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Eugene B. Elliot, State Bar No. 111475
Michael C. Wenzel, State Bar No. 215388
Jashoda K. Kashyap, State Bar No. 295391 RAGE C SFR NHeSecae
BERTRAND, FOX, ELLIOT, OSMAN & WENZEL FILED
The Waterfront Building Superior Court of California,
2749 Hyde Street County of San Francisco
San Francisco, California 94109 10/02/2018
Telephone: (415) 353-0999 eau
Facsimile: (415) 353-0990 : Deputy Clerk
Attorneys for Respondent Exempt from all Court Filing Fees
RICHARD CURCI Pursuant to Government Code §6103
SUPERIOR COURT OF CALIFORNIA
COUNTY OF SAN FRANCISCO
MARGARET K REYES, Case No. CPF-18-516106
Petitioner, RESPONDENT RICHARD CURCI’S REPLY IN
SUPPORT OF DEMURRER TO AMENDED
v. PETITION FOR WRIT OF MANDATE
RICHARD CURCI, ASSISTANT
SUPERINTENDENT OF THE SAN Date: October 10, 2018
FRANCISCO UNIFIED SCHOOL DISTRICT; | Time: 9:30 am.
and DOES | to 20, Dept.: 302
Reservation No. 08271010-15.
Respondents.
Hon. Harold E. Kahn
I. INTRODUCTION
Respondent RICHARD CURCI demurred to petitioner MARGARET REYES’ (“REYES” or
“Petitioner”) Amended Petition for Writ of Mandate (“Amended Petition”) because it fails to state facts
sufficient to constitute a cause of action against CURCI, as it fails to establish any violation of due
process. REYES’ Opposition largely fails to meaningfully respond to the arguments raised in CURCI’s
demurrer, Further, the Opposition contains numerous extraneous allegations not alleged in her Amended
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Petition and not proper for consideration by this Court. Despite the numerous additional allegations, the
Opposition fails to show any valid basis to withstand demurrer.
I. LEGAL ARGUMENT
A. A Demurrer is Proper and Should be Sustained
Reyes argues in Opposition that the demurrer should be overruled, as her allegations must be
liberally construed, and all that is necessary is that she plead facts to show that she may be entitled to
relief. (See Petitioner’s Opposition, (““Opp.” p. 2.) However, REYES ignores case law that holds that a
demurrer admits all properly pleaded facts, but not conclusions, contentions, or deductions of facts or
law. Blank v. Kirwan (1985) 39 Cal.3d 311, 318, italics added. The Amended Petition is riddled with
vague conclusions and implications, which should not be admitted. As further argued below, REYES’
Amended Petition fails to state a claim, even if the allegations within the Amended Petition are to be
liberally construed. Therefore, CURCI’s demurrer should be sustained without leave to amend.
B. The Petition Fails to Establish any Violation of Due Process as REYES Alleges no Facts to
Establish that Either Ana de Arce or Enikia Ford Morthel Harbored any Actual Bias
Against REYES,
REYES argues in her Amended Petition and in Opposition that she was denied the right to
respond before a reasonably impartial, noninvolved reviewer. REYES argues for the first time in
Opposition that her hearing officer, Ana de Arce, was aware of Greg John’s retaliatory behavior against
her while acting as his supervisor, and did not correct the situation. (Opp. p. 3.) The Amended Petition is
devoid of any factual allegations regarding the alleged retaliation REYES was subjected to previously, or
the lawsuit that resulted from same. REYES explains that if de Arce supported PAR and supported Greg
John while he retaliated against her, “it seems logical that de Arce would harbor animus towards” her.
(Opp. p. 3.) Regardless of alleged prior retaliation unrelated to the allegations contained in the Amended
Petition, REYES failed to allege that Ana de Arce, was actually biased against her. Her allegations, at
most, give rise to an inference of implied bias, given that she supervised Greg John, and he retaliated
against her. As established in Linney v. Turpen (1996) 42 Cal.App.4th 763, “[b]ias and prejudice are not
' REYES filed a Reply to CURCI’s Answer to her Amended Petition for Writ of Mandate, wherein REYES responds to each
affirmative allegation plead by CURCI. A Reply to an Answer is not a proper pleading, and CURCI therefore does not
separately respond to the Reply.
