Answer Response No FeeCal. Super. - 6th Dist.May 5, 20211 Brian D. Bock, Esq. (SBN 189936) Proactive Legal-The Bock Law Group, PC 2 31610 Railroad Canyon Rd, Ste 2 Canyon Lake, CA 92587 3 Tel 951-261-5333 I Fax 951-261-5345 4 brian@proactiveBLG.com 5 Attorneys for Respondent, LOMA PRIETA JOINT UNIFIED SCHOOL DISTRICT Exempt from Filing Fees Government Code § 6103 6 7 8 9 SUPERIOR COURT OF THE STATE OF CALIFORNIA IN AND FOR THE COUNTY OF SANTA CLARA 11 12 13 14 15 16 17 18 19 20 21 22 23 DAVID KISSNER AND SHAHRY AR RO:KNI, PETITIONERS, VS. SANTA CLARA COUNTY SUPERINTENDENT OF SCHOOLS DR. MARY ANN DEWAN; SANTA CLARA COUNTY OFFICE OF EDUCATION, LOMA PRIETA JOINT UNION SCHOOL DISTRICT; SANTA CLARA COUNTY REGISTRAR OF VOTERS SHANNON BUSHEY; SANTA CRUZ COUNTY CLERK TRICIA WEBBER; AND DOES 1-10; RESPONDENTS. Case No.: 21CV381463 LOMA PRIETA JOINT UNIFIED SCHOOL DISTRICT'S ANSWER/RESPONSE TO PETITIO DATE: June 7, 2021 TIME: 1:30pm DEPT: 12 24 Respondent LOMA PRIETA JOINT UNIFIED SCHOOL DISTRICT hereby provides the 25 following ANSWER/RESPONSE TO THE VERIFIED PETITION FOR WRIT OF MANDATE filed by 26 Petitioners DAVID KISSNER and SHAHRY AR ROKNI: 27 ///// 28 ///// 1. ANSWER OF LOMA PRIETA JUSD TO VERIFIED PETITION FOR WRIT OF MANDATE Electronically filed by Superior Court of CA, County of Santa Clara, on 5/27/2021 2:15 PM Reviewed By:M Vu Case #21CV381463 Env #6536192 I demurrer for hearing at the earliest possible date. The Court has the statutory power to control this case in such 2 manner as it sees fit for the purposes of serving the ends of justice per Code of Civil Procedure§ 128(a)(3)(5)(8). 3 In any event, the legal authorities in the proposed demurrer reflect the same reasoning supporting this 4 response to the Petition by LOMA PRIETA. There is just no conceivable purpose in having named LOMA 5 PRIET A as a respondent in this action. 6 Whatever the reasons or motivations might be, the Petitioners have still chosen to prejudice LOMA 7 PRIET A and to cause undue, unnecessary, and costly economic harm to the students, parents, staff, and 8 taxpayers of the District. If given the opportunity to conduct discovery or to have an evidentiary hearing as to 9 the justifications of the Petitioners, it is very likely that this Court will discover that the decision to name the 10 District and to keep it in this litigation is for no lawful purpose as absolutely nothing is alleged in the Petition 11 which could give rise to a proper decree or order requiring this responding party to perform any act, carry out 12 any ministerial duty, or to participate in any relief that could possibly be afforded per the allegations of the 13 Petition, even if taken as completely true. 14 Given the lack of relevant personal knowledge of any officiaJs of the District, and the lack of any basis 15 for relief under Section 13314 of the Education Code or Sections 1085 or 1086 of the Code of Civil Procedure, 16 this responding party must generally deny each of the above-referenced allegations. 17 No admission below is to be taken as an admission of proper jurisdiction, any possible basis for relief, 18 or a waiver of the right to seek interim or dispositive relief per the Code of Civil Procedure, including but not 19 limited to injunctive relief, the filing of a demurrer, motion for dismissal, motion for judgment on the pleadings, 20 expedited judgment proceedings, or other relief as would otherwise be afforded a respondent during the regular 21 course and scope of litigation. 22 This responding party does not deny that the instant writ proceeding should be subject to orders 23 shortening time on briefmg, expedited adjudication of the key claims, or the fact that a writ petition is the proper 24 form of pleading to seek any potential relief, whether warranted or not, as against other parties to this action. It 25 is exactly for these reasons/exigencies that LOMA PRIETA requests that the Court employ its equitable powers 26 and/or statutory authority under Code of Civil Procedure§ 128 to schedule the hearing of any such matters in a 27 manner consistent with the demands of time and interests of justice - especially in favor of LOMA PRIETA as to 2& its prayer for relief stated below. 3. ANSWER OF LOMA PRJETA JUSD TO VERIFIED PETITION FOR WRIT OF MANDATE 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 RESPONSE TO PETITION 1. Denied as there is not sufficient discovery, information, or relevant data available to this responding party with respect to the underlying facts giving rise to the specific relief sought by the Petitioners or as to standing to bring this action per se. 2. Admit as to the position of Dr. Mary Ann Dewan with the Santa Clara County Office of Education. Denied as to the allegations of ministerial duty or the basis for relief. 