. 2 [“‘[I]t is the validity of the court’s action, and not of the
reason for its action, which is reviewable.’” (Original italics.)].)
Certainly, appellants have not addressed the issue head-on.
Nevertheless, the question of mootness in this case is
fundamentally entwined with the question of remedy. We
conclude appellants’ discussion of the latter question is sufficient
to preserve a challenge to the former. As we will explain, if the
trial court erred in striking the prayer for relief, appellants still
have a viable remedy for past and continuing harms, and their
constitutional claims are not moot.
2.1.1. The court impliedly held that striking the
prayer for relief rendered the constitutional
claims moot. 10
Appellants contend LAUSD did not demur—and the trial
court did not sustain the demurrer—to the constitutional causes
10 We address mootness in detail in section 5, post. In general,
however, a “case is considered moot when ‘the question addressed
was at one time a live issue in the case,’ but has been deprived of
15
of action on mootness grounds; instead, they argue, those causes
of action were stricken when the court granted LAUSD’s motion
to strike. Appellants insist: “LAUSD did not seek dismissal of
Appellants’ request for remedial injunctive relief on mootness
grounds. Nor would doing so have made any sense, as the
requested programmatic reforms undoubtedly would have a
‘practical impact’ and offer ‘effectual relief’ if ordered by the trial
court.” Appellants also offer a convoluted theory that the court
treated their prayer for remedial relief as its own free-standing
claim, suggesting that “the trial court cabined its ruling on
Appellants’ request (or ‘claims’) for remedial injunctive relief to
the arguments raised in LAUSD’s motion to strike, and did not
find that the request was moot.” 11 (But see, e.g., Shell Oil Co. v.
life ‘because of events occurring after the judicial process was
initiated.’ [Citation] . . . The pivotal question in determining if a
case is moot is . . . whether the court can grant the plaintiff any
effectual relief.” (Wilson & Wilson v. City Council of Redwood
City (2011) 191 Cal.App.4th 1559, 1574.)
11 Appellants argue: “While a defendant usually demurs to an
entire ‘cause of action,’ LAUSD instead addressed its demurrer to
two forms of relief—prospective injunctive relief and declaratory
relief. It attacked a third form of relief—remedial (or
retrospective) injunctive relief—by way of a separate motion to
strike class allegations pertaining to that remedy. Appellants and
the trial court accepted LAUSD’s framework, and the trial court
(1) dismissed Appellants’ ‘claims’ for prospective injunctive relief
and declaratory relief as moot, and (2) struck their ‘claims’ for
remedial injunctive relief as not susceptible to class treatment.
LAUSD, and thereafter Appellants and the trial court, elected to
treat each of Appellants’ demanded remedies as essentially
separate ‘causes of action’ or ‘claims.’ Having prompted that
framework in the trial court, LAUSD should not be permitted to
16
Richter (1942) 52 Cal.App.2d 164, 168 [relief by injunction is a
remedy and not, in itself, a cause of action; cause of action must
exist before injunctive relief can be granted].)
The District asserts that it has always argued the
constitutional causes of action were moot, but it also argued that,
to the extent remedial injunctive relief could provide a practical
impact that would render those claims non-moot, such relief
would be improper for the reasons addressed in the motion to
strike.
Both sides overstate the case.
LAUSD overstates the argument it made in its demurrer.
To state a claim for denial of basic educational equality, the
plaintiff must show that “the actual quality of the district’s
program, viewed as a whole, falls fundamentally below prevailing
statewide standards.” (Butt, supra, 4 Cal.4th at pp. 686–687.)
LAUSD argued that the repeal of SB 98 and section 43503
deprived plaintiffs of a prevailing statewide standard by which to
measure the District’s distance-learning policies. The District
also mentioned, in a footnote in its reply brief: “To the extent
Plaintiffs argue that a decision in Plaintiffs’ favor can have a
‘practical’ impact, any such relief would come in the form of what
Plaintiffs allege is remedial or retrospective relief, which is
subject to LAUSD’s concurrently-filed Motion to Strike.” Plainly,
the District did not address practical impact in any substantive
way.
now argue that Appellants were required to challenge the trial
court’s mootness decision in order for their request (or ‘claims’)
for remedial injunctive relief to survive dismissal.”
17
But appellants are wrong that “the trial court’s mootness
analysis addressed only Appellants’ requests for prospective
injunctive relief and declaratory relief.” Although the court did
not explicitly address the practical-impact question, it did
address the statewide standards issue. The court observed:
“Plaintiffs also contend that SB 98’s expiration does not moot
their constitutional claims.” The court noted that in overruling
LAUSD’s demurrer to the first amended complaint, it had relied
on appellants’ “allegations that prevailing statewide standards
for distance learning could be determined from LAUSD’s policies
before the pandemic, SB 98’s requirements, and the policies
implemented by the four next largest public school districts in
California . . . .”
In ruling on the motions attacking the second amended
complaint, however, the trial court said, “Now that SB 98 and
Section 43503 are no longer operative, [the] ‘prevailing statewide
standards’ cannot be established based only on LAUSD’s pre-
pandemic policies and the policies implemented by the four next
largest public school districts in California. Policies from only five
California school districts—no matter how large they are—are
insufficient to establish ‘prevailing statewide standards,’ absent a
statewide statutory baseline such as Section 43503.”
In other words, the trial court held that because section
43503 and the side letter agreements were no longer operative,
appellants’ claims based on them—including their constitutional
claims—were no longer justiciable.
To be sure, this section of the court’s order was brief in
comparison to the court’s thorough discussion of other issues. In
particular, the court did not distinguish the eighth cause of
action, which requires plaintiffs to establish prevailing statewide
18
standards, from the first and second causes of action, which do
not share this requirement. (See Butt, supra, 4 Cal.4th at p. 691
[“nothing in our analysis is intended to immunize local school
officials for accountability for mismanagement”].) Nor did the
trial court explicitly address the question of whether it could
grant effective relief.
But the latter issue was plainly on the court’s mind. For
example, at oral argument, the court asked: “Defendants, I would
like you to address the mootness argument but then also address
the court’s comment . . . concerning even if mootness is aside [sic],
what about the constitutional violations and the [disparate]
impact of the policies on Black and Latino students independent
of your letters? In other words, right now we’re stuck with
children that have fallen behind. Going forward, they’re going to
ask you for certain types of relief. Why can’t that just be an
independent basis to allow them to continue?”
