Shaw v. L.A. Unified School Dist.

Filed 9/19/23

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FOUR

KESHARA SHAW et al., B315814

Plaintiffs and Appellants, Los Angeles County

Super. Ct. No.

v. 20STCV36489

LOS ANGELES UNIFIED

SCHOOL DISTRICT et al.,

Defendants and Respondents.

APPEAL from a judgment of the Superior Court of Los

Angeles County, Yvette M. Palazuelos, Judge. Reversed in part,

affirmed in part, and remanded with directions.

Kirkland & Ellis, Mark C. Holscher, Sierra Elizabeth,

Edward S. Hillenbrand, Robert Carnes, Laura E. Uhlenhuth and

Kathryn Panish for Plaintiffs and Appellants.

Dannis Woliver Kelley, Sue Ann Salmon Evans, Ellen C.

Wu, Keith A. Yeomans, Luke L. Punnakanta and William Guy

Ash for Defendant and Respondent Los Angeles Unified School

District.

Bush Gottlieb, Ira L. Gottlieb, Lisa C. Demidovich, Michael

E. Plank and Dexter F. Rappleye for Relief Defendant and

Respondent United Teachers Los Angeles.

INTRODUCTION

Plaintiffs and appellants allege that during the COVID-19

pandemic, defendants and respondents Los Angeles Unified

School District (LAUSD or the District) and its then

Superintendent, Austin Beutner, adopted distance-learning

policies that discriminated against poor students and students of

color—and deprived all students of basic statewide educational

equality—in violation of the California Constitution. 1 Plaintiffs

rest their challenge on various side letter contract agreements

between LAUSD and the teachers union, defendant and

respondent United Teachers Los Angeles (UTLA), which

plaintiffs contend implemented the distance-learning framework

established by the Legislature in a discriminatory fashion. 2 Since

the suit was filed, however, the District has returned to in-person

instruction, and both the side letter agreements and the

statutory framework that authorized them have expired.

Nevertheless, plaintiffs continue to seek injunctive relief to

remedy what they contend are ongoing harms caused by the

allegedly unconstitutional policies.

1 Plaintiffs are Keshara Shaw, Alma Rosa Farias De Solano,

Josue Ricardo Gastelum-Campista, Maritza Gonzalez, Ronnie

Heard, Jr., Deyanira Hooper, Judith Larson, Vicenta Martinez,

and Akela Wroten, Jr., on behalf of themselves and a proposed

class of similarly situated people. On our own motion, we take

judicial notice that Austin Beutner is no longer Superintendent of

LAUSD.

2 Plaintiffs characterize UTLA as a relief defendant, which

we understand to mean that they sued it to allow the trial court

to afford complete relief.

2

The trial court sustained, with leave to amend, LAUSD’s

demurrer on mootness grounds and granted, with leave to

amend, its motion to strike the prayer for relief, reasoning that

the requested remedies would not be manageable on a class-wide

basis. The trial court also sustained, with leave to amend,

UTLA’s demurrer. Rather than amend, plaintiffs suffered

dismissal and now appeal. We conclude the court prematurely

struck the prayer for relief at the pleading stage,

notwithstanding the end of distance learning. Because the

plaintiffs propose a seemingly viable remedy for the past and

continuing harms they allege, their constitutional claims are not

moot. We therefore reverse in part, affirm in part, and remand

with instructions. 3

BACKGROUND

1. Summary of Distance Learning Framework

On March 4, 2020, Governor Gavin Newsom declared a

state of emergency in California due to the COVID-19 pandemic.

(County of Los Angeles Dept. of Public Health v. Superior Court

(2021) 61 Cal.App.5th 478, 484.) Los Angeles Mayor Eric Garcetti

declared a local state of emergency the same day.

On March 13, 2020, Governor Newsom signed Executive

Order N-26-20 relating to school district operations during the

crisis. Every LAUSD campus physically closed starting on

March 16, 2020. The following day, the Legislature enacted

Senate Bill No. 117, which, among other things, waived

attendance and statewide testing requirements for the 2019–

3 We affirm the judgment as to former Superintendent

Beutner on mootness grounds.

3

2020 school year for school districts that complied with the

Executive Order. (Sen. Bill No. 117 (2019–2020 Reg. Sess.) Stats.

2020, ch. 3.)

LAUSD and UTLA negotiated the impacts and effects of

the emergency closures and the shift to distance learning. The

resulting agreement, executed on April 8, 2020, was contained in

an April 2020 side letter to their collective bargaining agreement.

That side letter expired on June 30, 2020.

On June 29, 2020, the Legislature enacted Senate Bill

No. 98, which, among other things, established requirements for

distance learning during the 2020–2021 school year. (Sen. Bill

No. 98 (SB 98) (2019–2020 Reg. Sess.) Stats. 2020, ch. 24, § 34,

enacting, e.g., Ed. Code, 4 former §§ 43501 [minimum

instructional minutes], 43503 [distance learning requirements],

43504 [documenting attendance and progress], and 43509

[procedures for establishing distance learning policies].)

Section 43501 reduced the minimum required instructional

time for a school day. The reduced times varied by grade: 180

minutes for kindergarteners (§ 43501, subd. (a)), 230 minutes for

first through third graders (id., subd. (b)), and 240 minutes for

fourth through 12th graders (id., subd. (c)). Section 43503

established the requirements for distance learning, including

“[c]ontent aligned to grade level standards that is provided at a

level of quality and intellectual challenge substantially

equivalent to in-person instruction.” (§ 43503, subd. (b)(2).) 5

4 All undesignated statutory references are to the Education

Code.

5 Although the minimum instructional time set forth in

section 43501 does not appear to distinguish between

4

Section 43504 required school districts to document daily student

participation and engagement. (§ 43504, subd. (d)(1); see id.,

subd. (e) [“Each local educational agency shall ensure that a

weekly engagement record is completed for each pupil

documenting synchronous or asynchronous instruction for each

whole or partial day of distance learning, verifying daily

participation, and tracking assignments.”].) It also laid out

requirements for tracking and mitigating absenteeism. (Id.,

subd. (f).) The distance learning provisions went into effect on

June 29, 2020. (Stats. 2020, ch. 24, § 124.)

LAUSD and UTLA negotiated the impacts and effects of

this new regimen. Their agreement governing the fall 2020

semester was contained in an August 2020 side letter, which

expired on December 31, 2020. LAUSD and UTLA then

negotiated a December 2020 side letter to govern the spring 2021

semester.

On May 25, 2021, the LAUSD board terminated the

superintendent’s emergency authority to take actions necessary

to respond to the pandemic. Governor Newsom terminated his

own executive orders on June 15, 2021. Finally, on June 30, 2021,

the state laws authorizing and delineating the contours of

distance learning, including section 43503, expired. (Stats. 2020,

ch. 24, § 34, enacting former § 43511, subd. (b) [“This part shall

synchronous and asynchronous instructional time, section 43503

required daily live interaction between students and teachers.

(Former § 43503, subd. (b)(6).) Synchronous instruction occurs

when the teacher provides direct instruction; asynchronous

instruction occurs when students work independently on

assigned work or receive instruction via means other than direct

instruction from a teacher, such as by watching a video.

5

become inoperative on June 30, 2021, and, as of January 1, 2022,

is repealed.”].) The December 2020 side letter expired the same

day.

2. Proceedings Below

2.1. First Amended Complaint

Plaintiffs filed their original class action complaint on

September 24, 2020. On October 7, 2020, they filed a first

amended complaint, which added UTLA as a relief defendant. 6

On April 9, 2021, the trial court overruled LAUSD’s

demurrer to the first amended complaint but granted LAUSD’s

motion to strike language concerning the failure to provide

students with special education instruction and services. The

court held that the case was not moot because school closures

were ongoing and could recur, thereby perpetuating the alleged

side-letter problems, and section 43503 had not yet expired. It

also observed that the complaint had requested only prospective

relief; the court thus invited plaintiffs to revise it to include a

prayer for remedial (or “retrospective”) relief. The court warned,

however, that “retrospective relief on a class-wide basis may

create commonality and typicality problems because each

student’s educational shortfalls may be highly individualized.”

2.2. Second Amended Complaint

Plaintiffs filed the operative second amended class action

complaint on May 12, 2021. It asserted eight causes of action:

6 They did so because LAUSD had taken the position that

UTLA is an indispensable party because it was a party to the

challenged side letters—but plaintiffs stated that they were “not

bringing any claims against the UTLA.”

6

wealth discrimination, in violation of the equal protection clauses

of the California Constitution (first cause of action); racial

discrimination, in violation of the equal protection clauses of the

California Constitution (second cause of action); violation of the

privileges and immunities clause of the California Constitution

(third cause of action); violation of article IX, sections 1 and 5 of

the California Constitution (fourth cause of action); violation of

Government Code section 11135 (fifth cause of action); violation

of section 43503 (sixth cause of action); declaratory relief (seventh

cause of action); and failure to provide basic educational equality,

in violation of the equal protection clauses of the California

Constitution (eighth cause of action). 7 The first, second, and

eighth causes of action asserted that the constitutional violations

stemmed from the April, August, and December 2020 side letter

agreements between LAUSD and UTLA, which implemented

statutory distance learning policies in the District.

