The opinion
Filed 7/2/24 (unmodified opinion attached)
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION THREE
THE REGENTS OF THE
UNIVERSITY OF CALIFORNIA,
Petitioner, A169318
v.
THE SUPERIOR COURT OF THE (City & County of San Francisco
CITY AND COUNTY OF SAN Super. Ct. No. CGC-23-605307)
FRANCISCO,
Respondent; ORDER MODIFYING OPINION
AND DENYING REHEARING
PARNASSUS NEIGHBORHOOD [NO CHANGE IN JUDGMENT]
COALITION,
Real Party in Interest.
THE COURT*:
It is ordered that the published opinion filed on June 13, 2024, be
modified as follows:
On page 16, the second full paragraph, the first sentence, change
“vacate its order denying the Regents’ demurrer” to “vacate its order
overruling the Regents’ demurrer.”
On page 16, the second full paragraph, the third sentence, change “The
Regents shall recover their costs on appeal. (Cal. Rules of Court, rule
* Fujisaki, Acting P. J., Petrou, J., and Rodríguez, J. participated in the
decision.
1
8.278(a).)” to “The Regents shall recover their costs in this writ proceeding.
(Cal. Rules of Court, rule 8.493(a)(1)(A).)”
There is no change in the judgment.
Real party in interest’s petition for rehearing, filed June 28, 2024, is
denied.
Dated: __7/2/2024____________ ____Fujisaki, Acting P.J.___, Acting P. J.
2
Filed 6/13/24 (unmodified opinion)
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION THREE
THE REGENTS OF THE
UNIVERSITY OF CALIFORNIA,
Petitioner, A169318
v.
THE SUPERIOR COURT OF THE (City & County of San Francisco
CITY AND COUNTY OF SAN Super. Ct. No. CGC-23-605307)
FRANCISCO,
Respondent;
PARNASSUS NEIGHBORHOOD
COALITION,
Real Party in Interest.
The Regents of the University of California (Regents) approved the
construction of a new hospital at its University of California San Francisco
(UCSF) Parnassus Heights campus (Parnassus); the hospital will allegedly
exceed local building height and bulk restrictions. Parnassus Neighborhood
Coalition (the Coalition) — a group of property owners residing near the
proposed hospital — sued to enjoin the construction, a “threatened nuisance
per se.” In a demurrer, the Regents argued they are a state entity immune
from complying with local building and zoning regulations when engaging in
a governmental activity such as constructing university buildings. The trial
court disagreed, concluding the Regents’ immunity hinged on a question of
1
fact — whether the proposed construction constituted a governmental or
proprietary activity — that could not be resolved on a demurrer.
The Regents petitioned for a writ of mandate to vacate the trial court’s
order. Assuming the truth of facts pled by the Coalition, we conclude the
proposed hospital would facilitate the provision of clinical services, thereby
advancing UCSF’s academic mission and the Regents’ educational purpose —
i.e., governmental activity. Because the project falls within the Regents’
broad public purpose, we hold the Regents are exempt from the local
regulations at issue, and the demurrer should have been sustained. (Bame v.
City of Del Mar 86 (2001) Cal.App.4th 1346, 1358 (Bame).) Accordingly, we
issue the writ of mandate.
BACKGROUND
The Regents own and operate UCSF, a medical complex, research
center, and professional school in San Francisco (City), with an educational
mission. In 2014, the Regents approved a long-range development plan for
UCSF. It consisted of renovating several of UCSF’s campuses, including
Parnassus. The plan primarily would have involved construction of a
hospital to provide clinical services to advance UCSF’s academic mission.
UCSF ultimately did not move forward with this proposed change.
Instead, the Regents approved the “Comprehensive Parnassus Heights
Plan” in 2021. The plan contemplates the construction of a larger hospital
(the New Hospital), approximately 900,000 gross square feet. Although the
project’s size would allegedly violate the City’s property and zoning
regulations, it would provide more beds for inpatients and increase the
campus’s hospital capacity. This was part of the Regents’ plan to advance its
mission, which includes identifying unmet community needs and making new
investments to satisfy those needs.
