The Law Offices of Darryl Yorkey Atkinson, Andelson, Loya, Ruud & Attn: YORKEY, DARRYL D Romo a Professional Law Corporation PO Box 963 Attn: Bryant, Guy A Berkeley, CA 94709. (075 Hopyard Road Suite 210 Pleasanton, CA 94588-3361 Superior Court of California, County of Alameda Wiley W. Manuel Courthouse Epple No, RG18922005 Plaintii/Petitionens) Order vs, Demurrer to the First Amended Complaint Overruled ty Board of Education Defendant/Respondent’s) The Demurrer to the First Amended Complaint was set for hearing on 02/04/2020 at 02:00 PM in Department 106 before the Honorable Karin § Schwartz. The Tentative Ruling was published and was contested The matter was argued and submitted, and good cause appearing therefore, IT IS HEREBY ORDERED THAT: Petitioner Cedric Epple seeks a writ of mandate commanding respondent the Alameda County Board of Education ("ACBOE") to set aside its Order of August 8, 2017 affirming a June 22, 2017 decision of Real Party in Interest Albany Unified School District ("AUSD") expelling Epple under Education Code section 48915, subdivision (¢). ACBOE and AUSD now jointly demur to Epple's operative Second Amended Petition ("SAP") on the grounds that the SAP fails to state facts giving rise to a cause of action and is uncertain, (Code of Civ. Proc. ["CCP"] § 430.1(e), ().) AUSD filed an answer on 11/26/2019, ACBOE filed an answer on 1/31/2020. For the reasons discussed below, the demurrer is OVERRULED. LEGAL STANDARDS The standard for construing a complaint or petition on demurrer is long-settled: "We treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of Fact or law. [Citation.] We also consider matters which may be judicially noticed. [Citation.] Further, we give the complaint a reasonable interpretation, reading it as a whole and its parts in their context {Citation.|" (Blank v, Kirwan (1985) 39 Cal 3d 311, 318.) Pleadings commencing a civil proceeding must "set forth the essential facts of the plaintiff's case with reasonable precision and with particularity sufficient to acquaint the defendant with the nature, source, and extent of the plaintiff's claim." (Prue v. Brady Company/San Diego, Ine. (2015) 242 Cal. App 4th 1367, 1376.) A special demurrer for uncertainty is strictly construed because ambiguities of pleading can be resolved through modem discovery procedures, (Chen v. Berenjian (2019) 33 Cal. App Sth 811, 822; Khoury v Maly’s of Cal.. Inc, (1993) 14 Cal.App th 612, 616.) A demurrer for uncertainty will be sustained only when a pieading is so unintelligible thatthe opposing party cannot reasonably determine what s must be admitted or denied or what counts or claims are directed against him or her. (Id OrderWilliams v. Beechnut Nutrition Corp. (1986) 185 Cal. App.34 135, 139 ["[W]here the complaint contains substantive factual allegations sufficiently apprising defendant of the issues it is being asked to meet, a demurrer for uncertainty should be overruled or plaintiff given leave to amend,"]; see also Weil & Brown, Cal, Practice Guide: Civ. Proc. Before Trial (The Rutter Group 2018 ed.) §§ 7:84 to 7-88.) A defendant demurring on grounds of uncertainty has an obligation to specify the particulars of the pleading that are uncertain. (See Fenton v. Groveland Comm. Servs. Dist. (1982) 135 Cal. App.3d 797, 809.) DISCUSSION The Code of Civil Procedure authorizes the courts to issue a writ of mandate to vacate adjudicatory decisions by state and local agencies. (CCP §1094.5.) Proceedings in administrative mandate are "the proper way to invoke judicial review of an administrative decision when the decision resulted from a proceeding in which by law a hearing is required to be given, evidence is required to be taken, and discretion in the determination of facts is vested in the agency.” (Y.K.A. Industries, Inc. v. Redevelopment Ageney of City of San Jose (2009) 174 Cal. App 4th 339, 359 fin.22, citing Bunnett v The Regents ofhte Univ. of Cal, (1995) 35 Cal. App.dth 843, 848.) When reviewing an agency's decision on writ of administrative mandate, the court's inquiry is limited to "whether the respondent has proceeded without, or in excess of, jurisdiction: whether there was a fair trial; and whether there was any prejudicial abuse of discretion.” (CCP § 1094.5(b).) If the court grants the writ, it may only order the ageney to set aside its order or decision and to take mandatory actions, and may not limit the agency's discretion on remand. (CCP § 1094.5(f).) Inthe SAP, Epple alleges that, in 2017, he was a student enrolled at Albany High School, part of the AUSD. (SAP §1.) He created a private Instagram account in which he posted material that "ranged from immature and tasteless to overtly racist" and depicted "[sleveral AHS students... in a negative light." (SAP § 2.) The account became more widely known in March 2017, and Epple was suspended and recommended for expulsion, (SAP € 3.) Members of the community held