3. Admit as to the role of the Santa Clara County Office of Education in overseeing elections processes affecting school districts under its jurisdiction under the California Constitution, Education Code, Government Code, or other relevant law. 4. Admit, subject to an objection as to relevancy of this allegation as to any possible basis for relief stated elsewhere in the Petition. See, California Evidence Code§ 352. 5. Admit. 6. Admit. 7. Admit as to the priority given to this proceeding under the stated allegations of the Petition, without regard to the lack of evidence as to this responding party. Denied as to the factual allegations. An objection is interposed as to relevance as to this responding party and the relief sought by the Petitioners. The alleged facts have no tendency to prove or disprove that this responding party is subject to any form of relief in this action. 8. This responding party has insufficient information available to it such that a meaningful response can be provided here. An objection is interposed as to relevance as to this responding party and the relief sought by the Petitioners. The alleged facts have no tendency to prove or disprove that this responding party is subject to any form of relief in this action. 9. This responding party has insufficient information available to it such that a meaningful response can be provided here. An objection is interposed as to relevance as to this responding party and the relief sought by the Petitioners. The alleged facts have no tendency to prove or disprove that this responding party is subject to any form of relief in this action. 10. Admit. 4. ANSWER OF LOMA PRIETA ruso TO VERIFIED PETITION FOR WRIT OF MANDATE 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 11. Admit, subject to an objection as to relevancy of this allegation as to any possible basis for relief stated elsewhere in the Petition as against this responding party. See, California Evidence Code§ 352. 12. Admit, subject to an objection as to relevancy of this allegation as to any possible basis for relief stated elsewhere in the Petition as against this responding party. See, California Evidence Code§ 352. 13. Admit, subject to an objection as to relevancy of this allegation as to any possible basis for relief stated elsewhere in the Petition as against this responding party. See, California Evidence Code§ 352. 14. This responding party has insufficient information available to it such that a meaningful response can be provided here. An objection is interposed as to relevance as to this responding party and the relief sought by the Petitioners. The alleged facts have no tendency to prove or disprove that this responding party is subject to any form of relief in this action. 15. Admit as to the authenticity of the agenda as to being a true and correct copy and as to the existence of a vacancy and appointment of a new board member. 16. This responding party has insufficient information available to it such that a meaningful response can be provided here. An objection is interposed as to relevance as to this responding party and the relief sought by the Petitioners. The alleged facts have no tendency to prove or disprove that this responding party is subject to any form of relief in this action. 17. This responding party has insufficient information available to it such that a meaningful response can be provided here. An objection is interposed as to relevance as to this responding party and the relief sought by the Petitioners. The alleged facts have no tendency to prove or disprove that this responding party is subject to any form of relief in this action. 18. This responding party has insufficient information available to it such that a meaningful response can be provided here. An objection is interposed as to relevance as to this responding party and the relief sought by the Petitioners. The alleged facts have no tendency to prove or disprove that this responding party is subject to any form of relief in this action. 19. This responding party has insufficient information available to it such that a meaningful response can be provided here. An objection is interposed as to relevance as to this responding party and the relief !'.:ought by the Petitionern. The alleged facts have no tendency to prove or disprove that this responding party is subject to any form of relief in this action. 5. ANSWER OF LOMA PRIET A JVSD TO VERIFIED PETITION FOR WRIT OF MANDATE 1 2 3 4 5 6 7 8 9 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 20. This responding party has insufficient information available to it such that a meaningful response can be provided here. An objection is interposed as to relevance as to this responding party and the relief sought by the Petitioners. The alleged facts have no tendency to prove or disprove that this responding party is subject to any form of relief in this action. 21. This responding party has insufficient information available to it such that a meaningful response can be provided here. An objection is interposed as to relevance as to this responding party and the relief sought by the Petitioners. The alleged facts have no tendency to prove or disprove that this responding party is subject to any form ofrelief in this action. 