2
In March 2023, the Coalition filed a complaint against the Regents to
enjoin construction of the New Hospital. It alleged the proposed construction
violated the City’s height and bulk restrictions and would result in air and
noise emissions, creating a nuisance to local residents. The Regents
demurred, arguing they are exempt from local building and zoning
regulations because they are a state entity with sovereign immunity.
According to the Regents, constructing the New Hospital is for patient care,
scientific research, and teaching, thus furthering its educational purpose.
Specifically, the Regents provide medical education for graduate students in
the five medical schools located at Parnassus. That the proposed
construction has some additional noneducational purpose does not destroy
the Regents’ exemption from local regulations.
In opposition, the Coalition argued the proposed construction would
promote the continued expansion of UCSF’s proprietary activities as a
healthcare provider rather than exclusively advancing its educational and
patient needs. Specifically, UCSF’s revenue doubled from 2015 to 2021.
Because the Regents’ proposed construction is not solely for educational
purposes, the Coalition argued, they are not exempt from local building codes
and zoning restrictions.
The trial court agreed with the Coalition and overruled the demurrer.
It concluded the applicability of the City’s zoning and planning regulations
requires resolution of a question of fact — “whether the hospital, as currently
proposed, is a proprietary activity subject to local regulations” — not
appropriate for resolution on demurrer. The court further concluded the
Regents failed to cite anything to support their argument that state entities
may be entitled to sovereign immunity when their proposed projects involve a
3
mix of proprietary and government activities. According to the court, the
exemption only applies when a project is solely for educational purposes.
The Regents petitioned for a writ of mandate, requesting review of the
trial court’s demurrer ruling, and seeking a stay. We stayed discovery
pending further consideration of the petition and issued an order to show
cause why mandate or other appropriate relief should not be granted.
DISCUSSION
The Regents urge us to issue a writ of mandate vacating the trial
court’s order overruling their demurrer. According to the Regents, they are
exempt from the City’s building and zoning regulations otherwise generally
applicable to private businesses. We agree.
As a preliminary matter, writ review is warranted. Generally, an order
overruling a demurrer is not immediately appealable; it may be reviewed
on appeal following a final judgment. (Casterson v. Superior Court (2002)
101 Cal.App.4th 177, 182.) But writ review may be granted where the order
raises a significant issue of law or “resolution of the issue would result in a
final disposition as to the petitioner.” (Ibid.) Both considerations apply here.
Whether the Regents are entitled to sovereign immunity from local building
and zoning regulations when building the New Hospital presents a
significant constitutional issue. (City & County of San Francisco v. Regents of
University of California (2019) 7 Cal.5th 536, 544 (Hastings) [allocation of
authority between a local government and state agency is an issue regarding
the constitutional system].) And resolution of this issue in the Regents’ favor
will result in a final disposition as to the Coalition’s complaint — it would be
dismissed. (Casterson, at p. 182.)
We independently review an order overruling a demurrer, assessing
whether the complaint states a cause of action under any legal theory.
4
(Brandwein v. Butler (2013) 218 Cal.App.4th 1485, 1497.) If it does, we
assess whether the complaint clearly discloses a defense or bar to recovery.
(See’s Candies, Inc. v. Superior Court (2021) 73 Cal.App.5th 66, 76.) In doing
so, we assume the truth of all facts properly pleaded and those reasonably
inferred from the pleadings. (Regents of University of California v. Superior
Court (2013) 220 Cal.App.4th 549, 558.) But we do not assume the truth of
“contentions, deductions, or conclusions of law.” (Stearn v. County of San
Bernardino (2009) 170 Cal.App.4th 434, 440.) Having engaged in that
review, we agree the trial court erroneously overruled the demurrer. We
conclude the complaint clearly discloses the Regents’ immunity from the
City’s planning code, barring the Coalition’s recovery as a matter of law.
I.
We begin by providing an overview of the relevant law. The California
Constitution establishes the Regents as a “public trust . . . with full powers of
organization and government,” including “the legal title and the management
and disposition” of university property and “of property held for its benefit.”
