Opinion
A101363.
10-27-2003
DALE R. SMITH, Plaintiff and Appellant, v. NOVATO UNIFIED SCHOOL DISTRICT et al., Defendants and Respondents.
Plaintiff Dale Smith appeals the trial courts order sustaining a demurrer without leave to amend to all of Smiths claims against defendants. Smith contends that the trial court erred in concluding that he lacked taxpayer or citizen standing to maintain this action alleging violations of state and federal free speech guarantees in defendants responses to a school newspaper editorial written by Smiths son. We agree that the allegations of the complaint are sufficient to establish taxpayer standing for purposes of demurrer, and we reverse on that basis.
PLAINTIFFS FACTUAL ALLEGATIONS
Plaintiff Dale Smith is a taxpayer and resident of Marin County living within the boundaries of Novato Unified School District. In fall 2001, Smiths son Andrew was a senior at Novato High School. In November 2001, an editorial written by Andrew entitled "Immigration" was published in a Novato High School student newspaper, The Buzz. Before publication, the editorial was approved by the student editor, the faculty advisor, and the principal.
In reaction to the editorial, a group of approximately 150 students and adults gathered on the high school campus. The principal of Novato High School, Lisa Schwartz, met with the group to discuss the editorial and subsequently ordered all remaining copies of The Buzz confiscated and removed from distribution. On November 14, 2001, Principal Schwartz and District Superintendent John C. Bernard sent a letter to parents and guardians of Novato High School students stating that the "Immigration" editorial represented "the beliefs of one student that negatively presented immigrants in general and Hispanics in particular" and that the editorial should not have been printed because it violated District policy regarding student publications. The letter also announced that a meeting would be held on campus on November 15 to "provide a forum" for those who were not part of the group that had previously met with Schwartz. The District also copied and distributed a packet of student responses to the "Immigration" editorial.
Andrew subsequently sought to publish an editorial in each of the next two issues of The Buzz. Because of delays in obtaining permission to write another editorial and in obtaining approval of publication of a subsequently written editorial, Andrew was not permitted to publish an editorial for either of the next two issues of the newspaper.
PROCEDURAL BACKGROUND
On May 2, 2002, Smith, along with his son Andrew, filed suit based upon the Districts response to the "Immigration" editorial. On July 12, 2002, defendants demurred to plaintiffs complaint. The trial court sustained defendants demurrer to the May 2, 2002, complaint with leave to amend. Plaintiffs filed a first amended complaint alleging four causes of action and seeking declaratory relief, injunctive relief, and nominal damages. Plaintiffs allege that the defendants actions and policies deprived Andrew of the free speech guarantees of the United States Constitution, the California Constitution, and the California Education Code. Defendants filed another demurrer on October 4, 2002, challenging all causes of action brought by Smith for lack of standing and challenging on mootness grounds all of Andrews causes of action except his claim for nominal damages. On November 25, 2002, the trial court sustained the demurrer in its entirety without leave to amend.
On January 13, 2003, Dale Smith filed a notice of appeal to the order sustaining defendants demurrer. On April 4, 2003, the trial court entered an order and judgment dismissing Smith from the lawsuit. Pursuant to California Rules of Court, rule 2(d), we treat Smiths January 13, 2003, notice of appeal as filed immediately after entry of judgment on April 4, 2003.
DISCUSSION
I. Standard of Review
"A demurrer tests the legal sufficiency of the complaint . . . ." (Hernandez v. City of Pomona (1996) 49 Cal.App.4th 1492, 1497.) On appeal from a dismissal following an order sustaining a demurrer, we review the order de novo, exercising our independent judgment about whether the complaint states a cause of action as a matter of law. (Moore v. Regents of University of California (1990) 51 Cal.3d 120, 125; Desai v. Farmers Ins. Exchange (1996) 47 Cal.App.4th 1110, 1115.) We assume the truth of all facts properly pleaded in the complaint, as well as those that may be implied or inferred from the express allegations. (Marshall v. Gibson, Dunn & Crutcher (1995) 37 Cal.App.4th 1397, 1403.) "We do not, however, assume the truth of contentions, deductions, or conclusions of fact or law. [Citation.]" (Moore, at p. 125.) When analyzing a demurrer, we look "only to the face of the pleadings and to matters judicially noticeable and not to the evidence or other extrinsic matter. [Citations.]" (Knickerbocker v. City of Stockton (1988) 199 Cal.App.3d 235, 239, fn. 2.)