22. This responding party has insufficient information available to it such that a meaningful response can be provided here. An objection is interposed as to relevance as to this responding party and the relief sought by the Petitioners. The alleged facts have no tendency to prove or disprove that this responding party is subject to any fonn ofrelief in this action. 23 . This responding party has insufficient information available to it such that a meaningful response can be provided here. An objection is interposed as to relevance as to this responding party and the relief sought by the Petitioners. The alleged facts have no tendency to prove or disprove that this responding party is subject to any form of relief in this action. 24. This responding party has insufficient information available to it such that a meaningful response can be provided here. An objection is interposed as to relevance as to this responding party and the relief sought by the Petitioners. The alleged facts have no tendency to prove or disprove that this responding party is subject to any form of relief in this action. 25. This responding party has insufficient information available to it such that a meaningful response can be provided here. An objection is interposed as to relevance as to this responding party and the relief sought by the Petitioners. The alleged facts have no tendency to prove or disprove that this responding party is subject to any form of relief in this action. 26. This responding party has insufficient information available to it such that a meaningful response can be provided here. An objection is interposed as to relevance as to this responding party and the relief sought by the Petitioners. The alleged facts have no tendency to prove or disprove that this responding party is subject to any form of relief in this action. 6. ANSWER OF LOMA PRIETA JUSD TO VERWIED PETITION FOR WRIT OF MANDATE 1 2 3 4 5 6 7 8 9 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 27. This responding party has insufficient information available to it such that a meaningful response can be provided here. An objection is interposed as to relevance as to this responding party and the relief sought by the Petitioners. The alleged facts have no tendency to prove or disprove that this responding party is subject to any form of relief in this action. 28. This responding party has insufficient infonnation available to it such that a meaningful response can be provided here. An objection is interposed as to relevance as to this responding party and the relief sought by the Petitioners. The alleged facts have no tendency to prove or disprove that this responding party is subject to any form of relief in this action. 29. This responding party has insufficient information available to it such that a meaningful response can be provided here. An objection is interposed as to relevance as to this responding party and the relief sought by the Petitioners. The alleged facts have no tendency to prove or disprove that this responding party is subject to any form of relief in this action. 30. This responding party has insufficient information available to it such that a meaningful response can be provided here. An objection is interposed as to relevance as to this responding party and the relief sought by the Petitioners. The alleged facts have no tendency to prove or disprove that this responding party is subject to any form ofrelief in this action. 31. This responding party has insufficient information available to it such that a meaningful response can be provided here. An objection is interposed as to relevance as to this responding party and the relief sought by the Petitioners. The alleged facts have no tendency to prove or disprove that this responding party is subject to any form of relief in this action. 32. This responding party has insufficient information available to it such that a meaningful response can be provided here. An objection is interposed as to relevance as to this responding party and the relief sought by the Petitioners. The alleged facts have no tendency to prove or disprove that this responding party is subject to any form of relief in this action. 33 . This responding party has insufficient information available to it such that a meaningful response can be provided here. An objection is interposed as to relevance as to this responding party and the relief sought by the Petitioners. The alleged facts have no t endency to prove or d:sprove that this responding party is subject to any form of relief in this action. 7. ANSWER OF LOMA PRIETA JUSD TO VERIFIED PETITION FOR WRIT OF MANDATE l 34. Admit as to the allegation that the Petition seeks relief under Code a/Civil Procedure§ 1085. Deny as 2 to any possible applicability of Section 1085 as to granting relief against this responding party. There is 3 absolutely no ministerial or administrative action that this responding party could take or be ordered to 4 take based on the facts as pleaded in the Petition. 