Opinion
B319435
07-17-2023
ROBERT H. NEWELL, Plaintiff and Appellant, v. GAVIN NEWSOM, as Governor, etc., et al., Defendants and Respondents.
Robert H. Newell, in pro. per., for Plaintiff and Appellant. Rob Bonta, Attorney General, Cheryl L. Feiner, Senior Assistant Attorney General, Gregory D. Brown, Supervising Deputy Attorney General, and Jacquelyn Y. Young, Deputy Attorney General, for Defendants and Respondents.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, No. 21GDCV01153 Joel L. Lofton, Judge.
Robert H. Newell, in pro. per., for Plaintiff and Appellant.
Rob Bonta, Attorney General, Cheryl L. Feiner, Senior Assistant Attorney General, Gregory D. Brown, Supervising Deputy Attorney General, and Jacquelyn Y. Young, Deputy Attorney General, for Defendants and Respondents.
PERLUSS, P. J.
In a lawsuit naming as defendants Governor Gavin Newsom and Attorney General Rob Bonta, sued in their official capacities, Robert H. Newell alleged California's child support statutes violate the due process and equal protection guarantees of the United States Constitution to the extent they deny an individual the ability to unilaterally relinquish the financial obligations of parenthood. The trial court sustained the Governor and Attorney General's demurrer to the first amended complaint without leave to amend and entered judgment in favor of the state officials, ruling that Newell, neither a parent nor an expectant parent potentially subject to a child support order, lacked standing.
On appeal Newell contends he has standing as a sexually active adult male who must incur the cost of purchasing condoms or abstain from engaging in consensual sexual intercourse to prevent being subject to a child support order in the event an unplanned pregnancy results and his partner refuses to terminate the pregnancy or surrender the child for adoption. Alternatively, Newell requests that we reverse the judgment and remand with directions to allow him to amend his complaint to allege taxpayer standing under Code of Civil Procedure section 526a (section 526a) or common law public interest standing.
Although we agree the trial court properly found Newell lacked standing as an aggrieved or beneficially interested person, Newell has reasonably demonstrated on appeal that he could amend his complaint to allege taxpayer standing under the broad provisions of section 526a. Nevertheless, because Newell's constitutional claims fail as a matter of law, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
1. The Operative First Amended Complaint
In his operative first amended complaint Newell, a selfrepresented litigant, alleged California's child support statutes- Family Code sections 4000, 4002, and 4055-violated the due process and equal protection provisions of the Fourteenth Amendment to the United States Constitution to the extent they prohibit one parent from unilaterally surrendering a child for adoption and forcing him or her to financially support his or her child whether or not that individual wanted the child to be born.
Family Code section 4000 provides, "If a parent has the duty to provide for the support of the parent's child and willfully fails to so provide, the other parent, or the child by a guardian ad litem, may bring an action against the parent to enforce the duty." Section 4002 allows the county to proceed on behalf of the child to enforce the child's right of support against a parent. Section 4055 provides the state uniform guideline for calculating child support.
Newell alleged he had standing to challenge the constitutionality of those statutes because he purchased condoms solely for contraceptive purposes and thus suffered, and will continue to suffer, a pecuniary loss for the sole purpose of avoiding California's child support statutes. Moreover, he alleged, because condoms "are not 100 percent effective," he remains at risk of being subject to such laws, chilling his right to engage in consensual sexual intercourse and causing him substantial emotional distress in that he fears one day he might be forced to financially support a child he does not want.
In his prayer for relief Newell sought an injunction preventing the enforcement of Family Code sections 4000, 4002 and 4055 to the extent they prevent individuals from unilaterally renouncing the rights and financial responsibilities of parenthood. He also sought a judicial declaration that the statutes violated the due process and equal protection clauses of the United States Constitution in that they prevented individuals, mostly men due to their inability to force a woman to terminate a pregnancy, from unilaterally disavowing the obligation to support their child.
2. The Demurrer and the Trial Court's Ruling
The Governor and the Attorney General demurred to the amended complaint, arguing, in part, Newell lacked standing to state any of his alleged causes of action: Newell failed to allege any facts that he was facing "any current or imminently forthcoming child support orders, or even, for that matter, any pending pregnancy or claim for parentage." His allegations that he "could be" aggrieved by a future support order, they argued, were entirely speculative and hypothetical. The Governor and Attorney General also argued the amended complaint failed to allege facts demonstrating they were the proper defendants charged with enforcement of the support statutes and the complaint failed to state facts constituting a cause of action.
