The Law Offices of Darryl Yorkey Atkinson, Andelson, Loya, Ruud & Attn: YORKEY, DARRYL D Romo a Professional Law Corporation PO Box 9636 Attn: Bryant, Guy A Berkeley, CA 94709. 3075 Hopyard Road Suite 210 Pleasanton, CA 94588-3361 Superior Court of California, County of Alameda Hayward Hall of Justice Epple ‘No. RG18922005 PlaintitPettioner(s) Order vs. Demurrer to Complaint Alameda County Board of Education Defendani/Respondent(s) (Abbreviated Title) ‘The Demurrer to Complaint filed for Albany Unified School District was set for hearing on 05/01/2019 at 13:30:00 in Department 512 before the Honorable Karin S Schwartz. ‘The matter was argued and submitted, and good cause appearing therefore, IT IS HEREBY ORDERED THAT: PARTES TO APPEAR for the Case Management Conference on July 17, 2019 at 1:30 p.m. The court issues the following tentative decision Albany Unified School District's Demurrer to Petitioner Cedric Epple’s Petition for Writ of Administrative Mandate, Albany Unified School District's Demurrer to Petitioner Cedric Epple's Petition for Writ of ‘Administrative Mandate is overruled, As a categorical matter, a California Code of Civil Procedure (CCP) section 1094.5 writ petition alleging procedural bias in a prior administrative proceeding would ‘not appear to be a good candidate for equitable tolling. Where applicable, a section 1094.5 writ petition should (and arguably must) precede, rather than follow, any federal constitutional claim based on a ‘procedural due process violation. Application of tolling in cases such as the present one generally ‘would subvert, rather than advance, the policies underlying the judicially created doctrine of equitable tolling: it would incentivize the filing of federal constitutional claims prior to resolution of procedural defects through the very means afforded by the Legislature for doing so. However, the court cannot rule ut he possibilty that equitable tolling may be appropiate to relieve this particular plant fom the forfeiture of his 1094 5 action based on his misunderstanding of the law of exhaustion of administrative and/or judicial remedies. More specifically, issue of facts, described below, preclude a finding that tolling is unavailable as a matter of law at this early juncture. RELEVANT BACKGROUND AND ALLEGATIONS This Petition arise out of disciplinary actions taken by Albany Unified School District ("AUSD") in response to racist and derogatory content posted on an Instagram account by several students at Albany High School “AHS”, including Petitioner Cedric Epple. Epple was expelled from AHS on June 20, 2017 after an expulsion hearing held pursuant to California Education Code section 48900.4. (Verified Petition for Writ of Administrative Mandamus, 45.) Epple appealed his expulsion to respondent ‘Alameda County Board of Education ("Board") pursuant to Education Code section 48919. (Pet'n, | 8.) On September 11, 2017, the Board upheld AUSD's decision to expel Epple. (Id) (On June 26, 2017, Epple filed an action against AUSD, the Board, and others in the United States ‘OrderDistrict Court for the Northern District of California (Case No. 3:17-cv-03657) ("the federal lawsuit") in which Epple alleged, among other claims, that AUSD and the Board violated his federal and state due process rights in the conduct of his expulsion proceedings. (AUSD's Request for Judicial Notice CRIN"), Ex. 1 [6/26/17 Complaint for Damages, Declaratory, and Injunctive Relief].) ‘On or about August 24, 2018, the district court dismissed Epple's procedural due process claims for failure to exhaust administrative and judicial remedies. (RIN, Ex 10, p. 4 [8/24/18 Order Re: Motion to Dismiss Consolidated Complaint} The court ited the Ninth Circuit Court of Appeal recent” n in Doe v. Regents of the University of California (9th Cir. 2018) 891 F.3d 1147, 1154, for the proposition that federal courts should give preclusive effect to a state administrative decision if the California courts would do so. (Id.) Noting that a school's disciplinary decisions are the type of | “adjudeatory, quasi-judicial decision that i subject o juice exhaustion requirement, the court held that Epple's failure to exhaust was fatal to his claim. The court observed that "the time to file a writ appears to be open." (Id, at p. 5 [citing Doc].) (On September 24, 2018, Epple filed this action, styled a Petition for Writ of Administrative Mandamus suant to CCP sections 1094.5 and 1085, seeking to overturn his expulsion, Epple alleges that 1 District Board Member Kim Trutane presided over his expulsion hearing and voted to expel him. (Pet, $6.) Epple alleges that after the hearing he discovered evidence that Trutane was biased agai him and "had a demonstrable interest in the outcome of [his] expulsion hearing.” (Id, § 7.) Epple alleges he timely filed the federal lawsuit alleging that his right to procedural due process was, violated because he was denied a neutral decision maker. (Id.) Epple alleges that the statute of limitations applicable to his section 1094.5 claim was tolled under the federal tolling statute in 28 U.S.C. section 1367(d), and California's equitable tolling doctrine. (Id, J 10.) Epple asserts that his right to due process under the United States and California Constitutions ‘as substantially violated when a based board member presided over his expulsion hearing." (Id, 11.) Epple prays for the issuance of "a writ of administrative mandate ordering the Board to reverse its decision affirming (his] expulsion.” (Id., 4 13.) STANDARD FOR DEMURRER ‘A demurrer is treated “as admitting all material facts properly pleaded, but not contentions, deductions, ‘or conclusions of factor lav.” (Blank v. Kirwan (1985) 39 Cal rd 311, 318) To sustain a demurrer based on a statute of limitations, it must appear clearly and affirmatively from the complaint that the statute of limitations has run. Tt is not enough that the complaint might be barred. (Marshall v. Gibson, Dunn & Crutcher (1995) 37 Cal.App.4th 1397, 1403; see also Shields v. County of San Diego (1984) 155 Cal.App.3d 103, 133.) ‘The determination of whether to apply the judicial doctrine of equitable tolling to the statute of limitations is an issue