Opinion
NOT TO BE PUBLISHED
San Francisco County Super. Ct. No. 504325.
Ruvolo, P. J.
I.
Introduction
Appellant Guadalupe Mata (Mata) appeals from the dismissal of his lawsuit filed against the California Department of Employment Development and its former and current directors (collectively referred to hereafter in the singular form as EDD) following the sustaining of a demurrer to Mata’s second amended complaint (SAC). Mata, a state disability insurance (SDI) recipient, sued after he was not provided with “alternative communication services” to assist him during an independent medical examination performed by QTC Medical Group (QTC) at the request of EDD. He contends that this omission constituted a discriminatory denial of access to state benefits for which he is entitled to injunctive relief against EDD.
Mata also sued QTC. Those claims are still pending in the trial court, and are not directly the subject of this appeal.
We conclude that Mata’s claim is fatally defective, in that he has failed to allege that he sustained, and is at risk of sustaining in the future, any appreciable harm as a result of the alleged discriminatory conduct. Accordingly, dismissal of his claims against EDD was warranted.
II.
Factual and Procedural History
Mata filed his original petition for writ of mandate and complaint for declaratory and injunctive relief (complaint) on July 2, 2004. The complaint alleged three causes of action against EDD: one pursuant to Government Code section 11135 (section 11135), which prohibits a state agency from discriminating on the basis of race, national origin, and ethnic group identification, among other things; one seeking mandamus under Code of Civil Procedure section 1085, and a taxpayer’s action under Code of Civil Procedure section 526a seeking injunctive relief. No damages were sought in the complaint.
The complaint alleged that Mata, a Latino of Mexican descent, resided in San Diego County and had applied for, and was receiving, SDI benefits. In order to maintain his benefits, EDD required him to undergo a medical evaluation by QTC. Mata appeared for his examination on September 23, 2003. However, QTC failed or refused to conduct the examination unless and until Mata furnished his own Spanish language interpreter to attend the examination with him. A subsequent examination was scheduled for October 20, 2003, at which time Mata supplied his own interpreter.
EDD filed a demurrer to the original complaint principally contending that section 11135 did not provide for a private right of action to enforce the statute, and that Mata failed to allege any “legally cognizable harm.” As to the cause of action for traditional mandamus, EDD also argued that it had no “clear and present ministerial duty” which could form the basis of a mandamus action, and that the so-called taxpayer relief statute (Code Civ. Proc., § 430.10, subd. (e)) provided only a remedy and was not an independent cause of action upon which judgment could be entered. The demurrers were sustained with leave to amend granted.
A first amended complaint (FAC) was filed by Mata on December 6, 2004. The same three causes of action were pleaded. Another demurrer was filed by EDD. While the allegations in the FAC were changed to allege that EDD (and QTC) failed to provide Mata with an “alternative communication system” for his independent medical examination, it was pointed out at the hearing on the demurrer that the prayer in the FAC still complained of the failure to provide him with an interpreter.
EDD argued that Mata could not show legally cognizable harm because he failed to take proper advantage of the existing services offered through EDD, including a referral system to physicians who have indicated to EDD that they offer multilingual services. As to the issue of harm, the court noted that, while section 11135 spoke in terms of governmental agencies providing “access” to state-provided benefits, it did not see how Mata could use this language to assert a mandatory duty to provide for interpreters. Moreover, the court noted the absence of any real harm: “You have a person here who was really not harmed. I suppose he was inconvenienced. He got everything that he wanted although he had to do it in a two-step process rather than a one-step process.” Counsel for Mata confirmed that he was not seeking damages; only “a change in the system.” In fact, counsel conceded that Mata did not have to spend any money on an interpreter since one was provided to him by his counsel’s office at no cost. The demurrer was sustained, and Mata was once again granted leave to amend.
A second amended complaint (SAC) was filed by Mata on April 19, 2005. It is the SAC that is the subject of this appeal. The SAC realleged the original three causes of action against EDD but added an additional cause of action alleging that EDD’s denial of “alternative communication systems” for the independent medical examination violated Mata’s due process rights.
EDD filed a demurrer to the SAC on five separate grounds: (1) Mata could not bring the action because he did not allege any appreciable harm, and therefore lacked standing; (2) section 11135 did not confer a private right of action; (3) a constitutional right of due process does not attach to the independent medical examination conducted by QTC; (4) the mandamus claim fails because Mata failed to show a clear, present, ministerial duty on the part of EDD and a correlative clear, present, and beneficial right in Mata to the performance of that duty; and (5) the taxpayer statute (Code Civ. Proc., § 430.10) was simply a remedy and was not a legal cause of action upon which Mata could seek relief.
