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Norina Mooney v. Richard Garcia

June 26, 2012

NORINA MOONEY, PLAINTIFF AND APPELLANT,
v.
RICHARD GARCIA, AS PRESIDENT, ETC., ET AL., DEFENDANTS AND RESPONDENTS.



Trial Court: Santa Clara County Superior Court Trial Judge: Honorable Mark H. Pierce Super. Ct. No. CV202047)

The opinion of the court was delivered by: Mihara, J.

CERTIFIED FOR PUBLICATION

(Santa Clara County

Appellant Norina Mooney challenges the trial court's denial of her writ petition seeking to compel respondents Richard Garcia, president of the San Jose Unified School District board (the Board), and Vincent Matthews, San Jose Unified School District superintendent, (collectively SJUSD) to place on the Board's agenda an item she proposed. She maintains that SJUSD had a ministerial duty under Education Code section 35145.5 to place her proposed item on the agenda. SJUSD contends that mandate relief is unavailable because the statute granted it a measure of discretion in making a decision as to whether a proposed item was "directly related to school district business" within the meaning of the statute. SJUSD contends that it did not abuse its discretion in rejecting the proposed item. We agree with SJUSD and affirm the trial court's order denying Mooney's writ petition.

I. Education Code Section 35145.5

Education Code section 35145.5 provides, in its entirety: "It is the intent of the Legislature that members of the public be able to place matters directly related to school district business on the agenda of school district governing board meetings. Every agenda for regular meetings shall provide an opportunity for members of the public to directly address the governing board on any item of interest to the public, before or during the governing board's consideration of the item, that is within the subject matter jurisdiction of the governing board. Governing boards shall adopt reasonable regulations to insure that this intent is carried out. The regulations may specify reasonable procedures to insure the proper functioning of governing board meetings. [¶] This subdivision shall not preclude the taking of testimony at regular meetings on matters not on the agenda which any member of the public may wish to bring before the board, provided that, except as authorized by Section 54954.2 of the Government Code, no action is taken by the board on those matters at the same meeting at which the testimony is taken. Nothing in this paragraph shall be deemed to limit further discussion on the same subject matter at a subsequent meeting."

II. Factual and Procedural Background

Mooney is the parent of a child who attends Castillero Middle School in the San Jose Unified School District. On March 18, 2011, the "Gay-Straight Alliance," a student club at Castillero Middle School, hosted "Rainbow Day" to "promote anti-bullying awareness for gay, lesbian, bisexual and transgendered students." "Rainbow Day" was a "student-led" and "student-initiated" activity.

Mooney subsequently submitted to SJUSD a request that it place on the Board's agenda an item proposing that "Rainbow Day" be changed to an "all inclusive anti-bullying day." Her request was denied on the ground that the proposed item was not within the Board's "subject matter jurisdiction" because the Board "does not direct specific activities at individual schools."

On May 31, 2011, Mooney filed a verified writ of mandate petition under Code of Civil Procedure section 1085 seeking a writ compelling SJUSD to place her proposed item on the Board's agenda. The court denied her petition, and Mooney timely appealed.

III. Discussion

Mooney contends that SJUSD had a ministerial duty to place her proposed item on the Board's agenda. SJUSD counters that its "ministerial duty" required only that it "receive and consider" her request, and it had discretion, which it did not abuse, to determine that the proposed agenda item was not "directly related to school district business." (Italics omitted.)

"A writ of mandate may be issued by any court to any inferior tribunal, corporation, board, or person, to compel the performance of an act which the law specially enjoins, as a duty resulting from an office, trust, or station . . . ." (Code Civ. Proc., § 1085, subd. (a).) "[M]andamus will not lie to control an exercise of discretion, i.e., to compel an official to exercise discretion in a particular manner. [Citation.] Generally, mandamus may only be employed to compel the performance of a duty that is purely ministerial in character." (Morris v. Harper (2001) 94 Cal.App.4th 52, 62, italics added.) "Mandate will not issue if the duty is not plain or is mixed with discretionary power or the exercise of judgment." (Los Angeles County Prof. Peace Officers' Assn. v. County of Los Angeles (2004) 115 Cal.App.4th 866, 869 (LACPPOA), italics added.) "Even if mandatory language appears in the statute creating a duty, the duty is discretionary if the [entity] must exercise significant discretion to perform the duty. [Citation.] We examine the entire statutory scheme to determine whether the [entity] must exercise significant discretion to perform a duty." (Sonoma Ag Art v. Department of Food and Agriculture (2004) 125 Cal.App.4th 122, 127.)

"Whether [a statute] impose[s] a ministerial duty, for which mandamus will lie, or a mere obligation to perform a discretionary function is a question of statutory interpretation." (AIDS Healthcare Foundation v. Los Angeles County Dept. of Public Health (2011) 197 Cal.App.4th 693, 701.) "In reviewing the trial court's ruling, we will affirm if substantial evidence supports its findings and judgment. To the extent questions of law such as ...


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