of law for determination by the cour. (Flopkins v. Keatierski (2014) 225 Cal. App 4th 736, 746.) JUDICIAL NOTICE AUSD's unopposed request for judicial notice of pleadings and other documents filed in the federal action is GRANTED, pursuant to Evidence Code sections 452, subdivision (d) and 453. ORDER ON DEMURRER, (1) AUSD's demurrer on statute of limitations grounds is OVERRULED. AUSD argues that the 90-day limitations periods in CCP section 1094.6 bars this action. Section 1094.3 authorizes judicial review of a governmental agency's adudiatory or quasi judicial action when the agency was required to take evidence and provide a hearing, and “discretion in the determination of facts is vested in the inferior tribunal, corporation, board, or officer." (CCP, § 1094.5, subd. (a)) Section 1094.6 provides that judicial reviow ofa local agency's docisin may take page unde section 1094.5 only if the lawsuit is filed within the 90-day period required by section 1094.6, subdivision (b). Petitioner argues that the 28 U.S.C. 1367 operates to toll the running of the limitation period and/or that California's more generous equitable tolling doctrine applies such that this case not time-barred. Preliminarily, the court notes that while section 1094.6 provides that a mandamus action "shall be filed Orderno later than the 90th day following the date on which the decision becomes final" the statute also provides: “In making a final decision ... the local agency shall provide notice to the party that the time ‘within which judicial review must be sought is governed by this section." (Id., subd. (f).) Absent the required notice, the 90-day period does not begin to run. (El Dorado Palm Springs v. Rent Review Com, (1991) 230 Cal. App.3d 335, 346.) ‘The record before the court docs not affirmatively show that notice was given. However, because Petitioner alleges thatthe statute of limitations on his writ petition was tolled, the court assumes no dlgputethat the requisite notice ofthe statutory 90-day period was given. Further, forthe reasons that follow, the court concludes that tolling under 28 U.S.C. 1367 does not apply, but that the Petition and judicially noticeable documents establish a possible basis to apply equitable tolling in this case. (A) Federal Tolling Epple cannot invoke the federal tolling provision, 28 U.S.C. § 1367(d), because Epple did not assert a section 1094.5 claim in the prior federal lawsuit. Federal law allows a district court to assert supplemental jurisdiction over any state lawy claims “that are so related to claims in the action within such original jurisdiction that they form part of the same case or controversy under Article III of the United States Constitution." (28 U.S.C. § 1367(a).) Federal law also provides for tolling of the statute of limitations, during the pendency of the federal lawsuit, of any state law claim over which the court exercises supplemental jurisdiction, until 30 days after its dismissal. (28 U.S.C. § 1367(4),) In this case, federal tolling does not apply because Epple did not include a 1094.5 claim in his federal lawsuit, and it is distinct from the claims that he did assert in that forum. (See Rester v. McWane, Inc., 962 So.2d 183, 186 (Ala. 2007) ("Section 13674)... tolls state-aw claims when those same claims are ending in federal cour"), Whe te purpose ofthe federal toling status sto facta the fling of feral and state claims arising from a "common nucleus of operative fact" in a single (federal) forum, it does not follow that unfiled and unasserted state claims arising from that "common nucleus" are tolled by operation of the federal tolling statute. (See Jinks v. Richland County (2003) 538 U.S. 456, 464.) Federal tolling of state claims does not have transitive properties. ‘The main authorities cited by Epple are inapposite. In Guevara v. Ventura County Community College Dist. (2008) 169 Cal App 4th 167, plaintiff expressly included a 1094.5 claim in his federal civil rights action, The Court of Appet's holding, therefore, that federal tolling applied when that case slater dismissed and then refiled in state court, was entirely consistent with the text and proper understanding of 28 U.S.C. section 1367. Estate of Belden v. Brown County (Kan. Ct, App. 2011) 261 P.3d 943, 975 also cited by Epple, is nether controlling nor persuasive. The court's analysis of equitable tolling ‘ume onthe pleading requirements specific to vicarious lability of in an employment context -& ‘complex and specific body of jurisprudence not applicable here. (8) Equitable Tolling Epple argues that state equitable tolling principles render his petition timely. Based on the allegations in the Petition and judicially noticeable facts, triable issues of fact exist as to whether equitable tolling should be applied to render Epple's claim timely Equitable tolling of statutes of limitations is a judicially created doctrine. "It is designed to prevent ‘unjust and technical forfeitures ofthe right toa trial on the merits when the purpose of the statute of limitations-timely notice to the defendant of the plaintif?'s claims-has been satisfied.” (McDonald v. Antelope Valley Community College Dist. (2008) 45 Cal 4th 88, 99 [intemal quotation marks omitted].) "Broadly speaking, the doctrine applies {w]hen an injured person has several legal remedies and, reasonably and in good faith, pursues one." Ud at p. 100 (intemal n marks omitted]. In this way, "[tolling eases the pressure on parties concurrently to seek in two separate forums with the attendant danger of conflicting decisions on the same issue." (Id. [intemal quotation marks omitted.) ‘Thus, "tolling benefits the court system by reducing the costs associated with a duplicative filing requirement, in many instances rendering later court proceedings either easier and cheaper to resolve or wholly unnecessary." (Id.;_see also Addison v. State of California Eyeglasses (1978) 21 Cal.3d 313, 317 ["[Clourts have adhered to a general policy which favors relieving plaintiff from the bar of a limitations statute when, possessing several legal remedies he, reasonably and in good faith, pursues one designed to lessen the extent of his injuries or damage."].) ‘Order