(Cal. Const., art. IX, § 9, subds. (a), (f); Hastings, supra, 7 Cal.5th at p. 545.)
As a “constitutionally created arm of the state,” the Regents have “virtual
autonomy in self-governance,” and their power “ ‘ “to operate, control, and
administer the University is virtually exclusive.” ’ ” (Regents of University of
California v. City of Santa Monica (1978) 77 Cal.App.3d 130, 135 (Santa
Monica).) Given this unique status, the Regents have “immunity from local
regulation unless the state, through statute or provision of the California
Constitution, has [expressly] consented to waive such immunity.” (Laidlaw
Waste Systems, Inc. v. Bay Cities Services, Inc. (1996) 43 Cal.App.4th 630,
635; Hall v. City of Taft (1956) 47 Cal.2d 177, 182―183.) Indeed, there are
5
general limits on a “city’s power over ‘municipal affairs’ ” as related to state
entities. (Hastings, at p. 552; see also In re Means (1939) 14 Cal.2d 254,
256–258 [municipal plumber certification ordinance could not be applied to
state employee because the state acted in an exclusive field when setting
qualifications for state employees].)
For instance, “regulations that require construction to be overseen by
local supervisors ceases to be a municipal affair once they are applied to state
buildings.” (Hastings, supra, 7 Cal.5th at p. 553.) Generally, when the state
“engages in such sovereign activities as the construction and maintenance of
its buildings,” “it is not subject to local regulations” absent express legislative
or constitutional waiver of that sovereign immunity. (Hall v. City of Taft,
supra, 47 Cal.2d at p. 183 [rejecting city’s attempt to enforce building
ordinances against contractor constructing a school building where plans had
been approved by the State Department of Education].) In City of Orange v.
Valenti (1974) 37 Cal.App.3d 240, the court determined a city ordinance
requiring a specific number of parking spaces did not apply to the state
unemployment insurance office. (Id. at p. 244.) A contrary holding would
have curtailed the use of the building as an unemployment insurance office,
impermissibly limiting the “state’s sovereignty by local regulation.” (Ibid.)
Similarly, the state’s maintenance of its public school buildings, including
trash collection, is a “sovereign activity not subject to local regulation absent
legislative or constitutional consent to local regulation.” (Laidlaw Waste
Systems, Inc. v. Bay Cities Services, Inc., supra, 43 Cal.App.4th at p. 637
[school districts as state agencies were immune from city trash collection
regulations requiring them to exclusively use plaintiff’s collection services].)
“The cases concern substantive regulatory requirements that interfered with
the state’s substantive judgments about how to perform its assigned
6
functions.” (Hastings, supra, 7 Cal.5th at pp. 553–554.) The “state’s
prerogatives must prevail” if there is a conflict between a “municipality’s
view of, say, how best to build a parking lot, and the state’s ability to decide
for itself what sort of parking lot would best serve its needs.” (Id. at p. 554.)
But state entities are not “categorically beyond the reach of any local
law.” (Hastings, supra, 7 Cal.5th at p. 554.) Exemption from local regulation
is appropriate when the entity is operating in a governmental capacity.
(Bame, supra, 86 Cal.App.4th at p. 1356.) On the other hand, municipal
regulation of an entity’s activities may be authorized in situations where
its conduct bears no relation to its governmental functions.1 (Hastings,
at pp. 553–554, fn. 5; Board of Trustees v. City of Los Angeles (1975)
49 Cal.App.3d 45, 49 (Los Angeles).) In Los Angeles, the court rejected the
argument of the Board of Trustees of the California State University that it
was immune from a municipal permitting requirement regarding a circus
being held on its property. (Los Angeles, at p. 48.) The state was leasing its
property for a “revenue-producing activity” that had “no relation to the
governmental function of the university.” (Id. at p. 50, italics added; see also
Guidi v. State (1953) 41 Cal.2d 623, 625, 627–628 [state agricultural society
that was organized and operated to interest and educate the general public in
agricultural and industrial subjects not immune from tort liability when
conducting fireworks show and operating horse arena on government
property].) Other courts have similarly concluded the Regents are not
entitled to sovereign immunity where they acted in a capacity no different
1 Other exceptions to the Regents’ sovereign immunity, not relevant
here, include appropriation, general police power regulations applicable to
persons and corporations, and laws applicable to public agencies that
regulate matters of statewide concern. (Scharf v. Regents of University of
California (1991) 234 Cal.App.3d 1393, 1402.)