Plaintiffs’ second amended complaint also sought remedial

injunctive relief. The prayer for relief requested, in part:

“Retrospective relief to address the ongoing, cumulative, and

irreparable harms already suffered by LAUSD students,

including but not limited to non-individualized forms of relief

such as (1) additional live instructional minutes delivered by

certified teachers, (2) mandatory assessments to evaluate student

learning loss, (3) the provision of small group and one-on-one

tutoring services to subclasses of students disproportionately

impacted by the LAUSD’s distance learning policies,

7 Only the first, second, and eighth causes of action are at

issue in this appeal. We refer to them collectively as the

“constitutional claims” or “constitutional causes of action.”

7

(4) mandatory training for teachers specific to remediating

learning loss that students suffered as a result of the LAUSD’s

distance learning policies, and (5) affirmative outreach measures

to counter the student truancy trends that developed as a result

of the LAUSD’s distance learning policies.”

2.3. Demurrers and Motions to Strike

LAUSD demurred to all of the causes of action on mootness

grounds. The District asserted that each cause of action failed to

state a claim because: the challenged side letters, SB 98, and

section 43503 had all expired (see former § 43511, subd. (b));

intervening events rendered the present controversy unlikely to

recur; and plaintiffs’ constitutional and discrimination claims and

the statewide standard on which they rested were dependent

upon an expired law. 8

Separately, LAUSD also moved to strike the language

concerning retrospective injunctive relief, arguing that such relief

was improper as a matter of law and could not be maintained on

a class-wide basis.

UTLA demurred to and moved to strike the class

allegations in the second amended complaint on the ground that

plaintiffs could not establish a well-defined community of interest

among class members. It also joined LAUSD’s demurrer on

mootness grounds.

8 LAUSD also filed a request for judicial notice of various

documents concerning post-pandemic return to learning and

mitigation policies, which the court granted as to their existence

but not as to the truth of any reasonably disputable matters

therein.

8

2.4. Trial Court’s Ruling

The trial court sustained both demurrers with leave to

amend and granted the motion to strike with leave to amend. The

court also struck the class allegations regarding retrospective

relief with leave to amend.

The court held that changes in circumstance—namely, the

expiration of SB 98 and the operative side letters, the return to

in-person instruction, and LAUSD’s adoption of post-pandemic

remedial policies—rendered plaintiffs’ claims moot, and the

issues raised were not likely to recur. In light of its conclusion

that distance learning was unlikely to resume, at least in its past

form, the court rejected plaintiffs’ argument that the matter

remained relevant to the general public interest. As to plaintiffs’

constitutional claims, the court held that because SB 98 and

section 43503 had expired, plaintiffs could not establish the

required “prevailing statewide standards” element of their

claims. As such, they could no longer state facts sufficient to

constitute a viable cause of action. 9

Finally, the court held that even if the expiration of the

side letters and section 43503 did not moot plaintiffs’ claims,

their request for remedial injunctive relief would not be

manageable on a class-wide basis because it would require

9 As discussed below, when addressing the constitutional

claims, the court did not distinguish the eighth cause of action,

which required plaintiffs to prove that that “the actual quality of

the district’s program, viewed as a whole, falls fundamentally

below prevailing statewide standards” (Butt v. State of California

(1992) 4 Cal.4th 668, 686–687 (Butt)), from the first and second

causes of action, which appellants contend do not share this

requirement.

9

individualized inquiries into which students required what

interventions. The court rejected plaintiffs’ assertion that they

sought only non-individualized relief. Accordingly, the court

sustained UTLA’s demurrer with leave to amend, granted

LAUSD’s motion to strike the prayer for relief with leave to

amend, and struck the class allegations regarding retrospective

relief with leave to amend.

Ultimately, although the court had granted plaintiffs leave

to amend to cure the defects it perceived in the second amended

complaint, they declined to do so. The case was dismissed with

prejudice on September 15, 2021. Appellants filed a timely notice

of appeal.

CONTENTIONS

On appeal, appellants challenge only the dismissal of their

constitutional claims—the first, second, and eighth causes of

action—and the striking of their prayer for remedial injunctive

relief. They concede that the court properly dismissed the third,

fourth, fifth, sixth, and seventh causes of action.

Specifically, appellants contend the trial court erred by

sustaining the demurrers because the second amended complaint

alleged facts sufficient to state claims for race-, wealth-, and

inter-district discrimination. Next, they argue that the court

erred by striking the request for remedial class-wide injunctive

relief. They contend the court misconstrued the relief sought as

individualized rather than systemic and argue that it is improper

to strike class allegations at the demurrer stage. Finally,

appellants argue that the complex civil court’s supposed

unwritten automatic-stay rule is invalid and unlawfully

prevented them from obtaining preliminary injunctive relief.

10

LAUSD contends the judgment of dismissal must be

affirmed because appellants do not challenge the trial court’s

mootness ruling on appeal. On the merits, it argues that the first

and second causes of action failed to state a claim because

appellants did not establish causation—namely, that it was the

District’s distance-learning policies that caused discrimination—

and the eighth cause of action failed to state a claim because

appellants did not provide sufficient evidence of educational

quality elsewhere in the state. As to the prayer for class-wide

relief, in addition to contesting appellants’ arguments,

respondents contend the court properly struck the allegations

because injunctions may not operate retrospectively, and the

requested relief violates the separation of powers doctrine.

Finally, concerning the asserted automatic-stay rule, respondents

argue that appellants have forfeited the claim by failing to

challenge the rule below, and, in any event, any delay was caused

not by court policy but by appellants’ own actions and strategic

choices.

In addition to the issues asserted by LAUSD, UTLA

contends that the entire appeal of the rulings it obtained below

has been forfeited because appellants do not clearly challenge the

court’s ruling sustaining UTLA’s demurrer. It also argues that

even if changed circumstances do not moot the entire case, UTLA

should be dismissed because the expiration of the side letters

extinguishes the reason for its presence.

DISCUSSION

1. Standard of Review

When, as here, a demurrer to a complaint is sustained with

leave to amend and the plaintiffs elect not to amend the

11

complaint, the plaintiffs may test the validity of the order

sustaining the demurrer by appealing from the ensuing judgment

of dismissal. (County of Santa Clara v. Atlantic Richfield Co.

(2006) 137 Cal.App.4th 292, 312 [when a plaintiff chooses to

stand on his or her pleading and not amend after a demurrer is

sustained with leave to amend, “an appeal from the ensuing

dismissal order may challenge the validity of the intermediate

ruling sustaining the demurrer. [Citation.] On the other hand,

where the plaintiff chooses to amend, any error in the sustaining

of the demurrer is ordinarily waived.”].)

In reviewing a demurrer order, we independently evaluate

the challenged pleading, construing it liberally, giving it a

reasonable interpretation, reading it as a whole, and viewing its

parts in context. (Milligan v. Golden Gate Bridge Highway &

Transportation Dist. (2004) 120 Cal.App.4th 1, 5–6 (Milligan).)

We treat the demurrer as admitting all material facts properly

pleaded, but we do not assume the accuracy of contentions,

deductions, or conclusions of law. (Aubry v. Tri–City Hospital

Dist. (1992) 2 Cal.4th 962, 966–967.)

Typically, the failure to amend a complaint constitutes an

admission that the plaintiffs have stated the case as strongly as

they could have, and no additional facts could be alleged to cure

the defect. (Le Mere v. Los Angeles Unified School Dist. (2019) 35

Cal.App.5th 237, 244.) Thus, on appeal, we treat failure to amend

as a waiver of un-pled allegations. (See Estate of Pryor (2009) 177

Cal.App.4th 1466, 1470.) We determine de novo whether the

factual allegations of the challenged pleading adequately state a

cause of action under any legal theory. (Milligan, supra, 120

Cal.App.4th at p. 6.)

12

The plaintiffs bear the burden of demonstrating that the

trial court erroneously sustained the demurrer. (Friends of

Shingle Springs Interchange, Inc. v. County of El Dorado (2011)

200 Cal.App.4th 1470, 1485.) We will affirm the judgment if

proper on any grounds stated in the demurrer, whether or not the

trial court acted on that ground. (Carman v. Alvord (1982) 31

Cal.3d 318, 324.)

It is the parties’ responsibility to support claims of error

with meaningful argument and citation to authority. (Cal. Rules

of Court, rule 8.204(a)(1)(B); Badie v. Bank of America (1998) 67

Cal.App.4th 779, 784–785.) When they do not furnish legal

argument with citation to authority on a particular point, we may

treat the point as forfeited and pass it without consideration.

(Okasaki v. City of Elk Grove (2012) 203 Cal.App.4th 1043, 1045,

fn. 1; Keyes v. Bowen (2010) 189 Cal.App.4th 647, 656.) In

addition, citing cases without any discussion of their application

to the present case results in forfeiture. (Nelson v. Avondale

Homeowners Assn. (2009) 172 Cal.App.4th 857, 862; Tilbury

Constructors, Inc. v. State Comp. Ins. Fund (2006) 137

Cal.App.4th 466, 482–483.) We are not required to examine

undeveloped claims or to supply arguments for the litigants.