Counsel for LAUSD responded “they don’t even get to
relief . . . until they state a viable cause of action,” which “is now
moot.” The trial court then pressed: “You’re saying you have
money now going forward, but are they addressing the past
problems that were caused by distance learning? You’re just
saying we’re not going to do it anymore in the future. Okay, that’s
great. But how do you remedy the past deficiency? Can’t the court
declare enough to get a program—not necessarily for each
student—but programs to [be] put in place to remedy . . . those
situations, those problems?”
UTLA suggests what ultimately happened is that the trial
court “struck the request for classwide retrospective remedies
from the [second amended complaint], with the result that no
part of the case remained that was not moot.” We agree that this
19
is the only reasonable interpretation of the court’s order and the
proceedings below. It appears the court recognized plaintiffs’
proposed remedy would provide a practical impact, which would
normally mean the constitutional claims would remain viable.
But the court’s holding that the requested relief could not proceed
on a class-wide basis negated that practical impact, thereby
mooting the claims. 12
The question before us, then, is whether appellants have
adequately challenged the court’s implied holding. We conclude
that they have.
2.1.2. Mootness and remedy are intertwined.
As we address in detail below, if appellants can assert a
viable remedy, their constitutional causes of action are not moot.
Yet on appeal, after challenging the trial court’s order granting
the motion to strike, appellants do not argue—at least, not
explicitly—that because the court erred by striking the prayer for
relief, it also erred by impliedly holding that the constitutional
claims were moot because they could have no practical impact.
Nevertheless, if the central issue in this case is whether the
court erred by striking appellants’ prayer for relief, mootness
12 Although the court also held that the constitutional claims
were moot because the expiration of SB 98 deprived appellants of
a prevailing statewide standard for the eighth cause of action,
that discussion was relatively brief in the context of the order as
a whole. More importantly, the discussion did not apply to the
claims of intra-district discrimination asserted in the first and
second causes of action because those causes of action do not
require plaintiffs to establish a statewide standard. Thus, the
court must have had some other basis for sustaining the
demurrer to those two causes of action.
20
merely addresses the legal effect of the answer to that question.
In other words, relief and mootness are two sides of the same
coin. By arguing in detail and at length that the court erred by
striking their prayer for relief, appellants have thereby preserved
their claim that their constitutional causes of action remain
viable.
In any event, even if appellants’ discussion of mootness
were insufficient to preserve the issue for appeal, we would
exercise our discretion to consider whether appellants can state a
claim. Because appellants raised the issue below and address the
substance of the trial court’s discussion of this matter on appeal,
and in light of the important constitutional issues at stake in this
case, we conclude rigid application of the forfeiture doctrine
would not serve the interests of justice. (See Barriga v. 99 Cents
Only Stores LLC (2020) 51 Cal.App.5th 299, 321 [appellate courts
have discretion to consider arguments asserted in the trial court
and not reasserted in an opening brief on appeal]; Scott v. City of
San Diego (2019) 38 Cal.App.5th 228, 234, fn. 4 [exercising
discretion to consider merits of argument not raised in opening
brief that presented pure legal issue and was material to
disposition of appeal].)
2.2. Appellants adequately address UTLA’s demurrer.
UTLA contends that appellants have forfeited the entire
appeal as to UTLA because they do not clearly challenge the
court’s ruling sustaining UTLA’s demurrer. We disagree.
Although appellants do not explicitly parse the differences
between the two demurrers, UTLA’s demurrer covered the same
essential ground as LAUSD’s motion to strike—namely, the
validity of the prayer for class-wide remedial injunctive relief—
and appellants devote ample attention to that topic.
21
In any event, UTLA does not explain why appellants’
discussion of the class allegations is insufficient to encompass the
issues raised by UTLA’s demurrer. Nor does UTLA explain how
its demurrer differs from LAUSD’s motion to strike. Accordingly,
it has forfeited this argument. (See Benach v. County of Los
Angeles (2007) 149 Cal.App.4th 836, 852 [failure to develop claim
with reasoned legal argument and supporting authority forfeits
the issue].)
3. The court erred by striking the prayer for relief at the
pleading stage.
Appellants contend the trial court erred by striking their
class-wide prayer for remedial injunctive relief. They argue the
court misconstrued the relief sought as individualized rather
than systemic and argue that it is improper to strike class
allegations at the pleading stage. LAUSD argues the court
properly struck the prayer for relief because crafting such relief
would require myriad individualized inquiries. UTLA argues the
court properly struck the prayer for relief because there is no
community of interest within the proposed class.
Class allegations may be stricken at the pleading stage
only when it is clear from the face of the complaint, the exhibits,
and judicially-noticed documents that liability isn’t subject to
common proof. Here, the court held that relief was not subject to
common proof. This ruling was premature.
3.1. Legal Principles and Standard of Review
“Courts long have acknowledged the importance of class
actions as a means to prevent a failure of justice in our judicial
system. [Citations.] ‘“By establishing a technique whereby the
claims of many individuals can be resolved at the same time, the
22
class suit both eliminates the possibility of repetitious litigation
and provides small claimants with a method of obtaining
redress. . . .”’ [Citation.] Generally, a class suit is appropriate
‘when numerous parties suffer injury of insufficient size to
warrant individual action and when denial of class relief would
result in unjust advantage to the wrongdoer.’ [Citations.] But
because group action also has the potential to create injustice,
trial courts are required to ‘“carefully weigh respective benefits
and burdens and to allow maintenance of the class action only
where substantial benefits accrue both to litigants and the
courts.”’ [Citations.]
“Section 382 of the Code of Civil Procedure authorizes class
suits in California when ‘the question is one of a common or
general interest, of many persons, or when the parties are
numerous, and it is impracticable to bring them all before the
court.’ To obtain certification, a party must establish the
existence of both an ascertainable class and a well-defined
community of interest among the class members. [Citations.] The
community of interest requirement involves three factors:
‘(1) predominant common questions of law or fact; (2) class
representatives with claims or defenses typical of the class; and
(3) class representatives who can adequately represent the
class.’” (Linder v. Thrifty Oil Co. (2000) 23 Cal.4th 429, 434–435.)
“The decision whether a case is suitable to proceed as a
class action ordinarily is made on a motion for class certification.”
(Bridgeford v. Pacific Health Corp. (2012) 202 Cal.App.4th 1034,
1041.) When the invalidity of the class allegations is revealed on
the face of the complaint, the trial court may decide the issue by
demurrer or motion to strike. (Ortega v. Topa Ins. Co. (2012) 206
Cal.App.4th 463, 478.) But California courts have long disfavored
23
disposing of class allegations at the pleading stage. (Gutierrez v.
