schools to include in their safety plans, "to the extent that resources are available . . . policies
and procedures aimed at the prevention of bullying." (Ed. Code, § 32282, subd. (f).)
Appellant Hector F. is the father of three children. While Hector's oldest son, Brian,
was a student at King Elementary School (King) and Kennedy Middle School (Kennedy), in
El Centro, Brian was diagnosed with a number of emotional disabilities. Although an
individualized education plan was developed for Brian, according to Hector's petition for a
writ of mandate, Brian was subjected to physical and verbal abuse by other children because
of his disabilities and the fact that English is his second language. In response to complaints
about the abuse Hector and his wife made, Hector alleges school officials did not intervene
and provide any protection for Brian, but instead suggested Brian change classrooms.
Hector filed a complaint for damages and a petition for a writ of mandate in the trial
court. Hector, as guardian ad litem, sought damages on behalf of Brian and, on his own
behalf, relief in mandate and as a taxpayer requiring that respondent El Centro Elementary
School District (the district), which operates King and Kennedy, comply with the
requirements of the discrimination and harassment provisions of the Government Code and
the Education Code. In particular Hector alleged on information and belief that the district
2
has neither adopted nor implemented comprehensive safety plans for its schools that meet
the requirements of Education Code section 32282.
Brian matriculated from Kennedy before these proceedings commenced and attends a
high school operated by a separate school district. However, Hector's younger two children
were enrolled at King at the time Hector filed his petition.
The district filed a demurrer to that portion of Hector's complaint and petition in
which Hector sought relief on his own behalf. The district asserted that because Brian no
longer attends any school operated by the district and because Hector has not alleged his
other children have been subjected to discrimination or harassment, Hector does not have
standing to assert, as an individual, and on his own behalf, any violation of the statutory
provisions he relies upon. The trial court sustained the district's demurrer without leave to
amend and entered judgment in favor of the district on Hector's individual claims. We
reverse.
As a citizen and taxpayer Hector has standing to seek enforcement of laws in which
there is an identified public as well as private interest. The statutory provisions asserted by
Hector articulate a well identified public interest in maintaining a system of taxpayer funded
public education which is free of the destructive influence of discrimination, harassment and
bullying.
Because Hector has standing to bring his claims, we reverse the judgment and remand
for further proceedings.
3
FACTUAL BACKGROUND
Brian attended King and Kennedy between 2008 and 2011. According to the
allegations in Hector's complaint and petition for a writ of mandate, Brian is not a native
English speaker, and has been diagnosed with a number of emotional disabilities including
bipolar disorder, depression, attention deficit disorder and posttraumatic stress disorder.
According to Hector, while Brian was a student at Kennedy, Brian was forcibly restrained by
other students, beaten, kicked, and forced to endure derogatory comments, epithets and
ethnic slurs.
Hector did not become aware of the harassment Brian was enduring until Brian was in
the 7th grade and Hector noticed large bruises and scratches on Brian's body. On
December 16, 2010, Hector and his wife reported the bruising and scratches to the Kennedy
vice-principal, who took photographs of Brian's injuries. Hector and his wife also reported
the injuries to Brian's bilingual teacher.
Notwithstanding the reports Hector and his wife made, Brian continued to be harassed
and bullied. In April of 2011, Brian completed a three-page "Incident Report" which
identified the students who had been harassing him and described what he had endured.
Brian reported "routinely being hit and having objects thrown at him while in the classroom,
bathroom, hallways and recess areas." Brian further reported being subjected to "verbal
threats, taunting, and name calling."
4
On May 18, 2011, Brian was forcibly restrained during a physical education class and
kicked repeatedly in the legs. Following this assault, Brian filed a second "Incident Report"
which identified the students who attacked him and the particular student who led the others
in doing so.
A week after the physical education incident Hector and his wife wrote a letter to the
Kennedy principal setting forth the problems Brian was experiencing. On May 31, 2011, the
principal met with Hector and his wife to discuss the problem. The principal suggested that
Brian be removed from the only bilingual classroom at Kennedy. Hector and his wife
rejected that proposal.
PROCEDURAL HISTORY
In January 2012, Hector, acting in pro per, filed a complaint against the district for
damages on behalf of Brian. The district demurred to the original complaint on the grounds
that, as a nonlawyer, Hector could not represent his son in Brian's action against the district.
In response to the district's demurrer, Hector obtained representation from a nonprofit legal
services organization, California Rural Legal Assistance, Inc. (CRLA).