(Maral v. City of Live Oak (2013) 221 Cal.App.4th 975, 984–985;

Mansell v. Board of Administration (1994) 30 Cal.App.4th 539,

546 [it is not the court’s function to serve as the appellant’s

backup counsel].)

Moreover, we do not consider points raised for the first time

in the reply brief absent a showing of good cause for the failure to

present them earlier. (Garcia v. McCutchen (1997) 16 Cal.4th

469, 482, fn. 10.) This rule is based on considerations of

fairness—withholding a point until the closing brief deprives the

13

opposing party of the opportunity to file a written response

unless supplemental briefing is ordered. (Neighbours v. Buzz

Oates Enterprises (1990) 217 Cal.App.3d 325, 335, fn. 8.)

2. Forfeiture

Appellants contend the court erred by sustaining the

demurrers to their constitutional claims—the first, second, and

eighth causes of action. The first cause of action asserted that the

side letter agreements discriminated on the basis of wealth; the

second cause of action asserted that the side letter agreements

discriminated on the basis of race; and the eighth cause of action

asserted that the side letter agreements denied LAUSD students

an education basically equivalent to that provided elsewhere in

the state.

LAUSD argues that appellants have failed to challenge the

court’s holding that the constitutional causes of action are moot,

and as such, have forfeited the appellate claim that the court

erred by sustaining the demurrers. Likewise, UTLA argues that

appellants concede by abandonment that the bulk of their case

has become moot. UTLA also contends appellants’ appeal is

forfeited in its entirety because it does not clearly encompass

UTLA’s demurrer.

Appellants respond that LAUSD did not demur to the

constitutional claims on mootness grounds, and the court did not

sustain the demurrer on that basis. They also contend they have

adequately challenged the issues raised in UTLA’s demurrer.

As discussed below, we conclude that although appellants’

briefs are not a model of clarity, they have preserved their

challenges to both demurrers.

14

2.1. Appellants adequately address the court’s

mootness ruling.

LAUSD demurred to each cause of action in the second

amended complaint—including the constitutional claims at issue

here—on mootness grounds. By sustaining LAUSD’s demurrer,

the trial court necessarily held that all three constitutional

causes of action were moot. Although the court devoted scant

attention to that question in its order, appellants were

nonetheless required to challenge the ruling on appeal. (See E.L.

White, Inc. v. City of Huntington Beach (1978) 21 Cal.3d 497, 504,

fn. 2 [“‘[I]t is the validity of the court’s action, and not of the

reason for its action, which is reviewable.’” (Original italics.)].)

Certainly, appellants have not addressed the issue head-on.

Nevertheless, the question of mootness in this case is

fundamentally entwined with the question of remedy. We

conclude appellants’ discussion of the latter question is sufficient

to preserve a challenge to the former. As we will explain, if the

trial court erred in striking the prayer for relief, appellants still

have a viable remedy for past and continuing harms, and their

constitutional claims are not moot.

2.1.1. The court impliedly held that striking the

prayer for relief rendered the constitutional

claims moot. 10

Appellants contend LAUSD did not demur—and the trial

court did not sustain the demurrer—to the constitutional causes

10 We address mootness in detail in section 5, post. In general,

however, a “case is considered moot when ‘the question addressed

was at one time a live issue in the case,’ but has been deprived of

15

of action on mootness grounds; instead, they argue, those causes

of action were stricken when the court granted LAUSD’s motion

to strike. Appellants insist: “LAUSD did not seek dismissal of

Appellants’ request for remedial injunctive relief on mootness

grounds. Nor would doing so have made any sense, as the

requested programmatic reforms undoubtedly would have a

‘practical impact’ and offer ‘effectual relief’ if ordered by the trial

court.” Appellants also offer a convoluted theory that the court

treated their prayer for remedial relief as its own free-standing

claim, suggesting that “the trial court cabined its ruling on

Appellants’ request (or ‘claims’) for remedial injunctive relief to

the arguments raised in LAUSD’s motion to strike, and did not

find that the request was moot.” 11 (But see, e.g., Shell Oil Co. v.

life ‘because of events occurring after the judicial process was

initiated.’ [Citation] . . . The pivotal question in determining if a

case is moot is . . . whether the court can grant the plaintiff any

effectual relief.” (Wilson & Wilson v. City Council of Redwood

City (2011) 191 Cal.App.4th 1559, 1574.)

11 Appellants argue: “While a defendant usually demurs to an

entire ‘cause of action,’ LAUSD instead addressed its demurrer to

two forms of relief—prospective injunctive relief and declaratory

relief. It attacked a third form of relief—remedial (or

retrospective) injunctive relief—by way of a separate motion to

strike class allegations pertaining to that remedy. Appellants and

the trial court accepted LAUSD’s framework, and the trial court

(1) dismissed Appellants’ ‘claims’ for prospective injunctive relief

and declaratory relief as moot, and (2) struck their ‘claims’ for

remedial injunctive relief as not susceptible to class treatment.

LAUSD, and thereafter Appellants and the trial court, elected to

treat each of Appellants’ demanded remedies as essentially

separate ‘causes of action’ or ‘claims.’ Having prompted that

framework in the trial court, LAUSD should not be permitted to

16

Richter (1942) 52 Cal.App.2d 164, 168 [relief by injunction is a

remedy and not, in itself, a cause of action; cause of action must

exist before injunctive relief can be granted].)

The District asserts that it has always argued the

constitutional causes of action were moot, but it also argued that,

to the extent remedial injunctive relief could provide a practical

impact that would render those claims non-moot, such relief

would be improper for the reasons addressed in the motion to

strike.

Both sides overstate the case.

LAUSD overstates the argument it made in its demurrer.

To state a claim for denial of basic educational equality, the

plaintiff must show that “the actual quality of the district’s

program, viewed as a whole, falls fundamentally below prevailing

statewide standards.” (Butt, supra, 4 Cal.4th at pp. 686–687.)

LAUSD argued that the repeal of SB 98 and section 43503

deprived plaintiffs of a prevailing statewide standard by which to

measure the District’s distance-learning policies. The District

also mentioned, in a footnote in its reply brief: “To the extent

Plaintiffs argue that a decision in Plaintiffs’ favor can have a

‘practical’ impact, any such relief would come in the form of what

Plaintiffs allege is remedial or retrospective relief, which is

subject to LAUSD’s concurrently-filed Motion to Strike.” Plainly,

the District did not address practical impact in any substantive

way.

now argue that Appellants were required to challenge the trial

court’s mootness decision in order for their request (or ‘claims’)

for remedial injunctive relief to survive dismissal.”

17

But appellants are wrong that “the trial court’s mootness

analysis addressed only Appellants’ requests for prospective

injunctive relief and declaratory relief.” Although the court did

not explicitly address the practical-impact question, it did

address the statewide standards issue. The court observed:

“Plaintiffs also contend that SB 98’s expiration does not moot

their constitutional claims.” The court noted that in overruling

LAUSD’s demurrer to the first amended complaint, it had relied

on appellants’ “allegations that prevailing statewide standards

for distance learning could be determined from LAUSD’s policies

before the pandemic, SB 98’s requirements, and the policies

implemented by the four next largest public school districts in

California . . . .”

In ruling on the motions attacking the second amended

complaint, however, the trial court said, “Now that SB 98 and

Section 43503 are no longer operative, [the] ‘prevailing statewide

standards’ cannot be established based only on LAUSD’s pre-

pandemic policies and the policies implemented by the four next

largest public school districts in California. Policies from only five

California school districts—no matter how large they are—are

insufficient to establish ‘prevailing statewide standards,’ absent a

statewide statutory baseline such as Section 43503.”

In other words, the trial court held that because section

43503 and the side letter agreements were no longer operative,

appellants’ claims based on them—including their constitutional

claims—were no longer justiciable.

To be sure, this section of the court’s order was brief in

comparison to the court’s thorough discussion of other issues. In

particular, the court did not distinguish the eighth cause of

action, which requires plaintiffs to establish prevailing statewide

18

standards, from the first and second causes of action, which do

not share this requirement. (See Butt, supra, 4 Cal.4th at p. 691

[“nothing in our analysis is intended to immunize local school

officials for accountability for mismanagement”].) Nor did the

trial court explicitly address the question of whether it could

grant effective relief.

But the latter issue was plainly on the court’s mind. For

example, at oral argument, the court asked: “Defendants, I would

like you to address the mootness argument but then also address

the court’s comment . . . concerning even if mootness is aside [sic],

what about the constitutional violations and the [disparate]

impact of the policies on Black and Latino students independent

of your letters? In other words, right now we’re stuck with

children that have fallen behind. Going forward, they’re going to

ask you for certain types of relief. Why can’t that just be an

independent basis to allow them to continue?”