California Commerce Club, Inc. (2010) 187 Cal.App.4th 969, 976
(Gutierrez).)
Accordingly, a court may decide the question on demurrer
only if it is clear “‘“there is no reasonable possibility that the
plaintiffs could establish a community of interest among the
potential class members and that individual issues predominate
over common questions of law and fact.”’” (Gutierrez, supra, 187
Cal.App.4th at p. 975; see Tucker v. Pacific Bell Mobile Services
(2012) 208 Cal.App.4th 201, 211 (Tucker) [court may sustain a
demurrer as to class claims “‘only if it concludes as a matter of
law that, assuming the truth of the factual allegations in the
complaint, there is no reasonable possibility that the
requirements for class certification will be satisfied’”].)
“‘If there is a reasonable possibility the plaintiffs can plead
a prima facie community of interest among class members, “‘“the
preferred course is to defer decision on the propriety of the class
action until an evidentiary hearing has been held on the
appropriateness of class litigation.”’”’” (Tucker, supra, 208
Cal.App.4th at p. 215, citing Gutierrez, supra, 187 Cal.App.4th at
p. 975.) Thus, “‘all that is normally required for a complaint to
survive demurrers to the propriety of class litigation is that the
complaint allege facts that tend to show: (1) an ascertainable
class of plaintiffs, and (2) questions of law and fact which are
common to the class.’” (Prince v. CLS Transportation, Inc. (2004)
118 Cal.App.4th 1320, 1326 (Prince); see Blakemore v. Superior
Court (2005) 129 Cal.App.4th 36, 59 (Blakemore) [“Absent ‘strong
factual showings’ in the complaint that negate the possibility of a
community of interest, determination of the propriety of a class
24
action should be deferred ‘until a time when [the court] may
better make the decision.’”].)
“A motion to strike, like a demurrer, challenges the legal
sufficiency of the complaint’s allegations, which are assumed to
be true.” (Blakemore, supra, 129 Cal.App.4th at p. 53.) Thus, as
with a demurrer, a “motion to strike the class allegations ‘raises
only the narrow issue whether this suit as a matter of law lacks
sufficient community of interest to sustain a class action.’” (Id. at
p. 54.) We review matters of law de novo. (Ibid.)
3.2. The court erred by striking the class allegations
based on individualized questions of remedy.
The issue before the trial court was: “Considering the
allegations of the [complaint], the pleading exhibits, and the
judicially noticed facts, have Plaintiffs pled a prima facie
community of interest among class members?” (Tucker, supra,
208 Cal.App.4th at p. 220.) The court concluded they had:
“Plaintiffs correctly state that the legality of the challenged Side
Letters is a liability issue susceptible to common proof.” The
court seemingly reached this conclusion in passing, apparently
believing it was self-evident; it did not address the elements of
the constitutional claims nor discuss what would be needed to
prove them.
Nevertheless, as there was no question the proposed class
is ascertainable, this should have been the end of the inquiry.
(Blakemore, supra, 129 Cal.App.4th at p. 59; Prince, supra, 118
Cal.App.4th at p. 1326.) Instead, the court expounded that “even
if Plaintiffs could establish commonality as to this liability issue,
this case would remain unmanageable because of the highly
individualized determinations required to determine damages
25
and to fashion appropriate relief.” That is, the court focused not
on liability but on remedy. 13
Both respondents and the court below cite a variety of cases
in which individual issues predominated as to both liability and
remedy. 14 For example, Silva v. Block involved a proposed class of
people wrongly and unjustifiably attacked by police dogs used by
a sheriff’s department. (Silva v. Block (1996) 49 Cal.App.4th 345,
352.) The appellate court held that the question of liability to
individual class members “would depend upon the particular
conduct in which the suspect was engaged and the facts apparent
to the handler before the police dog was employed.” (Ibid.; see
also Newell v. State Farm General Ins. Co. (2004) 118
Cal.App.4th 1094, 1099, 1103 [proposed class of people
wrongfully denied policy benefits for damage caused to their
13 It appears the court may have also applied the wrong legal
standard in resolving the question. A court may not strike class
allegations at the pleading stage if “‘there is a reasonable
possibility the plaintiffs can plead a prima facie community of
interest among class members . . . .’” (Tucker, supra, 208
Cal.App.4th at p. 215.) Here, the court held that “[b]ecause
Plaintiffs’ request for retroactive injunctive relief will make class
treatment unmanageable, a class action is not a superior means
of resolving this dispute.”
14 The trial court also relied on a variety of federal district
court cases, at least one of which is unpublished, as well as an
opinion from the Seventh Circuit Court of Appeals. As those
opinions are not binding on this court, we do not address them.
(See Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d
450, 455–456.) For the same reason, we deny UTLA’s request,
made in its respondent’s brief, that we take judicial notice of
various federal cases dealing with the pandemic and its effects.
26
homes by the Northridge earthquake; even if insurers adopted
improper claims practices to adjust earthquake claims, each class
member “still could recover for breach of contract and bad faith
only by proving his or her individual claim was wrongfully
denied, in whole or in part, and the insurer’s action in doing so
was unreasonable”] (original italics); Brown v. Regents of
University of California (1984) 151 Cal.App.3d 982, 989–990
[proposed class of people allegedly injured by hospital’s failure to
provide adequate coronary care; case presented “a veritable
quagmire of tough factual questions” that could only be resolved
by individual proof, as opposed to a “relatively simple consumer
fraud action”].)
Similarly, in Clausing v. San Francisco Unified School
District, the proposed class was disabled students who had
allegedly been abused, beaten, and publicly humiliated by school
district employees. (Clausing v. San Francisco Unified School
Dist. (1990) 221 Cal.App.3d 1224, 1233–1234.) To establish
liability, the appellate court noted, each individual would have
had to prove “overwhelmingly numerous” separate issues,
including the fact that he or she was a victim of abuse, the
identity of the abuser, and the capacity in which the abuser
acted. (Ibid.) Even if it could be determined that the district’s
policies and practices encouraged abuse of students, “this
determination could not resolve the lawsuit, which would still
require a full trial on each and every alleged incident of abuse
with respect to fault, causation, damages, and affirmative
defenses.” (Ibid.)
