Washington v. Drummond

Filed 3/13/07 Washington v. Drummond CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

APPEAL from an order of the Superior Court of Los Angeles County. Terry A. Green, Judge. Affirmed.

Gutierrez & Vera and Ronald T. Vera for Plaintiffs and Appellants.

Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, Thomas R. Yanger, Assistant Attorney General, Douglas M. Press and Kari Schwartz, Deputy Attorneys General, for Defendants and Respondents.

Littler Mendelson and Barrett K. Green for Defendant and Respondent Board of Trustees of the Compton Community College District.

Lewis Brisbois Bisgaard & Smith, Roy G. Weatherup, Joel A. Goldman and Julia Sylva for Defendants and Respondents Ulis Williams and Arthur Tyler.

* * * * * *

Plaintiffs andappellants Rudolph Washington, Shirley Edwards, Essie French-Preston, Robert Butler, Stanley Camilla Viltz and Leroy Porter appeal, following an order of dismissal entered after the trial court sustained demurrers without leave to amend filed by defendants and respondents Chancellor Marshall Drummond, Arthur Tyler, Ulis Williams, and the Board of Governors of the California Community Colleges. Appellants challenged the constitutionality of and actions taken pursuant to Education Code section 71093,^[1]which was an urgency measure designed to stabilize the Compton Community College District. The trial court ruled that section 71093 does not violate the California Constitution, as it neither creates a new office nor changes the duties of any existing office. (Cal. Const., art. IV, 8, subd. (d).)

We affirm. Section 71093 does not run afoul of the Constitutions urgency measure restrictions. Rather, it applies existing statutory provisions which permit the appointment of a special trustee to manage a community college district failing to achieve fiscal stability.

FACTUAL AND PROCEDURAL BACKGROUND

On appeal from a judgment of dismissal following a demurrer sustained without leave to amend, we assume the truth of all well-pleaded facts, as well as those that are judicially noticeable. (Howard Jarvis Taxpayers Assn. v. City of La Habra (2001) 25 Cal.4th 809, 814; Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)

A January 2003 audit of the Compton Community College District (District) made numerous findings regarding the adverse conditions that negatively affected the Districts financial stability. After Marshall Drummond, Chancellor of the California Community Colleges (Chancellor) failed to receive financial information from the District for the following year, in May 2004 he requested the assignment of the Fiscal Crisis and Management Assistance Team (FCMAT) to conduct an analysis and perform an extraordinary audit of the District. The FCMAT ultimately reported that the District would have insufficient cash to cover its expenses for the fiscal year ending June 2004. Also in May 2004, the Chancellor issued an Executive Order appointing a special trustee, Arthur Tyler (Tyler), to assume the rights, duties and powers of the Districts Board of Trustees (Board). In response, the Board filed a lawsuit seeking to enjoin the Chancellors actions on the basis that the Chancellor exceeded his statutory and regulatory power. On May 27, 2004, the trial court issued a temporary restraining order enjoining the Executive Order.

Against this backdrop, the Board of Governors of the California Community Colleges (Board of Governors) promulgated a new regulation on June 15, 2004, entitled Special Trustee Following Notice of Inadequate Plan that provided in relevant part: [T]he Chancellor may appoint or assign a special trustee at district expense for the period of time necessary for the district to achieve financial stability or solvency or to ensure compliance with the principles of sound fiscal management set forth in section 58311. . . . The Chancellor shall determine the duties of the special trustee, which may include . . . . [] . . . [] (5) Assuming overall management and control of the district, including assumption of the legal rights, powers and duties of the governing board of the district . . . . (Cal. Code Regs., tit. 5, 58317, subd. (a).) On July 2, 2004, the trial court denied the Boards application for a preliminary injunction, which resolved the Boards lawsuit.

