Doe v. Albany Unified Sch. Dist.

• Decision Date: 16 March 2011
• Docket Number: No. C063271.,C063271.
• Citation: 190 Cal.App.4th 668,262 Ed. Law Rep. 279,10 Cal. Daily Op. Serv. 14, 851,118 Cal.Rptr.3d 507,20 1 0
• Court: California Court of Appeals Court of Appeals
• Parties: John DOE, a Minor, etc., et al., Plaintiffs and Appellants, v. ALBANY UNIFIED SCHOOL DISTRICT et al., Defendants and Respondents.

190 Cal.App.4th 668
118 Cal.Rptr.3d 507
262 Ed. Law Rep. 279
10 Cal. Daily Op. Serv. 14,851
2010 Daily Journal D.A.R. 17,971

John DOE, a Minor, etc., et al., Plaintiffs and Appellants,
v.
ALBANY UNIFIED SCHOOL DISTRICT et al., Defendants and Respondents.

No. C063271.

Court of Appeal, Third District, California.

Nov. 30, 2010.
Review Denied March 16, 2011.

**510 Law Offices of Donald P. Driscoll, Donald P. Driscoll, Albany, and Adryane R. Omens for Plaintiffs and Appellants.

Marsha A. Bedwell, General Counsel, Amy Bisson Holloway, Assistant General Counsel, and Jeanine K. Clasen, Deputy General Counsel for Defendant and Respondent California Department of Education.

Michael W. Pott, Sophia S. Kwan, Sacramento, and Porter Scott for Defendants and Respondents Albany Unified School District and Board of the Albany Unified School District.

**511 HULL, Acting P.J.

*672 Education Code section 51210 states: "The adopted course of study for grades 1 to 6, inclusive, shall include instruction ... in the following areas of study: [¶] ... [¶] (g) Physical education, with emphasis upon the physical activities for the pupils that may be conducive to health and vigor of body and mind, for a total period of time of not less than 200 minutes each 10 schooldays, exclusive of recesses and the lunch period." (Italics added; further undesignated section references are to the Education Code.) Plaintiffs, a third-grade student in the Auburn Unified School District (the District) and his father, brought this action against the District, the District's Board of Education (Board), and the California Department of Education (CDE) claiming the District and the Board (hereafter collectively AUSD) are not complying with the 200-minute requirement of section 51210, subdivision (g), and CDE is facilitating this noncompliance. Defendants demurred, arguing section 51210 does not establish mandatory duties, but goals and guidelines that are not enforceable by private parties. The trial court agreed and sustained the demurrers without leave to amend.

*673 We conclude section 51210, subdivision (g), means what it says and that, while individual school districts may have discretion as to how to administer their physical education programs, those programs must satisfy the 200-minute-per-10-schoolday minimum. We further conclude the trial court abused its discretion in refusing to grant plaintiffs leave to amend their complaint to state a claim for a writ of mandate to compel compliance with section 51210, subdivision (g). We therefore reverse the judgment.

Facts and Proceedings

The complaint was filed on February 3, 2009. At the time, fictitiously-named plaintiff John Doe was a third grade student at Cornell Elementary School (Cornell), one of three elementary schools within the District. Doe and his father, Donald D., filed the action against defendants alleging four causes of action. However, plaintiffs later dismissed all but the first cause of action. The first cause of action alleges a violation of section 51210, subdivision (g), in that the District schedules no more than 120 minutes of physical education every 10 schooldays at Cornell, rather than the required 200 minutes, and CDE aids and abets the District's actions.

Plaintiffs filed a motion for preliminary injunction seeking to prohibit the District from violating section 51210, subdivision (g), during the pendency of this action. AUSD opposed the motion.

Defendants demurred to the complaint, asserting plaintiffs lack standing to pursue a claim under section 51210, because that section does not provide a private right of enforcement.

The trial court issued a tentative ruling sustaining the demurrers to the first cause of action without leave to amend. The court also issued a tentative ruling denying plaintiffs' request for a preliminary injunction.

At the hearing on defendants' demurrers, plaintiffs asserted they could state a claim for a writ of mandate to compel compliance with section 51210, subdivision (g). The trial court gave the parties leave to file supplemental briefs on the issue.

Following further briefing, the trial court affirmed its tentative rulings. The court concluded a writ of mandate is not available because section 51210, subdivision (g), does not impose any mandatory duty on defendants. The court thereafter issued orders sustaining defendants' demurrers**512 without leave to amend and entered judgment for defendants.