Yet neither the court below nor the parties on appeal have
pointed to any California authority in which a court properly
struck class allegations at the demurrer stage based only on the
27
supposed unavailability of a class-wide remedy—and our
research has revealed none. Indeed, in Tucker, which LAUSD
holds up as an example of a “modern” case that takes a
permissive view of striking class allegations at the pleading
stage, the appellate court held that questions about damages
were irrelevant to its analysis. (Tucker, supra, 208 Cal.App.4th
p. 230 [“Regardless of whether Plaintiffs are able to pursue
claims for individual damages or class restitution, the adequacy
of Defendants’ disclosures of the contested billing practice, and
whether at least some members of the public are likely to be
deceived are not issues that can be resolved as a matter of law on
demurrer, even with the matter judicially noticed.”].)
In any event, it appears to be within the realm of
probability that the trial court—with the assistance of the
parties—could fashion appropriate injunctive relief consisting of
workable programs and techniques for evaluating and
remediating any learning deficits occasioned by the District’s
distance learning program. School districts across the country are
developing programs to identify and remediate pandemic
learning loss, so it is not as if the court will have no models to
consider. And it is far from obvious at this point that all possible
remedies would necessitate prohibitively cumbersome individual
inquiries.
Accordingly, we conclude the court erred by striking the
class allegations based on concerns about the supposed
individualized nature of all possible remedies.
28
3.3. There is a reasonable possibility that appellants
can establish a community of interest among
class members.
As discussed above, a court may sustain a demurrer to
class claims only if it concludes as a matter of law that, assuming
the truth of the factual allegations in the complaint, plaintiffs are
unable to make a prima facie showing that a community of
interest exists among the proposed class members. 15 (Tucker,
supra, 208 Cal.App.4th at pp. 211, 220.) UTLA contends
appellants cannot make that showing here. We disagree.
“Since its admission to the Union, California has assumed
specific responsibility for a statewide public education system
open on equal terms to all. The Constitution of 1849 directed the
Legislature to ‘provide for a system of common schools, by which
a school shall be kept up and supported in each district . . . .’ (Cal.
Const. of 1849, art. IX, § 3.) That constitutional command, with
the additional proviso that the school maintained by each district
be ‘free,’ has persisted to the present day. (Cal. Const., art. IX,
§ 5.)” (Butt, supra, 4 Cal.4th at p. 680.)
Courts have interpreted these provisions, together with our
state equal protection clauses, to guarantee California children “a
fundamental right of equal access to public education, warranting
strict scrutiny of legislative and executive action that is alleged to
infringe on that right.” (O’Connell v. Superior Court (2006) 141
Cal.App.4th 1452, 1465.) Students are entitled to educational
equality both within school districts (meaning a given district
cannot discriminate against them based on their race or their
wealth) and between districts (meaning school districts must
15 Ascertainability is not at issue here.
29
provide an education at least basically equivalent to that afforded
students statewide). Here, appellants allege LAUSD’s policies
discriminated against them in both of these ways.
3.3.1. Intra-District Discrimination
To state a claim for intra-district race or wealth
discrimination in education, as asserted in the first and second
causes of action, plaintiffs must allege that “a policy adopted in
California has a substantial disparate impact on the minority
children of its schools . . . and no action is taken to correct that
policy when its impacts are identified.” (Collins v. Thurmond
(2019) 41 Cal.App.5th 879, 896–897; see Vergara v. State of
California (2016) 246 Cal.App.4th 619, 648 [race is a “‘suspect
classification’” under equal protection analysis; in “the context of
education, under California law, wealth is considered a suspect
classification as well”].)
Here, appellants allege that LAUSD policy, established
through the side letter agreements with UTLA, significantly
reduced teacher work hours, instructional time, and training and
professional development time; limited synchronistic teacher
time; and ended the District’s practice of proactively reaching out
to disengaged students. Appellants allege these policies—
especially the reduced learning hours and failure to require
student assessments—affected all students district-wide.
The complaint also alleges that LAUSD’s policies
disparately, and inevitably, impacted poor and minority students
more than others. After the District established its distance-
learning policies, appellants allege, the majority of Black and
Latino secondary students appeared in class only once or twice a
week—or not at all—a figure 10 to 20 percent lower than their
white and Asian peers. By the ninth week of instruction, only 6 in
30
10 Black and Latino middle school students appeared in class at
least once per week, compared to 8 in 10 of their peers. And
although the District committed to providing all students with
free electronic devices and internet connections to enable them to
participate in distance learning, appellants contend many low-
income students received either nonfunctional equipment or
nothing at all. Plaintiffs allege that LAUSD did not remedy these
failures, and others, when they were brought to the District’s
attention.
Although the experiences of students throughout Los
Angeles undoubtedly varied, these allegations are sufficient, at
the pleading stage, to state a prima facie community of interest
among the proposed class.
3.3.2. Inter-District Discrimination
In addition to guaranteeing students a right to an
education equivalent to that received by other students in the
same school district, the California Constitution guarantees
students “an education basically equivalent to that provided
elsewhere throughout” the state. (Butt, supra, 4 Cal.4th at p. 685;
id. at p. 692 [“Because education is a fundamental interest in
California, denials of basic educational quality on the basis of
district residence are subject to strict scrutiny.”]; Cal. Const.,
art. I, § 7; art. IV, § 16.) A finding of constitutional disparity
occurs when a school “district’s program, viewed as a whole, falls
fundamentally below prevailing statewide standards . . . .” (Butt,
at pp. 686–687.) Here, appellants allege, in the eighth cause of
action, that LAUSD policy, established in the side letter
agreements, violated this right.
The complaint alleges that “the prevailing statewide
standards are established by the LAUSD’s policies before the
31
pandemic, SB 98’s requirements, and the policies implemented by
the four next largest public school districts in California—San
Diego Unified School District, Fresno Unified School District, Elk
Grove Unified School District, and Long Beach Unified School
District.” In particular, it alleges that the LAUSD policies
established in the side letter agreements fell “fundamentally
below these prevailing statewide standards because each
provided less total instructional time than the LAUSD provided
before the pandemic and all of the four next largest public school
districts in California.”
Further, the complaint alleges the policies established in
the side letters did not comply with SB 98. For example, plaintiffs
allege that LAUSD failed “to provide the minimum instructional
minutes required by SB 98” (see former § 43501), violated
“SB 98’s requirements that students receive an education that is
aligned to grade level standards and provides a level of quality
and intellectual challenge that is substantially equivalent to
what students would have received in person” (see former
§ 43503, subd. (b)(2)), and violated SB 98’s attendance and
engagement requirements (see former § 43504, subds. (d)–(g)).
Plaintiffs allege that LAUSD did not remedy these failures, and
others, when they were brought to the District’s attention.