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implied and must be clearly established...The challenge to the fairness of the adjudicator must set forth
concrete facts demonstrating bias or prejudice.” (Linney, citing Brinkley v. City of Long Beach 1993) 16
Cal.App.4th 1795,1810, italics added.) Petitioner’s contention at most establishes an implied bias against
her, which is insufficient, and the assertion of bias is pure speculation. REYES attempts to distinguish
Linney, on the grounds that the employee in Linney was afforded the opportunity to challenge the hearing
officer, but did not do so, which deprived him the opportunity to address claims of impartiality. (Opp. p.
4.) However, the Court in Linney acknowledged the employee’s failure to address the lack of
impartiality, and stated that despite the employee’s technical waiver of the argument that it found the
“due process contention to be without merit” as the employee failed to set forth “concrete facts
demonstrating bias or prejudice.” Linney v. Turpen (1996) 42 Cal.App.4th 763, 773.
REYES argues that her second hearing officer, Enikia Ford Morthel, was also biased, as she
“worked closely and in concert with the HR Chief, Daniel Menezes” and chose to ignore her evidence of
retaliation and discrimination during the hearing. (Opp. p. 3.) The mere fact that Morthel worked closely
with Menezes, along with her decision to recommend discipline does not demonstrate bias or prejudice
against REYES. REYES’ Amended Petition is devoid of any allegations showing that Morthel was
actually involved in the recommendation to PAR, or REYES’ subsequent discipline, aside from serving
as the hearing officer. REYES’ own argument establishes a lack of actual bias or prejudice, as she states
in her Opposition that she “can only speculate as to why two separate hearing officers...would ignore
such compelling evidence of ageism (and likely racism) of the SFUSD PAR program.” (Opp. p. 3,
emphasis added.)
To the extent that REYES is attempting to establish bias through the hearing officers’ approval or
acceptance of the PAR program, the mere fact that they approve of PAR does not establish bias. The
Court in Andrews v. Agricultural Labor Relations Bd. (1981) 28 Cal.3d 781, 790 explained that “[t}he
right to an impartial trier of fact is not synonymous with the claimed right to a trier completely
indifferent to the general subject matter of the claim before him. As stated in Evans v. Superior Court
(1930), 107 Cal.App. 372, 380, the word bias refers ‘to the mental attitude or disposition of the judge
towards a party to the litigation, and not to any views that he may entertain regarding the subject matter
involved.’”” REYES’ Amended Petition is devoid of any allegations to show that either Ana de Arce or
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Enikia Ford Morthel had a certain disposition towards her, and only contains allegations that they
supported the PAR program, which is insufficient to establish bias.
Lastly, REYES includes several irrelevant contentions in her Opposition regarding the Notice of
Unprofessional and Notice of Unsatisfactory Performance (“NUC/NUP”) as evidence of discriminatory
intent on behalf of the DISTRICT. REYES’ Amended Petition is focused on her two suspensions, and
was not directed at the NUC/NUP, and her allegations do not establish that either hearing officer relied
on the NUC/NUP in making their decision to recommend discipline. Therefore, her allegations regarding
the NUC/NUP should be disregarded.
Cc Even If the Notice of Proposed Suspension Was Defective, the Procedural Error Was
Trivial and Did Not Violate REYES’ Due Process Rights
REYES contends that CURCI’S notice of proposed suspension was defective because it was
missing a stated deadline for her response, an effective date of proposed discipline, a statement that
REYES had a right to answer orally or in writing, and failed to include the Education Code provisions
which govern discipline of Certificated Employees. (Amended Petition, p. 3.) REYES further claims that
after postponing the hearing, CURCI failed to issue an updated notice addressing the defects. (Amended
Petition, p. 4.) In Opposition, REYES again failed to provide any authority to support her contention that
a notice missing a stated deadline for response, an effective date of proposed discipline, a statement that
REYES had a right to answer orally or in writing, and or the Education Code provisions which govern
discipline of Certificated Employees violates due process. REYES argues in Opposition that the
ambiguity in the notice of proposed suspension “prevented [her] Union and [her] from preparing a proper
defense and setoff [sic] an unpredictable chain of events, where [she] was left inadequately prepared.”
