Citizens for Parental Rights v. San Mateo County Board of Education

KANE, J.

I dissent. Notwithstanding the fact that the fundamental question in this appeal is a procedural one, the proper resolution of which renders any discussion of the substantive constitutional issues premature, the majority reaches the latter by a cavalier disposal of the former in a footnote.

In doing so, the majority has reached a conclusion which is contrary to both the spirit and the law of pleading in this state and, in my opinion, has countenanced the unsavory practice of “judge-shopping” which is specifically prohibited by Code of Civil Procedure, section 1008.

The results of the court’s holding are (1) an unnecessary treatise on constitutional principles which are discussed in the abstract for the simple reason that the issues raised by the pleadings have not been filled in with evidentiary support and amplification, and (2) a denial of the right of the plaintiffs to attempt to factually prove their bases for relief.

*34 A brief summary of the pleading and procedural history in the court below will demonstrate why plaintiffs are entitled to go to trial and why, therefore, the granting of the motion to dismiss was erroneous.

Having traveled a very tortuous route of demurrers, motions for judgment on the pleadings and summary judgment, followed by a detailed pretrial conference, plaintiffs finally reached the threshold of trial only to be frustrated by a “motion to dismiss”—the legal equivalent of a general demurrer (McKay v. County of Riverside (1959) 175 Cal.App.2d 247 [ 345 P.2d 949 ]).

Except for the first demurrer to the original complaint, defendants’ repetitive attack on plaintiffs’ pleadings was the single contention that the complaint failed to state a cause of action. In their first demurrer defendants included a special demurrer that “the Complaint is uncertain and unintelligible for the following reasons:

“A. The content of the course mentioned in paragraph IV of the Complaint is not pleaded in sufficient particularity for the Court to make any ruling relating to it

“B. That the Complaint does not set forth the parts of the proposed course that are alleged to be objectionable and the reasons why said parts are alleged to be objectionable.'’'’ (Italics added.)

It is apparent that plaintiffs conceded the soundness of the special demurrer since the parties stipulated that a first amended complaint be filed which, for the first time included as exhibits excerpts from the teaching material of the Family Life Education course which plaintiffs allege violated various of their constitutional rights.

It is significant to note that once the exhibits were included in the complaint, defendants asserted no further objection as to uncertainty or lack of particularity in the complaint, choosing rather to assert a bare, general demurrer. The demurrer to the first amended complaint was heard by Judge Reisch, who sustained it without leave to amend as to twelve counts contained in two causes of action and overruled it as to eight other counts.

Following that ruling, the defendants answered the first amended complaint. In doing so, no affirmative defenses whatever were set forth.

*35 Next, defendants moved for summary judgment “on the ground that the action has no merit, and that there is no triable issue of fact” (and at the same time moved for judgment on the pleadings “on the ground that the Complaint herein failed to state facts sufficient to constitute a cause of action.”) (Italics added.)

The motion for summary judgment was denied by Judge Scott. The record does not reveal any action on the motion for judgment on the pleadings.

Next, pursuant to stipulation, plaintiffs filed amendments to their first amended complaint to which defendants both answered and demurred generally. The general demurrer was overruled by Judge Blum.

Next, a second motion for judgment on the pleadings “on the ground that the Complaint. .. fails to state facts sufficient to constitute a cause of action” was filed, heard, and denied by Judge Branson.

Thus, four different superior court judges concluded that plaintiffs’ complaint did indeed state a cause of action on which they were entitled to go to trial.

Code of Civil Procédure, section 426, 1 which was in effect at the time of the proceedings in the trial court, provided in subdivision 2 that the complaint must contain “A statement of the facts constituting the cause of action, in ordinary and concise language;”

The cases interpreting this provision have made it clear that evidentiary facts or argumentative facts are improper; that only ultimate facts should be pleaded (Green v. Palmer (1860) 15 Cal. 411, 414 ; 3 Witkin, Cal. Procedure (2d ed. 1971) Pleading, § 268, p. 1939).