5 35. Admit that the Code provides for such relief. Denied as to relevancy to this responding party. 6 36. This responding party has insufficient information available to it such that a meaningful response can be 7 provided here. An objection is interposed as to relevance as to this responding party and the relief 8 sought by the Petitioners. The alleged facts have no tendency to prove or disprove that this responding 9 party is subject to any form of relief in this action. 10 3 7. Admit that Petitioner seeks to reallege and incorporate prior paragraphs. 11 38. Denied. This responding party owed no cognizable duty to the Petitioners with respect to this 12 proceeding. There is no statutory, common law, or equitable basis for issuing a writ of mandamus as 13 against this responding party. No amendment to the operative pleading could remedy this fatal defect 14 given the "record below" as described in the Petition, even if the facts were taken as true. 15 39. Denied. 16 40. Admit as to the fact that Petitioners seek to reallege and incorporate allegations. 17 41. Denied. 18 42. Denied. 19 AFFIRMATIVE DEFENSES TO PETITION 20 FIRST AFFIRMATIVE DEFENSE 21 (Failure to Identify Responsible Official for Loma Prieta JUSD) 22 Petitioners have failed to identify a single official of LOMA PRIET A who could possibly be 23 responsible for carrying out any duty referenced in the Petition and, more particularly, the Prayer for Relief, set 24 forth therein. In general, a ministerial act does not entail the exercise of judgment or discretion. "A ministerial 25 act is an act that a public officer is required to perform in a prescribed manner in obedience to the mandate of 26 legal authority and without regard to his own judgment or opinion concerning such act's propriety or 27 impropriety, when a given set of tacts exists." California Ass'n of Prof Scientists v Department of Fin. (2011) 28 195 CA4th 1228, 1236, quoting Kavanaugh v West Sonoma County Union High Sch. Dist. (2003) 29 C4th 911, 8. ANSWFR OF LOMA PRIETA JUSD TO VERIFIED PETITION FOR WRJT OF MANDATE 1 916. See, California Civil Writ Practice (4th ed. Cal. CEB 2021) §2.6. See also, Physicians Comm.for 2 Responsible Medicine v Los Angeles Unified Sch. Dist. (2019) 43 CA5th 175, 182 (trial court sustained demurrer 3 on ground that respondents had no clear, mandatory, statutory duty that they failed to perform; affirmed on 4 appeal). 5 SECOND AFFIRMA TJVE DEFENSE 6 (Litigation for Improper Purpose) 7 Petitioners have brought this action in an effort to besmirch the reputation of LP JUSD and its officials, 8 staff, and/or representatives in an effort to gain some unknown political or personal advantage over the District. 9 This is an improper use of this proceeding and is in bad faith. 10 THIRD AFFIRMATIVE DEFENSE 11 (Failure to State any Cause of Action or Statutory Basis for Relief) 12 Petitioners have failed to state any viable claim, cause of action, civil wrong, or failure to carry out 13 official duties as to this responding party or any agent, employee, official or representative of LPJUSD with 14 respect to Petitioners. 15 FOURTH AFFIRMATIVE DEFENSE 16 (Petitioners Have No Beneficial Interest in this Action) 17 Petitioners have no beneficial interest in litigating the Petition as against this responding party. 18 Galzinski v Somers (2016) 2 CA5th 1164, 1170 ("mandamus lies to compel the performance of a clear, present, 19 and ministerial duty where the petitioner has a beneficial right to the performance of that duty."). A party seeking 20 relief must have a direct interest in the outcome of the writ proceeding. See, SJJC Aviation Servs., LLC v City of 21 San Jose, 12 CA5th 1043 at 1054-1057. See, California Civil Writ Practice (4th ed. Cal. CEB 2021) §2.12. 22 While there may be some theoretically cognizable interest in having co-respondents perform some perceived 23 duty as to the setting of an election, there is no such interest with respect to LLJUSD. 24 FIFTH AFFIRMATIVE DEFENSE 25 (Relief is Unnecessary as to this Responding Party) 26 Issuance of writ relief always lies within the discretion of the court and may be denied when issuance of 27 a writ is unnecessary to secure compliance with the law. TransparentGov Novato v City of Novato (2019) 14 28 CASth 140, 148. There is no compliance with the law to be secured as to LPJUSD. 9. ANSWER OF LOMA PRIETA JUSD TO VERIFIED PETITION FOR WRIT OF MANDATE 1 SIXTH AFFIRMATIVE DEFENSE 2 (Authorized Acts) 3 Every act taken by this responding party was within the parameters of the law and no abuse of 4 discretion or failure to use discretion has taken place with respect to this responding party. 