Newell opposed the demurrer, arguing he adequately alleged he had sustained emotional injury (emotional distress) and pecuniary injury (cost of purchasing condoms). He also argued he had standing to pursue his claims in the public interest-preventing the enforcement of unconstitutional laws- and urged the court to interpret his complaint as a petition for mandamus under Code of Civil Procedure section 1085 if it found that was the only basis to assert a cognizable cause of action.
On the merits Newell argued the fundamental right to decide whether to become a parent was inherent in the constitutional right to obtain an abortion prior to viability.
Newell's first amended complaint was filed prior to the decision of the United States Supreme Court in Dobbs v. Jackson Women's Health Organization (2022) 597 U.S. , which overruled Roe v. Wade (1973) 410 U.S. 113 and Planned Parenthood v. Casey (1992) 505 U.S. 833. In November 2022 California voters passed Proposition 1, amending the California Constitution to expressly protect from state interference an individual's "reproductive freedom," including the "fundamental right to choose to have an abortion." (See Cal. Const., art. 1, § 1.1.)
However, an individual who participates in conceiving a child may be subject to child support obligations against his or her will in the event the woman carrying the child refuses to terminate the pregnancy or surrender the child for adoption. Newell argued Family Code sections 4000, 4002 and 4055, to the extent they fail to recognize an individual's "fundamental right" to unilaterally surrender his or her child for adoption and avoid being subject to support, impermissibly infringed that right. In addition, Newell asserted, such laws violate equal protection guarantees because a woman can escape them by deciding to terminate a pregnancy while her partner, unable to compel termination of a pregnancy without the pregnant person's consent, cannot.
The trial court sustained the demurrer to the amended complaint without leave to amend, ruling Newell lacked standing. The court explained Newell's allegations of potential future harm were entirely speculative because Newell, who was not a father and had not identified an expected child, had not been, and was not imminently subject to, a child support or parentage order. The court also rejected Newell's claim he had standing as a citizen to enforce a public duty, concluding public benefit standing, sometimes recognized in mandamus actions, was not available as Newell had not alleged, and could not plead facts supporting, a mandamus action. The court did not reach the Governor and Attorney General's argument the constitutional claims failed as a matter of law.
The court entered judgment on March 25, 2022. Newell appealed.
Although Newell filed a premature notice of appeal from the March 15, 2022 minute order sustaining the demurrer without leave to amend, we treat the appeal as timely filed following the March 25, 2022 entry of judgment. (Cal. Rules of Court, rule 8.104(d)(2).)
DISCUSSION
1. Standard of Review
A demurrer tests the legal sufficiency of the factual allegations in a complaint. We independently review the trial court's ruling on a demurrer and determine de novo whether the complaint alleges facts sufficient to state a cause of action or discloses a complete defense. (Mathews v. Becerra (2019) 8 Cal.5th 756, 768; T.H. v. Novartis Pharmaceuticals Corp. (2017) 4 Cal.5th 145, 162.) We assume the truth of the properly pleaded factual allegations, facts that reasonably can be inferred from those expressly pleaded and matters of which judicial notice has properly been taken. (Evans v. City of Berkeley (2006) 38 Cal.4th 1, 20; accord, Centinela Freeman Emergency Medical Associates v. Health Net of California, Inc. (2016) 1 Cal.5th 994, 1010; Schifando v. City of Los Angeles (2003) 31 Cal.4th 1074, 1081.)
We affirm the judgment if it is correct on any ground stated in the demurrer, regardless of the trial court's stated reasons (Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 967 ; Regina v. State of California (2023) 89 Cal.App.5th 386, 396-397), but liberally construe the pleading with a view to substantial justice between the parties. (Code Civ. Proc., § 452; Ivanoff v. Bank of America, N.A. (2017) 9 Cal.App.5th 719, 726; see Schifando v. City of Los Angeles, supra, 31 Cal.4th at p. 1081.)