Counsel for LAUSD responded “they don’t even get to

relief . . . until they state a viable cause of action,” which “is now

moot.” The trial court then pressed: “You’re saying you have

money now going forward, but are they addressing the past

problems that were caused by distance learning? You’re just

saying we’re not going to do it anymore in the future. Okay, that’s

great. But how do you remedy the past deficiency? Can’t the court

declare enough to get a program—not necessarily for each

student—but programs to [be] put in place to remedy . . . those

situations, those problems?”

UTLA suggests what ultimately happened is that the trial

court “struck the request for classwide retrospective remedies

from the [second amended complaint], with the result that no

part of the case remained that was not moot.” We agree that this

19

is the only reasonable interpretation of the court’s order and the

proceedings below. It appears the court recognized plaintiffs’

proposed remedy would provide a practical impact, which would

normally mean the constitutional claims would remain viable.

But the court’s holding that the requested relief could not proceed

on a class-wide basis negated that practical impact, thereby

mooting the claims. 12

The question before us, then, is whether appellants have

adequately challenged the court’s implied holding. We conclude

that they have.

2.1.2. Mootness and remedy are intertwined.

As we address in detail below, if appellants can assert a

viable remedy, their constitutional causes of action are not moot.

Yet on appeal, after challenging the trial court’s order granting

the motion to strike, appellants do not argue—at least, not

explicitly—that because the court erred by striking the prayer for

relief, it also erred by impliedly holding that the constitutional

claims were moot because they could have no practical impact.

Nevertheless, if the central issue in this case is whether the

court erred by striking appellants’ prayer for relief, mootness

12 Although the court also held that the constitutional claims

were moot because the expiration of SB 98 deprived appellants of

a prevailing statewide standard for the eighth cause of action,

that discussion was relatively brief in the context of the order as

a whole. More importantly, the discussion did not apply to the

claims of intra-district discrimination asserted in the first and

second causes of action because those causes of action do not

require plaintiffs to establish a statewide standard. Thus, the

court must have had some other basis for sustaining the

demurrer to those two causes of action.

20

merely addresses the legal effect of the answer to that question.

In other words, relief and mootness are two sides of the same

coin. By arguing in detail and at length that the court erred by

striking their prayer for relief, appellants have thereby preserved

their claim that their constitutional causes of action remain

viable.

In any event, even if appellants’ discussion of mootness

were insufficient to preserve the issue for appeal, we would

exercise our discretion to consider whether appellants can state a

claim. Because appellants raised the issue below and address the

substance of the trial court’s discussion of this matter on appeal,

and in light of the important constitutional issues at stake in this

case, we conclude rigid application of the forfeiture doctrine

would not serve the interests of justice. (See Barriga v. 99 Cents

Only Stores LLC (2020) 51 Cal.App.5th 299, 321 [appellate courts

have discretion to consider arguments asserted in the trial court

and not reasserted in an opening brief on appeal]; Scott v. City of

San Diego (2019) 38 Cal.App.5th 228, 234, fn. 4 [exercising

discretion to consider merits of argument not raised in opening

brief that presented pure legal issue and was material to

disposition of appeal].)

2.2. Appellants adequately address UTLA’s demurrer.

UTLA contends that appellants have forfeited the entire

appeal as to UTLA because they do not clearly challenge the

court’s ruling sustaining UTLA’s demurrer. We disagree.

Although appellants do not explicitly parse the differences

between the two demurrers, UTLA’s demurrer covered the same

essential ground as LAUSD’s motion to strike—namely, the

validity of the prayer for class-wide remedial injunctive relief—

and appellants devote ample attention to that topic.

21

In any event, UTLA does not explain why appellants’

discussion of the class allegations is insufficient to encompass the

issues raised by UTLA’s demurrer. Nor does UTLA explain how

its demurrer differs from LAUSD’s motion to strike. Accordingly,

it has forfeited this argument. (See Benach v. County of Los

Angeles (2007) 149 Cal.App.4th 836, 852 [failure to develop claim

with reasoned legal argument and supporting authority forfeits

the issue].)

3. The court erred by striking the prayer for relief at the

pleading stage.

Appellants contend the trial court erred by striking their

class-wide prayer for remedial injunctive relief. They argue the

court misconstrued the relief sought as individualized rather

than systemic and argue that it is improper to strike class

allegations at the pleading stage. LAUSD argues the court

properly struck the prayer for relief because crafting such relief

would require myriad individualized inquiries. UTLA argues the

court properly struck the prayer for relief because there is no

community of interest within the proposed class.

Class allegations may be stricken at the pleading stage

only when it is clear from the face of the complaint, the exhibits,

and judicially-noticed documents that liability isn’t subject to

common proof. Here, the court held that relief was not subject to

common proof. This ruling was premature.

3.1. Legal Principles and Standard of Review

“Courts long have acknowledged the importance of class

actions as a means to prevent a failure of justice in our judicial

system. [Citations.] ‘“By establishing a technique whereby the

claims of many individuals can be resolved at the same time, the

22

class suit both eliminates the possibility of repetitious litigation

and provides small claimants with a method of obtaining

redress. . . .”’ [Citation.] Generally, a class suit is appropriate

‘when numerous parties suffer injury of insufficient size to

warrant individual action and when denial of class relief would

result in unjust advantage to the wrongdoer.’ [Citations.] But

because group action also has the potential to create injustice,

trial courts are required to ‘“carefully weigh respective benefits

and burdens and to allow maintenance of the class action only

where substantial benefits accrue both to litigants and the

courts.”’ [Citations.]

“Section 382 of the Code of Civil Procedure authorizes class

suits in California when ‘the question is one of a common or

general interest, of many persons, or when the parties are

numerous, and it is impracticable to bring them all before the

court.’ To obtain certification, a party must establish the

existence of both an ascertainable class and a well-defined

community of interest among the class members. [Citations.] The

community of interest requirement involves three factors:

‘(1) predominant common questions of law or fact; (2) class

representatives with claims or defenses typical of the class; and

(3) class representatives who can adequately represent the

class.’” (Linder v. Thrifty Oil Co. (2000) 23 Cal.4th 429, 434–435.)

“The decision whether a case is suitable to proceed as a

class action ordinarily is made on a motion for class certification.”

(Bridgeford v. Pacific Health Corp. (2012) 202 Cal.App.4th 1034,

1041.) When the invalidity of the class allegations is revealed on

the face of the complaint, the trial court may decide the issue by

demurrer or motion to strike. (Ortega v. Topa Ins. Co. (2012) 206

Cal.App.4th 463, 478.) But California courts have long disfavored

23

disposing of class allegations at the pleading stage. (Gutierrez v.

California Commerce Club, Inc. (2010) 187 Cal.App.4th 969, 976

(Gutierrez).)

Accordingly, a court may decide the question on demurrer

only if it is clear “‘“there is no reasonable possibility that the

plaintiffs could establish a community of interest among the

potential class members and that individual issues predominate

over common questions of law and fact.”’” (Gutierrez, supra, 187

Cal.App.4th at p. 975; see Tucker v. Pacific Bell Mobile Services

(2012) 208 Cal.App.4th 201, 211 (Tucker) [court may sustain a

demurrer as to class claims “‘only if it concludes as a matter of

law that, assuming the truth of the factual allegations in the

complaint, there is no reasonable possibility that the

requirements for class certification will be satisfied’”].)

“‘If there is a reasonable possibility the plaintiffs can plead

a prima facie community of interest among class members, “‘“the

preferred course is to defer decision on the propriety of the class

action until an evidentiary hearing has been held on the

appropriateness of class litigation.”’”’” (Tucker, supra, 208

Cal.App.4th at p. 215, citing Gutierrez, supra, 187 Cal.App.4th at

p. 975.) Thus, “‘all that is normally required for a complaint to

survive demurrers to the propriety of class litigation is that the

complaint allege facts that tend to show: (1) an ascertainable

class of plaintiffs, and (2) questions of law and fact which are

common to the class.’” (Prince v. CLS Transportation, Inc. (2004)

118 Cal.App.4th 1320, 1326 (Prince); see Blakemore v. Superior

Court (2005) 129 Cal.App.4th 36, 59 (Blakemore) [“Absent ‘strong

factual showings’ in the complaint that negate the possibility of a

community of interest, determination of the propriety of a class

24

action should be deferred ‘until a time when [the court] may

better make the decision.’”].)

“A motion to strike, like a demurrer, challenges the legal

sufficiency of the complaint’s allegations, which are assumed to

be true.” (Blakemore, supra, 129 Cal.App.4th at p. 53.) Thus, as

with a demurrer, a “motion to strike the class allegations ‘raises

only the narrow issue whether this suit as a matter of law lacks

sufficient community of interest to sustain a class action.’” (Id. at

p. 54.) We review matters of law de novo. (Ibid.)

3.2. The court erred by striking the class allegations

based on individualized questions of remedy.