On behalf of Brian and Hector, CRLA eventually filed the operative pleading in this
case, the third amended complaint (TAC). The TAC alleged three causes of action which
seek relief by way of mandate, one cause of action for declaratory relief, one cause of action
which alleges the waste of taxpayer funds and one cause of action for negligence. The
mandate and declaratory relief causes of action alleged violations of the state's
antidiscrimination and antiharassment statutes; the mandate causes of action asked for an
5
order compelling the district to comply with its statutory obligations and the declaratory
relief action asked for a determination the district violated those obligations.
The taxpayer cause of action alleged the district wasted funds in responding to
harassment complaints because the district did so in a manner which discriminated against
Hispanic students and students with disabilities. The negligence cause of action alleged that
the district and individual employees of the district did not properly respond to complaints
that Brian was being subjected to physical and verbal abuse.
The district filed a demurrer to the TAC in which it argued that neither Brian nor
Hector had standing to seek any mandatory or declaratory relief. The district also argued the
plaintiffs' taxpayer cause of action improperly sought an injunction preventing the district
from paying its employees. The demurrer did not challenge the plaintiffs' negligence cause
of action.
The trial court sustained the demurrer without leave to amend and entered a judgment
of dismissal against Hector.
Hector filed a notice of appeal after the trial court sustained the demurrer but before
entry of judgment against him. In the interests of justice and to prevent unnecessary delay,
we treat Hector's appeal as taken from the judgment. (Boyer v. Jensen (2005) 129
Cal.App.4th 62, 69.)
DISCUSSION
I
"In reviewing the sufficiency of a complaint against a general demurrer, we are
guided by long-settled rules. 'We treat the demurrer as admitting all material facts properly
6
pleaded, but not contentions, deductions or conclusions of fact or law. [Citation.] We also
consider matters which may be judicially noticed.' [Citation.] Further, we give the complaint
a reasonable interpretation, reading it as a whole and its parts in their context. [Citation.]
When a demurrer is sustained, we determine whether the complaint states facts sufficient to
constitute a cause of action. [Citation.] And when it is sustained without leave to amend, we
decide whether there is a reasonable possibility that the defect can be cured by amendment:
if it can be, the trial court has abused its discretion and we reverse; if not, there has been no
abuse of discretion and we affirm. [Citations.] The burden of proving such reasonable
possibility is squarely on the plaintiff." (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)
II
As we noted at the outset, the Legislature has enacted a scheme of interrelated statutes
which attempt to protect public school students from discrimination and harassment
engendered by race, gender, sexual orientation or disability. (See Gov. Code,
§ 11135; Ed. Code, §§ 201, 220, 32261, 32280, 32281 & 32282.) By its terms Government
Code section 11135 subdivision (a) states in pertinent part: "No person in the State of
California shall, on the basis of race, national origin, ethnic group identification, religion,
age, sex, sexual orientation, color, genetic information, or disability, be unlawfully denied
full and equal access to the benefits of, or be unlawfully subjected to discrimination under,
any program or activity that is conducted, operated, or administered by the state or by any
state agency, is funded directly by the state, or receives any financial assistance from the
state."
7
In turn, Education Code section 201 states in pertinent part:
"(a) All pupils have the right to participate fully in the educational process, free from
discrimination and harassment.
"(b) California's public schools have an affirmative obligation to combat racism,
sexism, and other forms of bias, and a responsibility to provide equal educational
opportunity.
"(c) Harassment on school grounds directed at an individual on the basis of personal
characteristics or status creates a hostile environment and jeopardizes equal educational
opportunity as guaranteed by the California Constitution and the United States Constitution.
"(d) There is an urgent need to prevent and respond to acts of hate violence and bias-
related incidents that are occurring at an increasing rate in California's public schools.
"[¶] . . . [¶]
"(f) It is the intent of the Legislature that each public school undertake educational
activities to counter discriminatory incidents on school grounds and, within constitutional
bounds, to minimize and eliminate a hostile environment on school grounds that impairs the
access of pupils to equal educational opportunity." (Ed. Code, § 201)
As a means of implementing the right of students to be free of discrimination and
harassment set forth in Education Code section 201, Education Code section 32281
subdivision (a) provides that each school district is responsible for the development of
comprehensive school safety plans for each of its schools. Education Code section 32282,
subdivision (a)(2)(E) provides that, among other matters, each comprehensive school safety
plan shall include a discrimination and harassment policy consistent with the prohibition
8
against discrimination contained in [Education Code section 201]." Education Code section
32282, subdivision (f) further provides that: "As comprehensive school safety plans are
reviewed and updated, the Legislature encourages all plans, to the extent that resources are
available, to include policies and procedures aimed at the prevention of bullying."