Simultaneously, the Legislature introduced an act to add and repeal section 71093 to permit the Chancellor to suspend the Boards power with respect to management of the District and to appoint a special trustee to manage the District. In its enactment of Assembly Bill No. 61 (A.B. 61), the Legislature found and declared that the information collected by appropriate officials of the California Community Colleges clearly indicates that the Compton Community College District has failed to maintain fiscal integrity and warrants a conclusion that the district is unable to manage its own recovery. . . . [] (b) It is, therefore, the intent of the Legislature to provide the Board of Governors of the California Community Colleges with specific authority to ensure the stabilization of the financial condition of the Compton Community College District. (Stats. 2004, c. 139,  1.) Effective immediately, A.B. 61 was an urgency statute necessary for the immediate preservation of the public peace, health, or safety within the meaning of Article IV of the Constitution . . . . [] [i]n order to preserve the fiscal integrity of the Compton Community College District . . . . (Stats. 2004, c. 139,  5.)

The Governor signed A.B. 61 into law on July 14, 2004 and issued a statement to the Legislature explaining that A.B. 61 will provide needed clarification of the authority of the Board of Governors and the Chancellor of [the] California Community Colleges to intervene and restore financial stability in [Compton Community College District]. (Stats. 2004, c. 139, 5.) A.B. 61 was codified as section 71093.^[2] ( 71093, added by Stats. 2004, c. 139 (A.B. 61), 2, eff. July 14, 2004.)

In September 2004, appellantsthen District employeesfiled their original complaint seeking injunctive and declaratory relief and, in the alternative, mandamus relief. They brought their action against the Chancellor, the Board of Governors, Tyler, Ulis Williams as President/Superintendent of the District (Williams) and the Board (sometimes collectively defendants). They alleged that pursuant to the urgency legislation defendants undertook actions that adversely affected their employment. They further alleged that section 71093 violated Article IV, section 8 of the California Constitution, which prohibits urgency legislation from creating an office or changing the term or duties of an existing office. In October 2004, they successfully applied ex parte for a temporary restraining order to prevent defendants from making any hiring decisions to appoint or hire individuals in the positions currently held by plaintiffs and sought an order to show cause why a preliminary injunction should not be granted to prevent defendants from terminating or removing plaintiffs from their current positions, except for good cause, during the pendency of this action . . . . The trial court subsequently denied appellants application for a preliminary injunction on October 14, 2004, and appellants filed a first amended complaint the same day. All defendants answered and denied the complaints material allegations.

In June 2005, the trial court granted appellants leave to file a second amended complaint pursuant to the parties stipulation that a second amended complaint could be filed to reflect the current status of the parties and to clarify the theories of relief upon which the action was brought. The stipulation further provided that defendants need not file any further answers.

The Chancellor and the Board of Governors demurred to the second amended complaint, as did Tyler and Williams.^[3]They argued that section 84040not section 71093properly created the office of the special trustee and that section 71093 did not change the salary, term or duties of the office of the special trustee. The trial court judicially noticed the Executive Order, documents filed in the Boards earlier lawsuit, the regulation permitting the appointment of a special trustee and portions of the legislative history of section 71093 that defendants submitted in support of their demurrers.

Following an August 18, 2005 hearing, the trial court sustained the demurrers without leave to amend. The trial court ruled that section 71093 did not violate the California Constitution, reasoning that section 84040 already allowed for the appointment of a special trustee and that section 71093 neither created nor expanded the office of the trustee. This appeal followed.^[4]

DISCUSSION

Appellants contend that section 71093 unconstitutionally creates the office of special trustee and permits both the trustee and the Chancellor to exercise powers well beyond the scope of their existing statutory authority. We disagree. In enacting section 71093, the Legislature expressly relied on the authority provided by section 84040 to appoint[] . . . a special trustee to manage the district. ( 84040, subd. (c)(3).) Section 71093 neither created the special trustee office nor changed the special trustees broadly-defined duties of managing the District already permitted under section 84040. Further, section 71093 did not change the duties of the Chancellor outlined in section 71090.

