Villafana v. Cnty. of San Diego

Decision Date25 November 2020
Docket NumberD076120
Citation57 Cal.App.5th 1012,271 Cal.Rptr.3d 639
CourtCalifornia Court of Appeals Court of Appeals
Parties Luz VILLAFANA et al., Plaintiffs and Appellants, v. COUNTY OF SAN DIEGO, Defendant and Respondent.

ACLU Foundation of San Diego & Imperial Counties, David Loy, San Francisco, Jonathan Markovitz, Melissa Deleon; Fish & Richardson, Aleksandr Gelberg, Madelyn S. McCormick, San Diego, and Geuneul Yang, for Plaintiffs and Appellants.

Thomas E. Montgomery, County Counsel, and Thomas D. Bunton, Assistant County Counsel, for Defendant and Respondent.

HUFFMAN, J.

Plaintiffs filed a first amended complaint (FAC) alleging discrimination under Government Code 1 section 11135 based on its requirement that all San Diego County (the County) applicants eligible for the state's CalWORKs (welfare) program participate in a home visit. The County demurred, arguing there was no discriminatory effect of the program, there was no disparate impact caused by the home visits, and the parties lacked standing to sue. The superior court granted the demurrer without leave to amend and entered judgment. Plaintiffs argue on appeal that the FAC states a viable cause of action. We disagree. Because the FAC does not allege a disparate impact on a protected group of individuals and cannot be amended to do so, we will affirm.

BACKGROUND AND PROCEDURAL FACTS

In June 2018, Luz Villafana and Uhmbaya Laury2 filed a complaint for injunctive and declaratory relief against the County alleging the County's implementation of the state-funded California Work Opportunity and Responsibility to Kids (CalWORKs) program disproportionately impacted people of color and women.

The County demurred, and the court sustained the motion with leave to amend. Plaintiffs filed the FAC December 7, 2018.

The FAC explained CalWORKs provides a safety net for anyone who becomes income-eligible due to a job loss or otherwise, based on a net monthly family income of no more than $1,292. It alleged that under the County's regulations, applicants are required to participate in a face-to-face interview before aid will be granted even though state regulations require a home visit only if factors affecting eligibility, including living arrangements, cannot be satisfactorily determined. The County calls these home visits Project 100% (P100).

The home visits are conducted by licensed peace officers who currently are assigned to the Public Assistance Fraud division of the Department of Child Support Services.3 The peace officer makes an unannounced visit to the address the applicant lists on the application, and, if no one is home, the investigator leaves a business card. Following a second attempt, the investigator leaves a note for the applicant to call the investigator. Applicants believe they must remain at home while waiting for the visit. If the attempts to contact the applicant are unsuccessful or the applicant declines to participate in the home visit, the application is denied. The home visit can include an inspection of an applicant's home, including closets, cupboards, desks, hampers, and laundry bags.

The FAC alleged that because the home visits are unannounced, applicants often remain confined to their homes waiting for a visit, and this may require them to postpone job searches, skip medical appointments, or stop taking children to school out of fear they will miss the investigator's unannounced visit. Applicants also experience stress and anxiety waiting for an investigator to conduct the unannounced home visit, fearing their application will be denied if they are not home when the investigator visits. Additionally, the FAC alleged the home visit requirement is embarrassing, stigmatizing, and traumatizing, because it treats applicants as suspected criminals and attracts the attention of neighbors, signaling the applicant is in trouble with law enforcement or needs public assistance.

The FAC further alleged that 50.33 percent of the County's CalWORKs recipients are Hispanic, and 14.11 percent are African American in contrast to the general population, which is 33.5 percent Hispanic and 5.5 percent African American. Additionally, while women represent 72.73 percent of enrollees in the CalWORKs Welfare-to-Work program, women represent only 39 percent of the general population.4

Finally, the FAC alleged the policy of conducting home visits for every applicant violates Government Code section 11135 and Code of Civil Procedure section 526a because the practice discriminates against protected groups and substantially impairs the accomplishment of the CalWORKs program objectives with respect to individuals in the protected classes.

The County demurred a second time, arguing home visits could not be the facially neutral practice and also constitute the adverse impact, there was no allegation of a disparate impact on women and minorities, and the plaintiffs lacked standing to sue. Plaintiffs responded that the adverse impact of stigma resulted from the visit and fell disproportionately on a protected population when CalWORKs applicants are compared to those who do not apply for CalWORKs benefits.

The court sustained the demurrer to the FAC without leave to amend on March 22, 2019. It granted the demurrer on the basis that the neutral practice could not be the adverse impact, and there were no allegations the home visit placed a significantly harsher burden on a protected group of CalWORKs recipients because the allegations of stress, anxiety, and stigma applied equally to all CalWORKs applicants.