(Opp. p. 6.) However, REYES’ contentions fail to explain how the allegedly missing information in the
notice prevented her from preparing a proper defense, as she fails to explain how she would have
prepared differently, or what she would have argued differently at her hearing had the hearing been free
of any alleged defects. REYES references in Opposition that Education Code Section 3543.2 (b) requires
the DIISTRICT, at an employee’s request, to meet and negotiate regarding disciplinary actions under
Cal. Government Code Section 3543.2(b). However, REYES does not allege that she requested a
meeting, so the cited statute appears irrelevant.
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Even if REYES could demonstrate that she would have prepared differently had the notice been
free of alleged defects, she failed to establish any violation of due process, as she was provided the
safeguards guaranteed by due process. Due process requires "notice of the proposed action, the reasons
therefor, a copy of the charges and materials upon which the action is based, and the right to respond,
either orally or in writing, to the authority initially imposing discipline." (Skelly v. State Personnel Bd.
(1975) 15 Cal.3d 194, 215.) REYES only alleges a procedural error, as the notice was missing certain
information. As argued in CURCI’s demurrer, the court in Tiernan v. Trustees of the California State
University and Colleges (1982) 33 Cal.3d 211, held “[w]here...the procedural error complained of is
deemed harmless, neither reinstatement nor back pay is generally considered appropriate.” The
procedural error complained of is harmless, as REYES cannot possibly claim she was surprised by the
decision to discipline her, and failed to establish that CURCI’s failure to follow regulations requiring
proper notice prejudiced her in any way. Petitioner’s allegations therefore establish that she was provided
with the required elements of due process, and any procedural error was harmless.
D. The Petition Fails to Establish an Arbitrary, Capricious, or Patently Abusive Exercise of
Discretion
REYES admits in her Amended Petition that she was given two “less than satisfactory”
evaluations, and was therefore referred to PAR and that she repeatedly refused to participate in PAR,
despite repeatedly being directed to do so. The DISTRICT’s decision to impose discipline on REYES
was clearly within its discretion. In Opposition, REYES argued that the DISTRICT opted to cease all
performance reviews, and violated the Education Code to attempt to coerce her into a “retaliatory, ageist
(and likely racist) program, and then claim [she was] insubordinate for refusing participation in that same
program, resulting in two 15-day suspensions.” REYES further included several irrelevant allegations
regarding her statistical analysis of PAR, and a letter from Daniel Menezes regarding the reasons that
teachers are referred to PAR in general. These allegations are not related to the fairness or impartiality of
the two Skelly hearings that are the subject of the Amended Petition. Further, REYES’ contentions
regarding the cessation of performance reviews and violation of the Education Code should be
disregarded, as they were not plead in the Amended Petition, and are also unrelated to the subject of the
Amended Petition.
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REYES’ contentions in her Opposition appear to challenge the existence of the PAR program
itself, and the DISTRICT’s referral of REYES to the PAR program. However, such contentions exceed
the scope of her Amended Petition for writ, as the Amended Petition requests a Writ of Mandate
directing the DISTRICT to make her whole for the wages and benefits she lost as a result of her
suspensions, directing the DISTRICT to correct her record with the California Commission on Teacher
Credentialing, and Directing the DISTRICT to remove references to her suspensions in her personnel
files. The allegations in her Amended Petition for writ demonstrate that it was within the DISTRICT’s
discretion to discipline REYES after her repeated refusal to participate in PAR, as directed. Therefore,
REYES is not entitled to the relief requested.