I. Standard of Review.

On appeal from an order of dismissal after an order sustaining a demurrer, our standard of review is de novo, i.e., we exercise our independent judgment about whether the complaint states a cause of action as a matter of law. [Citation.] (Montclair Parkowners Assn. v. City of Montclair (1999) 76 Cal.App.4th 784, 790; accord, McCall v. PacifiCare of Cal., Inc. (2001) 25 Cal.4th 412, 415.) We treat the demurrer as admitting all material facts properly pled and all matters subject to judicial notice, but not deductions, contentions, or conclusions of law or fact. (Zelig v. County of Los Angeles(2002) 27 Cal.4th 1112, 1126.) When a demurrer is sustained, we determine if the complaint states facts sufficient to constitute a cause of action. When it is sustained without leave to amend, we decide if there is a reasonable possibility that the defect can be cured by amendment. If so, the trial court abused its discretion, and the judgment is reversed. The plaintiff bears the burden of proving the reasonable possibility of cure. [Citation.] (Cadlo v. Owens-Illinois, Inc. (2004) 125 Cal.App.4th 513, 519.) We must affirm if the trial courts decision to sustain the demurrer was correct on any theory. (Hendy v. Losse (1991) 54 Cal.3d 723, 742; Alvarez v. May Dept. Stores Co. (2006) 143 Cal.App.4th 1223, 1231.)

II. The Trial Court Properly Sustained the Demurrers Without Leave to Amend.

A. Relevant Constitutional and Statutory Provisions.

Article IV, section 8, subdivision (d) of the California Constitution provides in relevant part: An urgency statute may not create or abolish any office or change the salary, term, or duties of any office, or grant any franchise or special privilege, or create any vested right or interest. The Legislature enacted section 71093 as an urgency statute necessary for the immediate preservation of the public peace, health, or safety within the meaning of Article IV of the Constitution and further stated that the facts constituting the necessity are: [] In order to preserve the fiscal integrity of the Compton Community College District, which is in imminent jeopardy, it is necessary that this act take effect immediately. (Stats. 2004, c. 139, 5.)

Section 71093 provides in relevant part: Notwithstanding any other provision of law: [] (a) The board of governors may authorize the chancellor to suspend the authority of the Board of Trustees of the Compton Community College District, or of any of the members of that board, to exercise any powers or responsibilities or to take any official actions with respect to the management of the district, including any of the districts assets, contracts, expenditures, facilities, funds, personnel, or property. . . . [] (b) A suspension authorized by this section becomes effective immediately upon the . . . finding of the chancellor that a suspension pursuant to this section is necessary for the establishment of fiscal integrity and security in that district. [] (c)(1) If and when the chancellor suspends the authority of the Board of Trustees of the Compton Community College District or any of its members pursuant to this section, the chancellor may appoint a special trustee as provided in paragraph (3) of subdivision (c) of Section 84040, at district expense, to manage the district. The chancellor is authorized to assume, and delegate to the special trustee, those powers and duties of the Board of Trustees of the Compton Community College District that the chancellor determines, with the approval of the board of governors, are necessary for the management of that district. . . . [] . . . [] (d) Notwithstanding any other provision of law, at any time that this section is in effect, the chancellor is authorized to assume, and delegate to the special trustee, those powers and duties of the Compton Community College District Personnel Commission that the chancellor determines are necessary for the management of the personnel functions of the Compton Community College District. ( 71093, italics added.)