The issue before the trial court was: “Considering the

allegations of the [complaint], the pleading exhibits, and the

judicially noticed facts, have Plaintiffs pled a prima facie

community of interest among class members?” (Tucker, supra,

208 Cal.App.4th at p. 220.) The court concluded they had:

“Plaintiffs correctly state that the legality of the challenged Side

Letters is a liability issue susceptible to common proof.” The

court seemingly reached this conclusion in passing, apparently

believing it was self-evident; it did not address the elements of

the constitutional claims nor discuss what would be needed to

prove them.

Nevertheless, as there was no question the proposed class

is ascertainable, this should have been the end of the inquiry.

(Blakemore, supra, 129 Cal.App.4th at p. 59; Prince, supra, 118

Cal.App.4th at p. 1326.) Instead, the court expounded that “even

if Plaintiffs could establish commonality as to this liability issue,

this case would remain unmanageable because of the highly

individualized determinations required to determine damages

25

and to fashion appropriate relief.” That is, the court focused not

on liability but on remedy. 13

Both respondents and the court below cite a variety of cases

in which individual issues predominated as to both liability and

remedy. 14 For example, Silva v. Block involved a proposed class of

people wrongly and unjustifiably attacked by police dogs used by

a sheriff’s department. (Silva v. Block (1996) 49 Cal.App.4th 345,

352.) The appellate court held that the question of liability to

individual class members “would depend upon the particular

conduct in which the suspect was engaged and the facts apparent

to the handler before the police dog was employed.” (Ibid.; see

also Newell v. State Farm General Ins. Co. (2004) 118

Cal.App.4th 1094, 1099, 1103 [proposed class of people

wrongfully denied policy benefits for damage caused to their

13 It appears the court may have also applied the wrong legal

standard in resolving the question. A court may not strike class

allegations at the pleading stage if “‘there is a reasonable

possibility the plaintiffs can plead a prima facie community of

interest among class members . . . .’” (Tucker, supra, 208

Cal.App.4th at p. 215.) Here, the court held that “[b]ecause

Plaintiffs’ request for retroactive injunctive relief will make class

treatment unmanageable, a class action is not a superior means

of resolving this dispute.”

14 The trial court also relied on a variety of federal district

court cases, at least one of which is unpublished, as well as an

opinion from the Seventh Circuit Court of Appeals. As those

opinions are not binding on this court, we do not address them.

(See Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d

450, 455–456.) For the same reason, we deny UTLA’s request,

made in its respondent’s brief, that we take judicial notice of

various federal cases dealing with the pandemic and its effects.

26

homes by the Northridge earthquake; even if insurers adopted

improper claims practices to adjust earthquake claims, each class

member “still could recover for breach of contract and bad faith

only by proving his or her individual claim was wrongfully

denied, in whole or in part, and the insurer’s action in doing so

was unreasonable”] (original italics); Brown v. Regents of

University of California (1984) 151 Cal.App.3d 982, 989–990

[proposed class of people allegedly injured by hospital’s failure to

provide adequate coronary care; case presented “a veritable

quagmire of tough factual questions” that could only be resolved

by individual proof, as opposed to a “relatively simple consumer

fraud action”].)

Similarly, in Clausing v. San Francisco Unified School

District, the proposed class was disabled students who had

allegedly been abused, beaten, and publicly humiliated by school

district employees. (Clausing v. San Francisco Unified School

Dist. (1990) 221 Cal.App.3d 1224, 1233–1234.) To establish

liability, the appellate court noted, each individual would have

had to prove “overwhelmingly numerous” separate issues,

including the fact that he or she was a victim of abuse, the

identity of the abuser, and the capacity in which the abuser

acted. (Ibid.) Even if it could be determined that the district’s

policies and practices encouraged abuse of students, “this

determination could not resolve the lawsuit, which would still

require a full trial on each and every alleged incident of abuse

with respect to fault, causation, damages, and affirmative

defenses.” (Ibid.)

Yet neither the court below nor the parties on appeal have

pointed to any California authority in which a court properly

struck class allegations at the demurrer stage based only on the

27

supposed unavailability of a class-wide remedy—and our

research has revealed none. Indeed, in Tucker, which LAUSD

holds up as an example of a “modern” case that takes a

permissive view of striking class allegations at the pleading

stage, the appellate court held that questions about damages

were irrelevant to its analysis. (Tucker, supra, 208 Cal.App.4th

p. 230 [“Regardless of whether Plaintiffs are able to pursue

claims for individual damages or class restitution, the adequacy

of Defendants’ disclosures of the contested billing practice, and

whether at least some members of the public are likely to be

deceived are not issues that can be resolved as a matter of law on

demurrer, even with the matter judicially noticed.”].)

In any event, it appears to be within the realm of

probability that the trial court—with the assistance of the

parties—could fashion appropriate injunctive relief consisting of

workable programs and techniques for evaluating and

remediating any learning deficits occasioned by the District’s

distance learning program. School districts across the country are

developing programs to identify and remediate pandemic

learning loss, so it is not as if the court will have no models to

consider. And it is far from obvious at this point that all possible

remedies would necessitate prohibitively cumbersome individual

inquiries.

Accordingly, we conclude the court erred by striking the

class allegations based on concerns about the supposed

individualized nature of all possible remedies.

28

3.3. There is a reasonable possibility that appellants

can establish a community of interest among

class members.

As discussed above, a court may sustain a demurrer to

class claims only if it concludes as a matter of law that, assuming

the truth of the factual allegations in the complaint, plaintiffs are

unable to make a prima facie showing that a community of

interest exists among the proposed class members. 15 (Tucker,

supra, 208 Cal.App.4th at pp. 211, 220.) UTLA contends

appellants cannot make that showing here. We disagree.

“Since its admission to the Union, California has assumed

specific responsibility for a statewide public education system

open on equal terms to all. The Constitution of 1849 directed the

Legislature to ‘provide for a system of common schools, by which

a school shall be kept up and supported in each district . . . .’ (Cal.

Const. of 1849, art. IX, § 3.) That constitutional command, with

the additional proviso that the school maintained by each district

be ‘free,’ has persisted to the present day. (Cal. Const., art. IX,

§ 5.)” (Butt, supra, 4 Cal.4th at p. 680.)

Courts have interpreted these provisions, together with our

state equal protection clauses, to guarantee California children “a

fundamental right of equal access to public education, warranting

strict scrutiny of legislative and executive action that is alleged to

infringe on that right.” (O’Connell v. Superior Court (2006) 141

Cal.App.4th 1452, 1465.) Students are entitled to educational

equality both within school districts (meaning a given district

cannot discriminate against them based on their race or their

wealth) and between districts (meaning school districts must

15 Ascertainability is not at issue here.

29

provide an education at least basically equivalent to that afforded

students statewide). Here, appellants allege LAUSD’s policies

discriminated against them in both of these ways.

3.3.1. Intra-District Discrimination

To state a claim for intra-district race or wealth

discrimination in education, as asserted in the first and second

causes of action, plaintiffs must allege that “a policy adopted in

California has a substantial disparate impact on the minority

children of its schools . . . and no action is taken to correct that

policy when its impacts are identified.” (Collins v. Thurmond

(2019) 41 Cal.App.5th 879, 896–897; see Vergara v. State of

California (2016) 246 Cal.App.4th 619, 648 [race is a “‘suspect

classification’” under equal protection analysis; in “the context of

education, under California law, wealth is considered a suspect

classification as well”].)

Here, appellants allege that LAUSD policy, established

through the side letter agreements with UTLA, significantly

reduced teacher work hours, instructional time, and training and

professional development time; limited synchronistic teacher

time; and ended the District’s practice of proactively reaching out

to disengaged students. Appellants allege these policies—

especially the reduced learning hours and failure to require

student assessments—affected all students district-wide.

The complaint also alleges that LAUSD’s policies

disparately, and inevitably, impacted poor and minority students

more than others. After the District established its distance-

learning policies, appellants allege, the majority of Black and

Latino secondary students appeared in class only once or twice a

week—or not at all—a figure 10 to 20 percent lower than their

white and Asian peers. By the ninth week of instruction, only 6 in

30

10 Black and Latino middle school students appeared in class at

least once per week, compared to 8 in 10 of their peers. And

although the District committed to providing all students with

free electronic devices and internet connections to enable them to

participate in distance learning, appellants contend many low-

income students received either nonfunctional equipment or

nothing at all. Plaintiffs allege that LAUSD did not remedy these

failures, and others, when they were brought to the District’s

attention.

Although the experiences of students throughout Los

Angeles undoubtedly varied, these allegations are sufficient, at

the pleading stage, to state a prima facie community of interest

among the proposed class.

3.3.2. Inter-District Discrimination

In addition to guaranteeing students a right to an

education equivalent to that received by other students in the

same school district, the California Constitution guarantees

students “an education basically equivalent to that provided

elsewhere throughout” the state. (Butt, supra, 4 Cal.4th at p. 685;

id. at p. 692 [“Because education is a fundamental interest in

California, denials of basic educational quality on the basis of

district residence are subject to strict scrutiny.”]; Cal. Const.,

art. I, § 7; art. IV, § 16.) A finding of constitutional disparity

occurs when a school “district’s program, viewed as a whole, falls

fundamentally below prevailing statewide standards . . . .” (Butt,

at pp. 686–687.) Here, appellants allege, in the eighth cause of

action, that LAUSD policy, established in the side letter

agreements, violated this right.