"'Where the complaint is defective, "[i]n the furtherance of justice great liberality should be exercised in permitting a plaintiff to amend his [or her] complaint."'" (Aubry v. Tri-City Hospital Dist., supra, 2 Cal.4th at p. 970.) A plaintiff may demonstrate for the first time to the reviewing court how a complaint can be amended to cure the defect. (Code Civ. Proc., § 472c, subd. (a) ["[w]hen any court makes an order sustaining a demurrer without leave to amend the question as to whether or not such court abused its discretion in making such an order is open on appeal even though no request to amend such pleading was made"]; see Sierra Palms Homeowners Assn. v. Metro Gold Line Foothill Extension Construction Authority (2018) 19 Cal.App.5th 1127, 1132 [plaintiff may carry burden of proving an amendment would cure a legal defect for the first time on appeal]; Rubenstein v. The Gap, Inc. (2017) 14 Cal.App.5th 870, 881 ["'[w]hile such a showing can be made for the first time to the reviewing court [citation], it must be made'"].)
When the facts are not in dispute and standing is conferred by statute as a matter of right, the question of standing is a legal one subject to de novo review. (People for the Ethical Operation of Prosecutors etc. v. Spitzer (2020) 53 Cal.App.5th 391, 408-409; San Luis Rey Racing, Inc. v. California Horse Racing Bd. (2017) 15 Cal.App.5th 67, 73.)
2. The Demurrer Was Properly Sustained for Lack of Standing
"'As a general principle, standing to invoke the judicial process requires an actual justiciable controversy as to which the complainant has a real interest in the ultimate adjudication because he or she has either suffered or is about to suffer an injury of sufficient magnitude reasonably to assure that all of the relevant facts and issues will be adequately presented to the adjudicator. [Citations.] To have standing, a party must be beneficially interested in the controversy; that is, he or she must have "some special interest to be served or some particular right to be preserved and protected over and above the interest held in common with the public at large." [Citation.] The party must be able to demonstrate that he or she has some such beneficial interest that is concrete and actual, and not conjectural or hypothetical.'" (Teal v. Superior Court (2014) 60 Cal.4th 595, 599; accord, Dominguez v. Bonta (2022) 87 Cal.App.5th 389, 413; People ex rel. Becerra v. Superior Court (2018) 29 Cal.App.5th 486, 496.)
Standing is a threshold jurisdictional issue that must be established before the plaintiff may obtain a hearing on the merits. (See Weatherford v. City of San Rafael (2017) 2 Cal.5th 1241, 1247-1248 (Weatherford) [we "require a party to show that he or she is sufficiently interested as a prerequisite to deciding, on the merits, whether a party's challenge to legislative or executive action independently has merit"]; People ex rel. Becerra v. Superior Court, supra, 29 Cal.App.5th at p. 495 ["'[s]tanding is a threshold issue necessary to maintain a cause of action, and the burden to allege and establish standing lies with the plaintiff'"]; Mendoza v. JP Morgan Chase Bank, N.A. (2016) 6 Cal.App.5th 802, 810 [same].)
Newell is not a father and has not alleged he is subject to, or even likely to be subject to, any of the child support statutes he challenges. That Newell purchases condoms allegedly for the sole purpose of contraception and is distressed by the possibility of an unplanned pregnancy and the potential birth of a child against his wishes do not make his claim any less speculative or hypothetical. (See In re Cody R. (2018) 30 Cal.App.5th 381, 390 ["[s]peculation about a hypothetical situation is not sufficient to support standing"]; Great Lakes Construction, Inc. v. Burman (2010) 186 Cal.App.4th 1347, 1359 [a highly speculative interest does not meet the standing requirements].)
Relying on Roe v. Wade (1973) 410 U.S 113 , overruled on another ground in Dobbs v. Jackson Women's Health Organization (2022) 597 U.S.___ (Dobbs), Newell emphasizes the plaintiff in that case, Jane Roe, was no longer pregnant by the time her case was heard, yet the United States Supreme Court did not dismiss it for lack of standing. However, as the Court observed, the issue before it was mootness, not standing. Because Roe had been pregnant at the time she filed her lawsuit challenging Texas's criminal abortion laws as unconstitutional and the nature of pregnancy was such that question presented was "'capable of repetition, yet evading review,'" the Court held ample justification existed for deciding the merits of an otherwise moot appeal. (Roe, at p. 125.)