Judgment was entered April 8, 2019. Plaintiffs timely appealed.

DISCUSSION
A. Legal Principles

"On appeal from an order of dismissal after an order sustaining a demurrer, the standard of review is de novo: we exercise our independent judgment about whether the complaint states a cause of action as a matter of law." ( Stearn v. County of San Bernardino (2009) 170 Cal.App.4th 434, 439, 88 Cal.Rptr.3d 330.) We evaluate whether a cause of action has been stated under any legal theory. ( Curcini v. County of Alameda (2008) 164 Cal.App.4th 629, 637, 79 Cal.Rptr.3d 383.) In making our determination, we admit all facts properly pleaded ( Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 967, 9 Cal.Rptr.2d 92, 831 P.2d 317 ( Aubry )); we " ‘give the complaint a reasonable interpretation, reading it as a whole and its parts in their context’ " ( Quelimane Co. v. Stewart Title Guaranty Co. (1998) 19 Cal.4th 26, 38, 77 Cal.Rptr.2d 709, 960 P.2d 513 ). We read the allegations "in the light most favorable to the plaintiff and liberally construed with a view to attaining substantial justice among the parties." ( Venice Town Council v. City of L.A. (1996) 47 Cal.App.4th 1547, 1557, 55 Cal.Rptr.2d 465.)

If the pleading is insufficient on any ground specified in a demurrer, we will uphold the order sustaining it, even if it is not the ground relied upon by the trial court. ( Sheehan v. San Francisco 49ers, Ltd. (2009) 45 Cal.4th 992, 998, 89 Cal.Rptr.3d 594, 201 P.3d 472.) We review the trial court's refusal to grant leave to amend under the abuse of discretion standard. ( Zelig v. County of Los Angeles (2002) 27 Cal.4th 1112, 1126, 119 Cal.Rptr.2d 709, 45 P.3d 1171 ( Zelig ); Aubry , supra , 2 Cal.4th at p. 967, 9 Cal.Rptr.2d 92, 831 P.2d 317.)

B. Disparate Impact Theory

The FAC alleged P100 violates Government Code section 11135, subdivision (a),5 which prohibits denial of full and equal access to benefits of a state-funded program and prohibits discrimination under any state-operated program, because the home visits are embarrassing, stigmatizing, and traumatizing. Assuming the harm identified in the FAC qualifies as an actionable discriminatory impact, we conclude that because plaintiffs have not and cannot allege a significantly harsher burden on protected groups than non-protected groups as result of P100, the FAC fails to state a claim.

Under disparate impact law, "(1) a plaintiff establishes a prima facie case if the defendant's facially neutral practice causes a disproportionate adverse impact on a protected class; (2) to rebut, the defendant must justify the challenged practice; and (3) if the defendant meets its rebuttal burden, the plaintiff may still prevail by establishing a less discriminatory alternative." ( Darensburg v. Metro. Transp. Comm'n (9th Cir. 2011) 636 F.3d 511, 519 ( Darensburg ).)6 In establishing a claim, the plaintiffs must plead facts that establish a facially neutral policy or practice that causes a disproportionate harm to persons in a protected class. ( Comm. Concerning Cmty. Improvement v. City of Modesto (9th Cir. 2009) 583 F.3d 690, 711.)

However, the mere fact that each person affected by a practice or policy is also a member of a protected group does not establish a disparate impact.

( Carter v. CB Richard Ellis, Inc. (2004) 122 Cal.App.4th 1313, 1324, 19 Cal.Rptr.3d 519, citing Katz v. Regents of the University of California (9th Cir. 2000) 229 F.3d 831.) To make out a prima facie case of disparate impact, a plaintiff must employ an appropriate comparative measure. ( Darensburg , supra , 636 F.3d at p. 519.) "An appropriate statistical measure must ... take into account the correct population base and its racial makeup." ( Id. at p. 520.) There is no prima facie case when the wrong base population is used in the statistical sample. ( Robinson v. Adams (9th Cir. 1987) 847 F.2d 1315, 1318.) "[T]he appropriate inquiry is into the impact on the total group to which a policy or decision applies." ( Hallmark Developers, Inc. v. Fulton County (11th Cir. 2006) 466 F.3d 1276, 1286.)

Central to plaintiffs’ claim is that the alleged psychological harms of the P100 program falls disproportionately on classes protected by section 11135 when comparing CalWORKs applicants subject to home visits with the general population of the County. The County contends that to properly assess whether the harm caused by home visits has a disparate impact on protected...

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