5 SEVENTH AFFIRMATIVE DEFENSE 6 (Interference with Financial Controls and Duties of Respondent) 7 If the relief sought by Petitioners was granted, this responding party may be unable to carry out 8 constitutional or other legal mandates with respect to meeting obligations to students and other stakeholders of 9 the school district. Petitioners demand an election that could cost several hundred thousand dollars and the cost IO of which, for the benefit of a grand total of approximately 834 voters, would be passed on to the District by the 11 other Respondents in this action. LOMA PRIETA strongly objects to the setting of anything other than a mail-in 12 ballot election as provided for by law, or other manner of election which reduces costs to the Respondents. 13 EIGHTH AFFIRMATIVE DEFENSE 14 (Failure to File Claim or Otherwise to Exhaust Administrative Remedies) 15 Petitioners, while claiming some perceived civil wrong as against this responding party, have failed to 16 comply with the Governmental Claims Act or to have otherwise failed to exhaust administrative remedies. 17 PRAYER FOR RELIEF 18 Whereas there is no factual, legal, or equitable basis for ordering, decreeing, or commanding the 19 performance of any act or duty as against LOMA PRIETA JOINT UNIFIED SCHOOL DISTRICT, Respondent 20 hereby prays for judgment and relief as follows: 21 22 23 24 25 26 27 28 I. That the Petition be denied in its entirety. 2. That the attached proposed demurrer attached hereto be deemed filed nunc pro tune as of the date of the instant filing and that the Court set the matter for the frrst available date available for hearing within the authority provided by and meaning of Code of Civil Procedure§§ 128(a)(3)(5)(8), 1005. 3. That the allegations concerning this Respondent be stricken from the Petition on the Court's own motion. 4. That the Court, sua sponte, set an Order to Show Cause as to why an order of dismissal and judgment for attorneys' fees, cost!l of mlit, and gunctions ghould not be awarded in favor of thi!l regponding party and 10. ANSWER OF LOMA PRIETA JUSD TO VERIFIED PETlTlON FOR WRJT OF MANDATE 1 2 3 4 5 6 7 8 9 10 11 12 13 14 16 17 18 19 20 21 22 23 24 25 26 27 28 as against the Petitioners and, if deemed appropriate by the Court, the attorneys for Petitioners, and each of them. 5. Immediate dismissal of this action as against this responding party. 6. In the event that this responding party is not immediately dismissed from this action, equitable apportionment, contribution or indemnity as may be allowed with respect election costs relating to any possible judgment or decree as against other Respondents. At this time, LOMA PRlETA takes no position on the merits of any other respondent's opposition or voluntary concession as to any form of writ, whether peremptory, alternative, or otherwise. 7. That the Court exercise only limited post-judgment jurisdiction as necessary to allow for the relief sought in items 3 and 5, above, to be granted to this responding party. The Court retains the power to maintain enforcement of its powers and jurisdiction, as expressed in orders or decrees, pursuant to California Code of Civil Procedure§ 128. 8. Ordering that, in the event the Petition is granted, and writ issued, any special election be in the manner of a mail-in ballot election. In the event that Petitioners should nonetheless demand a traditional election, costs of the same be deemed payable by Petitioners in the interests of equity and preventing unnecessary waste affecting all taxpayers in the affected counties and within the District itself. 9. Costs of suit. 10. Attorneys' fees incurred in the defense of this matter per Code of Civil Procedure § 1021.5 or as otherwise permitted by law. 11. For any and all other relief as this Court may deem appropriate and in the interests of justice for this responding party and the community that it serves. Dated: May 27, 2021 Respectfully submitted, Proactive Legal-The Bock Law Group, PC By Electronic Signature Brian D. Bock, Esq. Attorneys for Respondent, LOMA PRIETA JOINT UNIFIED SCHOL DISTRICT. 11. ANSWER OF LOMA PRIET A JUSD TO VBRIFIED PETITION FOR WRIT OF MANDATE l 2 3 4 5 6 7 8 9 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 EXHIBIT "1" [Proposed] Demurrer of Loma Prieta Joint Unified School District 12. ANSWER OF LOMA PRIET A JUSD TO VERIFIED PETITION FOR WRIT OF MANDATE 1 Brian D. Bock (SBN 189936) Proactive Legal-The Bock Law Group, PC 2 31610 Railroad Canyon Rd, Ste 2 Canyon Lake, CA 92587 3 Tel 951-261-5333 I Fax 951-261-5345 brian@proactiveBLG.com 4 5 Attorneys for Respondent, Loma Prieta Joint Union School District Exempt from Filing Fees Government Code § 6103 6 7 8 9 SUPERIOR COURT OF THE STATE OF CALIFORNIA IN AND FOR THE COUNTY OF SANTA CLARA 10 DAVID KISSNER AND SHAHRY AR 11 ROKNI, ) ~ ~ ~ 12 Petitioners, 13 ) vs. 14 15 SANTA CLARA COUNTY ~ SUPERINTENDENT OF SCHOOLS DR. ) 17 MARY ANN DEWAN; SANTA CLARA ) 16 COUNTY OFFICE OF EDUCATION, LOMA)) PRIETA JOINT UNION SCHOOL DISTRICT; SANTA CLARA COUNTY ~ 18 REGISTRAR OF VOTERS SHANNON ) 19 BUSHEY; SANTA CRUZ COUNTY CLERK) TRICIA WEBBER; and