The lawsuit before the Supreme Court in Roe v. Wade also included as plaintiffs the Does, a childless married couple who were not expecting a child and had no desire to become parents. The Does alleged that they "'fear[ed] they may face the prospect of becoming parents'" if contraception failed; in that case, they would choose to terminate the pregnancy. (Roe v. Wade, supra, 410 U.S. at pp. 127-128) In a ruling ignored by Newell, the Supreme Court held the couple lacked standing, explaining their claim was entirely speculative: "Their claim is that sometime in the future Mrs. Doe might become pregnant because of possible failure of contraceptive measures, and at that time in the future she might want an abortion that might then be illegal under the Texas statutes." (Id. at p. 128.) That was not enough to confer standing. (Ibid.)
Newell's argument for standing as a beneficially interested person closely resembles the Does' in Roe v. Wade, supra, 410 U.S. 113 and is equally speculative. We reject it for similar reasons. (See id. at p. 128.)
Newell raised identical due process and equal protection claims in a complaint filed in federal court. The federal district court dismissed his complaint for lack of standing; and the Ninth Circuit affirmed, holding Newell had failed to allege facts sufficient to demonstrate an injury-in-fact. (Newell v. Newsom (9th Cir. 2022) 2022 U.S.App. Lexis 24185.)
3. Newell Has Demonstrated He Can Amend His Complaint To Allege Taxpayer Standing
Section 526a, subdivision (a), provides, "An action to obtain a judgment, restraining and preventing any illegal expenditure of, waste of, or injury to, the estate, funds, or other property of a local agency, may be maintained against any officer thereof, or any agent, or other person, acting in its behalf." The statute provides an exception to the requirement that a plaintiff be beneficially interested. (Weatherford, supra, 2 Cal.5th at p. 1249; A.J. Fistes Corp. v. GDL Best Contractors, Inc. (2019) 38 Cal.App.5th 677, 688.)
"The primary purpose [of section 526a] is to 'enable a large body of the citizenry to challenge governmental action which would otherwise go unchallenged in the courts because of the standing requirement.' [Citation.] [¶] California courts have consistently construed section 526a liberally to achieve this remedial purpose." (Blair v. Pitchess (1971) 5 Cal.3d 258, 267268 (Blair); accord, California DUI Lawyers Assn. v. Department of Motor Vehicles (2018) 20 Cal.App.5th 1247, 1263; see White v. Davis (1975) 13 Cal.3d 757, 764 ["'no showing of special damage to the particular taxpayer [is] necessary'" for the taxpayer to have standing to prevent injury to the public].)
Although the statute by its terms applies only to actions against a local agency or other political subdivision of the state or its agents, not a state or state officials (§ 526a, subd. (d)(1) ["'[l]ocal agency' means a city, town, county, or city and county, or a district, public authority, or any other political subdivision in the state"]), courts of appeal have consistently interpreted section 526a to apply more broadly than the plain language of the statute would dictate. (See, e.g., Raju v. Superior Court (June 8, 2023, A164736)___ Cal.App.5th ___, ___ [2023 Cal.App. Lexis 517, p.*27] ["[a]lthough the statute 'on its face, only applies to towns, cities, counties, and cities and counties of the state,' our courts have 'consistently held that the statute is to be liberally construed' to also apply to state officials"]; Grosz v. California Dept. of Tax &Free Administration (2023) 87 Cal.App.5th 428, 438 [same]; Vasquez v. State of California (2003) 105 Cal.App.4th 849, 854 [same]; see also California State Employees' Assn. v. Williams (1970) 7 Cal.App.3d 390, 395.)
The Supreme Court, too, has strongly suggested, if not directly held, that statutory taxpayer standing applies to actions against state officials. (See Blair, supra, 5 Cal.3d at p. 268 ["it has been held [in Ahlgren v. Carr (1962) 209 Cal.App.2d 248, 252254] that taxpayers may sue state officials to enjoin such officials from illegally expending state funds"]; Serrano v. Priest (1971) 5 Cal.3d 584, 618, fn. 38 (Serrano) ["[a]lthough plaintiff parents bring this action against state, as well as county, officials, it has been held that state officers too may be sued under section 526a," citing Blair, supra, 5 Cal.3d 258]; see also Stanson v. Mott (1976) 17 Cal.3d 206, 222-223 [citing Ahlgren v. Carr (common law taxpayer standing) and section 526a for the general proposition that a plaintiff had taxpayer standing to sue the director of State Parks and Recreation].)