At the conclusion of oral argument on August 16, 2005, the trial court requested each party to submit a proposed order, and the demurrers were taken under submission. The trial court, apparently accepting much of the language proposed by EDD, filed a written decision on September 6, 2005.
As to the cause of action under section 11135, the court noted that the basis for this discrimination claim is that the EDD failed to provide “alternative communication services” as required by regulations (22 Cal. Code Regs., § 98000 et seq.). However, because the regulations by their terms only apply to persons or contractors who receive state support in excess of $10,000, and not the state itself, “EDD has no obligation to provide alternative communication services and [Mata] cannot allege a violation of Government Code section 11135 as to EDD . . . .”
The demurrer was also sustained as to Mata’s due process cause of action. In this regard, the court concluded that he failed to identify “a statutorily conferred benefit or interest under state law of which he or she has been deprived to trigger due process analysis . . .,” noting that Mata did not allege he was deprived of disability benefits as a result of challenged conduct.
This ruling is not challenged in this appeal.
As to Mata’s mandamus claim (Code Civ. Proc., § 1085), the court concluded he failed to allege that EDD had a “clear, present and usually ministerial duty” under existing law to provide him with alternative communications services, nor did he have standing to bring the claim as he lacked a beneficial interest, in part, because he did not suffer substantial harm, past and future.
Finally, the court dismissed Mata’s cause of action grounded on Code of Civil Procedure section 526a, because that statute “is a remedy, not a cause of action on which relief can be based.” This appeal followed.
III.
Legal Discussion
A. Standard of Review
“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 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.)
As it did in the trial court, EDD raises a host of legal grounds it contends requires us to affirm the judgment. We do so by agreeing with the trial court’s observation during the hearing on EDD’s demurrers that the failure of Mata to allege past harm, and a risk of future harm, is fatal to his action. Although the trial judge only relied on this ground to sustain the demurrers to Mata’s causes of action for due process violation and mandamus, that flaw is equally fatal to his claim brought under section 11135 as well.
It is the correctness of the trial court’s action in sustaining a demurrer, not its reasons, which is reviewable. (Maheu v. CBS, Inc. (1988) 201 Cal.App.3d 662, 670.) A reviewing court reviews the judgment rather than the reasons for the judgment and must affirm the judgment if any of the grounds stated in the demurrer is well taken. (E. L. White, Inc. v. City of Huntington Beach (1978) 21 Cal.3d 497, 504, fn. 2; Maheu v. CBS, Inc., supra, 201 Cal.App.3d at p. 670; Weinstock v. Eissler (1964) 224 Cal.App.2d 212, 224-225.)
Section 11135, subdivision (a) states: “(a) No person in the State of California shall, on the basis of race, national origin, ethnic group identification, religion, age, sex, sexual orientation, color, 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. Notwithstanding [Government Code] [s]ection 11000, this section applies to the California State University.”
Government Code section 11139 provides for a private right of action for injunctive relief in cases where section 11135 has been violated. However, case law interpreting these statutes makes clear that damages or harm must actually be suffered before a claim may be brought.
In Blumhorst v. Jewish Family Services of Los Angeles (2005) 126 Cal.App.4th 993, review denied April 27, 2005, S132188 (Blumhorst), the male plaintiff sued under section 11135 claiming he had been a battered husband, and that he was denied entry to defendants’ domestic violence shelters because he was a man. He alleged that, although he was past victim of domestic violence, he decided to “test” whether the defendants would provide him with shelter, although he had no current need for one. Therefore, he contacted state-funded shelters being operated in Los Angeles and asked to be admitted. Each time he was refused shelter because he was a man, and because the shelters have policies limiting services to females. (Id. at pp. 998-999.)
The appellate court affirmed the trial court’s dismissal of the complaint on the ground that the plaintiff lacked standing because a person invoking judicial process must have a real interest in the ultimate adjudication, having suffered or is about to suffer an injury of “ ‘ “sufficient magnitude reasonably to assure that all the relevant facts and issues will be adequately presented.” [Citation.]’ [Citations.]” (Blumhorst, supra, 126 Cal.App.4th at p. 1001.) The court concluded, “There is nothing in the plain language of sections 11135 and 11139, as amended, or in the legislative history, to warrant deviation from the rule that standing requires a plaintiff to allege that he or she was personally damaged.” (Id. at p. 1002.)