DOES 1-1 O; ~ 20 Respondents. ~ 21 Case No.: 21CV381463 Assigned to Department: __ [PROPOSED] NOTICE OF DEMURRER AND DEMURRER TO COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION OF BRIAND. BOCK RE MEET AND CONFER REQUIREMENTS PRIOR TO FILING OF DEMURRER DATE: TIME: DEPT: 22 TO THE ABOVE-NAMED PARTIES AND THEIR ATTORNEYS OF RECORD: 23 NOTICE IS HEREBY GIVEN that on 2021, at _______ _, ----- 24 a.m. or as soon thereafter as the matter may be heard in Department __ of the above-entitled 25 court, located at 191 N. First Street, San Jose CA 95113, Respondent, Loma Prieta Joint Union 26 School District will, and does hereby, demur to the Petition filed by Petitioner David Kissner and 27 Shahryar Rokni, on the following grounds: 28 1 [PROPOSED) NOTICE OF DEMURRER AND DEMURRER TO PETITION 1. The first cause of action fails to state facts sufficient to constitute a cause of action against 2 the moving parties hereto and is defectively uncertain; 3 2. The second cause of action fails to state facts sufficient to constitute a cause of action 4 against the moving parties hereto and is defectively uncertain; 5 Said demurrer will be based upon this Notice, the accompanying Memorandum of Points 6 and Authorities, the Declaration of Brian D. Bock, the entire pleadings on file in this matter and 7 upon any other matters of which the Court may take judicial notice of or that will be presented at 8 the hearing on this Demurrer. 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Dated: May 27, 2021 Respectfully submitted, Proactive Legal-The Bock Law Group, PC By Electronic Signature Brian D. Bock, Esq. Attorneys for Respondent, LOMA PRIETA JOINT UNIFIED SCHOL DISTRICT. 2 [PROPOSED] NOTICE OF DEMURRER AND DEMURRER TO PETITION 2 3 4 5 6 7 8 9 10 I I 12 13 14 15 16 17 19 20 21 22 23 DEMURRER Respondents, LOMA PRIETA JOINT UNIFIED SCHOOL DISTRICT ("LPJUSD" or "LOMA PRIETA") hereby demurs to the complaint of Petitioner, David Kissner and Shahryar Rokni, on each of the following grounds: 1. The First Cause of Action fails to state facts sufficient to constitute a cause of action against the moving party hereto and is defectively uncertain pursuant to Code of Civil Procedure §430(e) and(/). 2. The Second Cause of Action fails to state facts sufficient to constitute a cause of action against the moving party hereto and is defectively uncertain pursuant to Code of Civil Procedure §430(e) and(/). As can be seen from the Petition, the only allegation that actually addresses this demurring Respondent is Paragraph 4, wherein Loma Prieta Joint Union School District is identified as a party. However, the only alleged facts relate only to the geographic location and number of students served by the District. Nowhere in the Petition is a single allegation that supports the notion that LPJUSD Joint Unified School District could somehow be responsible for carrying out any duty or obligation as to the relief requested in the Prayer found at pages 12 and 13 of the Petition. Simply put, this demurring Respondent does not have the legal authority to do any of the things demanded by Petitioners. A writ of mandate is specifically designed to force a respondent to perform a specific duty that they are otherwise compelled to perform. The requested relief in this case does not even mention a request of the Court to compel Loma Prieta Joint Unified School District to do anything. 24 Dated: May 27, 2021 Proactive Legal-The Bock Law Group, PC 25 26 28 By Elect ronic Signature Brian D. Bock, Esq. Attorneys for Respondents, LOMA PRIETA JOINT UNIFIED SCHOOL DISTRICT 3 [PROPOSED] NOTICE OF DEMURRER AND DEMURRER TO PETITION 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 15 27 28 MEMORANDUM OF POINTS AND AUTHORITIES I. BRIEF STATEMENT OF FACTS The Respondents adopt, without regard to the accuracy of the allegations, the statement of facts and causes of action set forth in the Petition. Even if taken as true, there is absolutely no relief that could be afforded to the Petitioners with regard to Loma Prieta Joint Union School District. See, Gruenberg v. Aetna Insurance Co. (1973) 9 Cal.3d 566, 572. A review of the petition quickly reveals that LPWSD has absolutely nothing to do with the procedures, policies, duties, or obligations referenced throughout the complaint. It does not set elections, resolve election disputes, determine the date of any election, and was not involved in the decisions that the Petitioners complain of. In fact, the Prayer on the Petition does not ask for any specific relief against LPWSD, and it is logically impossible that there could be any cognizable relief granted as to LPWSD based on the Petition. II. THE COURT IS AUTHORIZED TO SUSTAIN THIS DEMURRER The authority of this court to sustain this demurrer is provided by Code of Civil Procedure § 430.10, which authorizes a demurrer on several grounds including, among others, where the complaint is uncertain and where the complaint fails to state facts sufficient to constitute a cause of action. The purpose of a demurrer is to test the sufficiency of the claim as a matter of law. See generally, 5 Witkin, California Procedure (4th ed., 1997) Pleadings§ 899. In examining a complaint for its legal sufficiency to withstand a demurrer, a demurer admits all material and issuable facts properly pied. However, it does not admit contentions, deductions or conclusions of fact or law alleged therein. Gruenberg v. Aetna Insurance Co. (1973) 9 Cal.3d 566, 572. 