Although the Supreme Court in Blair discussed section 526a standing, the case itself did not involve an action against state officials (see Blair, supra, 5 Cal.3d at p. 265), and Ahlgren v. Carr, supra, 209 Cal.App.2d 248, which Blair cited, addressed common law taxpayer standing, not section 526a. (See generally Gogerty v. Coachella Valley Junior College Dist. (1962) 57 Cal.2d 727, 730 [common law taxpayer standing, distinguished from statutory taxpayer standing, is available in actions asserting "fraud, collusion, ultra vires, or failure on the part of a governmental body to perform a duty specifically enjoined"]; Chodosh v. Commission on Judicial Performance (2022) 81 Cal.App.5th 248, 268 ["[c]ommon law taxpayer suits are limited to the '"grounds [of] fraud, collusion, ultra vires, or a failure to perform a duty specifically enjoined"'"].)
To be sure, the Supreme Court has not considered section 526a's applicability to state officials since the Legislature's most recent amendments to the statute. Nevertheless, "the Legislature is presumed to know about existing case law when it enacts or amends a statute" (In re W.B. (2012) 55 Cal.4th 30, 57), and it did not address the expansive language in Blair or Serrano, let alone from the many court of appeal decisions that have interpreted section 526a to include state officials. Accordingly, we accept that construction of section 526a as accurately reflecting the Legislature's intent (see In re W.B., at p. 57; Gutierrez v. Carmax Auto Superstores California (2018) 19 Cal.App.5th 1234, 1254) and interpret "local agency" to include state officials despite what would appear to be the statute's plain language to the contrary.
In 2018 the Legislature amended section 526a, substituting the term "local agency" for "county, town, city or city and county of the state," defining "local agency" to mean "a city, town, county, or city and county, or a district, public authority, or any other political subdivision in the state" (§ 526a, subd. (d)(1)), and clarifying that the type of tax liability or payment that would confer standing on a corporation was "a tax that funds the defendant local agency." (§ 526a, subd. (a); see Stats. 2018, ch. 319, § 1.) The Legislature indicated those amendments were a direct response to Chief Justice Cantil-Sakauye's concurring opinion in Weatherford urging it to amend the statute "in a manner that makes clear what kinds of taxes are sufficient to establish standing to sue a particular government entity for alleged wasteful or illegal expenditures." (Weatherford, supra, 2 Cal.5th at p. 1253 (conc. opn. of Cantil-Sakauye, C.J.); see A.J. Fistes Corp. v. GDL Best Contractors, supra, 38 Cal.App.5th at p. 689, fn. 9 [citing legislative history].)
The availability of the doctrine of common law taxpayer standing as a basis to bring actions against state officials is currently before the Supreme Court. (See Taking Offense v. State of California (2021) 66 Cal.App.5th 696, review granted Nov. 10, 2021, S270535 [ordering supplemental briefing on the question "[w]hether California recognizes a common law taxpayer standing doctrine to bring actions against state officials"].) In asking for supplemental briefing limited to the availability of common law taxpayer standing when standing was not addressed at all by the parties or the lower courts in the case, the Supreme Court has, arguably at least, signaled that statutory taxpayer standing under section 526a was not available in an action against state officials to declare a state statute unconstitutional.
Contending he can amend his complaint (or substitute a new pleading petitioning for a writ of mandamus) to allege taxpayer standing under section 526a, Newell urges us to reverse the judgment and remand with directions to allow him to do so if we affirm the order sustaining the demurrer for lack of beneficial interest standing. The Governor and the Attorney General argue Newell forfeited the issue by failing to raise taxpayer standing in the trial court. However, an appellant may raise the possibility of amendment for the first time on appeal from a judgment entered after an order sustaining a demurrer without leave to amend. (Code Civ. Proc., § 472c; Eghtesad v. State Farm General Ins. Co. (2020) 51 Cal.App.5th 406, 412; Sierra Palms Homeowners Assn. v. Metro Gold Line Foothill Extension Construction Authority, supra, 19 Cal.App.5th at p. 1133.)