The exclusive relief sought by Mata in the SAC is limited to injunctive relief. It is axiomatic that injunctive relief requires a showing of harm that is irreparable in nature. (6 Witkin, Cal. Procedure (4th ed. 1997) Provisional Remedies, § 298, pp. 238-239.) Even where the right to injunctive relief is statute-based, interim harm must be alleged. (DVD Copy Control Assn. v. Bunner (2004) 116 Cal.App.4th 241, 250.)
The SAC is devoid of allegations establishing that Mata was harmed or damaged by the failure of EDD, through QTC, to provide him with alternative communications services. Indeed, Mata’s counsel conceded at oral argument that Mata did not have to expend any money for an alternative communications system because his counsel provided him with an interpreter to accompany him to his medical evaluation. Furthermore, Mata was not denied needed medical services inasmuch as the examination by QTC was not medical treatment. He does not allege that he was denied any EDD benefits because of his race or ethnicity. At most, the failure to have an alternative communication system available to him required him to reschedule his examination with QTC for several weeks beyond the original planned date. This is plainly inadequate to satisfy the legal requirement of pleading actual harm. The failure to plead harm or damage is fatal to all of Mata’s claims.
While EDD has relied on Blumhorst to argue that Mata was not injured by EDD’s allegedly discriminatory practices, Mata has failed to address this important precedent in either his opening or reply briefs. Instead, Mata claims that he satisfied the requirement of pleading harm simply by demonstrating a prima facie case of discrimination based on a policy which has a discriminatory impact on a protected class. In proffering this argument, Mata cites Larry P. by Lucille P. v. Riles (9th Cir. 1984) 793 F.2d 969, 982 (Larry P.), but Larry P. is distinguishable in a number of important ways.
First, Larry P. was a case brought by Black school children who claimed the use of standardized intelligence tests for placement of Black children in special education classes reserved for the mentally retarded in San Francisco was racially discriminatory. During the course of the case, the trial court expanded the class of plaintiffs to include “all Black California school children who have been or may in the future be classified as mentally retarded on the basis of I.Q. tests.” (Larry P., supra, 793 F.2d at p. 972.) Thus, it is clear that the plaintiffs in Larry P. were actually harmed by the acts of the defendants in that they were placed in public education classes designated for mentally retarded students based on their performance on standardized I.Q. tests.
In addition, Larry P. was brought under Title VI of the Civil Rights Act of 1964, 42 U.S.C. section 2000d et seq., among other federal statutes and the federal and California constitutions. (Larry P., supra, 793 F.2d at p. 972.) In the context of a civil rights action, the Ninth Circuit observed that a prima facie case required only a showing that the challenged conduct had a disparate impact on the minority plaintiffs, in which case the burden shifted to the defendants to show the policy or practice was required by “educational necessity.” (Id. at p. 982.)
Unlike the civil rights statutes at issue in Larry P., here Mata relies on a state statute which mandates non-discriminatory access to state benefits, and traditional mandamus, as the bases for his claim. This is not a disparate impact civil rights action as in Larry P. Also, in Larry P. the plaintiffs suffered actual harm by the manner in which they were placed in special education classes, and thus, deprived of mainstream public education. Here Mata has suffered no such appreciable harm. Controlling case law requires a showing of actual harm or damage, a necessary element of his claims Mata cannot allege. Therefore, dismissal of his SAC without leave to amend was not error.
B. Conclusion
We affirm the judgment on a narrow ground, based on the absence of an allegation of actual harm. We are mindful that the parties have raised a number of other legal issues in this appeal implicated by Mata’s SAC, including: (1) whether EDD’s promulgation of regulations requiring its private providers to offer its beneficiaries alternative communication systems absolved EDD of any further liability under section 11135; (2) whether the EDD had a ministerial duty to provide alternative communications systems which could be the proper subject of a claim for mandamus under Code of Civil Procedure section 1085; (3) whether Mata had a beneficial interest in such ministerial duty sufficient to give him standing; (4) if not, whether Mata fell within the public interest exception to the beneficial interest requirement; and (5) whether language can be a proxy for ethnic origin or color under section 11135.
We have not intended by our analysis to express an opinion on any of these issues. Whatever the possible merits of the contentions of the respective parties, the absence of a necessary allegation of actual and future harm makes this case an inappropriate vehicle by which to address those issues.
IV.
Disposition
The judgment is affirmed. Each party shall bear its or his own costs on appeal.
We concur: Reardon, J., Rivera, J.