Subdivision (f) of section 71093 specifically describes the scope of the special trustees powers and provides that [t]he special trustee appointed pursuant to this section is authorized to do all of the following: [] (1) Implement substantial changes in the fiscal policies and practices of the Compton Community College District. [] (2) Revise the academic program of the Compton Community College District to reflect realistic income projections in response to the dramatic effect of the changes in fiscal policies and practices upon program quality. [] (3) Encourage all members of the college community to accept a fair share of the burden of the full recovery of the Compton Community College District in the five operational areas of finance, academics, personnel facilities, and governance. [] (4) Enter into agreements on behalf of the Compton Community College District and, subject to any contractual and statutory obligation of the Compton Community College District, change any existing district rules, regulations, policies, or practices as necessary for the effective implementation of the recovery plan. . . . [] (5) Appoint an advisory committee to advise the special trustee with respect to the management of the Compton Community College District . . . . ( 71093, subd. (f).)

Section 71093 expressly provides that the ability of the Chancellor to appoint a special trustee is derived from section 84040, subdivision (c)(3). (See also 71090, subd. (b) [The chancellor shall execute the duties and responsibilities as may be delegated to him or her by the board [of governors]].) By enacting section 84040 in 1990, the Legislature intended to encourage sound fiscal management practices among community college districts for the most efficient and effective use of public funds for the education of community college students by strengthening fiscal accountability at the district and state levels. ( 84040, subd. (a).) To help achieve that goal, section 84040, subdivision (c) further provides: (c) The board of governors shall adopt criteria and standards for periodic assessment of the fiscal condition of community college districts, and these regulations regarding the review and improvement of district fiscal conditions as necessary to encourage sound fiscal management practices. In so doing: [] . . . [] (3) The board of governors, by regulation, shall develop appropriate procedures and actions for districts that fail to achieve fiscal stability or that fail to comply with the board of governors recommendations. The procedures and remedies may include the appointment of a special trustee to manage the district. The board of governors shall be authorized to reduce or withhold apportionment to districts to pay for the cost of the special trustee, management review, or other extraordinary costs resulting from the districts fiscal difficulties and to ensure the stabilization of the districts financial condition. ( 84040, subd. (c)(3).)

In addition to the language of section 71093, legislative history further confirms that section 71093 was premised on the authority already provided by section 84040. According to a legislative analysis of section 71093, existing law provided for the appointment of a special trustee as a means to aid a district failing to maintain fiscal integrity: Current law also provides that procedures and remedies for districts that do not achieve fiscal stability or fail to comply with [Board of Governors] recommendations may include the appointment of a special trustee to manage a district. The [Board of Governors] is authorized to reduce or withhold apportionment to districts to pay for the cost of the special trustee, management review, or other extraordinary costs resulting from the districts fiscal difficulties and to ensure the stabilization of the districts financial condition. (Sen. Rules Com., Off. of Sen. Floor Analyses, 3d reading analysis of Assem. Bill No. 61 (2003-2004 Reg. Sess.) as amended June 24, 2004, p. 2.) The Legislature determined that existing law was insufficient to provide the Chancellor with the authority to appoint a special trustee for the District in view of the Boards partially successful efforts to block the appointment in the superior court. (Id. at pp. 45.) Thus, in commenting on the need for the bill, the analysis stated: While the Chancellors office opines that it has properly exercised its authority in the Executive Order, the purpose of this bill is to ensure that the Chancellor has the authority needed to address the problems within the Compton Community College District. (Id. at p. 5.)

B. Section 71093 Comports With the Constitutional Limitations on Urgency Measures.

Appellants contend that section 71093 violates article IV, section 8, subdivision (d) of the California Constitution in several respects. They argue that the statute improperly creates a new office of special trustee or, at a minimum, changes the duties of the special trustee contemplated by section 84040. They further argue that section 71093 improperly changes the duties of the Chancellor by providing him with authority to delegate such broad powers to a special trustee.