7
from a private university or individual. (Regents of University of California v.
Superior Court (1976) 17 Cal.3d 533, 537 [making investment decisions “are
not so closely related to its educational decisions to cloak” the university with
immunity, they are not uniquely governmental functions].)
II.
Assuming the truth of facts alleged in the Coalition’s complaint, we
conclude the Regents are exempt from the City’s planning code provisions at
issue. (See’s Candies, Inc. v. Superior Court, supra, 73 Cal.App.5th at p. 76.)
The Coalition does not and cannot allege that construction of the New
Hospital has no relation to the Regents’ governmental functions of providing
medical education and other educational purposes. (Los Angeles, supra,
49 Cal.App.3d at p. 50.) The Regents have vast power regarding UCSF’s
property administration, such as taking and holding “without restriction, all
real and personal property for the benefit of the university or incidentally to
its conduct.” (Cal. Const., art. IX, § 9, subd. (f).) “Broadly stated, the
function of the [Regents] is to impart learning and to advance the boundaries
of knowledge.” (Goldberg v. Regents of University of California (1967)
248 Cal.App.2d 867, 879.) The Coalition concedes UCSF provides clinical
services and that the construction of a hospital — albeit a smaller one than
the New Hospital — at Parnassus would advance the Regents’ “educational
mission.” That concession is fatal to the Coalition’s complaint. Even though
the proposed New Hospital may be larger and produce greater revenue, it
still has a relation to the Regents’ governmental functions and is thus
entitled to immunity. (Los Angeles, at p. 50; Bame, supra, 86 Cal.App.4th
at p. 1356.)
Indeed, the Regents determined a larger hospital was necessary to
expand access to accommodate increasing patient demand and UCSF’s
8
survival. (Smith v. Regents of University of California (1993) 4 Cal.4th 843,
852–853 [Regents “have considerable discretion to determine how best to
carry out the University’s educational mission”], disagreed with on other
grounds by Board of Regents of University of Wisconsin System v. Southworth
(2000) 529 U.S. 217, 228.) On its face, the Coalition’s complaint — seeking
the Regents’ compliance with local building regulations in constructing the
New Hospital — concerns “substantive regulatory requirements that
interfere[] with the state’s substantive judgments about how to perform its
assigned functions.” (Hastings, supra, 7 Cal.5th at pp. 553–554.) In these
circumstances, the “state’s prerogatives must prevail” since there is a conflict
between the City’s planning code and the Regents’ “ability to decide for itself
what sort of [hospital] would best serve its needs.” (Hastings, at p. 554;
Attorney General Opinion 75 Ops.Cal.Atty.Gen. 98, 103 (1992) [Regents’
construction of faculty housing was not subject to Subdivision Map Act since
it was “such an integral part of its land management prerogatives and so
closely related to its educational decisions”]; California Assn. of Psychology
Providers v. Rank (1990) 51 Cal.3d 1, 17 [Attorney General opns. not binding,
but entitled to great weight].)
More importantly, that the New Hospital may increase UCSF’s
revenue — and consequently that of the Regents — does not constrain the
Regents’ state sovereignty. (Bame, supra, 86 Cal.App.4th at p. 1358.) Bame
is instructive. There, the court addressed whether a city could impose an
admissions tax on private entities under contract with the state agricultural
district when those entities conducted consumer-oriented events, such as
conventions and exhibitions at a fairground. The court rejected the argument
that by leasing property for these consumer-oriented events, the district was
engaging in solely revenue-producing or proprietary functions beyond its
9
governmental functions. (Id. at pp. 1351, 1353, 1357.) Those events instead
fell within the district’s broad purposes “to educate or inform consumers of
California’s products, industries or resources.” (Id. at pp. 1357–1358.) The
district’s immunity from the tax thus extended to private entities with which
the district leased or contracted to hold consumer product exhibitions, even
though their actions were also revenue raising. (Id. at p. 1358.)