While the line between conclusions of law, evidentiary matters and ultimate facts is very elusive and its distinction “is one of degree only” (Witkin, supra, p. 1940), the rule of liberal construction is firmly settled in Code of Civil Procedure, section 452. Emphasis is placed on an examination of the pleading to determine whether it gives fair notice of the cause of action (Leet v. Union Pac. R. R. Co. (1944) 25 Cal.2d 605, 619 [ 155 P.2d 42 , 158 A.L.R. 1008 ]). _

*36 In ruling upon a general demurrer (or a motion to dismiss) the allegations of the complaint must be regarded as true. It is assumed that plaintiffs can prove all facts as alleged; defects in the complaint which do not affect the substantial rights of the parties are disregarded.

“Neither trial nor appellate courts should be distracted from the main issue, or rather, the only issue involved in a demurrer hearing, namely, whether the complaint, as it stands, unconnected with extraneous matters, states a cause of action” (Griffith v. Department of Public Works (1956) 141 Cal.App.2d 376, 381 [ 296 P.2d 838 ]).

One of the best statements of the policy behind the rule of liberal construction is set forth in Terry Trading Corp. v. Barsky (1930) 210 Cal. 428 [ 292 P. 474 ], as follows: “It is sometimes a difficult task for the pleader to state enough facts, to establish his cause of action or defense, and also to avoid the inclusion of confusing evidentiary matter. The code has provided adequate means for the correction of an error in either direction; the adverse party may move to strike out the evidentiary matter or demur specially to an inadequate statement of the facts on the ground of uncertainty or ambiguity. But to deny the party his right tó a trial there must be an obvious failure of the pleadings to state a cause of action or defense.” (Italics added.)

In the case at bench, even a cursory reading of plaintiffs’ final complaint, as amended and including the exhibits, demonstrates that a cause of action has been alleged. For example, in paragraph II of count Eleven of the first amended complaint, it is alleged that “Portions of the content and subject matter of the Family Life Education course of study and subject matter interfere with and are contradictory to certain of plaintiffs’ personal religious beliefs, and therefore are an infringement of, in contradiction to, and in violation of Amendment 1 of the Constitution of the United States, in that they are designed to question, affect, prohibit and interfere with the free exercise of existing religious and spiritual practices and beliefs, and to establish new or different religious and spiritual practices and beliefs that are promulgated by the State through its public school system, as illustrated by items contained in Exhibit ‘E’, which exhibit is attached hereto and is incorporated herein by this reference.” 2

*37 Conceding arguendo that such allegations might be subject to a special demurrer for uncertainty, the fact is that defendants raised no such objection and thereby have waived the same.

The' rule of liberal construction of pleadings has also been enhanced by the adoption of the rules for discovery whereby any uncertainty as to the factual basis of plaintiffs’ cause of action can be efficiently discovered. Such was the holding in Dahlquist v. State of California (1966) 243 Cal.App.2d 208 [ 52 Cal.Rptr. 324 ],

The body of discovery law has now developed to the point where, for example, it is perfectly proper for a party to submit an interrogatory requiring his adversary to specify, under oath, the facts on which he relies in support of a particular contention or allegation made in a pleading (Singer v. Superior Court (1960) 54 Cal.2d 318, 321 [ 5 Cal.Rptr. 697 , 353 P.2d 305 ]). Thus, in the case at bench, if defendants were truly in doubt or uncertain as to how or in what manner plaintiffs’ constitutional rights were claimed to be violated by the Family Life Education course, a simple interrogatory would have resolved any such doubt. But the record discloses that defendants engaged in no discovery whatever. It is therefore apparent that after the original demurrer defendants’ one and only objection to plaintiffs’ pleadings was that they failed to state a cause of action, an objection consistently rejected by four different superior court judges.