4 [PROPOSED} NOTICE OF DEMURRER AND DEMURRER TO PETITION 2 3 4 5 6 7 8 9 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 "If there is no "reasonable possibility" that the Petitioner can cure a defective claim by amendment, the court should sustain the demurrer without leave to amend. (Heckendorn v. City of San Marino (1986) 42 Cal.3d. 481, 486). The burden of proving such reasonable possibility "is squarely upon the Petitioner." (Blank v. Kirwan (1985) 39 Cal.3d. 311, 318). Although a demurrer based on uncertainty is disfavored, it is well settled that a Petitioner must set forth clearly and unambiguously in its pleadings the specific facts that underpin the controversy so that a Respondent can assess the counts and allegations levied against it. Bernstein v. Piller (1950) 98 Cal.App.2d 441,443. As shown below, no reasonable person could ascertain, from the Petition in this matter, what relief is sought against this demurring party. Further, the complaint must contain the essential facts so that a Respondent can respond intelligently and responsively to the pleading without having to guess or speculate as to the items of material or central facts. Ankeny v. Lockheed Missile and Space Co. (1979) 88 Cal.App.3d 531, 53 7. In the present case, there are no essential facts demonstrating a basis for relief. Try as one may, there is simply nothing in the Petition that would alert one to the basis for relief as against Loma Prieta Joint Unified School District. A demurrer for uncertainty may lie if the complaint is so devoid of specific facts that the Respondent cannot reasonably determine what issues may be admitted, denied or what counts or claims are directed against him Ankeny, supra, 88 Cal.App.3d at 537. In Philbrook v. Randall (1924) 195 Cal. 95, the California Supreme court explained, "The essential facts upon which a determination of the controversy depends should be stated with clearness and precision, so that nothing is left to surmise." Philbrook, supra, 195 Cal. at 103. III. A DEMURRER ISP ARTICULARL Y APPROPRIATE AS TO THE INSTANT PETITION A trial court may sustain a demurrer on ground that respondent had no clear, mandatory, statutory duty that they failed to perform. Physicians Comm. for Responsible Medicine v Los j (PROPOSED} NOTICE OF DEMURRER AND DEMURRER TO PETITION 1 Angeles Unified Sch. District (2019) 43 CA5th 175, 182 (affirmed on appeal). 2 As can be seen from the Petition in this case, there are just absolutely no allegations to 3 suggest that this demurring party, LP ms, had anything to do with the duties that the other 4 respondents may have had. s LPmSD takes no position with respect to the merits of any defense they may have other 6 than to say that any alternative or other writ commanding the remaining respondents to set a 7 special election. LP WSD just implores the Court to tailor any orders in a manner respecting 8 issues about costs to the voters and taxpayers within this incredibly small school district. 9 10 IV. II ARGUMENT 12 As alluded to above, out of 42 paragraphs of allegations in the Petition, only two reference 13 anything having to do with LPWSD. 14 Paragraph 4 mentions LPmSD. However, the allegation relates to the geographic 15 location of the District and the number of students it serves. This hardly amounts to an essential 16 allegation concerning statutory duties that are required of the District in relation to the relief 17 sought in the Petition. 18 Paragraph 9 references jurisdiction over the parties because they operate within the 19 jurisdiction of this Court. The fact that a party is subject to the jurisdiction of the Court does not 20 mean that there is a basis for relief 21 As to any alleged wrongdoing, the allegations in this regard start at Paragraph 17 and 22 describe actions that can only have been taken by one or more of the Co-Respondents, but 23 certainly not LPJUSD. The following facts are statutorily and logically indisputable: 24 1. The District has nothing to do with providing review and verification of signatures 25 required for the process of setting a special election. Petition at ,r,r 17, 18, 20. 26 2. This District has nothing to do with establishing cost estimates tor any special election, 21 Id. at ,r,r 19, 20. 28 3. The District has nothing to do with approving or disapproving the contents of a petition 6 [PROPOSED) NOTICE OF DEMURRER AND DEMURRER TO PETITION 2 3 4 5 to set a special election. Id. at ,r,r 19, 22, 24, 26, 27, 28, 29. 