*674 Discussion

I

Mandatory or Discretionary

Plaintiffs challenge both the order sustaining demurrers and the order denying their motion for preliminary injunction. They contend section 51210, subdivision (g), imposes a mandatory duty that may be enforced by private parties. They argue the complaint adequately states a claim for a violation of that provision and, if not, they should have been granted leave to amend to state a claim for a writ of mandate. Finally, plaintiffs argue they are entitled to a preliminary injunction requiring defendants to comply with section 51210, subdivision (g), until this matter can be resolved.

"On appeal from a dismissal after an order sustaining a demurrer, we review the order de novo, exercising our independent judgment about whether the complaint states a cause of action as a matter of law." ( Lazar v. Hertz Corp. (1999) 69 Cal.App.4th 1494, 1501, 82 Cal.Rptr.2d 368.) " '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.]" ( Blank v. Kirwan (1985) 39 Cal.3d 311, 318, 216 Cal.Rptr. 718, 703 P.2d 58.)

The complaint alleges section 51210, subdivision (g), mandates that students in grades one through six receive 200 minutes of physical education every 10 schooldays, but AUSD "schedules at most 120 minutes of physical education every 10 school days" at Cornell. It further alleges Doe receives at most 120 minutes of physical education every 10 schooldays, and CDE aids and abets this violation of section 51210, subdivision (g), "and communicates to AUSD that it will do nothing if AUSD violates the law." Finally, the complaint alleges plaintiffs have "repeatedly" asked AUSD to provide the required physical education, but they "continue to violate and refuse to comply with" section 51210, subdivision (g). Plaintiffs seek injunctive and declaratory relief.

Plaintiffs contend the foregoing adequately states a claim against both AUSD and CDE. They argue section 51210, subdivision (g), creates a mandatory duty on schools to provide a minimum of 200 minutes of physical education every 10 schooldays. By implication, they further argue CDE has a mandatory duty to enforce this 200 minute requirement.

*675 The trial court concluded section 51210, subdivision (g), does not impose a mandatory duty. The court explained: "The Legislature's recognition of the need for a common state curriculum for the public schools was tempered by its concurrent recognition that, because of 'economic, geographic, physical, political and social diversity,' there is also a need to develop programs at the local level 'that will best fit the needs and interests of the pupils.' The Court concludes this language indicates the Legislature intended to set goals for local school districts to follow in creating their own programs, not to create requirements that are enforceable through private right of action."

The trial court relied in part on the general statement of legislative intent contained in section 51002. That section reads: "The Legislature hereby recognizes that, because of the common needs and interests of the citizens of this state and the nation, there is a need to establish a **513 common state curriculum for the public schools, but that, because of economic, geographic, physical, political and social diversity, there is a need for the development of educational programs at the local level, with the guidance of competent and experienced educators and citizens. Therefore, it is the intent of the Legislature to set broad minimum standards and guidelines for educational programs, and to encourage local districts to develop programs that will best fit the needs and interests of the pupils, pursuant to stated philosophy, goals, and objectives."

AUSD contends the trial court got it right, and section 51002 is the clearest statement of legislative intent with respect to section 51210, subdivision (g). AUSD argues the Legislature enacted section 51210, subdivision (g), as a "guideline to assist school districts" while encouraging them to develop programs that recognize the differences in philosophy, goals and objectives of each school district. According to AUSD, finding a mandatory duty in section 51210, subdivision (g), "would result in a contradictory legislative intent since it would mean the Legislature intended to impose a blanket mandatory duty despite recognizing there to be economic, geographic, and social diversity among the public schools which would result in variations in programs based on the needs and interests of the students."

We are presented here with a question of statutory construction. "The rules governing statutory construction are well settled. We begin with the fundamental premise that the objective of statutory interpretation is to ascertain and effectuate legislative intent. ( People v. Trevino (2001) 26 Cal.4th 237, 240 [109 Cal.Rptr.2d 567, 27 P.3d 283]; People v. Gardeley (1996) 14 Cal.4th 605, 621 [59 Cal.Rptr.2d 356, 927 P.2d 713].) To determine legislative intent, we turn first to the words of the statute, giving them their usual and ordinary meaning. ( Trevino, at p. 241 [109 Cal.Rptr.2d 567, 27 P.3d 283]; Trope v. Katz (1995) 11 Cal.4th 274, 280 [45 Cal.Rptr.2d 241, 902 P.2d 259].) When the language of a statute *676 is clear, we need go no...