The complaint alleges that “the prevailing statewide

standards are established by the LAUSD’s policies before the

31

pandemic, SB 98’s requirements, and the policies implemented by

the four next largest public school districts in California—San

Diego Unified School District, Fresno Unified School District, Elk

Grove Unified School District, and Long Beach Unified School

District.” In particular, it alleges that the LAUSD policies

established in the side letter agreements fell “fundamentally

below these prevailing statewide standards because each

provided less total instructional time than the LAUSD provided

before the pandemic and all of the four next largest public school

districts in California.”

Further, the complaint alleges the policies established in

the side letters did not comply with SB 98. For example, plaintiffs

allege that LAUSD failed “to provide the minimum instructional

minutes required by SB 98” (see former § 43501), violated

“SB 98’s requirements that students receive an education that is

aligned to grade level standards and provides a level of quality

and intellectual challenge that is substantially equivalent to

what students would have received in person” (see former

§ 43503, subd. (b)(2)), and violated SB 98’s attendance and

engagement requirements (see former § 43504, subds. (d)–(g)).

Plaintiffs allege that LAUSD did not remedy these failures, and

others, when they were brought to the District’s attention.

As with the intra-district causes of action, these allegations

are sufficient, at the pleading stage, to state a prima facie

community of interest among the proposed class.

In sum, we conclude the trial court erred by granting

LAUSD’s motion to strike, sustaining UTLA’s demurrer, and

striking the prayer for relief on class grounds. “We do not hold,”

however, “that a class action is appropriate in this case. That

issue is for the trial court to determine at a later stage of the

32

case.” (Blakemore, supra, 129 Cal.App.4th at p. 59.) At that point,

the court will presumably need to consider anew the complicated

question of whether the relief plaintiffs seek is manageable on a

class basis—an issue we need not and do not decide. Rather, as in

Blakemore, “‘we hold only that no argument has been made

which would allow the judge to rule at the pleading stage that the

suit was without the realm of probability of being properly tried

as class litigation.’” (Ibid., fn. omitted; see Tucker, supra, 208

Cal.App.4th at p. 230 [“Ultimately, it is still up to the trial court,

in the exercise of its considerable discretion, to determine if

Plaintiffs’ [claims] for equitable relief are appropriate for class

treatment at all.”].)

4. Respondents’ other challenges to the prayer for relief

likewise fail.

Respondents also contend that the trial court properly

granted LAUSD’s motion to strike the prayer for relief because

injunctions may only operate prospectively and because any relief

that could be awarded would violate the separation of powers

doctrine. 16

Because the trial court did not reach these issues,

appellants ask us to remand the matter for decision in the first

instance. We decline to do so. We must affirm the judgment of

dismissal “if the unamended complaint is objectionable on any

ground raised by the demurrer” or motion to strike. (Otworth v.

Southern Pac. Transportation Co. (1985) 166 Cal.App.3d 452,

16 Although LAUSD has forfeited the former claim by failing

to develop it, UTLA adequately addresses the issue, thereby

obviating any prejudice to appellants. We therefore exercise our

discretion to consider the claim as to both respondents.

33

457.) Both of these issues were raised below. In addition, each

contention “entails the resolution of a mixed question of law and

fact that is predominantly one of law, inasmuch as it ‘requires a

critical consideration, in a factual context, of legal principles and

their underlying values’ rather than merely ‘experience with

human affairs.’” (Aguilar v. Atlantic Richfield Co. (2001) 25

Cal.4th 826, 860.) Because we are as equipped to evaluate such

questions as the court below, and in the interest of judicial

economy, we reject appellants’ request for remand and turn to

consider these issues.

4.1. Remedial injunctive relief is proper.

Respondents contend appellants’ prayer for relief was

properly stricken because injunctions cannot issue to restrain

completed acts. Appellants argue that respondents have conflated

completed acts (the expiration of the challenged distance-learning

policies) with harm caused by those acts (learning loss and

disengagement stemming from the policies). Because the alleged

harm is ongoing, appellants contend, injunctive relief is proper.

We agree with appellants.

The dispute appears to lie in the difference between

mandatory and prohibitory injunctions. A prohibitory injunction

is “a writ or order requiring a person [or entity] to refrain from a

particular act.” (Code Civ. Proc., § 525.) A mandatory injunction,

by contrast, requires a person to take affirmative action that

changes the parties’ positions. (See Civ. Code, § 3367, subd. (2);

ITV Gurney Holding Inc. v Gurney (2017) 18 Cal.App.5th 22, 29.)

The “purpose of a prohibitory injunction is to prevent

future harm to the applicant by ordering the defendant to refrain

from doing a particular act”; such relief exists “only to prevent

threatened injury and has no application to wrongs that have

34

been completed.” (Scripps Health v. Marin (1999) 72 Cal.App.4th

324, 332 [injunction not warranted to restrain defendant from

contacting plaintiff’s employees where defendant had committed

only one act of violence and there was no showing of any threat of

future acts].) Because a prohibitory injunction does not serve to

punish past acts, it should not be issued unless there is “evidence

establishing the reasonable probability the acts will be repeated

in the future.” (Ibid.)

A mandatory injunction, on the other hand, orders a party

to take action to remedy some harm. Thus, mandatory “injunctive

relief has been upheld where the defendant’s completed act

causes ongoing harm or is part of a continuing course of conduct.”

(Sahlolbei v. Providence Healthcare, Inc. (2003) 112 Cal.App.4th

1137, 1156 (Sahlolbei); see Ojavan Investors, Inc. v. California

Coastal Com. (1997) 54 Cal.App.4th 373, 394 [“It is well

established the judiciary possesses broad discretion in deciding

the type of equitable relief to fit a case’s particular circumstances.

[Citation.] This broad discretion includes a court’s power to grant

a mandatory injunction.”].)

In Sahlolbei, for example, a plaintiff physician who had

been denied reappointment to a hospital staff sought an

injunction requiring reinstatement of his staff privileges.

(Sahlolbei, supra, 112 Cal.App.4th at pp. 1144–1145.) The trial

court denied injunctive relief based on the completed act

principle, and the appellate court reversed. (Id. at pp. 1156–

1157.) The appellate court explained that notwithstanding the

completed act, injunctive relief was proper where “the harm was

a continuing interference with the plaintiff’s rights, which could

be prevented by granting an injunction.” (Id. at p. 1157.) In other

words, the “harm plaintiff sought to prevent—his exclusion from

35

the staff without a prior hearing—continued as long as his staff

privileges remained terminated. The continuation of the harm

could be prevented by reinstating his privileges and ordering a

hearing as a prerequisite to any subsequent termination.” (Ibid.)

Likewise, in Dibona v. Matthews, community college

administrators cancelled a drama course to prevent the

performance of a controversial play. (Dibona v. Matthews (1990)

220 Cal.App.3d 1329, 1333–1336.) The play was performed off-

campus instead. (Id. at p. 1336.) The trial court held that because

the summer session in which the class was to have been held had

ended, the case was moot. (Id. at pp. 1336–1338.) The appellate

court reversed. It noted that although the summer session was

over, the student who brought the action continued to seek

academic credit for having completed the class based on his

performance in the off-campus play. (Id. at p. 1339.) Thus, it held,

if the student could show he had satisfied all the course

requirements except those made impossible by the college, the

court could properly conclude that course credit should be

awarded and order appropriate injunctive relief. (Ibid.)

Here, appellants contend the District’s distance-learning

policies have caused continuing harm in the form of learning loss

and disengagement. Should they be proven, the court has broad

powers to remedy those harms, including by ordering remedial

injunctive relief.

4.2. Remedial injunctive relief does not violate the

separation of powers doctrine.

Respondents argue that the trial court properly struck the

prayer for relief because any remedial injunctive relief that could

be awarded would necessarily violate the separation of powers

doctrine. We disagree.

36

UTLA’s argument rests largely on Campaign for Quality

Education v. State of California (2016) 246 Cal.App.4th 896

(Quality Education). In that case—a split decision that drew both

a concurrence and a lengthy dissent—the appellate court held

that the California Constitution does not guarantee children the

right to an education of any minimum quality. 17 After finding no

support for such a right in the text of the Constitution, the court

opined in dicta that “‘the question of educational quality is

inherently one of policy involving philosophical and practical

considerations that call for the exercise of legislative and

administrative discretion.’” (Id. at p. 911.)

LAUSD rests its argument on Crawford v. Board of

Education (1976) 17 Cal.3d 280. Yet that case addressed how the

courts should fashion remedies to constitutional violations; it did

not hold that courts should avoid injunctive relief in general.

Fundamentally, at the heart of both respondents’

arguments lies the premise that LAUSD is already taking steps

to ameliorate pandemic learning loss, and the courts may not

second-guess the District’s methods. As we discuss below,

however, the impact, if any, of the District’s remedial programs is

a question of disputed fact that cannot be resolved at the

pleadings stage. (See section 5.4, post.)