As we explain, post, Hector had standing to seek enforcement of these
antidiscrimination and antiharassment enactments.
III
In the seminal case of Green v. Obledo (1981) 29 Cal.3d 126, 144, the court set forth
the standing principles which govern Hector's mandate claims: "It is true that ordinarily the
writ of mandate will be issued only to persons who are 'beneficially interested.' (Code Civ.
Proc., § 1086.) Yet, in Bd. of Soc. Welfare v. County of L.A. (1945) 27 Cal.2d 98, this court
recognized an exception to the general rule ' "where the question is one of public right and
the object of the mandamus is to procure the enforcement of a public duty, the relator need
not show that he has any legal or special interest in the result, since it is sufficient that he is
interested as a citizen in having the laws executed and the duty in question enforced" ' (id., at
pp. 100-101). The exception promotes the policy of guaranteeing citizens the opportunity to
ensure that no governmental body impairs or defeats the purpose of legislation establishing a
public right. (Id. at p. 100.) It has often been invoked by California courts." (Green v.
Obledo, at p. 144.)
In Green v. Obledo, the plaintiffs challenged a state regulation which limited the work
related expenses welfare recipients could exclude from their household income in calculating
the amount of their welfare grants. In particular the regulation provided a flat mileage rate
9
deduction for automobile use rather than a recipient's actual automobile costs. However the
regulation also imposed limitations on the amount of other work-related expenses that could
be deducted from household income.
The plaintiffs alleged the regulation was in conflict with the federal law which
established and governed the welfare program and further that their actual transportation
costs exceeded the amount of the mileage allowance permitted under the regulation. The
plaintiffs, although they did not allege that the other work-expense limitations had affected
them, challenged the regulation in its entirety and sought relief in mandate from it.
The trial court found the plaintiffs had standing to challenge the automobile expense
limitations, but no standing with respect to the remainder of the regulation. The Supreme
Court disagreed and found standing with respect to the entire statute: "There can be no
question that the proper calculation of AFDC benefits is a matter of public right [citation],
and plaintiffs herein are certainly citizens seeking to procure the enforcement of a public
duty. [Citation.] It follows that plaintiffs have standing to seek a writ of mandate
commanding defendants to cease enforcing [the regulation] in its entirety. The trial court
erred in ruling otherwise, and in limiting the scope of the evidentiary hearing accordingly.
Plaintiffs are therefore entitled to a new hearing on their cause of action for writ of mandate,
and to a determination of the validity of the remainder of the regulation." (Green v. Obledo,
supra, 29 Cal.3d at p. 145, fn. omitted.)
Significantly, the public interest exception to the rule requiring litigants seeking
mandate have a beneficial interest in the relief they seek has been applied with respect to
duties imposed by the Legislature on schools and school districts. In Doe v. Albany Unified
10
School District (2010) 190 Cal.App.4th 668 (Doe), the court considered relief available
under the provisions of Education Code section 51210, which require that public school
curriculum include not less than 200 minutes of physical education each 10 school days. In
finding the public interest exception applied to permit enforcement of the physical education
requirement by members of the public, the court stated: "As for plaintiff Donald D., if his
interest as the parent of plaintiff Doe in the latter's education is not a sufficient beneficial
interest in itself [citation], he certainly has an interest as a citizen in seeing that section
51210, subdivision (g), is properly enforced. 'The beneficial interest standard is so broad,
even citizen or taxpayer standing may be sufficient to obtain relief in mandamus. "[W]here a
public right is involved, and the object of the writ of mandate is to procure enforcement of a
public duty," a citizen is beneficially interested within the meaning of Code of Civil
Procedure section 1086 if "he is interested in having the public duty enforced." [Citation.]'
[Citation.] This public interest exception ' " 'promotes the policy of guaranteeing citizens the
opportunity to ensure that no governmental body impairs or defeats the purpose of legislation
establishing a public right.' " ' " (Doe, supra, 190 Cal.App.4th at p. 685.)
At this juncture we hasten to point out the district's reliance on Tinsley v. Palo Alto
Unified School District (1979) 91 Cal.App.3d 871, 887-888 (Tinsley), is misplaced. In
Tinsley which was decided before Green v. Obledo, the court found the plaintiffs' interest as
parents and members of the public "may make them proper parties and justify their
intervention in [a school desegregation] action." (Tinsley, supra, 91 Cal.App.3d at p. 888.)