To determine whether section 71093 runs afoul of the constitutional limitations on urgency measures, we begin by ascertain[ing] the intent of the Legislature so as to effectuate the purpose of the law. [Citations.] In determining such intent, a court must look first to the words of the statute themselves, giving to the language its usual, ordinary import and according significance, if possible, to every word, phrase and sentence in pursuance of the legislative purpose. [Citation.] At the same time, we do not consider . . . statutory language in isolation. [Citation.] Instead, we examine the entire substance of the statute in order to determine the scope and purpose of the provision, construing its words in context and harmonizing its various parts. [Citation.] Moreover, we read every statute with reference to the entire scheme of law of which it is part so that the whole may be harmonized and retain effectiveness. [Citations.] (State Farm Mutual Automobile Ins. Co. v. Garamendi (2004) 32 Cal.4th 1029, 1043.)

Turning first to the language of section 71093, the statute on its face demonstrates that it did not create the office of the special trustee. The statute expressly incorporates one of the existing procedures developed in section 84040, providing: [T]he chancellor may appoint a special trustee as provided in paragraph (3) of subdivision (c) of Section 84040, at district expense, to manage the district. ( 71093, subd. (c)(1).) The statute not only incorporates but also replicates the language of section 84040, which provides that the Board of Governors may develop procedures and remedies that include the appointment of a special trustee to manage the district. ( 84040, subd. (c)(3).) We are thus guided by the well-established canon of statutory construction that words should be given the same meaning throughout a code unless the Legislature has indicated otherwise. (Hassan v. Mercy American River Hospital (2003) 31 Cal.4th 709, 716; accord, Scottsdale Ins. Co. v. State Farm Mutual Automobile Ins. Co. (2005) 130 Cal.App.4th 890, 899 [As a rule, unless a contrary intent appears, we presume the Legislature intended that we accord the same meaning to similar phrases. [Citation.] Similarly, if a word or phrase has a particular meaning in one part of a law, we give it the same meaning in other parts of the law].) The appointment of a special trustee to manage the district must therefore be accorded the same meaning in both section 71093 and section 84040. Thus, section 84040 must be construed to have created the office of the special trustee. The reiteration of the necessity for a special trustee in section 71093 did not violate the Constitution prohibition against urgency measures creating an office.

Nor did section 71093 impermissibly change the duties of the special trustee. As first stated by the court in Martin v. Riley (1942) 20 Cal.2d 28, 37: An addition or subtraction in relation to the volume of the duties required to be performed by an officer, which does not substantially affect the primary duties of his office, is not such a change of duties as would prevent immediate effectiveness of legislation properly declared to be urgent. There, the court upheld the constitutionality of an urgency measure amending the pay, privileges, allowances and rights of the State Guard, reasoning that the changes enacted were for the most part merely additions to similar duties already imposed by law upon the particular officers. It may be said that if the duty thus prescribed is one which falls within the primary duties a particular officer is required to perform, generally it would not be a change of his duties specifically to require him to perform it. (Id. at pp. 3738.) Similarly, in Davis v. County of Los Angeles (1938) 12 Cal.2d 412, the court upheld an urgency measure permitting a school district board to submit to the electorate a proposition establishing a plan for district retirement salary. It found that the measure did not change the duties of board members or district officers [i]nasmuch as the provisions of the act or the code sections do not impose undue or material and substantial additional burdens or duties upon the officers mentioned, different in nature from those already required of them by law. (Id. at p 424; see also People v. Robertson (1982) 33 Cal.3d 21, 4647 [urgency measure imposing case decision deadline on justices upheld, as it did not substantially change the primary duties of the justices]; Flournoy v. Priest (1971) 5 Cal.3d 350, 354 [urgency measure providing the state treasurer and controller with an additional means of temporary borrowing to meet cash flow needs upheld, as it changed only the procedures by which they discharged their duty in the fiscal management of state government].)