Here too the proposed construction falls within the Regents’ broad
purposes. The Regents operate UCSF, including Parnassus, which provides
medical education. UCSF has an academic mission that includes providing
clinical services. (Ed. Code, § 66010.4, subd. (c) [University of California
has “exclusive jurisdiction in public higher education over . . . graduate
instruction in the professions of medicine, dentistry, and veterinary
medicine. . . . The University of California shall be the primary state-
supported academic agency for research”].) Constructing the New Hospital is
thus “ ‘part of [UCSF’s] intended public purpose, not merely ancillary revenue
raising.’ ” (Bame, supra, 86 Cal.App.4th at p. 1356.) While the relevant
constitutional provision governing the Regents “does not expressly include”
construction, building the New Hospital is nonetheless “encompassed within
the [Regents’] purpose” of advancing the UCSF’s academic needs of providing
clinical services. (Bame, at p. 1358; Yerba Buena Neighborhood Consortium,
LLC v. Regents of University of California (2023) 95 Cal.App.5th 779, 789
[recognizing the Regents increased the size of the New Hospital for UCSF
“ ‘to retain its leadership position in patient care, research, and education’ ”].)
As such, the Regents are immune from the relevant planning code
provisions at issue here. We are not confronted with a situation where the
governmental function at issue is trivial or peripheral when compared with
10
the proprietary function, and we need not address whether such an instance
would lead to the same result.
The Coalition’s arguments do not persuade us otherwise. Relying on
Santa Monica, supra, 77 Cal.App.3d 130, it insists the Regents are only
exempt from local building codes and zoning regulations if the construction is
solely for educational purposes. (Id. at p. 136.) The Coalition asserts the
New Hospital advances UCSF’s proprietary interest as a healthcare provider,
thus nullifying the Regents’ immunity here. In support, the Coalition notes
UCSF expanded its clinical services in 2015 beyond that necessary to
advance its educational mission, doubling its revenue between 2015 to 2021,
while student enrollment only increased by two percent. And constructing
the New Hospital promotes UCSF’s continued expansion of its proprietary
activities; the Coalition notes it has rebranded itself UCSF Health, and the
educational population of students and faculty is expected to grow by 25
percent, while the staff workforce would grow approximately 60 percent.
Moreover, according to the Coalition, UCSF competes with other private
healthcare providers.
First, we do not read Santa Monica in such a restrictive manner.
There, the Regents leased property for educational purposes. (Santa Monica,
supra, 77 Cal.App.3d at p. 132.) The court determined the local building
regulations governing construction and permitting fees were not applicable to
the Regents’ alterations — relocating partitions and installing an air
conditioning system — in property leased by the University of California.
(Id. at pp. 132, 135–136.) The court’s statement — “the Regents in
constructing improvements solely for educational purposes are exempt from
local building codes and zoning regulations” — cannot be read to limit the
circumstances under which the Regents are exempt from local regulations.
11
(Id. at p. 136; see also Cal. Const., art. IX, § 9 [description of the Regents’
authority lacking the terms “solely” or “exclusively”].) The court simply
addressed the circumstances present in that case. But it did not purport to
address a situation where a project squarely within the Regents’ government
function might also serve some proprietary interest.