Il. CONCLUSION
For the reasons set forth above, CURCI respectfully request that this Demurrer to the Amended
Petition for Writ of Mandate of MARGARET K REYES be sustained without leave to amend.
Dated: October 2, 2018 BERTRAND, FOX, ELLIOT, OSMAN & WENZEL
By: Get fe atagage
Jasbioda K. Kashyap
Attorneys for Respondent
RICHARD CURCI
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PROOF OF SERVICE
I, the undersigned, declare that I am employed in the County of San Francisco, California; I am
over the age of eighteen years and not a party to the within cause; and my business address is 2749 Hyde
Street, San Francisco, California 94109.
Iam readily familiar with the practice of Bertrand, Fox, Elliot, Osman & Wenzel with respect to
the collection and processing of pleadings, discovery documents, motions and all other documents which
must be served upon opposing parties or other counsel in litigation. On the same day that
correspondence is placed for collection and mailing, it is deposited in the ordinary course of business
with the United States Postal Service in a sealed envelope with postage fully prepaid.
On October 2, 2018, I served the following documents:
RESPONDENT RICHARD CURCI’S REPLY IN SUPPORT OF DEMURRER TO
AMENDED PETITION FOR WRIT OF MANDATE
on the following interested parties:
Margaret K Reyes Petitioner in Pro Per
P.O. Box 590323
San Francisco, California 94159
Said service was performed in the following manner:
(¥) | BY EXPRESS MAIL SERVICE (USPS or Federal Express): I placed each such document in
a sealed envelope addressed as noted above, for collection and mailing by express mail service at
San Francisco, California, following the above state business practice, on this date.
I declare under penalty of perjury under the laws of the State of California that the foregoing is
true and correct. Executed October 2, 2018, at San Francisco, California.
Doris L. Com,
PROOF OF SERVICE
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w wn Eugene B. Elliot, State Bar No. 111475 Michael C. Wenzel, State Bar No. 215388 Jashoda K. Kashyap, State Bar No. 295391 RAGE C SFR NHeSecae BERTRAND, FOX, ELLIOT, OSMAN & WENZEL FILED The Waterfront Building Superior Court of California, 2749 Hyde Street County of San Francisco San Francisco, California 94109 10/02/2018 Telephone: (415) 353-0999 eau Facsimile: (415) 353-0990 : Deputy Clerk Attorneys for Respondent Exempt from all Court Filing Fees RICHARD CURCI Pursuant to Government Code §6103 SUPERIOR COURT OF CALIFORNIA COUNTY OF SAN FRANCISCO MARGARET K REYES, Case No. CPF-18-516106 Petitioner, RESPONDENT RICHARD CURCI’S REPLY IN SUPPORT OF DEMURRER TO AMENDED v. PETITION FOR WRIT OF MANDATE RICHARD CURCI, ASSISTANT SUPERINTENDENT OF THE SAN Date: October 10, 2018 FRANCISCO UNIFIED SCHOOL DISTRICT; | Time: 9:30 am. and DOES | to 20, Dept.: 302 Reservation No. 08271010-15. Respondents. Hon. Harold E. Kahn I. INTRODUCTION Respondent RICHARD CURCI demurred to petitioner MARGARET REYES’ (“REYES” or “Petitioner”) Amended Petition for Writ of Mandate (“Amended Petition”) because it fails to state facts sufficient to constitute a cause of action against CURCI, as it fails to establish any violation of due process. REYES’ Opposition largely fails to meaningfully respond to the arguments raised in CURCI’s demurrer, Further, the Opposition contains numerous extraneous allegations not alleged in her Amended Mt 1 CURCI'S REPLY IN SUPPORT OF DEMURRER TO AMENDED PETITION FOR WRIT OF MANDATEw wn Petition and not proper for consideration by this Court. Despite the numerous additional allegations, the Opposition fails to show any valid basis to withstand demurrer. I. LEGAL ARGUMENT A. A Demurrer is Proper and Should be Sustained Reyes argues in Opposition that the demurrer should be overruled, as her allegations must be liberally construed, and all that is necessary is that she plead facts to show that she may be entitled to relief. (See Petitioner’s Opposition, (““Opp.” p. 2.) However, REYES ignores case law that holds that a demurrer admits all properly pleaded facts, but not conclusions, contentions, or deductions of facts or law. Blank v. Kirwan (1985) 39 Cal.3d 311, 318, italics added. The Amended Petition is riddled