Section 71093 did not in any way change the primary duties of the special trustee to manage the district. ( 71093, subd. (c)(1); 84040, subd. (c)(3).) Rather, section 71093, subdivision (f) specifies the tasks that the special trustee is authorized to undertake as part of his management of the District, which include modifying the Districts fiscal policies, revising its academic program to reflect income projections, distributing the burden of recovery among the Districts five operational areas, entering into agreements on the Districts behalf and appointing an advisory committee. ( 71093, subd. (f).) These circumstances are therefore unlike those in Stockburger v. Jordan (1938) 10 Cal.2d 636, a case on which appellants rely, where the court found that an urgency measure giving the state director of finance the power to lease land for the drilling of oil or gas imposed an unconstitutional change on the directors duties because the law previously had expressly prohibited him from entering into such leases. (Id. at pp. 646648.) As aptly stated by the court in Davis v. County of Los Angeles in distinguishing Stockburger v. Jordan, the Stockburger court did not intend[] . . . that every addition to the duties devolving upon public officers should be deemed to constitute a change of duties. The definition of change of duties adopted in that case was not intended to embrace such additional duties imposed by law the performance of which would naturally devolve upon the officer had no express mention thereof been made in the act, and as otherwise would be incidental to his office. Obviously such was not the situation in the Stockburger case. The new and special character of the additional duties imposed upon the director of finance under the act involved in that case was entirely foreign to the duties theretofore devolving upon him by law. (Davis v. County of Los Angeles, supra, 12 Cal.2d at p. 424.) Here, the duties specified in section 71093, subdivision (f) are simply those that would naturally devolve upon a special trustee authorized to manage the District.

We reject appellants contention that section 71093 impermissibly expanded the scope of the special trustees duties beyond those provided in section 84040. Pointing to section 84040, subdivision (a), which sets forth the Legislatures intent to encourage sound fiscal management practices among community college districts, they argue that the special trustee permitted by that statute is limited to handling only fiscally-related matters. ( 84040, subd. (a).) But the pertinent subdivision authorizing the appointment of a special trustee does not contain the qualifying language inferred by appellants. Specifically, subdivision (c)(3) states: The board of governors, by regulation, shall develop appropriate procedures and actions for districts that fail to achieve fiscal stability or that fail to comply with the board of governors recommendations. The procedures and remedies may include the appointment of a special trustee to manage the district. ( 84040, subd. (c)(3).) By its own terms, section 84040 permits the appointment of a special trustee to manage the district, without qualification. (Ibid.)

In construing a statute, we must be careful not to add requirements to those already supplied by the Legislature. [Citation.] (In re Jennings (2004) 34 Cal.4th 254, 265; see also Code Civ. Proc., 1858.) We may not, under the guise of construction, rewrite the law or give the words an effect different from the plain and direct import of the terms used. [Citations.] More specifically, we may not insert qualifying provisions not included in the statute. [Citation.] (Whaley v. Sony Computer Entertainment America, Inc. (2004) 121 Cal.App.4th 479, 486; accord, In re Hoddinott (1996) 12 Cal.4th 992, 1002 [court is not authorized to insert qualifying provisions not included and may not rewrite the statute to conform to an assumed intention which does not appear from its language].) We find no basis to rewrite section 84040, subdivision (c)(3) to limit the scope of the special trustees management of a district to management of fiscal matters. The scope of the special trustees management powers set forth in section 71093 is no greater than the scope of those permitted by section 84040.