As with the intra-district causes of action, these allegations
are sufficient, at the pleading stage, to state a prima facie
community of interest among the proposed class.
In sum, we conclude the trial court erred by granting
LAUSD’s motion to strike, sustaining UTLA’s demurrer, and
striking the prayer for relief on class grounds. “We do not hold,”
however, “that a class action is appropriate in this case. That
issue is for the trial court to determine at a later stage of the
32
case.” (Blakemore, supra, 129 Cal.App.4th at p. 59.) At that point,
the court will presumably need to consider anew the complicated
question of whether the relief plaintiffs seek is manageable on a
class basis—an issue we need not and do not decide. Rather, as in
Blakemore, “‘we hold only that no argument has been made
which would allow the judge to rule at the pleading stage that the
suit was without the realm of probability of being properly tried
as class litigation.’” (Ibid., fn. omitted; see Tucker, supra, 208
Cal.App.4th at p. 230 [“Ultimately, it is still up to the trial court,
in the exercise of its considerable discretion, to determine if
Plaintiffs’ [claims] for equitable relief are appropriate for class
treatment at all.”].)
4. Respondents’ other challenges to the prayer for relief
likewise fail.
Respondents also contend that the trial court properly
granted LAUSD’s motion to strike the prayer for relief because
injunctions may only operate prospectively and because any relief
that could be awarded would violate the separation of powers
doctrine. 16
Because the trial court did not reach these issues,
appellants ask us to remand the matter for decision in the first
instance. We decline to do so. We must affirm the judgment of
dismissal “if the unamended complaint is objectionable on any
ground raised by the demurrer” or motion to strike. (Otworth v.
Southern Pac. Transportation Co. (1985) 166 Cal.App.3d 452,
16 Although LAUSD has forfeited the former claim by failing
to develop it, UTLA adequately addresses the issue, thereby
obviating any prejudice to appellants. We therefore exercise our
discretion to consider the claim as to both respondents.
33
457.) Both of these issues were raised below. In addition, each
contention “entails the resolution of a mixed question of law and
fact that is predominantly one of law, inasmuch as it ‘requires a
critical consideration, in a factual context, of legal principles and
their underlying values’ rather than merely ‘experience with
human affairs.’” (Aguilar v. Atlantic Richfield Co. (2001) 25
Cal.4th 826, 860.) Because we are as equipped to evaluate such
questions as the court below, and in the interest of judicial
economy, we reject appellants’ request for remand and turn to
consider these issues.
4.1. Remedial injunctive relief is proper.
Respondents contend appellants’ prayer for relief was
properly stricken because injunctions cannot issue to restrain
completed acts. Appellants argue that respondents have conflated
completed acts (the expiration of the challenged distance-learning
policies) with harm caused by those acts (learning loss and
disengagement stemming from the policies). Because the alleged
harm is ongoing, appellants contend, injunctive relief is proper.
We agree with appellants.
The dispute appears to lie in the difference between
mandatory and prohibitory injunctions. A prohibitory injunction
is “a writ or order requiring a person [or entity] to refrain from a
particular act.” (Code Civ. Proc., § 525.) A mandatory injunction,
by contrast, requires a person to take affirmative action that
changes the parties’ positions. (See Civ. Code, § 3367, subd. (2);
ITV Gurney Holding Inc. v Gurney (2017) 18 Cal.App.5th 22, 29.)
The “purpose of a prohibitory injunction is to prevent
future harm to the applicant by ordering the defendant to refrain
from doing a particular act”; such relief exists “only to prevent
threatened injury and has no application to wrongs that have
34
been completed.” (Scripps Health v. Marin (1999) 72 Cal.App.4th
324, 332 [injunction not warranted to restrain defendant from
contacting plaintiff’s employees where defendant had committed
only one act of violence and there was no showing of any threat of
future acts].) Because a prohibitory injunction does not serve to
punish past acts, it should not be issued unless there is “evidence
establishing the reasonable probability the acts will be repeated
in the future.” (Ibid.)
A mandatory injunction, on the other hand, orders a party
to take action to remedy some harm. Thus, mandatory “injunctive
relief has been upheld where the defendant’s completed act
causes ongoing harm or is part of a continuing course of conduct.”
(Sahlolbei v. Providence Healthcare, Inc. (2003) 112 Cal.App.4th
1137, 1156 (Sahlolbei); see Ojavan Investors, Inc. v. California
Coastal Com. (1997) 54 Cal.App.4th 373, 394 [“It is well
established the judiciary possesses broad discretion in deciding
the type of equitable relief to fit a case’s particular circumstances.
[Citation.] This broad discretion includes a court’s power to grant
a mandatory injunction.”].)
In Sahlolbei, for example, a plaintiff physician who had
been denied reappointment to a hospital staff sought an
injunction requiring reinstatement of his staff privileges.
(Sahlolbei, supra, 112 Cal.App.4th at pp. 1144–1145.) The trial
court denied injunctive relief based on the completed act
principle, and the appellate court reversed. (Id. at pp. 1156–
1157.) The appellate court explained that notwithstanding the
completed act, injunctive relief was proper where “the harm was
a continuing interference with the plaintiff’s rights, which could
be prevented by granting an injunction.” (Id. at p. 1157.) In other
words, the “harm plaintiff sought to prevent—his exclusion from
35
the staff without a prior hearing—continued as long as his staff
privileges remained terminated. The continuation of the harm
could be prevented by reinstating his privileges and ordering a
hearing as a prerequisite to any subsequent termination.” (Ibid.)
Likewise, in Dibona v. Matthews, community college
administrators cancelled a drama course to prevent the
performance of a controversial play. (Dibona v. Matthews (1990)
220 Cal.App.3d 1329, 1333–1336.) The play was performed off-
campus instead. (Id. at p. 1336.) The trial court held that because
the summer session in which the class was to have been held had
ended, the case was moot. (Id. at pp. 1336–1338.) The appellate
court reversed. It noted that although the summer session was
over, the student who brought the action continued to seek
academic credit for having completed the class based on his
performance in the off-campus play. (Id. at p. 1339.) Thus, it held,
if the student could show he had satisfied all the course
requirements except those made impossible by the college, the
court could properly conclude that course credit should be
awarded and order appropriate injunctive relief. (Ibid.)
Here, appellants contend the District’s distance-learning
policies have caused continuing harm in the form of learning loss
and disengagement. Should they be proven, the court has broad
powers to remedy those harms, including by ordering remedial
injunctive relief.
