197 Cal.App.4th 693, B222979, AIDS Healthcare Foundation v. Los Angeles County Department of Public Health

Docket NºB222979
Citation197 Cal.App.4th 693, __ Cal.Rptr.3d __
Opinion JudgeALDRICH, J.
Party NameAIDS HEALTHCARE FOUNDATION et al., Plaintiffs and Appellants, v. LOS ANGELES COUNTY DEPARTMENT OF PUBLIC HEALTH, Defendant and Respondent.
AttorneyTom Myers and F. Brian Chase for Plaintiffs and Appellants. Andrea Sheridan Ordin, County Counsel, Richard K. Mason, Assistant County Counsel, Andrea E. Ross and Robert E. Ragland, Deputy County Counsel for Defendant and Respondent.
Judge PanelKlein, P. J., and Kitching, J., concurred.
Case DateJune 16, 2011
CourtCalifornia Court of Appeals

Page 693

197 Cal.App.4th 693

__ Cal.Rptr.3d __

AIDS HEALTHCARE FOUNDATION et al., Plaintiffs and Appellants,

v.

LOS ANGELES COUNTY DEPARTMENT OF PUBLIC HEALTH, Defendant and Respondent.

B222979

California Court of Appeal, Second District, Third Division

June 16, 2011

APPEAL from a judgment of the Superior Court of Los Angeles County No. BS121665, David P. Yaffe, Judge.

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[Copyrighted Material Omitted]

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[Copyrighted Material Omitted]

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COUNSEL

Tom Myers and F. Brian Chase for Plaintiffs and Appellants.

Andrea Sheridan Ordin, County Counsel, Richard K. Mason, Assistant County Counsel, Andrea E. Ross and Robert E. Ragland, Deputy County Counsel for Defendant and Respondent.

OPINION

ALDRICH, J.

AIDS Healthcare Foundation and Michael Weinstein (collectively the Foundation) filed a petition for writ of mandamus, seeking to compel the health officer of the Department of Public Health for the County of Los Angeles (the Department) to issue a regulatory order that requires adult film industry performers to wear condoms in the production of hardcore pornography and to obtain hepatitis B vaccinations in an effort to stem the industry-wide spread of sexually transmitted diseases and HIV. The trial court sustained a demurrer to the petition and entered a judgment of dismissal. We affirm.

The Health and Safety Code requires the Department’s health officer to take disease control actions that are reasonably necessary or may be necessary to control the spread of communicable and venereal diseases in Los Angeles County (County). Those regulatory actions are dependent upon the individual case and give the Department’s health officer discretion to choose among various measures, ranging from quarantine and isolation to physician referrals and testing in carrying out this duty. The Foundation asks this court in its writ petition to compel the Department to implement the Foundation’s choice of regulatory measures to control the spread of sexually transmitted diseases and HIV in the adult film industry, or to compel the Department to act in the manner that the Foundation has alleged is the most effective means of controlling the spread of sexually transmitted diseases. A court, by way of mandamus, cannot substitute its discretion for that of legislative or executive bodies in matters committed to the discretion of those branches. Therefore, the trial court properly dismissed the mandamus petition.

FACTS AND PROCEDURAL BACKGROUND

The Foundation filed a petition for writ of mandamus (Code Civ. Proc., § 1085) to compel the Department’s health officer to “discharge its... duty to combat an acknowledged epidemic of sexually transmitted diseases stemming from the production of hardcore pornography in Los Angeles County.”

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1. Demurrer to the Petition for Writ of Mandate

In its initial petition, the Foundation alleged that pursuant to Health and Safety Code sections 1201751 and 120575, 2 the Department’s health officer has a nondiscretionary ministerial duty to take reasonable steps to stop the spread of "contagious, infectious, or communicable disease[s]," and to stop the spread of "infectious venereal diseases, ” including sexually transmitted diseases due to practices in the hardcore pornography industry. The Department’s health officer allegedly failed to take all measures reasonably necessary to prevent the transmission of diseases in the production of hardcore pornography.

The Foundation asked the court to issue a mandate directing the Department’s health officer to require “all performers to use condoms in the making of hardcore pornography, ” or to take “any and all other reasonable steps necessary to stem the spread of sexually transmitted diseases in the production of pornography in Los Angeles County.”

Following a successful demurrer filed by the Department in which it contended the health officer’s statutory duties under sections 120175 and 120575 are discretionary, the Foundation filed a verified amended petition.3

2. Facts Alleged in the First Amended Verified Petition

The first amended verified petition (hereafter petition) expands the request for mandate and asks the court to compel the Department’s health officer to issue a regulatory order that requires adult film performers to wear condoms

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in the production of hardcore pornography and to obtain hepatitis B vaccinations. Alternatively, the Foundation asks the court to find the health officer’s failure to take any regulatory action constitutes an abuse of discretion, and the Foundation seeks a court order to compel the Department to take action.