The Governor and Attorney General also contend, without citation to relevant authority, that Newell's complaint failed (and could not be amended) to allege illegal or wasteful expenditure to qualify for statutory taxpayer standing. This, too, is simply wrong. Newell seeks to enjoin enforcement of several provisions of the Family Code as unconstitutional, at least as applied to parents who wish to unilaterally renounce their rights and obligations of parenthood. Quite apart from the merits of that claim, taxpayer standing under section 526a "has long been used to enjoin government conduct that is unconstitutional or otherwise illegal." (Mohler v. County of Santa Clara (2023) 92 Cal.App.5th 418, 424 [citing cases]; accord, California DUI Lawyers Assn. v. Department of Motor Vehicles, supra, 20 Cal.App.5th at p. 1261 [challenges to the "constitutionality of governmental actions fall squarely within the purview of section 526a"]; see Blair, supra, 5 Cal.3d at p. 258 ["[i]f the claim and delivery law is unconstitutional, then county officials may be enjoined from spending their time carrying out its provisions"].)
4. Because Newell's Constitutional Claims Fail as a Matter of Law, Remand Would Be Futile
As discussed, Newell has alleged California's child support statutes (Fam. Code, §§ 4000, 4002, 4055) are unconstitutional to the extent they infringe an individual's fundamental right under the due process and equal protection clauses of the Fourteenth Amendment to unilaterally elect not to be a parent, with its attendant obligation to financially support one's child.
a. Due process
While acknowledging the absence of any federal or state authority supporting his argument, Newell contends the fundamental right "not to be a parent" is inherent in the privacy and personal autonomy interests recognized by the United States Supreme Court in cases involving contraception (see Eisenstadt v.Baird (1972) 405 U.S. 438, 454 ["[i]f the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child," italics omitted]; and, prior to Dobbs, supra, 142 S.Ct. 2228, abortion. Whatever federal constitutional privacy rights may remain following Dobbs is immaterial to Newell's due process claim, which is not one concerning privacy or bodily autonomy at all. Moreover, the Supreme Court has squarely rejected any contention that a due process right to unilaterally renounce the obligations of parenthood exists. (See Rivera v. Minnich (1987) 483 U.S. 574, 580 [a "putative father has no legitimate right and certainly no liberty interest in avoiding financial obligations to his natural child that are validly imposed by state law"].)
Newell's reliance on Davis v. Davis (S.Ct. Tenn. 1992) 842 S.W.2d 588, recognizing a right to "procreational autonomy" inherent in the due process clause of the 14th Amendment (see id. at p. 601 (the "right to procreational autonomy is inherent in our most basic concepts of liberty," citing Roe v. Wade, supra, 410 U.S. 113, among other privacy cases) is misplaced. The Tennessee Supreme Court in Davis addressed a dispute over the disposition of frozen embryos after the married couple that created them failed to provide for their disposition following their divorce. The court held the ex-husband's interests in avoiding procreation following divorce outweighed the ex-wife's interest in wishing to donate the embryos to an infertile couple. (Davis, at p. 604.) The right to decide how and whether one's gametic material may be used for assisted reproduction, a right California courts of appeal have also recognized (see Robertson v. Saadat (2020) 48 Cal.App.5th 630, 645; Estate of Kievernagel (2008) 166 Cal.App.4th 1024, 1032), is a far cry from recognition of a fundamental right of a parent to disavow the financial obligations of parenthood after sexual intercourse results in an unplanned pregnancy and birth of a child. As discussed, the Supreme Court has rejected that such a fundamental right exists. (See Rivera v. Minnich, supra, 483 U.S. at p. 580.)
b. Equal protection
Newell's cause of action based on a claimed equal protection violation fares no better.
The federal Constitution guarantees that no person shall be "den[ied] . . . the equal protection of the laws." (U.S. Const., 14th Amend.) "The concept of equal treatment under the laws means that persons similarly situated regarding the legitimate purpose of the law shall receive like treatment." (People v. Morales (2016) 63 Cal.4th 399, 408; accord, Engquist v. Oregon Dept. of Agriculture (2008) 553 U.S. 591, 602; see generally Johnson v. Department of Justice (2015) 60 Cal.4th 871, 881 [equal protection clauses in both the federal and state Constitutions are similarly interpreted].)