However the court held that if the parents could act as members of the public to assert
students rights to desegregated schools, on remand their children should also be joined as
11
party plaintiffs in the parents' action. (Ibid.) Thus, the holding in Tinsley does not suggest
members of the public do not have standing to enforce the educational rights of public school
students; rather the holding in Tinsley is to the contrary. Moreover in light of Green v.
Obledo, the requirement imposed in Tinsley that in such cases students be joined as parties is
subject to question.
The public interest exception is not unlimited and does not provide the public
standing in all contexts. Indeed the court in Green v. Obledo, supra, 29 Cal.3d at p. 145
recognized the public interest exception "may be outweighed in a proper case by competing
considerations of a more urgent nature." In Carsten v. Psychology Examining Com. (1980)
27 Cal.3d 793 (Carsten), a member of the board of the administrative agency responsible for
licensing psychologists disagreed with the board's decision to approve applicants who had
achieved a passing grade on a national examination rather than the 75 percent grade
expressly required under the terms of a previous version of Business & Professions Code
section 2942. (Carsten, at p. 804.) In finding the public interest exception did not provide
standing to the dissenting board member, the court expressly recognized "there are
circumstances under which a citizen-taxpayer may compel a governmental instrumentality to
comply with its constitutional or statutory duty." (Id. at p. 797.) However, in light of the
board member's participation in the very decision she was challenging, the court found that
providing her standing would unduly undermine the administrative process:
"Unquestionably the ready availability of court litigation will be disruptive to the
administrative process and antithetical to its underlying purpose of providing expeditious
disposition of problems in a specialized field without recourse to the judiciary. Board
12
members will be compelled to testify against each other, to attack members with conflicting
views and justify their own positions taken in administrative hearings, and to reveal internal
discussions and deliberations. Litigation—even the threat of litigation—is certain to affect
the working relationship among board members. In addition, the defense of lawsuits brought
by dissident board members—and such suits would undoubtedly be frequent—will severely
tax the limited budgetary resources of most public agencies." (Carsten, at p. 799.)
In Sacramento County Fire Protection Dist. v. Sacramento County Assessment
Appeals Bd. (1999) 75 Cal.App.4th 327, 330-335 (Sacramento County Fire Protection
Dist.), a local assessment appeals board accepted a stipulation between a county assessor and
a landowner substantially reducing the value of a large tract of land that had been
contaminated. By virtue of the reduction a local fire district was required to pay the
landowner a substantial refund of taxes the district had collected. The court found the
district had no special interest in the assessment over and above the interest of the public at
large and that allowing the district to challenge the reduced assessment by mandate under the
public interest exception would undermine the assessment process in which the district's
interests was adequately represented by the county. (Id. at pp. 331-334.)
Here, there is a manifest public interest in enforcing the antidiscrimination and
antiharassment statutes Hector asserts. Indeed in enacting the statutes the Legislature itself
has articulated that interest: "It is the policy of the State of California to afford all persons in
public schools, regardless of their disability, gender, gender identity, gender expression,
nationality, race or ethnicity, religion, sexual orientation, or any other characteristic . . . equal
rights and opportunities in the educational institutions of the state. The purpose of this
13
chapter is to prohibit acts that are contrary to that policy and to provide remedies therefor."
(Ed. Code, § 200.) More particularly in enacting Education Code section 201, the
Legislature found both that: "(c) Harassment on school grounds directed at an individual on
the basis of personal characteristics or status creates a hostile environment and jeopardizes
equal educational opportunity as guaranteed by the California Constituion and the United
States Constitution" and "(d) There is an urgent need to prevent and respond to acts of hate
violence and bias-related incidents that are occurring at an increasing rate in California's
public schools." (Id. at subds. (c) & (d).)
Plainly the public interest in ensuring public schools are free from discrimination,
harassment and bullying as articulated in Government Code section 11135, and Education
Code sections 200, 201, 220, 32261, 32280, 32281 and 32282, is as great or greater than the
public interest in assuring schools provide the mandated minimum number of hours of
physical education the court considered in Doe. Thus a strong argument can be made that if
the public interest exception permits members of the public to enforce the relatively narrow
physical education requirements of Education Code 51210, members of the public may also
enforce the broader provisions protecting students from discrimination, harassment and
bullying.