Second, the Coalition’s repeated conclusory allegations that the
New Hospital serves a proprietary function do not save its complaint
from demurrer. (See Beard v. City & County of San Francisco (1947)
79 Cal.App.2d 753, 755 [allegation in a tort liability case that a municipal
corporation operates a hospital in a proprietary capacity is generally a mere
conclusion of law].) We do not assume the truth of contentions or conclusions
of law in the operative complaint. (Stearn v. County of San Bernardino,
supra, 170 Cal.App.4th at p. 440.) More importantly, the Coalition fails to
cite any authority for its assertion that by providing healthcare, the Regents,
through UCSF, are acting in a purely proprietary capacity not entitled to
immunity. (Beard, at p. 757 [“receipt of revenue from the activities is not the
essential factor which makes them proprietary,” the “determining factor is
whether the activities ‘are essentially governmental in character’ ”].) Beard
does not assist the Coalition. That court addressed whether operating a
hospital “under the charter of the consolidated city and county is a
governmental or a proprietary function.” (Id. at p. 754.) But the parties
conceded a county is not liable for injuries arising from the operation of a
hospital, and the respondent conceded a city is liable for injuries arising out
of its proprietary activities. (Ibid.) Thus, the determinative issue there was
whether San Francisco’s dual status as both a city and county signified it
12
operated the hospital as a city. (Ibid.)2 The identity of the entity engaging in
the activity was critical to determining liability. (Id. at p. 756.) Here, there
is no dispute the Regents operate UCSF as a state entity entitled to
immunity when they engage in governmental functions.
To the extent the Coalition relies on Yolo v. Modesto Irrigation District
(1932) 216 Cal. 274, to argue the New Hospital is a purely proprietary
enterprise — since it will provide services that are additional to and not
necessary for UCSF’s education mission — that reliance is misplaced. Yolo
merely stated irrigation districts that generate and transmit electricity are
engaged in a proprietary activity — the services the district provided were
different from and beyond necessary irrigation district activities, such as
pumping and draining. (Id. at pp. 277–278.) Thus, the irrigation district was
liable for torts related to generating and transmitting electricity. (Id. at
p. 280.) Here, the Coalition alleged the Regents in 2014 proposed
constructing a smaller hospital that would provide clinical services thus
fulfilling its academic mission. It also alleged the New Hospital would
provide healthcare services. This appears to be a distinction without a
2 We acknowledge the “distinction between governmental and
proprietary activity is no longer applicable to determine governmental tort
liability, [but] it remains viable in the context of encroachment of municipal
regulations.” (Bame, supra, 86 Cal.App.4th at p. 1356.) But we question
whether tort liability case law remains useful when identifying specific
circumstances where a state entity is engaging in proprietary rather than
governmental activities. Indeed, one court noted the analysis in Beard
(among other cases) may be obsolete when considering whether an activity
was proprietary. (Riverside County Transportation Com. v. Southern
California Gas Co. (2020) 54 Cal.App.5th 823, 864, fn. 22.) It suggested prior
cases tried to find entities engaged in proprietary activities because they
were decided in an “era when municipal tort immunity still turned on the
governmental-proprietary distinction.” (Id. at pp. 864–865.)
13
difference, and certainly not one that nullifies the fact that both the smaller
and larger hospital would further UCSF’s educational mission.
Because the New Hospital serves the Regents’ broad governmental
purpose, they are exempt from the City’s planning code. The Coalition is not
entitled to relief.
III.