4.2. Remedial injunctive relief does not violate the
separation of powers doctrine.
Respondents argue that the trial court properly struck the
prayer for relief because any remedial injunctive relief that could
be awarded would necessarily violate the separation of powers
doctrine. We disagree.
36
UTLA’s argument rests largely on Campaign for Quality
Education v. State of California (2016) 246 Cal.App.4th 896(Quality Education). In that case—a split decision that drew both
a concurrence and a lengthy dissent—the appellate court held
that the California Constitution does not guarantee children the
right to an education of any minimum quality. 17 After finding no
support for such a right in the text of the Constitution, the court
opined in dicta that “‘the question of educational quality is
inherently one of policy involving philosophical and practical
considerations that call for the exercise of legislative and
administrative discretion.’” (Id. at p. 911.)
LAUSD rests its argument on Crawford v. Board of
Education (1976) 17 Cal.3d 280. Yet that case addressed how the
courts should fashion remedies to constitutional violations; it did
not hold that courts should avoid injunctive relief in general.
Fundamentally, at the heart of both respondents’
arguments lies the premise that LAUSD is already taking steps
to ameliorate pandemic learning loss, and the courts may not
second-guess the District’s methods. As we discuss below,
however, the impact, if any, of the District’s remedial programs is
a question of disputed fact that cannot be resolved at the
pleadings stage. (See section 5.4, post.)
The courts have long recognized that while they may not
craft educational policy out of whole cloth, they are manifestly
17 Appellants neither argue that Quality Education was
wrongly decided nor ask us to consider that constitutional
question anew. We note, however, that no other appellate court
has examined the issue in detail, and Quality Education is not
binding on us. (See Auto Equity Sales, Inc. v. Superior Court,
supra, 57 Cal.2d at pp. 455–456.)
37
empowered to correct constitutional violations that are brought
before them. Should appellants prove the discrimination they
have alleged, it will be up to the trial court to craft an
appropriate remedy based on the circumstances then in effect,
unless the parties agree that the District and UTLA have by then
already embarked on appropriate remedial action. Courts
routinely impose injunctive relief to remedy unconstitutional or
otherwise unlawful actions by government agencies.
4.3. UTLA is a necessary party notwithstanding the
expiration of the side letter agreements.
UTLA argues that even if changed circumstances do not
moot the entire case, it should be dismissed from the matter
because the expiration of the side letters extinguishes the reason
for its presence. Appellants respond that UTLA remains a
necessary party because any ultimate relief in appellants’ favor
would impact the teachers and their contractual rights.
Appellants have the better argument.
Code of Civil Procedure section 389, subdivision (a),
governs whether a person, sometimes called a “necessary party,”
must be joined as a party to a lawsuit. 18 (TG Oceanside, L.P. v.
18 It provides: “A person who is subject to service of process
and whose joinder will not deprive the court of jurisdiction over
the subject matter of the action shall be joined as a party in the
action if (1) in his absence complete relief cannot be accorded
among those already parties or (2) he claims an interest relating
to the subject of the action and is so situated that the disposition
of the action in his absence may (i) as a practical matter impair
or impede his ability to protect that interest or (ii) leave any of
the persons already parties subject to a substantial risk of
incurring double, multiple, or otherwise inconsistent obligations
38
City of Oceanside (2007) 156 Cal.App.4th 1355, 1365.)
“Section 389 calls upon the trial court to weigh practical realities
and other considerations in determining whether a person is
necessary or indispensable.” (Pinto Lake MHP LLC v. County of
Santa Cruz (2020) 56 Cal.App.5th 1006, 1014.) “The inquiry
under subdivision (a)(2), applicable here, is ‘whether the person is
one whose rights must necessarily be affected by the judgment in
the proceeding.’” (Id. at p. 1013.)
Reed v. United Teachers L.A. is instructive. (Reed v. United
Teachers Los Angeles (2012) 208 Cal.App.4th 322.) In that case,
plaintiffs entered into a consent decree with LAUSD “to resolve
claims that teacher layoffs had disproportionately and adversely
impacted the [s]tudents’ constitutional and statutory rights to
equal educational opportunities, and that additional layoffs
would exacerbate the harm.” (Id. at p. 327.) UTLA, a non-settling
defendant, objected, arguing that because the consent decree had
the potential to abrogate the seniority rights of its members, it
was entitled to a decision on the merits as a matter of federal due
process. (Ibid.) Our colleagues in Division Two agreed, holding
that due process required a decision on the merits before a
consent decree or judgment could affect teachers’ contractual and
statutory rights. (Id. at pp. 329–336, 339.)
Here, appellants seek remedies, such as additional
instructional time, that carry the potential to impact the
collectively-bargained-for contractual rights of UTLA’s members.
Indeed, UTLA has previously represented that it would seek to
by reason of his claimed interest. If he has not been so joined, the
court shall order that he be made a party.” (Code Civ. Proc.,
§ 389, subd. (a).)
39
set aside “any request for relief involving modifying or
eliminating the defending parties’ collective bargaining
agreements.” As such, UTLA remains a necessary party to this
lawsuit. (See Washington Mutual Bank v. Blechman (2007) 157
Cal.App.4th 662, 667–668 [“[a]n ‘“indispensable party is not
bound by a judgment in an action in which he was not joined”’”];
Save Our Bay, Inc. v. San Diego Unified Port Dist. (1996) 42
Cal.App.4th 686, 692 [a party is indispensable where the plaintiff
seeks some type of affirmative relief which, if granted, would
injure or affect the interest of a third party not joined].)
5. Appellants’ constitutional causes of action are not
moot.
Appellants allege that for a year-and-a-half, LAUSD policy
ensured students received an unconstitutional education, that
the policies harmed students, and that the resulting learning
deficits persist. Respondents contend that any constitutional
violations ended with distance learning, rendering appellants’
claims moot. While any violations may be over, the harm
allegedly remains. Having concluded the trial court can still
grant appellants a remedy for any past harms, we further
conclude appellants’ claims are justiciable.