The first step of an equal protection analysis asks whether the state has adopted a classification that affects two or more similarly situated groups in an unequal manner. If there is no classification, or the two groups are not similarly situated, there can be no equal protection violation. (See People v. Navarro (2021) 12 Cal.5th 285, 345; People v. Foster (2019) 7 Cal.5th 1202, 1211-1212; People v. Barrett (2012) 54 Cal.4th 1081, 1107.)
The next step, undertaken only if the first step is satisfied, asks whether the disparate treatment is justified by a constitutionally sufficient interest, with different levels of judicial scrutiny applied depending on the type of claim. (See Conservatorship of Eric B. (2022) 12 Cal.5th 1085, 1107 ["'[M]ost legislation is tested only to determine if the challenged classification bears a rational relationship to a legitimate state purpose.' [Citation.] However, differences 'in statutes that involve suspect classifications or touch upon fundamental interests are subject to strict scrutiny, and can be sustained only if they are necessary to achieve a compelling state interest'"]; People v. Chatham (2018) 4 Cal.5th 277, 288 [gender classifications trigger intermediate scrutiny].)
Newell alleges the state's child support statutes, while facially neutral, effectively discriminate against fathers. As Newell describes it, by exercising their constitutional right to an abortion, women can elect not to be a parent while their partners, unable to compel an abortion, cannot. The result is that the pregnant woman who elects to give birth may seek child support from the other parent, while a father who did not want or consent to the child's birth has no ability under California law to unilaterally surrender his parental rights and obligations.
As discussed, although there is no federal constitutional right to abortion following Dobbs, supra, 142 S.Ct. 2228, the right to abortion is now explicitly enshrined in California's Constitution.
As Newell explains, a parent who abandons his or her child may have parental rights terminated by court order (Fam. Code, § 7822), but nothing in the statutory scheme permits a parent to unilaterally renounce the obligations of parenthood. (See generally Fam. Code, §§ 3900 [parental duty to support child]; 7632 [agreement between parties does not bar parentage action by child seeking support].) In addition, California's safe surrender laws permit a parent or persons with lawful custody to
Newell's equal protection argument, based on what he asserts is an inherent unfairness in allowing a woman to disclaim motherhood by exercising her constitutional right to abortion while not permitting a man to disclaim fatherhood, is not particularly novel, let alone persuasive. A nearly identical argument was made by the plaintiff in Dubay v. Wells (6th Cir. 2007) 506 F.3d 422. There, a father alleged applying Michigan's paternity statutes to him (including child support provisions) when he did not want to be a father violated his right to equal protection by "affording mothers a right to disclaim parenthood after engaging in consensual sex (i.e., through abortion) while denying that right to fathers." (Id. at p. 428.) The Sixth Circuit affirmed the district court's order granting the state's motion to dismiss on the ground no equal protection violation could be stated as a matter of law. The court explained the father had no fundamental right to sever financial responsibilities to his child (id. at p. 429, citing Rivera v. Minnich, supra, 483 U.S. 574); Michigan's support laws were facially neutral, thus negating application of an intermediate level of scrutiny based on gender classifications (id. at p. 430); and the statutes were as a matter of law rationally related to an "unquestionably important" government purpose. (Id. at p. 431.)
Newell's equal protection claim similarly fails to state facts sufficient to constitute a cause of action. First, while both men and women with children are similarly situated with regard to anonymously surrender custody of an infant 72-hours-old or younger to a statutorily designated safe site without incurring criminal liability (see Health &Saf. Code, § 1255.7; Pen. Code, § 271.5), but does not otherwise address the financial obligations of parenthood. the obligation to support their children under California's child support statutes, pregnant women, on the one hand, and the expectant fathers who impregnated them, on the other, are not. The former's right to abortion is rooted in intimate privacy rights unique to women, whose bodies are distinctly impacted by pregnancy. (See Planned Parenthood v. Casey (1992) 505 U.S. 833, 896 ["[i]t is an inescapable biological fact that state regulation with respect to the child a woman is carrying will have a far greater impact on the mother's liberty than the father's"], overruled on another ground in Dobbs, supra, 142 S.Ct. 2228.) As the California Supreme Court explained in American Academy of Pediatrics v. Lungren (1997) 16 Cal.4th 307, the right to choose whether to continue or to terminate a pregnancy implicates a woman's "interest in retaining personal control over the integrity of her own body." (Id. at pp. 332-333.) "'"If a man is the involuntary source of a child-if he is forbidden, for example, to practice contraception-the violation of his personality is profound; the decision that one wants to engage in sexual intercourse but does not want to parent another human being may reflect the deepest of personal convictions. But if a woman is forced to bear a child-not simply to provide an ovum but to carry the child to term-the invasion is incalculably greater .... [I]t is difficult to image a clearer case of bodily intrusion, even if the original conception was in some sense voluntary."'" (Id. at p. 333, fn. 17; see also Sen. Judiciary Com., Analysis of Sen. Const. Amend. No. 10 (2021-2022 Reg. Sess.) June 8, 2022, pp. 3, 7 [state constitutional amendment is intended to protect fundamental right to intimate privacy and reproductive rights that had been recognized by Supreme Court in Roe v. Wade, supra, 410 U.S. 113 and Planned Parenthood v. Casey, supra, 505 U.S. 833].)