4. This District has nothing to do with the timing as to any special election. Id. at ,r,r 21, 22. 5. Lastly, the District had nothing to do with the judgment calls and decisions made by the proponents of the petition to set a special election. Id. at ,r,r 19, 22, 23, 28. In sum, LPJUSD was not, and is not, involved in any of the actions, omissions, or activities 6 which form the basis of the request for prospective relief in this case. There is simply no basis 7 for having LPJUSD involved in this matter since the subject matter of the Petition demonstrates 8 that other entities are responsible for carrying out any ministerial or other duties referenced in the 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Petition. As admitted by the Petitioners, Id. at ,r,r 34, 35, a writ is designed to compel a responsible person to perform a duty that is required by the terms of their office. Petitioners have identified no duty that can be performed by this demurring Respondent. Nor do the Petitioners include any request for performance of a duty of LP JUSD anywhere in the Prayer on the Petition. Given the above, LPJUSD is confounded as to how they are included in the Petition as a respondent. V. CONCLUSION Based on the foregoing, Respondent, Loma Prieta Joint Union School District, respectfully requests the Court sustain the demurrer without leave to amend. Dated: May 27, 2021 Proactive Legal-The Bock Law Group, PC 6y Electronic Signature Brian D. Bock, Esq. Attorneys for Respondents, LOMA PRIETA JOINT UNIFIED SCHOOL DISTRICT 7 [PROPOSED] NOTICE OF DEMURRER AND DEMURRER TO PETITION 2 3 4 5 6 7 8 9 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DECLARATION OF BRIAND. BOCK I, BRIAND. BOCK, do hereby attest as follows: 1. That I am duly licensed to practice law in the State of California and serve as counsel for Respondent, Loma Prieta Joint Unified School District in this matter. 2. I have read the petition filed in this case. 3. Upon reading the petition, I could not reasonably infer a basis of liability as against my client. 4. Pursuant to the requirements of California Code of Civil Procedure § 430.40, I telephonically contacted James Sutton, Counsel for Petitioners, on Friday May 7, 2021, for the purpose of discussing the Petition filed in this case. 5. I informed Mr. Sutton that we could not ascertain the basis for relief as sought against my client. He did not seem to be aware of the exact basis for naming LPJUSD Joint Unified School District in this matter and indicated that it was his intention to dismiss LP JUSD from the case just so long as a briefing and hearing schedule were achieved. As a matter of professional courtesy and in light of the timing necessary with respect to the Elections Code, I cooperated with him and other counsel as to scheduling. 6. I was under the understanding that he would speak to his clients about the matter after our conversation and the briefing/hearing schedule was agreed to so as to meet the procedural needs of the parties. When I later spoke with Mr. Sutton to follow up on the issue of dismissing LPJUSD, Mr. Sutton backtracked on what he had said before, but offered up absolutely no intentions or requests with respect to amending the Petition_ At this point, it would be too late for him to do that since the hearing on the Petition is scheduled for June 7, 2021. For all practical purposes, the disposition of that hearing will resolve any substantive issues and leave LP JUSD with no material recourse if they are not promptly dismissed from this litigation. 7 _ As a result of the disregard for our concerns about being dragged into this litigation and the failure to voluntarily dismiss before the hearing, LP JUSD has been literally forced to 8 [PROPOSED] NOTICE OF DEMURRER AND DEMURRER TO PETITION 2 3 4 5 6 7 8 9 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 expend thousands of dollars in attorneys' fees to prepare the answer, responsive memorandum of points and authorities, and to prepare for the hearing. 8. Regardless of the outcome against any other Respondents in this case, I must file this demurrer and ask that the matter be dismissed with prejudice. There is no statutory basis, that I am aware of and based upon the facts as alleged, whereby my clients could be compelled to do any of the things mentioned in the Petition. Other than what is otherwise mentioned herein, LPJUSD has no interest in this case other than to avoid unnecessary election costs. I declare under penalty of perjury that the foregoing is true and correct to the best of my personal knowledge. If called to testify as to these matters, would and could competently do so. Executed this 27th Day of May 2021, in the State of California, County of Riverside, City of Canyon Lake. Proactive Legal-The Bock Law Group, PC By Electronic Signature Brian D. Bock, Esq. Attorneys for Respondents, LOMA PRIETA JOINT UNIFIED SCHOOL DISTRICT 9 (PROPOSED] NOTICE OF DEMURRER AND DEMURRER TO PETITION
