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Physicians Committee for Responsible Medicine v. Los Angeles Unified School District

California Court of Appeals, Fourth District, First Division

December 12, 2019

LOS ANGELES UNIFIED SCHOOL DISTRICT et al., Defendants and Respondents.

          APPEAL from a judgment of the Superior Court of San Diego County No. 37-2017-00013190- CU-MC-CTL, Gregory W. Pollack, Judge. Affirmed.

          Evans & Page and Corey Allen Evans, for Plaintiffs and Appellants.

          Gutierrez, Preciado & House, Calvin House and Arthur C. Preciado, for Defendant and Respondent Los Angeles Unified School District.

          Artiano Shinoff, Paul V. Carelli, IV and Justin C. Manganiello, for Defendant and Respondent Poway Unified School District.

          HUFFMAN, J.


         Physicians 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.


         After 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), [1] 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 disease."

         A. The FAVP Allegations

         Paragraph 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 wellness.

         The 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.

         B. The Demurrers

         LAUSD 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 demurrers.

         At 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.

         The 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.

         The court granted the demurrers without leave to amend and entered a judgment of dismissal. This appeal timely followed.



         Requests for Judicial Notice

         Physicians 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.[2]

         LAUSD 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.

         PUSD 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 judicial notice.

         Physicians 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. 202, 204.)

         Next, 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.

         Finally, 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).

         The Constitution and the Legislature have ceded substantial discretionary control over education to local school districts. (Ed. Code, [3] §§ 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.)

         Physicians 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 ...

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