Since the dismissal of this petition followed the trial court’s ruling on demurrer, we set forth the properly pleaded material facts, but disregard contentions, deductions, or conclusions of law that are in abundance in this petition. We also consider matters that may be judicially noticed. (Zelig v. County of Los Angeles (2002) 27 Cal.4th 1112, 1126 [119 Cal.Rptr.2d 709, 45 P.3d 1171].)

The Foundation is a global organization providing cutting-edge medicine, advocacy, and support services for people living with HIV throughout the world. Michael Weinstein is the president of the Foundation and a resident and taxpayer of the County.

The Department operates a sexually transmitted disease program with the stated mission of “ ‘[t]he prevention and control of sexually transmitted diseases in partnership with the communities of Los Angeles County.’ ” Sections 120175 and 120575 expressly charge the Department’s health officer “with a duty to take steps to stem any known outbreak of communicable diseases.”

Los Angeles County is the de facto capital of the hardcore pornography industry[.]” During the filming of hardcore pornography, performers are exposed to a number of bodily fluids that may contain sexually transmitted diseases.

The practices of the hardcore pornography industry in Los Angeles County have led to recurrent outbreaks of sexually transmitted diseases, including “HIV/AIDS, gonorrhea, syphilis, chlamydia, hepatitis, genital human papillomavirus infection, and genital herpes.” From April 2004 to March 2008, there were "2,847 STD infections diagnosed among 1,884 performers’ ” in the hardcore pornography industry in Los Angeles County. There also have been multiple outbreaks of HIV within the hardcore pornography industry, the most recent outbreak in 2004.

The Department’s health officer has documented that sexually transmitted diseases “are common among performers in hardcore pornography, ” and attributes the “epidemic of sexually transmitted diseases in the hardcore pornography industry to a lack of protective equipment for performers, including condoms.”

The Department’s health officer has acknowledged that condoms are highly effective in preventing HIV and other sexually transmitted diseases and

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also acknowledges that requiring adult film performers to be vaccinated for hepatitis B would reduce the spread of sexually transmitted diseases. The Department’s health officer, however, has not ordered either of these measures.

The Department’s health officer allegedly has taken no effective steps to reduce the risk of infection to adult film performers and their nonindustry sexual partners. The Department’s efforts to work with state agencies, including the state’s Division of Occupational Safety and Health (CalOSHA) and the state legislature to pass state-wide laws governing the adult film industry, have produced no positive results.

Based upon these allegations, the petition states a cause of action for violation of (1) section 120575 (first cause of action) for failure to take “ ‘all measures reasonably necessary to prevent the transmission of infection’ within the adult film industry”; (2) section 120175 (second cause of action) for failure to prevent the spread of sexually transmitted diseases within the adult film industry; and (3) for an abuse of discretion for failure to take any regulatory action.

The prayer for relief asks the court to issue a writ of mandate directing the Department’s health officer to enforce sections 120175 and 120575 by “taking all reasonable steps to stem the spread of sexually transmitted diseases in the making of hardcore pornography, ” to require that adult film producers ensure performers are vaccinated for hepatitis B, and to require condom use in the production of adult films in Los Angeles County. In the alternative, the Foundation asked the court to declare that the Department’s health officer has abused his discretion under sections 120175 and 120575 by failing to take action, and to direct the health officer to “cure that abuse of discretion.”

3. The Demurrer and Judgment of Dismissal

The Department filed a demurrer on the ground that the petition did not state a cause of action for mandamus because the statutory duties under sections 120175 and 120575 are discretionary.4

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The trial court sustained the demurrer to the petition. The trial court restated its previous order on the demurrer to the initial petition. The Department’s health officer cannot be compelled to exercise his discretion in a certain manner and cannot be compelled by mandate to take “ ‘any and all other reasonable steps necessary to stem the spread of sexually transmitted diseases in the production of pornography’ ” because such an order requires the exercise of discretion and is so vague it would be unenforceable. The Department’s motion to dismiss the petition was granted, and judgment of dismissal was entered on January 27, 2010. This appeal followed.

DISCUSSION

1. Standard of Review

We independently review the petition to determine whether the Foundation has stated a viable cause of action for mandamus relief. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318 [216 Cal.Rptr. 718, 703 P.2d 58].)

A writ of mandate “may be issued by any court... to compel the performance of an...

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