CALIFORNIA ASSOCIATION OF PSES v. CALIFORNIA DEPARTMENT OF EDUCATION

Filed 7/13/06

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

APPEAL from a judgment of the Superior Court of Los Angeles County, Edward A. Ferns, Judge. Affirmed.

Newman, Aaronson, Vanaman and Robert M. Myers; Law Offices of Carol A. Sobel and Carol Ann Sobel Plaintiffs and Appellants.

Bill Lockyer, Attorney General, James M. Humes, Chief Assistant Attorney General, James S. Schiavenza, Assistant Attorney General, Marsha A. Miller, and Carol Ann Boyd, Deputy Attorneys General, for Plaintiff and Respondent.

I. INTRODUCTION

Plaintiffs, the California Association of Private Special Education Schools (the association) and the Poseidon School (the school), appeal from a judgment of dismissal after the demurrers of defendants, the California Department of Education (the department) and Superintendent of Public Instruction Jack O'Connell, were sustained without leave to amend. Plaintiffs contend the Superintendent of Public Instruction (the superintendent) may not suspend or revoke the certification of a nonpublic, nonsectarian school providing educational services to disabled children without providing a hearing with proper notice before any adverse administrative action is taken. We hold Education Code section 56366.6, subdivisions (a) and (b) and California Code of Regulations, title 5, section 3068 on their face do not violate plaintiffs' due process rights. Further, the second amended complaint does not sufficiently specifically allege the existence of an actual present controversy to permit resolution of an as applied challenge to Education Code section 56366.6, subdivisions (a) and (b) and California Code of Regulations, title 5, section 3068. Finally, we conclude the foregoing statute and regulation are not subject to the requirements for emergency administrative decisions specified in Government Code section 11460.10 et seq.

II. PROCEDURAL BACKGROUND

The initial complaint was filed on May 2, 2002. The department and various defendants, which included the former Superintendent of Public Instruction, Delaine Eastin, answered the original complaint on September 16, 2002. Superintendent O'Connell was not named in the initial complaint. On April 30, 2004, various defendants, including the department and former Superintendent Eastin, moved for judgment on the pleadings as to the fourth, seventh, and eighth causes of action. Before the trial court ruled on the judgment on the pleadings motion, the parties settled the seventh and eighth causes of action. As to the fourth cause of action, the judgment on the pleadings motion was granted with 10 days leave to amend.

On July 8, 2004, the first amended complaint was filed. Various defendant were named, including the department and Superintendent O'Connell. However, on August 10, 2004, plaintiffs filed a dismissal request as to all of the defendants, except for the department and Superintendent O'Connell. Also, plaintiffs dismissed the second, third, seventh, and eighth causes of action. On August 12, 2004, defendants demurred to the first amended complaint. On September 28, 2004, the demurrer was sustained with leave to amend. On October 8, 2004, plaintiffs filed the second amended complaint. On November 12, 2004, defendants demurred to the second amended complaint. Also, defendants moved to strike portions of the second amended complaint. On December 14, 2004, the demurrer was sustained without leave to amend and the motion to strike was placed off calendar. On January 21, 2005, a judgment of dismissal was entered. On March 10, 2005, plaintiffs filed a notice of appeal.

III. SECOND AMENDED COMPLAINT ALLEGATIONS

The second amended complaint sought injunctive and declaratory relief. The association is a nonprofit corporation that represents 182 schools which have been certified by the department. Member schools have had their â€