5.1. Legal Principles
It is well settled that appellate courts will decide only
actual controversies. We will not opine on moot questions or
abstract propositions, nor declare principles of law that cannot
affect the matter at issue on appeal. (Giles v. Horn (2002) 100
Cal.App.4th 206, 226–227 (Giles).) “A case becomes moot when a
court ruling can have no practical impact or cannot provide the
parties with effective relief.” (Simi Corp. v. Garamendi (2003) 109
40
Cal.App.4th 1496, 1503; Panoche Energy Center, LLC v. Pacific
Gas & Electric Co. (2016) 1 Cal.App.5th 68, 95–96 (Panoche
Energy Center) [availability of “effectual relief” is the “pivotal
question” in mootness analysis].) By the same token, an “appeal
is not moot . . . where ‘a material question remains for the court’s
consideration,’ so long as the appellate decision can grant a party
to the appeal effectual relief.” (Panoche Energy Center, at p. 96;
see, e.g., San Diego Police Department v. Geoffrey S. (2022) 86
Cal.App.5th 550, 564 [appeal from an expired restraining order
was not moot where expired order could have collateral
consequences in future proceedings].)
Courts regularly find cases non-justiciable when injunctive
relief is sought but, pending appeal, the act sought to be enjoined
has been performed. (Giles, supra, 100 Cal.App.4th at p. 227.) In
Giles, for instance, plaintiffs sued to enjoin as illegal a county’s
expenditure of public funds to hire private contractors to provide
services under a state welfare program. Because those contracts
had expired and were fully performed pending appeal, the appeal
was dismissed as moot. (Id. at pp. 227–228; see also Daily
Journal Corp. v. County of Los Angeles (2009) 172 Cal.App.4th
1550, 1557 [case moot where challenged contract had expired, a
new bidding process took place, and court could not award the
contract to disappointed bidder]; Jennings v. Strathmore Public
Utility Dist. (1951) 102 Cal.App.2d 548, 549 [appeal, in action to
enjoin and declare invalid a public utility district contract after
the contract had been awarded and work was fully completed,
was moot].)
Similarly, an intervening change in the law—namely, the
repeal or modification of a statute under attack or subsequent
legislation correcting a challenged deficiency—that is the crux of
41
a case may result in mootness. (Jordan v. County of Los Angeles
(1968) 267 Cal.App.2d 794, 799; see, e.g., Sierra Club v. Board of
Supervisors (1981) 126 Cal.App.3d 698, 704–706 [challenge to
zoning ordinance based on inconsistency with general plan
became moot when, during pendency of appeal, a new general
plan was adopted with which the ordinance was consistent];
O’Neal v. Seabury (1938) 24 Cal.App.2d 308, 309–312 [ordinance
superseded by regulation made pursuant to state statute]; Equi
v. San Francisco (1936) 13 Cal.App.2d 140, 141–142 [lower court
held ordinance void; city appealed but ordinance repealed
pending appeal].)
For instance, a taxpayer association’s claim for injunctive
and declaratory relief to prevent future collection of a registration
fee from people engaged in home employment was rendered moot
when the city revoked the fee requirement. (Howard Jarvis
Taxpayers Assn. v. City of Los Angeles (2000) 79 Cal.App.4th 242,
249.) Likewise, the expiration of a challenged moratorium
ordinance rendered moot a lawsuit challenging the ordinance.
(Colony Cove Properties, LLC v. City of Carson (2010) 187
Cal.App.4th 1487, 1509 (Colony Cove).) And, when the California
Department of Forestry adopted a new policy that changed its
requirements and practices for timber harvest notices in a way
that corrected the challenged deficiencies in those notices, the
lack of an ongoing controversy rendered the case moot. (East Bay
Mun. Utility Dist. v. Department of Forestry & Fire Protection
(1996) 43 Cal.App.4th 1113, 1119, 1132.)
But “enactment of subsequent legislation does not
automatically render a matter moot.” (Davis v. Superior Court
(1985) 169 Cal.App.3d 1054, 1057, original italics.) The key
question is still whether a court can grant effective relief in a
42
case. (Syngenta Crop Protection, Inc. v. Helliker (2006) 138
Cal.App.4th 1135, 1158–1159; see also Schmidt v. Superior Court
(1989) 48 Cal.3d 370, 373 [federal legislation rendering invalid, in
future mobile home park, a policy restricting residency to persons
25 years old or older did not moot appeal challenging policy,
where plaintiffs sought damages for enforcement of rule prior to
effective date of federal legislation]; Vernon v. State of California
(2004) 116 Cal.App.4th 114, 120–121 [plaintiff’s claim that CAL–
OSHA regulations discriminated against him not rendered moot
by State Department of Industrial Relations grant of temporary
“‘experimental variance’” from compliance with regulation;
effectual relief attainable because if regulation declared invalid,
plaintiff would “not need to rely upon additional, speculative
variances that may or may not be granted”].)
In short, “where a court can afford the party at least some
relief, even if not all the relief originally requested, the court
should not dismiss a case as moot.” (City of Cerritos v. State of
California (2015) 239 Cal.App.4th 1020, 1031–1032.)
5.2. This matter is not moot because the court can
provide practical relief.
We conclude this matter is justiciable notwithstanding the
expiration of SB 98, section 43503, and the relevant side letter
agreements. Appellants claim that LAUSD’s distance-learning
policies unconstitutionally discriminated against certain Los
Angeles students, who continue to suffer academic harm. If the
trial court finds those claims have merit, it can fashion injunctive
relief to address students’ continuing learning deficits.
UTLA’s reliance on Cerletti v. Newsom (2021) 71
Cal.App.5th 760 is misplaced. In that case, taxpayers brought an
action seeking to declare as illegal spending under the Disaster
43
Relief for Immigrants Project, which established a $75 million
Disaster Relief Fund to support undocumented Californians
impacted by COVID-19, who were ineligible for unemployment
insurance and disaster relief due to their immigration status. (Id.
at pp. 762–764.) Plaintiffs filed an application for a temporary
restraining order to halt the distribution of benefits, which the
trial court denied. (Id. at p. 764.) Plaintiffs appealed, but, while
the appeal was pending, all $75 million in project benefits were
distributed. (Id. at p. 765.) Our colleagues in Division Five held
that the issue of whether the trial court should temporarily
restrain the distribution of payments was moot because the
project had provided for one-time payments, and the payments
had been made more than a year earlier. (Id. at p. 766.) In other
words, the case was moot because the court could not afford the
plaintiffs a remedy. Here, however, plaintiffs have identified
potential remedies.
County of San Diego v. Brown is instructive. (County of San
Diego v. Brown (1993) 19 Cal.App.4th 1054 (Brown).) In Brown,
plaintiffs challenged the constitutionality of California’s mental
health funding scheme, and the trial court found the scheme
unconstitutional. After trial but before entry of judgment,
however, realignment legislation overhauled the system for
funding county mental health services, fundamentally changing
the way state mental health resources were allocated. (Id. at
p. 1087.) On appeal, defendants argued that the portions of the
judgment involving constitutional and statutory issues should be
reversed and dismissed as moot. (Id. at p. 1088.) They reasoned
that because realignment legislation had created an entirely new
system for distributing state mental health funds to counties and
44
had ended the challenged allocation system, the constitutionality
of the old system was irrelevant. (Ibid.)