The Coalition contends the issue of the Regents’ immunity presents a
question of fact not suitable for resolution on demurrer. Based on the law set
forth above and the facts alleged, we disagree. The Coalition admits the
“operation of clinical healthcare facilities” “necessary for teaching new
medical professionals falls within” the Regents’ educational purpose. Indeed,
it alleged the originally planned 2014 hospital would satisfy UCSF’s need to
provide clinical services that advance its academic mission. The only
reasonable inference to be drawn from these allegations is that the New
Hospital — which would also provide clinical services — similarly advances
UCSF’s educational mission, even if it also does more. (Regents of University
of California v. Superior Court, supra, 220 Cal.App.4th at p. 558 [accepting
as true reasonable inferences from plaintiff’s allegations].) These undisputed
facts are fatal as a matter of law to the Coalition’s nuisance claim under the
sovereign immunity cases discussed above — the New Hospital serves the
Regents’ broad education purposes, and they are entitled to immunity from
the relevant City planning code provisions at issue here. (Bame, supra,
86 Cal.App.4th at p. 1356.)
None of the Coalition’s cited authorities alters this conclusion. The
complaint alleges facts sufficient to invoke the Regents’ immunity from
compliance with the planning code without reference to other facts supported
by an affidavit. (Compare with Pianka v. State (1956) 46 Cal.2d 208, 212
14
[error to grant motion to dismiss negligence claim where state presented an
affidavit containing facts contradicting plaintiff’s allegations]; See’s Candies,
Inc. v. Superior Court, supra, 73 Cal.App.5th at p. 76.) There is also no issue
regarding the Regents’ status as a state entity. (Compare with Beard v. City
& County of San Francisco, supra, 79 Cal.App.2d at pp. 755–756 [concluding
the City & County of San Francisco’s unusual dual status as a county and
municipal actor rendered the manner in which it operated a hospital a mixed
question of law and fact].) Nor is there any issue concerning whether the
planning code governs a municipal affair or whether the court must
invalidate a valid charter city measure. (Compare with Hastings, supra,
7 Cal.5th at p. 555 [“Courts may invalidate an otherwise valid charter city
measure only where, ‘under the historical circumstances presented, the state
has a more substantial interest in the subject than the charter city’ ”— as
demonstrated through a “ ‘fact-bound justification’ ”].) In other words, no
additional facts are necessary to adduce the Regents’ entitlement to
immunity. The trial court erroneously denied the Regents’ demurrer.
We also reject the Coalition’s request for leave to amend its complaint
to establish facts that UCSF operates its healthcare services as a business
enterprise entirely separate and distinct from its educational institution.
(Murphy v. Twitter, Inc. (2021) 60 Cal.App.5th 12, 41 [request for leave to
amend available for the first time in appellate court].) Sustaining a
demurrer without leave to amend is proper “ ‘where the facts are not in
dispute, and the nature of the plaintiff's claim is clear, but, under the
substantive law, no liability exists.’ ” (Traverso v. Department of
Transportation (2001) 87 Cal.App.4th 1142, 1144–1145.) Here, there is no
dispute that construction of a hospital at Parnassus would advance the
Regents’ academic mission. As discussed above, constructing the New
15
Hospital would similarly advance the Regents’ academic mission, even
accepting as true the Coalition’s allegations that UCSF’s clinical services
provided by the New Hospital would extend beyond those strictly necessary
to satisfy this mission. Any facts in an amended complaint contradicting
those allegations may be disregarded. (Cantu v. Resolution Trust Corp.
(1992) 4 Cal.App.4th 857, 877 [“plaintiff may not plead facts that contradict
the facts or positions that the plaintiff pleaded in earlier actions or suppress
facts that prove the pleaded facts false”], italics omitted].) There is no
reasonable probability the complaint can be cured by amendment. (A.J.
Fistes Corp. v. GDL Best Contractors, Inc. (2019) 38 Cal.App.5th 677, 687.)
In sum, because the New Hospital falls within the Regents’ broad
purposes to provide medical education for graduate students, a governmental
activity — even if it may also bear some relationship to a proprietary
activity — we hold the Regents are exempt from the local regulations at
issue. Thus, the demurrer should have been sustained.
DISPOSITION
Let the peremptory writ of mandate issue directing respondent court to
vacate its order denying the Regents’ demurrer and to enter a new order
sustaining the demurrer. The temporary stay order is dissolved. The
Regents shall recover their costs on appeal. (Cal. Rules of Court, rule
8.278(a).)
16
_________________________
RODRÍGUEZ, J.
WE CONCUR:
_________________________
FUJISAKI, Acting P. J.
_________________________
PETROU, J.
A169318
17
San Francisco County Superior Court, Hon. Charles F. Haines.
Reed Smith, Raymond A. Cardozo, Sarah Johansen; University of California,
Anagha Dandekar Clifford; Lubin Olson & Niewiadomski, Charles Olson,
Philip Sciranka and Carolyn Lee, for Petitioner.
No appearance for Respondent.
Soluri Meserve, Patrick M. Soluri and Osha R. Meserve, for Real Party in
Interest.
18