Finally, we reject appellants contention that section 71093 impermissibly changed the duties of the Chancellor. The Board of Governors is statutorily authorized to appoint the Chancellor and [t]he chancellor shall execute the duties and responsibilities as may be delegated to him or her by the board. Whenever in this code a power is vested in the board, the board, by a majority vote, may adopt a rule delegating that power to the chancellor or any officer, employee, or committee as the board may designate. The rule shall prescribe the limits of the delegation. ( 71090, subd. (b).) Appellants contend that section 71093 constitutes a change in the Chancellors duties because the appointment of a special trustee does not require a delegation by the Board of Governors. Again, however, the language of section 71093 belies appellants claim. Subdivision (a) of section 71093 expressly acknowledges that the Board of Governors must first delegate any duty or responsibility to the Chancellor, providing: The board of governors may authorize the chancellor to suspend the authority of the Board of Trustees of the Compton Community College District, or of any of the members of that board, to exercise any powers or responsibilities or to take any official actions with respect to the management of the district . . . . ( 71093, subd. (a).) In turn, subdivision (c)(1) provides that the Chancellor may appoint a special trustee only if and when he exercises the power delegated by the Board of Governors to suspend the authority of the Board. ( 71093, subd. (c)(1).) Section 71093 does not change or enlarge the Chancellors duties because authorization by the Board of Governors remains a necessary prerequisite to the Chancellors exercising his power to appoint a special trustee. (See, e.g., Davis v. County of Los Angeles, supra, 12 Cal.2d at p. 424 [no change in officers duties where statute did not impose any duties that were different in nature from those already required of them by law].) In this instance, the Board of Governors provided the necessary authorization to the Chancellor via an administrative regulation. (See Cal. Code Regs., tit. 5, 58317, subd. (a).)

In sum, section 71093 does not run afoul of the constitutional limitations on urgency measures. It neither creates a new office nor changes the terms of any existing office. Because appellants complaint failed to state a viable cause of action showing that section 71093 violated article IV, section 8, subdivision (d) of the California Constitution, the trial court properly sustained defendants demurrers without leave to amend.^[5] (See Williams v. County of San Joaquin (1990) 225 Cal.App.3d 1326, 1335 [demurrer properly sustained without leave to amend where plaintiffs failed to state a cause of action for a constitutional violation].)

DISPOSITION

The order of dismissal with prejudice is affirmed. Defendants to recover their costs on appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

_____________________, J.

DOI TODD

We concur:

____________________________, P. J.

BOREN

____________________________, J.

ASHMANN-GERST

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^[1]Unless otherwise indicated, all further statutory references are to the Education Code.

^[2]Further legislative action is required to extend section 71093 beyond January 1, 2008. (See Stats. 2004, c. 139, 4 [In the event that the Board of Governors of the California Community Colleges determines that it may be necessary to maintain the authority granted in Section 71093 of the Education Code beyond the January 1, 2008, repeal date that is set forth in Section 2 of the act that adds this section, the board of governors shall make that recommendation, and its reasons therefor, in writing, to the Legislature and the Governor no later than July 1, 2007].)

^[3] Though the record does not contain any demurrer filed by the Board, counsel for the Board appeared and argued at the hearing on the demurrers, and the order sustaining the demurrers included the Board.

^[4] In October 2005, appellants appealed from the judgment of dismissal following the order sustaining the demurrers without leave to amend. No judgment was entered, however. An appeal may not be taken from an order sustaining or overruling a demurrer. (Hill v. City of Long Beach (1995) 33 Cal.App.4th 1684, 1695.) When a demurrer is granted without leave to amend, the appeal must be taken from the judgment or order of dismissal. (Kong v. City of Hawaiian Gardens Redevelopment Agency (2002) 108 Cal.App.4th 1028, 1032, fn. 1.) In December 2005, appellants filed an order of dismissal with prejudice. We deem the premature notice of appeal timely. (Cal. Rules of Court, rule 8.104(e)(2) [The reviewing court may treat a notice of appeal filed after the superior court has announced its intended ruling, but before it has rendered judgment, as filed immediately after entry of judgment].)

^[5]Though appellants have not provided any separate arguments concerning each of their three causes of action, we note that the demurrers to the entire complaint were properly sustained. Appellants second and third causes of action for writ of mandamus and injunctive relief, respectively, hinged on the viability of their constitutional claim. (See ThePeople v. Olds (1853) 3 Cal. 167, 175 [mandamus can give no right . . . although it may enforce one]; Shell Oil Co. v. Richter (1942) 52 Cal.App.2d 164, 168 [Injunctive relief is a remedy and not, in itself, a cause of action, and a cause of action must exist before injunctive relief may be granted].)