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Emily Newdow et al v. Edmund G. Brown

November 20, 2012


(Super. Ct. No. 34201000085550CLCRGDS)

The opinion of the court was delivered by: Robie , Acting P. J.

Newdow v. Brown



California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

In this taxpayer action under Code of Civil Procedure section 526a,*fn1 plaintiffs seek (primarily) to enjoin the use of the best-interest-of-the-child standard in contested child custody proceedings on the ground that the application of that standard results in the illegal expenditure and waste of public money. In substance, plaintiffs seek to have the courts, by means of the relief granted in this action, judicially supplant the best-interest-of-the-child standard promulgated by the California Legislature with an alternate standard they believe would be better for parents and for children, namely, that every "fit" parent is entitled to equal custody (i.e., 50 percent of the custodial time with the child).

As we will explain, plaintiffs are seeking relief from the wrong branch of government. The judicial branch does not have the power, under the guise of enjoining allegedly illegal and wasteful government spending, to fundamentally rewrite California family law in the way plaintiffs ask us to do. The trial court here was correct in concluding on demurrer that plaintiffs' action "is not a proper invocation of [section] 526a." Because plaintiffs have failed to allege specific facts and reasons supporting their claim that the best-interest-of-the-child standard (and the other aspects of California family law that plaintiffs challenge) results in the illegal expenditure or waste of public money, we will affirm the judgment of dismissal.


"As this appeal is from a judgment of dismissal after the trial court sustained without leave to amend [defendants'] demurrer[s], we [must] state the facts as alleged in plaintiff[s'] complaint." (Herzberg v. County of Plumas (2005) 133 Cal.App.4th 1, 7, fn. 4.) Unfortunately, the "facts" alleged in plaintiffs' complaint are few and far between. Ignoring -- as we must -- the contentions, deductions and conclusions of fact or law that fill the 63-page first amended complaint, and treating only the material facts properly pleaded therein as having been admitted by the demurrers (Blank v. Kirwan (1985) 39 Cal.3d 311, 318), we discern that this action is predicated almost entirely on the fact that the California Legislature has decided that in proceedings involving the right to custody of a minor child, custody is to be granted "according to the best interest of the child."*fn2 (Fam. Code, § 3040, subd. (a).) According to plaintiffs, this "arbitrary and vague" standard is unconstitutional for a number a reasons, and "as family law courts attempt to divvy up custody of children according to [this] standard," the result is the illegal expenditure and waste of public money. Plaintiffs seek not only a judgment declaring that the best-interest-of-the-child standard is unconstitutional and that funds spent on proceedings applying that standard are spent "illegally and wastefully," but also a judgment requiring defendants,*fn3 "absent a compelling interest to the contrary, [to] ensure that all fit parents have a right to 50% custody of their children when custody is to be split between two fit parents."*fn4 Stated more broadly, plaintiffs seek "[t]o enjoin Defendants from utilizing its [sic] Family Court system in its current guise, in which the aforementioned constitutional and statutory violations occur."

Plaintiffs filed their original complaint in this action in August 2010. The executive defendants and the judicial defendants filed separate demurrers to the complaint. Before the hearing on those demurrers, plaintiffs filed an amended complaint in March 2011. Again, the executive defendants and the judicial defendants filed separate demurrers. Among various other arguments by both groups of defendants, the executive defendants asserted that "[t]he issues raised in the First Amended Complaint are not properly litigated by way of a taxpayer action." More specifically, they argued that "taxpayer standing does not lie where, as here, the dispute is essentially 'political' in nature and involves the exercise of governmental discretion."

The trial court agreed with this argument, concluding that "the 'best interests of the child' standard . . . is a component of the Family Code's comprehensive legislative scheme for resolving questions of child custody. As Defendants argue, the development of legal standards and procedures to be applied in making custody determinations involves consideration of numerous complex and nuanced policy concerns . . . . This weighing of policy considerations is a task within the purview of the Legislature, not the judiciary. . . . [¶] Plaintiffs' lawsuit is not a proper invocation of [section] 526a." Accordingly, the court sustained the demurrers without leave to amend and entered a judgment of dismissal in October 2011. Plaintiffs timely appealed.


On plaintiffs' appeal from the judgment of dismissal, "[o]ur review of the legal sufficiency of the complaint is de novo, 'i.e., we exercise our independent judgment about whether the complaint states a cause of action as a matter of law.'" (Herzberg v. County of Plumas, supra, 133 Cal.App.4th at p. 12.) "[G]eneral allegations and legal conclusions . . . are not sufficient to support a taxpayer action." (Id. at p. 23, fn. 15.) "[R]ather, the plaintiff must cite specific facts and reasons for a belief that some illegal [or wasteful] expenditure or injury to the public fisc is occurring or will occur." (Waste Management of Alameda County, Inc. v. County of Alameda (2000) 79 Cal.App.4th 1223, 1240.)

At the outset, plaintiffs argue that claims of illegality and waste are distinct under section 526a and must be analyzed separately. We agree. "Waste is money that is squandered . . . ." (Chiatello v. City and County of San Francisco (2010) 189 Cal.App.4th 472, 482.) "Even when '"done in the exercise of a lawful power,"' public spending may qualify as waste if it is '"completely unnecessary,"' or '"useless,"' or 'provides no public benefit.'" (Ibid.) Thus, we address separately plaintiffs' allegations that the current family law system results in the illegal expenditure of public money and the waste of public money.



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