This background brings us, then, to the next logical inquiry: How, and by what authority, was a fifth judge empowered to render a decision completely contrary to his predecessors on precisely the same issue? The short answer is that he was not so empowered and that the granting of the motion to dismiss was an abuse of discretion for noncompliance with Code of Civil Procedure, section 1008, which provides: “When an application for an order has been made to a judge, or to the court, and refused in whole or in part, or granted conditionally, or on terms, and subsequent application for the same order, upon an alleged different state of facts, shall be made, it shall be shown by affidavit what application was before made, when and to what judge, what order or decision was made thereon and what new facts are claimed to be shown. For a failure to comply with this requirement, any order made on such subsequent application may be revoked or set aside on ex parte motion.

*38 “A violation of this section may be punished as a contempt; and an order made contrary thereto may be revoked by the judge or commissioner who made it, or vacated by a judge of the court in which the action or proceeding is pending.”

The motion to dismiss is, as we have noted, the legal equivalent of a general demurrer (McKay v. County of Riverside, supra). On review of an order and judgment of dismissal pursuant to the granting of a motion to dismiss, the appellate court must consider the matter “in the same light as a judgment upon sustaining of a demurrer without leave to amend” (McKay v. County of Riverside, supra at p. 249 ).

Consequently, as a matter of true substance the motion to dismiss was a “subsequent application” for the same orders previously made to each of the preceding four judges. In fact the motion expressly recites (as did the prior general demurrers and motions for summary judgment and judgment on the pleadings) that it was being made “on the ground that the complaint herein fails to state a cause of action. ” (Italics added.)

The fact that defendants at pretrial received the right to file a motion to dismiss is of no significance whatever. Likewise, the fact that after the filing of the first amended complaint on September 11, 1968 the Legislature enacted Education Code section 8506, is of no moment, either, insofar as the argument is made that this was a “new matter” raised by the motion to dismiss. First of all, section 8506 was enacted in 1969. The ruling by Judge Blum, overruling the general demurrer to the first amended complaint and amendments thereto, was filed on April 15, 1971. The record is silent as to whether Education Code section 8506 was presented to the court. The same is not true, however, in the case of the later ruling by Judge Branson, denying defendants’ motion for judgment on the pleadings. There, the points and authorities filed by defendants specifically address the issue of the constitutionality of section 8506. Judge Branson’s ruling was filed February 24, 1972.

Thus, it is manifestly clear that the motion to dismiss was and is nothing more than another general demurrer presented to a different judge. Code of Civil Procedure section 1008, is a sound and essential mandate for efficient judicial administration. The fact that the sanction of contempt for a violation of the statute is expressly provided is strong evidence of its importance and the need for maintaining its integrity.

*39 Respondents do not contend that they attempted to comply with section 1008 at all. Their argument is simply that the motion to dismiss was a new motion unrelated to the prior demurrers and motions. As we have shown, however, this contention is totally groundless since each and every prior motion or demurrer—save and except the very first demurrer—raised but one issue: Did the complaint state a cause of action? Having received the rulings of four judges that the complaint did state a cause of action, it was incumbent upon defendants in presenting their motion to dismiss to show “by affidavit what application was before made, when and to what judge, what order or decision was made thereon, and what new facts are claimed to be shown.” (Code Civ. Proc., § 1008; italics added.)

The record shows that plaintiffs promptly brought the provisions of section 1008 to the attention of the court by seeking to have the order granting the motion to dismiss vacated.

The pleadings filed by the plaintiffs are technically sufficient. The issues between the parties have been framed and the pretrial order provides an excellent framework in which the case can be tried on its merits. Having arduously and successfully taken their case over nearly every procedural obstacle in the civil advocates’ arsenal, plaintiffs should not be denied that right. I would reverse the judgment.

A petition for a rehearing was denied September 26, 1975, and the opinion was modified to read as printed above. Appellants’ petition for a hearing by the Supreme Court was denied October 23, 1975.

Although section 426 was repealed in 1971. subdivision 2 is incorporated verbatim in Code of Civil Procedure, section 425.10. subdivision (a).

Other examples could be set forth since it is clear that plaintiffs followed a pattern of alleging a particular invasion of their rights by utilization of certain material contained in a particular exhibit.