with vague conclusions and implications, which should not be admitted. As further argued below, REYES’ Amended Petition fails to state a claim, even if the allegations within the Amended Petition are to be liberally construed. Therefore, CURCI’s demurrer should be sustained without leave to amend. B. The Petition Fails to Establish any Violation of Due Process as REYES Alleges no Facts to Establish that Either Ana de Arce or Enikia Ford Morthel Harbored any Actual Bias Against REYES, REYES argues in her Amended Petition and in Opposition that she was denied the right to respond before a reasonably impartial, noninvolved reviewer. REYES argues for the first time in Opposition that her hearing officer, Ana de Arce, was aware of Greg John’s retaliatory behavior against her while acting as his supervisor, and did not correct the situation. (Opp. p. 3.) The Amended Petition is devoid of any factual allegations regarding the alleged retaliation REYES was subjected to previously, or the lawsuit that resulted from same. REYES explains that if de Arce supported PAR and supported Greg John while he retaliated against her, “it seems logical that de Arce would harbor animus towards” her. (Opp. p. 3.) Regardless of alleged prior retaliation unrelated to the allegations contained in the Amended Petition, REYES failed to allege that Ana de Arce, was actually biased against her. Her allegations, at most, give rise to an inference of implied bias, given that she supervised Greg John, and he retaliated against her. As established in Linney v. Turpen (1996) 42 Cal.App.4th 763, “[b]ias and prejudice are not ' REYES filed a Reply to CURCI’s Answer to her Amended Petition for Writ of Mandate, wherein REYES responds to each affirmative allegation plead by CURCI. A Reply to an Answer is not a proper pleading, and CURCI therefore does not separately respond to the Reply. 2 CURCI'S REPLY IN SUPPORT OF DEMURRER TO AMENDED PETITION FOR WRIT OF MANDATEw wn implied and must be clearly established...The challenge to the fairness of the adjudicator must set forth concrete facts demonstrating bias or prejudice.” (Linney, citing Brinkley v. City of Long Beach 1993) 16 Cal.App.4th 1795,1810, italics added.) Petitioner’s contention at most establishes an implied bias against her, which is insufficient, and the assertion of bias is pure speculation. REYES attempts to distinguish Linney, on the grounds that the employee in Linney was afforded the opportunity to challenge the hearing officer, but did not do so, which deprived him the opportunity to address claims of impartiality. (Opp. p. 4.) However, the Court in Linney acknowledged the employee’s failure to address the lack of impartiality, and stated that despite the employee’s technical waiver of the argument that it found the “due process contention to be without merit” as the employee failed to set forth “concrete facts demonstrating bias or prejudice.” Linney v. Turpen (1996) 42 Cal.App.4th 763, 773. REYES argues that her second hearing officer, Enikia Ford Morthel, was also biased, as she “worked closely and in concert with the HR Chief, Daniel Menezes” and chose to ignore her evidence of retaliation and discrimination during the hearing. (Opp. p. 3.) The mere fact that Morthel worked closely with Menezes, along with her decision to recommend discipline does not demonstrate bias or prejudice against REYES. REYES’ Amended Petition is devoid of any allegations showing that Morthel was actually involved in the recommendation to PAR, or REYES’ subsequent discipline, aside from serving as the hearing officer. REYES’ own argument establishes a lack of actual bias or prejudice, as she states in her Opposition that she “can only speculate as to why two separate hearing officers...would ignore such compelling evidence of ageism (and likely racism) of the SFUSD PAR program.” (Opp. p. 3, emphasis added.) To the extent that REYES is attempting to establish bias through the hearing officers’ approval or acceptance of the PAR program, the mere fact that they approve of PAR does not establish bias. The Court in Andrews v. Agricultural Labor Relations Bd. (1981) 28 Cal.3d 781, 790 explained that “[t}he right to an impartial trier of fact is not