rallies, sit-ins, and other anti-racism demonstrations, and many called for the school to expel Epple. (SAP § 4.) AUSD's ‘governing board held an expulsion hearing over three dates in June 2017. (SAP 45.) Five board members sat for the appeal-three voted to expel Epple and two recused themselves. (RIN Ex. A at p.5.) After his expulsion hearing, Epple allegedly discovered that AUSD board member Kim Trutane had communicated with community groups organizing anti-racism demonstrations and communicated her support for the students targeted by Epple's Instagram posts. (SAP ¢ 6.) He contends that these communications "demonstrate]] at least an appearance of bias against" Epple. (SAP 6.) Epple appealed the AUSD decision to the ACBOE, and the ACBOE held a hearing on August 8, 2017, (SAP 8.) Epple presented evidence regarding Trutane's connections to the anti-racism community groups and argued that he had been denied a fair hearing before an unbiased decisionmaker. (SAP € 8.) ACBOE voted to uphold the AUSD decision expelling Epple. (SAP *8.) On September 11, 2017 ACBOE sent a written order to that effect and adopting the following sentence as its entire "Findings of Fact." "The Alameda County Board of Education voted 7:0 that the [sic] there was substantial evidence to support the decision and the student a fair hearing [sic] and that the district board did not abused [sic] its discretion." (SAP 9 & Ex.B.) Epple alleges that ACBOE either ignored or failed to adequately consider the evidence of bias. (SAP 48.) Epple has exhausted his remedies in administrative and now brings this action for judicial review The Petition contains allegations sufficient to place ACBOE and AUSD on notice of the nature, extent, and scope of Epple's claims. He alleges that he was denied a "fair trial" before AUSD because he was denied an unbiased decisionmaker. (CCP § 1094.5(b); ef. Nasha v. City of Los Angeles (2004) 125 Cal. App 4th 470, 483 [a party can prove his or her administrative hearing was unfair if be “establish[ing] "an unacceptable probability of actual bias on the part of those who have actual decisionmaking power over their claims.""}, quoting BreakZone Billiards v. City of Torrance (2000) 81 Cal. App.4th 1205, 1236.) He alleges that he presented this evidence to ACBOE and that it erred by not reversing the expulsion order on that basis. Effectively, then, he contends that ACBOE abused its discretion by failing to consider his Nasha/procedural due process argument andior that ACBOE made an implicit finding of no bias that was not supported by evidence. Both contentions that may properly be reviewed by this court on a petition for writ of administrative mandate. As this court noted before, ACBOE's single-sentence "findings of fact” may also be insufficient. As the California Supreme Court ruled, “implicit in section 1094.5 is a requirement that the ageney which Orderrenders the challenged decision must set forth findings to bridge the analytic gap between the raw evidence and ultimate decision or order.” (Topanga Assn. for a Scenic Community v. County of Los Angeles (1974) 11 Cal 3d 506, 315.) The Court explained: "findings enable the reviewing court to trace and examine the agency's mode of analysis." (Id. at p.516.) If the County Board's decision is not sufficient to permit meaningful judicial review, then "an appropriate remedy is to remand the matter so that proper findings can be made." (Glendale Mem. Hosp. & Health Ctr, v. Dept. of Mental Health (2001) 91 Cal. App.4th 129, 140.) In their demurrer papers, AUSD and ACBOE request judicial notice of an August 8, 2017 staff report on letterhead of the Office of the Superintendent. (RIN Ex. F at p.1.) They argue that these papers. show that the ACBOE considered the Issues raised by Epple and that ACBOE followed proper procedures with is hearing and decision. Even were the court to take judicial notice of this document, the court could not determine whether this document is adequate to solve the Topanga problem. Neither the SAC nor other judicially noticeable documents currently before the court confirm that the Board relied on this document and adopted its findings. ORDER ACBOE and AUSD's requests for judicial notice are DENIED because the requested documents are not relevant to the grounds for decision on this motion, (Ragland y, U.S. Bank Nat, Assn, (2012) 209 Cal. App-lth 182, 194.) ACBOE and AUSD's joint demurrer is OVERRULED. Parties to meet and confer on next steps. The court will set a Case Management Conference to discuss next steps if the parties are unable to agree. Dated: 02/04/2020 Tudge Karin S Schwartz OrderSHORT THLE CASE NUMBER: Epple VS Alameda County Board of Education RG18922005 ADDITIONAL ADDRESSES FAGEN FRIEDMAN & FULFROST LLP Attn: Smith, Cynthia M 520 Capitol Mall, Suite 400 Sacramento, CA 95814 Fagen Friedmand & Fulfrost, LLP Att: Powell, Joanna 70 Washington Street Suite 205 Oakland, CA 94607 Order