Second, Newell's contrary assertion notwithstanding, California's child support statutes are facially neutral; and there are no allegations of purposeful discrimination that could support a disparate impact claim (see Personnel Administrator of Massachusetts v. Feeney (1979) 442 U.S. 256, 271-274 [absent intentional discrimination, disparate effects arising from facially neutral statute do not give rise to equal protection violation]; Boardman v. Inslee (9th Cir. 2020) 978 F.3d 1092, 1113 ["'[a] facially neutral statute . . . [with] a legitimate end is not discriminatory simply because it affects some groups more than others'"]; see also Farm Labor Organizing Committee v. Stein (2022) (4th Cir. 2022) 56 F.4th 339, 352-353.)
Meanwhile, California has long recognized its important state interest in ensuring children are financially supported. (See Moss v. Superior Court (1998) 17 Cal.4th 396, 409-410 [the obligation of a parent to financially support his or her child "is among the most fundamental obligations recognized by modern society"]; Pencovic v. Pencovic (1955) 45 Cal.2d 97, 103 [there are "few interests of greater importance to the state than the proper discharge by parents of their duties to their children"]; County of Yuba v. Savedra (2000) 78 Cal.App.4th 1311, 1325 ["'[a] parent who is able to support his or her children has no legitimate interest at all in not supporting them, and moreover has no legitimate interest in sloughing off that responsibility onto the taxpayers"; "[t]he government's interest, on the other hand, is in making certain that those parents who are able to support their children do so, thus freeing the government from shouldering that burden"].) And, absent a fundamental right or suspect classification, neither of which is present here, to prevail on his cause of action Newell must demonstrate the child support statutes are not rationally related to the important government purpose of ensuring that children are supported. Newell identifies no additional facts that are necessary to develop the record and invites us to decide the issue on the merits now. We do. Simply stated, Newell has not alleged, and cannot establish, the child support statutes are not rationally related to this important government purpose.
Finally, in the event we reject this equal protection argument, Newell posits an additional one: California treats sperm donors whose donations satisfy certain statutory conditions (see Fam. Code, § 7613), on the one hand, and biological fathers whose intimate conduct results in a pregnancy and birth of a child, on the other hand, differently when it comes to obligating support. That argument, too, fails. The two groups are not remotely similarly situated; and, in any event, Newell has not alleged how such a classification would not be rationally related to the important state interest in legitimizing children born with the assistance of artificial insemination. (See Shin v. Kong (2000) 80 Cal.App.4th 498, 505 [Family Code section 2613, part of the California Uniform Parentage Act, was "designed to equalize the status of legitimate and illegitimate children, and is concerned with the legal paternity of children conceived by artificial insemination"].)
Family Code section 7613, subdivision (b), protects sperm donors from liability for child support and women who undergo artificial insemination from future paternity claims, provided certain conditions are satisfied, including that the semen is provided to a licensed physician or sperm bank. (See generally Jason P. v. Danielle S. (2014) 226 Cal.App.4th 167, 174.)
In sum, Newell's causes of action fail as a matter of law. Because remand to allow Newell to amend the complaint to allege taxpayer standing would be futile, we affirm the judgment entered following the order sustaining the demurrer without leave to amend.
DISPOSITION
The judgment is affirmed. Governor Newsom and Attorney General Bonta, in their official capacities, are to recover their costs on appeal.
We concur: SEGAL, J., ESCALANTE, J. [*]
[*] Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.