We are "not bound by the trial courts construction of the complaint." (Wilner v. Sunset Life Ins. Co. (2000) 78 Cal.App.4th 952, 958.) Rather, we independently evaluate the complaint, construing it liberally, giving it a reasonable interpretation, reading it as a whole, and viewing its parts in context. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318; Lazar v. Hertz Corp. (1999) 69 Cal.App.4th 1494, 1501.) We must determine de novo whether the factual allegations of the complaint are adequate to state a cause of action under any legal theory, regardless of the title under which the factual basis for relief is stated. (Quelimane Co. v. Stewart Title Guaranty Co. (1998) 19 Cal.4th 26, 38; Lazar, at p. 1501.) If a complaint does not state a cause of action, but there is a reasonable possibility that the defect can be cured by amendment, leave to amend must be granted. (Quelimane Co., at p. 39.)
II. Plaintiff Smith Has Pled Sufficient Facts to Support Taxpayer Standing
The trial court held that Smith lacks standing to bring the alleged causes of action. On appeal, Smith contends that the allegations of the first amended complaint establish a proper basis for both taxpayer and citizen standing. We agree that the allegations of the first amended complaint are sufficient to establish taxpayer standing. Therefore, we need not reach the issue of citizen standing.
Code of Civil Procedure section 526a provides in pertinent part: "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 county, town, city or city and county of the state, may be maintained against any officer thereof, or any agent, or other person, acting in its behalf, either by a citizen resident therein, or by a corporation, who is assessed for and is liable to pay, or, within one year before the commencement of the action, has paid, a tax therein." Our Supreme Court has explained that the purpose of this statute 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. " (Blair v. Pitchess (1971) 5 Cal.3d 258, 267-268, quoting Comment, Taxpayers Suits: A Survey and Summary (1960) 69 Yale L.J. 895, 904.) The court made clear that Code of Civil Procedure section 526a must be construed "liberally to achieve this remedial purpose." (Blair v. Pitchess, at p. 268.)
In Paragraph 9 of the first amended complaint, the "Parties and Basic Standing Allegations" section, Smith alleges three specific expenditures of public funds as a basis for taxpayer standing. Smith alleges that public funds were expended to copy and distribute the November 14, 2001 letter to parents and guardians, to hold a meeting on the high school campus on November 15, 2001, and to copy and distribute student responses to the "Immigration" editorial. We do not focus, however, on these alleged expenditures of public funds in assessing whether there is a basis for taxpayer standing, because it is not clear how defendants actions in writing the November 14 letter, holding the November 15 meeting, and distributing the students responses violated Andrews right to free speech. The parties have not briefed this issue, and we do not hold that the activities as alleged did not violate Andrews right to free speech. Nonetheless, because of our doubts regarding the legal basis for that theory, we rely upon another alleged expenditure in the first amended complaint.
Paragraph 34 of the first amended complaint alleges that, following a daytime meeting with 150 students and adults on campus, Principal Schwartz "immediately ordered all remaining issues of The Buzz confiscated and removed from distribution." It is reasonable to infer that this allegation includes an allegation that the issues were confiscated by paid school officials. Indeed, on appeal appellant argues this fact in support of standing. Although the complaint does not include this allegation in the paragraph on standing, it is appropriate, in construing the complaint liberally and as a whole, to consider this factual allegation―which may demonstrate an infringement of free speech―in determining whether Smith has pled facts sufficient to support taxpayer standing under Code of Civil Procedure section 526a.