The courts have long recognized that while they may not

craft educational policy out of whole cloth, they are manifestly

17 Appellants neither argue that Quality Education was

wrongly decided nor ask us to consider that constitutional

question anew. We note, however, that no other appellate court

has examined the issue in detail, and Quality Education is not

binding on us. (See Auto Equity Sales, Inc. v. Superior Court,

supra, 57 Cal.2d at pp. 455–456.)

37

empowered to correct constitutional violations that are brought

before them. Should appellants prove the discrimination they

have alleged, it will be up to the trial court to craft an

appropriate remedy based on the circumstances then in effect,

unless the parties agree that the District and UTLA have by then

already embarked on appropriate remedial action. Courts

routinely impose injunctive relief to remedy unconstitutional or

otherwise unlawful actions by government agencies.

4.3. UTLA is a necessary party notwithstanding the

expiration of the side letter agreements.

UTLA argues that even if changed circumstances do not

moot the entire case, it should be dismissed from the matter

because the expiration of the side letters extinguishes the reason

for its presence. Appellants respond that UTLA remains a

necessary party because any ultimate relief in appellants’ favor

would impact the teachers and their contractual rights.

Appellants have the better argument.

Code of Civil Procedure section 389, subdivision (a),

governs whether a person, sometimes called a “necessary party,”

must be joined as a party to a lawsuit. 18 (TG Oceanside, L.P. v.

18 It provides: “A person who is subject to service of process

and whose joinder will not deprive the court of jurisdiction over

the subject matter of the action shall be joined as a party in the

action if (1) in his absence complete relief cannot be accorded

among those already parties or (2) he claims an interest relating

to the subject of the action and is so situated that the disposition

of the action in his absence may (i) as a practical matter impair

or impede his ability to protect that interest or (ii) leave any of

the persons already parties subject to a substantial risk of

incurring double, multiple, or otherwise inconsistent obligations

38

City of Oceanside (2007) 156 Cal.App.4th 1355, 1365.)

“Section 389 calls upon the trial court to weigh practical realities

and other considerations in determining whether a person is

necessary or indispensable.” (Pinto Lake MHP LLC v. County of

Santa Cruz (2020) 56 Cal.App.5th 1006, 1014.) “The inquiry

under subdivision (a)(2), applicable here, is ‘whether the person is

one whose rights must necessarily be affected by the judgment in

the proceeding.’” (Id. at p. 1013.)

Reed v. United Teachers L.A. is instructive. (Reed v. United

Teachers Los Angeles (2012) 208 Cal.App.4th 322.) In that case,

plaintiffs entered into a consent decree with LAUSD “to resolve

claims that teacher layoffs had disproportionately and adversely

impacted the [s]tudents’ constitutional and statutory rights to

equal educational opportunities, and that additional layoffs

would exacerbate the harm.” (Id. at p. 327.) UTLA, a non-settling

defendant, objected, arguing that because the consent decree had

the potential to abrogate the seniority rights of its members, it

was entitled to a decision on the merits as a matter of federal due

process. (Ibid.) Our colleagues in Division Two agreed, holding

that due process required a decision on the merits before a

consent decree or judgment could affect teachers’ contractual and

statutory rights. (Id. at pp. 329–336, 339.)

Here, appellants seek remedies, such as additional

instructional time, that carry the potential to impact the

collectively-bargained-for contractual rights of UTLA’s members.

Indeed, UTLA has previously represented that it would seek to

by reason of his claimed interest. If he has not been so joined, the

court shall order that he be made a party.” (Code Civ. Proc.,

§ 389, subd. (a).)

39

set aside “any request for relief involving modifying or

eliminating the defending parties’ collective bargaining

agreements.” As such, UTLA remains a necessary party to this

lawsuit. (See Washington Mutual Bank v. Blechman (2007) 157

Cal.App.4th 662, 667–668 [“[a]n ‘“indispensable party is not

bound by a judgment in an action in which he was not joined”’”];

Save Our Bay, Inc. v. San Diego Unified Port Dist. (1996) 42

Cal.App.4th 686, 692 [a party is indispensable where the plaintiff

seeks some type of affirmative relief which, if granted, would

injure or affect the interest of a third party not joined].)

5. Appellants’ constitutional causes of action are not

moot.

Appellants allege that for a year-and-a-half, LAUSD policy

ensured students received an unconstitutional education, that

the policies harmed students, and that the resulting learning

deficits persist. Respondents contend that any constitutional

violations ended with distance learning, rendering appellants’

claims moot. While any violations may be over, the harm

allegedly remains. Having concluded the trial court can still

grant appellants a remedy for any past harms, we further

conclude appellants’ claims are justiciable.

5.1. Legal Principles

It is well settled that appellate courts will decide only

actual controversies. We will not opine on moot questions or

abstract propositions, nor declare principles of law that cannot

affect the matter at issue on appeal. (Giles v. Horn (2002) 100

Cal.App.4th 206, 226–227 (Giles).) “A case becomes moot when a

court ruling can have no practical impact or cannot provide the

parties with effective relief.” (Simi Corp. v. Garamendi (2003) 109

40

Cal.App.4th 1496, 1503; Panoche Energy Center, LLC v. Pacific

Gas & Electric Co. (2016) 1 Cal.App.5th 68, 95–96 (Panoche

Energy Center) [availability of “effectual relief” is the “pivotal

question” in mootness analysis].) By the same token, an “appeal

is not moot . . . where ‘a material question remains for the court’s

consideration,’ so long as the appellate decision can grant a party

to the appeal effectual relief.” (Panoche Energy Center, at p. 96;

see, e.g., San Diego Police Department v. Geoffrey S. (2022) 86

Cal.App.5th 550, 564 [appeal from an expired restraining order

was not moot where expired order could have collateral

consequences in future proceedings].)

Courts regularly find cases non-justiciable when injunctive

relief is sought but, pending appeal, the act sought to be enjoined

has been performed. (Giles, supra, 100 Cal.App.4th at p. 227.) In

Giles, for instance, plaintiffs sued to enjoin as illegal a county’s

expenditure of public funds to hire private contractors to provide

services under a state welfare program. Because those contracts

had expired and were fully performed pending appeal, the appeal

was dismissed as moot. (Id. at pp. 227–228; see also Daily

Journal Corp. v. County of Los Angeles (2009) 172 Cal.App.4th

1550, 1557 [case moot where challenged contract had expired, a

new bidding process took place, and court could not award the

contract to disappointed bidder]; Jennings v. Strathmore Public

Utility Dist. (1951) 102 Cal.App.2d 548, 549 [appeal, in action to

enjoin and declare invalid a public utility district contract after

the contract had been awarded and work was fully completed,

was moot].)

Similarly, an intervening change in the law—namely, the

repeal or modification of a statute under attack or subsequent

legislation correcting a challenged deficiency—that is the crux of

41

a case may result in mootness. (Jordan v. County of Los Angeles

(1968) 267 Cal.App.2d 794, 799; see, e.g., Sierra Club v. Board of

Supervisors (1981) 126 Cal.App.3d 698, 704–706 [challenge to

zoning ordinance based on inconsistency with general plan

became moot when, during pendency of appeal, a new general

plan was adopted with which the ordinance was consistent];

O’Neal v. Seabury (1938) 24 Cal.App.2d 308, 309–312 [ordinance

superseded by regulation made pursuant to state statute]; Equi

v. San Francisco (1936) 13 Cal.App.2d 140, 141–142 [lower court

held ordinance void; city appealed but ordinance repealed

pending appeal].)

For instance, a taxpayer association’s claim for injunctive

and declaratory relief to prevent future collection of a registration

fee from people engaged in home employment was rendered moot

when the city revoked the fee requirement. (Howard Jarvis

Taxpayers Assn. v. City of Los Angeles (2000) 79 Cal.App.4th 242,

249.) Likewise, the expiration of a challenged moratorium

ordinance rendered moot a lawsuit challenging the ordinance.

(Colony Cove Properties, LLC v. City of Carson (2010) 187

Cal.App.4th 1487, 1509 (Colony Cove).) And, when the California

Department of Forestry adopted a new policy that changed its

requirements and practices for timber harvest notices in a way

that corrected the challenged deficiencies in those notices, the

lack of an ongoing controversy rendered the case moot. (East Bay

Mun. Utility Dist. v. Department of Forestry & Fire Protection

(1996) 43 Cal.App.4th 1113, 1119, 1132.)

But “enactment of subsequent legislation does not

automatically render a matter moot.” (Davis v. Superior Court

(1985) 169 Cal.App.3d 1054, 1057, original italics.) The key

question is still whether a court can grant effective relief in a

42

case. (Syngenta Crop Protection, Inc. v. Helliker (2006) 138

Cal.App.4th 1135, 1158–1159; see also Schmidt v. Superior Court

(1989) 48 Cal.3d 370, 373 [federal legislation rendering invalid, in

future mobile home park, a policy restricting residency to persons

25 years old or older did not moot appeal challenging policy,

where plaintiffs sought damages for enforcement of rule prior to

effective date of federal legislation]; Vernon v. State of California

(2004) 116 Cal.App.4th 114, 120–121 [plaintiff’s claim that CAL–

OSHA regulations discriminated against him not rendered moot

by State Department of Industrial Relations grant of temporary

“‘experimental variance’” from compliance with regulation;

effectual relief attainable because if regulation declared invalid,

plaintiff would “not need to rely upon additional, speculative

variances that may or may not be granted”].)

