California Court of Appeals, Fourth District, First Division
PHYSICIANS COMMITTEE FOR RESPONSIBLE MEDICINE et al., Plaintiffs and Appellants,
LOS ANGELES UNIFIED SCHOOL DISTRICT et al., Defendants and Respondents.
from a judgment of the Superior Court of San Diego County No.
37-2017-00013190- CU-MC-CTL, Gregory W. Pollack, Judge.
& Page and Corey Allen Evans, for Plaintiffs and
Gutierrez, Preciado & House, Calvin House and Arthur C.
Preciado, for Defendant and Respondent Los Angeles Unified
Artiano Shinoff, Paul V. Carelli, IV and Justin C.
Manganiello, for Defendant and Respondent Poway Unified
Committee for Responsible Medicine (Physicians Committee)
filed a verified petition for writ of mandate seeking to
prohibit local educational agencies Los Angeles Unified
School District (LAUSD) and Poway Unified School District
(PUSD) from serving processed meats in their schools and
directing them to modify wellness policies to reflect the
goal of reducing or eliminating processed meats. The local
educational agencies demurred, arguing they were under no
statutory obligation to reduce or eliminate processed meat
from schools. The trial court granted the demurrers.
Physicians Committee appeals, contending the local
educational agencies' failure to reduce or eliminate
processed meat from schools abuses their discretion in
developing statutorily-mandated, local wellness policies. We
disagree and affirm the judgment.
exhausting administrative remedies, Physicians Committee
filed a verified petition for writ of mandate. Following an
initial round of demurrers, Physicians Committee filed a
First Amended Verified Petition (FAVP) naming three
defendants: the California Department of Education (CDE),
LAUSD, and PUSD. Its goal is to prevent LAUSD and PUSD
"from serving processed meat to children due to the
recognized association between eating processed meat (e.g.
hotdogs, sausages, luncheon meat, bacon, and turkey bacon)
and developing cancer, diabetes, and cardiovascular
The FAVP Allegations
93 of the FAVP alleges that under the Child Nutrition and WIC
Reauthorization Act of 2004, and the Healthy, Hunger-Free
Kids Act of 2010, local educational agencies have a duty to
issue local wellness policies that meet minimum standards by
including goals and basing the wellness policies on evidence
and dietary guidelines. Paragraph 95 of the FAVP alleges the
local educational agencies serve processed meats, and
paragraph 96 alleges they fail to identify the serving of
processed meat as a problem or to discuss how and when
processed meat will be reduced or phased out of the school
menus. Paragraph 97 alleges these failures violate the
Healthy, Hunger-Free Kids Act of 2010 and violate the school
districts' local wellness policies. Paragraph 98 of the
FAVP alleges PUSD violates its own wellness policy of
promoting optimal health and supporting student health and
petition seeks injunctive and declaratory relief, directing
LAUSD and PUSD to stop serving meat to children in school
meals and to modify their wellness policies to remove
processed meat from school lunches.
and PUSD separately demurred to the FAVP, arguing Physicians
Committee did not allege a clear, mandatory, statutory duty
that they failed to perform. Physicians Committee opposed the
hearing, Physicians Committee claimed that federal law
requires schools to discuss and identify problem foods, based
on evidence and the guidelines. It reasoned that it was
undisputed that processed meat is a problem food based on
scientific literature identified in the petition; thus, the
absence of any discussion about it in the wellness policies
demonstrated a failure to comply with federal law.
court asked Physicians Committee to point to a statute that
requires a written discussion of such foods to appear in
local wellness policies, but Physicians Committee never did.
court granted the demurrers without leave to amend and
entered a judgment of dismissal. This appeal timely followed.
for Judicial Notice
Committee renews its opposition to the requests for judicial
notice filed by LAUSD and PUSD in support of their demurrers.
The majority of Physicians Committee's arguments center
around procedural defects it contends should have prevented
the trial court from granting the requests. We review
judicial notice rulings for abuse of discretion (CREED-21
v. City of San Diego (2015) 234 Cal.App.4th 488, 520),
and we conclude the trial court did not abuse its discretion
by granting the requests for judicial notice.
filed a request for judicial notice, citing Evidence Code
section 452, subdivisions (a) and (c). The request stated it
was attaching "Exhibits 1 through 8," but it listed
and attached nine documents. The ninth document was the LAUSD
local wellness policy.
also requested judicial notice. Its request cited Evidence
Code section 452 and noted the relevant documents were
regulations and legislative enactments issued under the
authority of a governmental entity or consisting of official
acts of that entity. It identified its Board Policy 5.31
(School Wellness Policy) and Administrative Procedure 5.31.1
(School Wellness Policy), and the CDE Nutrition Services
Division Decision of Appeal in the Physicians Committee
matter (CDE Decision). PUSD attached the documents to the
memorandum in support of its demurrer, not to the request for
Committee challenges LAUSD's request for judicial notice
on three grounds. First, it contends LAUSD's notice of
demurrer violated Code of Civil Procedure section 1010
because it did not state it was based on the request for
judicial notice or on facts of which the court could take
judicial notice. However, LAUSD's notice of demurrer
substantially complied with Code of Civil Procedure section
1010 because it apprised Physicians Committee of the
documents upon which it would rely for its demurrer by
serving those documents with the related notice of motion and
motion. (See Broderick v. Cochran (1912) 18 Cal.App.
Physician's Committee contends LAUSD's request for
judicial notice violated Rule of Court number 3.1113(l)
because, it alleges, LAUSD attached its wellness policy to
the request for judicial notice without mentioning that
exhibit in the request. However, LAUSD's request for
judicial notice complies with California Rule of Court number
3.113(l) because it asks the court to take judicial notice
"of the following documents" and identifies the
wellness policy by name on the list of items it supplied.
Although it states that "the following documents... are
attached as Exhibits 1 through 8 hereto," it lists nine
documents, and nine documents are attached. Thus, the
typographical error is not procedurally fatal.
Physicians Committee argues that neither LAUSD nor PUSD
provided a specific argument for why their attachments,
including their wellness policies, fell within Evidence Code
section 452, subdivisions (a) and (c).
Constitution and the Legislature have ceded substantial
discretionary control over education to local school
districts. (Ed. Code,  §§ 35160, 35160.1, subd.
(b), 35161; Governing Bd. of Ripon Unified School Dist.
v. Commission on Professional Competence (2009) 177
Cal.App.4th 1379, 1385.) Thus, school board actions can be
official acts, and school board policies and regulations may
be recognized by judicial notice. (Evid. Code, § 452,
subds. (a) & (c).) Physicians Committee does not actually
dispute that the adoption of wellness policies are official
acts of a legislative agency. Their adoption is appropriately
judicially noticed under Evidence Code section 452,
subdivision (c). Physicians Committee also does not argue
that the statutes and regulations it referenced in its FAVP
and which LAUSD attached to its request for judicial notice
are not properly placed within Evidence Code section 452,
subdivision (a). The trial court did not abuse its discretion
when taking judicial notice of these documents. Accordingly,
we likewise take judicial notice over the statutory and
regulatory materials, as well as the wellness policies.
(Evid. Code, § 459.)
Committee argues additionally that judicial notice of the CDE
Decision was improper because it only supports PUSD's
position if its contents are considered for their truth. We
need not reach a conclusion as to whether its consideration
was an abuse of discretion because we affirm the ...