In assessing whether an alleged expenditure of public funds is sufficient for the purposes of Code of Civil Procedure section 526a, it is "immaterial" that the amount of the allegedly illegal expenditure is "small." (Wirin v. Parker (1957) 48 Cal.2d 890, 894; accord Blair v. Pitchess, supra, 5 Cal.3d at p. 268.) Indeed, a plaintiff need not even show an actual additional expenditure of funds; instead, it is sufficient that paid employees of a public entity have expended their time in performing allegedly illegal acts. (Citizens for Uniform Laws v. County of Contra Costa (1991) 233 Cal.App.3d 1468, 1472-1473.) For example, in Blair v. Pitchess, the Supreme Court held sufficient to support taxpayer standing the time that county officials would spend executing an allegedly illegal procedure for recovering possession of personal property. (Blair v. Pitchess, at p. 269.) The Court also cited with approval earlier decisions involving taxpayer standing based on the expenditure of the time of public employees on allegedly illegal activities. (See Wirin v. Horrall (1948) 85 Cal.App.2d 497, 504-505, cited with approval in Blair v. Pitchess, supra, at p. 268 [time spent by police officers on blockades]; Vogel v. County of Los Angeles (1967) 68 Cal.2d 18, 19, cited with approval in Blair v. Pitchess, supra, at p. 268 [time spent administering or enforcing oath for public office]; see also Citizens for Uniform Laws, supra, at p. 1473 ["Even the small expenditure of county time necessary to review [a single discrimination] complaint is sufficient to confer taxpayer standing."]; Sands v. Morongo Unified School Dist. (1991) 53 Cal.3d 863, 869 [ceremonies including religious invocations were conducted on school property, publicly funded, and planned and participated in by public school administrators].)
In support of its argument that Smith has made an insufficient showing of expenditure of public funds to support taxpayer standing, the District cites Doe v. Madison School District No. 321 (9th Cir. 1999) 177 F.3d 789. Madison School District held that there was no taxpayer standing in a suit, analogous to Sands, in which the plaintiffs challenged a policy permitting prayers during high school graduation ceremonies. The Madison School District court required the plaintiffs to identify "`a measurable appropriation or disbursement of school-district funds occasioned solely by the activities complained of." (Madison School District, at p. 794, quoting Doremus v. Board of Education (1952) 342 U.S. 429, 434.) However, taxpayer standing in California state courts is controlled by Code of Civil Procedure section 526a, not federal case law. In light of the above-cited applications of section 526a in the California courts and the California Supreme Courts admonition that section 526a must be liberally construed, we decline to follow Madison School District.
Finally, the District cites Waste Management of Alameda County v. County of Alameda, Inc. (2000) 79 Cal.App.4th 1223, 1240, for the proposition that Smith must allege "specific facts and reasons for a belief that some illegal expenditure or injury to the public fisc" occurred or will occur. We agree that this is a proper statement of the law, but we disagree that Smith has failed to meet this standard. In Waste Management, the plaintiff made no attempt to demonstrate any expenditures of public funds. (Ibid.) In contrast, the first amended complaint contains various allegations regarding specific actions involving some expenditure of public funds, including an allegation that school officials spent time confiscating the remaining copies of the newspaper. For purposes of this appeal from a judgment of dismissal following the sustaining of a demurrer without leave to amend, we are required to assume the truth of this allegation; plaintiffs ability to prove the allegation is not a factor for our consideration at this stage. (152 Valparaiso Associates v. City of Cotati (1997) 56 Cal.App.4th 378, 383.) Thus, we assume that paid school officials spent time collecting the remaining copies of the newspaper. Because a small expenditure of public funds is sufficient for taxpayer standing and we construe Code of Civil Procedure section 526a liberally, there is no need for precise quantification of the public funds expended on the allegedly illegal activity.
In conclusion, for purposes of demurrer, Smiths allegation that school officials confiscated the remaining issues of the The Buzz is adequate to establish taxpayer standing.
DISPOSITION
The judgment of dismissal of plaintiff Smith for lack of standing is reversed.
We concur, JONES, P.J. and STEVENS, J. --------------- Notes: Smiths motion to augment the record with the judgment of dismissal was granted on July 16, 2003.