In short, “where a court can afford the party at least some

relief, even if not all the relief originally requested, the court

should not dismiss a case as moot.” (City of Cerritos v. State of

California (2015) 239 Cal.App.4th 1020, 1031–1032.)

5.2. This matter is not moot because the court can

provide practical relief.

We conclude this matter is justiciable notwithstanding the

expiration of SB 98, section 43503, and the relevant side letter

agreements. Appellants claim that LAUSD’s distance-learning

policies unconstitutionally discriminated against certain Los

Angeles students, who continue to suffer academic harm. If the

trial court finds those claims have merit, it can fashion injunctive

relief to address students’ continuing learning deficits.

UTLA’s reliance on Cerletti v. Newsom (2021) 71

Cal.App.5th 760 is misplaced. In that case, taxpayers brought an

action seeking to declare as illegal spending under the Disaster

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Relief for Immigrants Project, which established a $75 million

Disaster Relief Fund to support undocumented Californians

impacted by COVID-19, who were ineligible for unemployment

insurance and disaster relief due to their immigration status. (Id.

at pp. 762–764.) Plaintiffs filed an application for a temporary

restraining order to halt the distribution of benefits, which the

trial court denied. (Id. at p. 764.) Plaintiffs appealed, but, while

the appeal was pending, all $75 million in project benefits were

distributed. (Id. at p. 765.) Our colleagues in Division Five held

that the issue of whether the trial court should temporarily

restrain the distribution of payments was moot because the

project had provided for one-time payments, and the payments

had been made more than a year earlier. (Id. at p. 766.) In other

words, the case was moot because the court could not afford the

plaintiffs a remedy. Here, however, plaintiffs have identified

potential remedies.

County of San Diego v. Brown is instructive. (County of San

Diego v. Brown (1993) 19 Cal.App.4th 1054 (Brown).) In Brown,

plaintiffs challenged the constitutionality of California’s mental

health funding scheme, and the trial court found the scheme

unconstitutional. After trial but before entry of judgment,

however, realignment legislation overhauled the system for

funding county mental health services, fundamentally changing

the way state mental health resources were allocated. (Id. at

p. 1087.) On appeal, defendants argued that the portions of the

judgment involving constitutional and statutory issues should be

reversed and dismissed as moot. (Id. at p. 1088.) They reasoned

that because realignment legislation had created an entirely new

system for distributing state mental health funds to counties and

44

had ended the challenged allocation system, the constitutionality

of the old system was irrelevant. (Ibid.)

The appellate court rejected that contention. It held that

even if realignment had mooted the forward-looking portions of

the judgment involving the constitutionality of funding and bed

allocations, the court was nevertheless required to resolve the

constitutional issues to determine the propriety of injunctive

relief based on the past violations. (Brown, supra, 19 Cal.App.4th

at p. 1088.) That is, the court concluded that, notwithstanding

the former statute’s repeal, if the former statute was

unconstitutional, the court still had the power to approve

injunctive relief to remedy resulting harms.

Finally, in Grier v. Alameda–Contra Costa Transit Dist., as

in this case, the plaintiffs asserted the illegality of an expired

labor contract. (Grier v. Alameda–Contra Costa Transit Dist.

(1976) 55 Cal.App.3d 325, 329–331.) There, a proposed class of

bus drivers and their union brought an action for declaratory

relief and damages, alleging that a provision of their collective

bargaining agreement with a transit district violated the Labor

Code by requiring drivers who arrived late to work without pay

for periods exceeding the time actually lost. (Ibid.) Although the

parties subsequently adopted a new collective bargaining

agreement that did not contain the provision, the legality of the

former provision was not moot because the question of damages

for any past violations of state law remained. (Ibid.)

Here, appellants allege that during the pandemic, LAUSD

adopted unconstitutional distance-learning policies that

inevitably and disparately harmed students. They further allege

that notwithstanding the return to in-person instruction, those

harms persist, and the court can fashion a remedy to alleviate

45

them. Accordingly, under the required standard of review, the

trial court erred by sustaining LAUSD’s demurrer to the first,

second, and eighth causes of action on mootness grounds.

5.3. Appellants can establish a prevailing statewide

standard based on the expired statute.

Respondents insist that the expiration of the remote-

learning statutes deprives appellants of a prevailing statewide

standard by which to measure the District’s distance-learning

policies—a necessary element of the eighth cause of action for

inter-district discrimination. But respondents cite no relevant

authority for that proposition. Both Colony Cove, supra, 187

Cal.App.4th 1487 and Gafcon, Inc. v. Ponsor & Associates (2002)

98 Cal.App.4th 1388 involved requests for declaratory relief; the

plaintiffs were not seeking remedies for past harms. (Colony

Cove, at p. 1492 [petitioners sought a writ of mandate directing

the city to vacate an ordinance]; Gafcon, at p. 1404 [“Because

declaratory relief operates prospectively only, rather than to

redress past wrongs, Gafcon’s remedy as against Ponsor lies in

pursuit of a fully matured cause of action for money, if any exists

at all.”].)

Plainly, the constitutionality of expired policies is

measured by reference to the statewide standards that existed

when the policies were in effect. Accordingly, the trial court erred

by sustaining LAUSD’s demurrer to the eighth cause of action on

mootness grounds.

5.4. The impact of the District’s remedial actions is a

question of disputed fact.

UTLA claims that appellants’ proposed relief has been

rendered moot by the remedial actions the District is already

46

undertaking. Although the court took judicial notice of various

documents relating to LAUSD’s remedial plans, it did not

judicially notice those documents for their truth, and it expressed

no opinion on whether the new programs eliminated the harm

the previous policies allegedly caused. We agree with appellants,

therefore, that the nature and impact of the District’s current

policies are questions of disputed fact that cannot be resolved at

the demurrer stage. (Fremont Indemnity Co. v. Fremont General

Corp. (2007) 148 Cal.App.4th 97, 113–114 [“‘“A demurrer is

simply not the appropriate procedure for determining the truth of

disputed facts.”’”].) 19

6. Appellants’ challenge to the complex civil court’s

automatic-stay rule is not justiciable.

Although we have concluded appellants’ constitutional

claims are justiciable, the same cannot be said of their challenge

to the complex civil court’s supposed automatic-stay rule.

Appellants insist that the complex civil court, which

handles class actions in Los Angeles, has an informal practice of

staying all filings until an initial case status conference can be

held. They claim this practice delayed their preliminary

injunction motion for an entire school year. Appellants contend

the practice conflicts with both the Civil Code and the Rules of

Court and ask us to invalidate it. Respondents argue any delay

19 For the same reason, we also deny appellants’ request for

judicial notice of an LAUSD press release about post-pandemic

problems and a Los Angeles Times article about deep pandemic

setbacks in math, which were not before the court below. LAUSD

opposed the request and objected to various newspaper articles

on the same topic cited in appellants’ opening brief.

47

was the result of appellants’ strategic choices rather than the

complex court’s filing practices, and, in any event, the prospective

injunctive relief appellants sought is no longer available to them,

rendering the issue moot. We decline to reach this issue. 20

Through their request for a preliminary injunction,

appellants were seeking to enjoin side letter agreements and

distance learning polices, all of which have now expired. Because

we cannot turn back the clock to offer appellants a remedy, the

issue is non-justiciable. (Giles, supra, 100 Cal.App.4th at p. 227.)

Nor is this a question of broad public interest that is likely

to evade timely review without our intervention. (See Steiner v.

Superior Court (2013) 220 Cal.App.4th 1479, 1486.) Appellants

had a remedy: They could have sought a writ of mandate. (Elkins

v. Superior Court (2007) 41 Cal.4th 1337, 1350–1351.) Although

they chose not to seek writ relief in this case, future plaintiffs

can.

20 In light of the non-justiciability of this claim, we do not

reach LAUSD’s contention that appellants forfeited this

argument by failing to challenge the practice’s validity below.

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DISPOSITION

The judgment is reversed as to LAUSD and UTLA, and the

matter is remanded to the trial court with directions to vacate its

orders sustaining the demurrers to the second amended

complaint and granting the motion to strike. The court is directed

to enter new orders denying the motion to strike, overruling

UTLA’s demurrer, overruling LAUSD’s demurrer as to the first,

second, and eighth causes of action, and sustaining LAUSD’s

demurrer without leave to amend as to the third, fourth, fifth,

sixth, and seventh causes of action. The judgment is affirmed as

to former Superintendent Beutner.

Appellants shall recover their costs on appeal.

CERTIFIED FOR PUBLICATION

CURREY, P. J.

We concur:

COLLINS, J.

MORI, J.

49