The appellate court rejected that contention. It held that
even if realignment had mooted the forward-looking portions of
the judgment involving the constitutionality of funding and bed
allocations, the court was nevertheless required to resolve the
constitutional issues to determine the propriety of injunctive
relief based on the past violations. (Brown, supra, 19 Cal.App.4th
at p. 1088.) That is, the court concluded that, notwithstanding
the former statute’s repeal, if the former statute was
unconstitutional, the court still had the power to approve
injunctive relief to remedy resulting harms.
Finally, in Grier v. Alameda–Contra Costa Transit Dist., as
in this case, the plaintiffs asserted the illegality of an expired
labor contract. (Grier v. Alameda–Contra Costa Transit Dist.
(1976) 55 Cal.App.3d 325, 329–331.) There, a proposed class of
bus drivers and their union brought an action for declaratory
relief and damages, alleging that a provision of their collective
bargaining agreement with a transit district violated the Labor
Code by requiring drivers who arrived late to work without pay
for periods exceeding the time actually lost. (Ibid.) Although the
parties subsequently adopted a new collective bargaining
agreement that did not contain the provision, the legality of the
former provision was not moot because the question of damages
for any past violations of state law remained. (Ibid.)
Here, appellants allege that during the pandemic, LAUSD
adopted unconstitutional distance-learning policies that
inevitably and disparately harmed students. They further allege
that notwithstanding the return to in-person instruction, those
harms persist, and the court can fashion a remedy to alleviate
45
them. Accordingly, under the required standard of review, the
trial court erred by sustaining LAUSD’s demurrer to the first,
second, and eighth causes of action on mootness grounds.
5.3. Appellants can establish a prevailing statewide
standard based on the expired statute.
Respondents insist that the expiration of the remote-
learning statutes deprives appellants of a prevailing statewide
standard by which to measure the District’s distance-learning
policies—a necessary element of the eighth cause of action for
inter-district discrimination. But respondents cite no relevant
authority for that proposition. Both Colony Cove, supra, 187
Cal.App.4th 1487 and Gafcon, Inc. v. Ponsor & Associates (2002)
98 Cal.App.4th 1388 involved requests for declaratory relief; the
plaintiffs were not seeking remedies for past harms. (Colony
Cove, at p. 1492 [petitioners sought a writ of mandate directing
the city to vacate an ordinance]; Gafcon, at p. 1404 [“Because
declaratory relief operates prospectively only, rather than to
redress past wrongs, Gafcon’s remedy as against Ponsor lies in
pursuit of a fully matured cause of action for money, if any exists
at all.”].)
Plainly, the constitutionality of expired policies is
measured by reference to the statewide standards that existed
when the policies were in effect. Accordingly, the trial court erred
by sustaining LAUSD’s demurrer to the eighth cause of action on
mootness grounds.
5.4. The impact of the District’s remedial actions is a
question of disputed fact.
UTLA claims that appellants’ proposed relief has been
rendered moot by the remedial actions the District is already
46
undertaking. Although the court took judicial notice of various
documents relating to LAUSD’s remedial plans, it did not
judicially notice those documents for their truth, and it expressed
no opinion on whether the new programs eliminated the harm
the previous policies allegedly caused. We agree with appellants,
therefore, that the nature and impact of the District’s current
policies are questions of disputed fact that cannot be resolved at
the demurrer stage. (Fremont Indemnity Co. v. Fremont General
Corp. (2007) 148 Cal.App.4th 97, 113–114 [“‘“A demurrer is
simply not the appropriate procedure for determining the truth of
disputed facts.”’”].) 19
6. Appellants’ challenge to the complex civil court’s
automatic-stay rule is not justiciable.
Although we have concluded appellants’ constitutional
claims are justiciable, the same cannot be said of their challenge
to the complex civil court’s supposed automatic-stay rule.
Appellants insist that the complex civil court, which
handles class actions in Los Angeles, has an informal practice of
staying all filings until an initial case status conference can be
held. They claim this practice delayed their preliminary
injunction motion for an entire school year. Appellants contend
the practice conflicts with both the Civil Code and the Rules of
Court and ask us to invalidate it. Respondents argue any delay
19 For the same reason, we also deny appellants’ request for
judicial notice of an LAUSD press release about post-pandemic
problems and a Los Angeles Times article about deep pandemic
setbacks in math, which were not before the court below. LAUSD
opposed the request and objected to various newspaper articles
on the same topic cited in appellants’ opening brief.
47
was the result of appellants’ strategic choices rather than the
complex court’s filing practices, and, in any event, the prospective
injunctive relief appellants sought is no longer available to them,
rendering the issue moot. We decline to reach this issue. 20
Through their request for a preliminary injunction,
appellants were seeking to enjoin side letter agreements and
distance learning polices, all of which have now expired. Because
we cannot turn back the clock to offer appellants a remedy, the
issue is non-justiciable. (Giles, supra, 100 Cal.App.4th at p. 227.)
Nor is this a question of broad public interest that is likely
to evade timely review without our intervention. (See Steiner v.
Superior Court (2013) 220 Cal.App.4th 1479, 1486.) Appellants
had a remedy: They could have sought a writ of mandate. (Elkins
v. Superior Court (2007) 41 Cal.4th 1337, 1350–1351.) Although
they chose not to seek writ relief in this case, future plaintiffs
can.
20 In light of the non-justiciability of this claim, we do not
reach LAUSD’s contention that appellants forfeited this
argument by failing to challenge the practice’s validity below.
48
DISPOSITION
The judgment is reversed as to LAUSD and UTLA, and the
matter is remanded to the trial court with directions to vacate its
orders sustaining the demurrers to the second amended
complaint and granting the motion to strike. The court is directed
to enter new orders denying the motion to strike, overruling
UTLA’s demurrer, overruling LAUSD’s demurrer as to the first,
second, and eighth causes of action, and sustaining LAUSD’s
demurrer without leave to amend as to the third, fourth, fifth,
sixth, and seventh causes of action. The judgment is affirmed as
to former Superintendent Beutner.
Appellants shall recover their costs on appeal.
CERTIFIED FOR PUBLICATION
CURREY, P. J.
We concur:
COLLINS, J.
MORI, J.
49