Moreover, unlike the unique positions occupied by the plaintiffs in Carsten, supra, 27
Cal.3d at p. 799, and Sacramento County Fire Protection Dist., supra, 75 Cal.App.4th at
pp. 332-335, and the more urgent considerations which consequently arose in those cases,
here there are no similar competing considerations which outweigh the public's well
articulated interest in protecting public school students from bullying. Hector is not a
14
member of the board of trustees of the district or a responsible officer of the district charged
with enforcing the duties he asserts. Thus, the conflicts of interest and perpetuation of
litigation which were of concern in Carsten are not present here. Hector is not a public
agency attempting to challenge an agreement made by another agency with a third party.
Thus Hector's challenge to the district does not create the risk of undermining a carefully
developed statutory scheme which delegates responsibility among local agencies, as was the
case in Sacramento County Fire Protection Dist. Rather, Hector is like the individual
plaintiffs in Green v. Obeldo and Doe: an individual citizen who is attempting to compel a
public agency to perform duties he believes the law mandates.
In sum then, Hector's attempt to enforce the antidiscrimination and antiharassment
statutes adopted by the Legislature falls squarely within the public interest exception to the
rule which otherwise requires a beneficial interest in mandate actions. There is a manifest
public interest in enforcing the antibullying statutes and there are no urgent competing
interests which outweigh that public interest. Thus, the trial court erred in sustaining the
district's demurrer on the grounds Hector lacked standing.
In particular, Hector had standing to assert his first three causes of action, which
expressly seek relief in mandate. The public interest in enforcing the antidiscrimination and
antiharassment statutes also provides Hector with standing to bring a taxpayer action under
15
Code of Civil Procedure section 526a. (See Connerly v. State Personnel Board (2001) 92
Cal.App.4th 16, 29.)1
IV
For the first time on appeal, the district argues that in any event Hector's complaint is
defective because it does not allege the breach of a mandatory, ministerial duty. We may, of
course, affirm a judgment on any grounds which appear in the record, notwithstanding the
reasoning urged in or adopted by the trial court. (See Stratton v. First Nat. Life Ins. Co.
(1989) 210 Cal.App.3d 1071, 1083.) Here, however, we decline to do so because Hector's
complaint arguably alleges breach of a mandatory duty. (See Redwood Coast Watershed
Alliance v. State Board of Forests, supra, 70 Cal.App.4th at pp. 962-969.) Moreover, even if
the TAC did not explicitly allege breach of a mandatory duty, it is reasonably probable that
Hector could amend the complaint to do so. (Id. at p. 965.)
1 Because Hector's declaratory relief action is largely duplicative of his mandate causes of action, arguably he also has standing to seek declaratory relief. However, we have not been able to find any case which has definitively extended the public interest exception to claims for declaratory relief. (See In re Marriage Cases (2008) 43 Cal.4th 757, 790-791; but see also Redwood Coast Watershed Alliance v. State Board of Forestry (1999) 70 Cal.App.4th 962, 969.) We also note that the district has not had the opportunity to assert, as an alternative argument, that the public interest exception does not extend to declaratory relief actions. In light of these circumstances, rather than deciding the issue, which may be of little practical consequence to the parties, our remand will be without prejudice to the district's right to argue in the trial court that, notwithstanding our determination Hector has standing to seek mandate and as a taxpayer, he lacks standing to maintain a declaratory relief action.
16
DISPOSITION
The judgment dismissing Hector's claim is reversed with instructions to vacate the
order sustaining the district's demurrer. 2 Hector is to recover his costs of appeal.
BENKE, Acting P. J.
WE CONCUR:
McDONALD, J.
O'ROURKE, J.
2 Our disposition is without prejudice to the district's right to challenge Hector's standing, as a member of the public, to seek declaratory relief.
17
AI Brief
AI-generated · verify before citing
Holding. A citizen and taxpayer has standing under the public interest exception to the beneficial interest requirement to seek a writ of mandate compelling a school district to comply with statutory duties regarding the prevention of discrimination and harassment.
Issues
Whether a parent has standing to seek a writ of mandate against a school district for failing to implement mandatory discrimination and harassment safety plans when his children are no longer enrolled or have not been personally harmed.
Whether the public interest exception to the beneficial interest requirement for mandate applies to the enforcement of state antidiscrimination and antiharassment statutes in public schools.
Disposition. reversed
Quotations verified verbatim against the opinion
“As a citizen and taxpayer Hector has standing to seek enforcement of laws in which there is an identified public as well as private interest.”
“In sum then, Hector's attempt to enforce the antidiscrimination and antiharassment statutes adopted by the Legislature falls squarely within the public interest exception to the rule which otherwise requires a beneficial interest in mandate actions.”