synonymous with the claimed right to a trier completely indifferent to the general subject matter of the claim before him. As stated in Evans v. Superior Court (1930), 107 Cal.App. 372, 380, the word bias refers ‘to the mental attitude or disposition of the judge towards a party to the litigation, and not to any views that he may entertain regarding the subject matter involved.’”” REYES’ Amended Petition is devoid of any allegations to show that either Ana de Arce or 3 CURCI'S REPLY IN SUPPORT OF DEMURRER TO AMENDED PETITION FOR WRIT OF MANDATEw wn Enikia Ford Morthel had a certain disposition towards her, and only contains allegations that they supported the PAR program, which is insufficient to establish bias. Lastly, REYES includes several irrelevant contentions in her Opposition regarding the Notice of Unprofessional and Notice of Unsatisfactory Performance (“NUC/NUP”) as evidence of discriminatory intent on behalf of the DISTRICT. REYES’ Amended Petition is focused on her two suspensions, and was not directed at the NUC/NUP, and her allegations do not establish that either hearing officer relied on the NUC/NUP in making their decision to recommend discipline. Therefore, her allegations regarding the NUC/NUP should be disregarded. Cc Even If the Notice of Proposed Suspension Was Defective, the Procedural Error Was Trivial and Did Not Violate REYES’ Due Process Rights REYES contends that CURCI’S notice of proposed suspension was defective because it was missing a stated deadline for her response, an effective date of proposed discipline, a statement that REYES had a right to answer orally or in writing, and failed to include the Education Code provisions which govern discipline of Certificated Employees. (Amended Petition, p. 3.) REYES further claims that after postponing the hearing, CURCI failed to issue an updated notice addressing the defects. (Amended Petition, p. 4.) In Opposition, REYES again failed to provide any authority to support her contention that a notice missing a stated deadline for response, an effective date of proposed discipline, a statement that REYES had a right to answer orally or in writing, and or the Education Code provisions which govern discipline of Certificated Employees violates due process. REYES argues in Opposition that the ambiguity in the notice of proposed suspension “prevented [her] Union and [her] from preparing a proper defense and setoff [sic] an unpredictable chain of events, where [she] was left inadequately prepared.” (Opp. p. 6.) However, REYES’ contentions fail to explain how the allegedly missing information in the notice prevented her from preparing a proper defense, as she fails to explain how she would have prepared differently, or what she would have argued differently at her hearing had the hearing been free of any alleged defects. REYES references in Opposition that Education Code Section 3543.2 (b) requires the DIISTRICT, at an employee’s request, to meet and negotiate regarding disciplinary actions under Cal. Government Code Section 3543.2(b). However, REYES does not allege that she requested a meeting, so the cited statute appears irrelevant. 4 CURCI'S REPLY IN SUPPORT OF DEMURRER TO AMENDED PETITION FOR WRIT OF MANDATEw wn Even if REYES could demonstrate that she would have prepared differently had the notice been free of alleged defects, she failed to establish any violation of due process, as she was provided the safeguards guaranteed by due process. Due process requires "notice of the proposed action, the reasons therefor, a copy of the charges and materials upon which the action is based, and the right to respond, either orally or in writing, to the authority initially imposing discipline." (Skelly v. State Personnel Bd. (1975) 15 Cal.3d 194, 215.) REYES only alleges a procedural error, as the notice was missing certain information. As argued in CURCI’s demurrer, the court in Tiernan v. Trustees of the California State University and Colleges (1982) 33 Cal.3d 211, held “[w]here...the procedural error complained of is deemed harmless, neither reinstatement nor back pay is generally considered appropriate.” The procedural error complained of is harmless, as REYES cannot possibly claim she was surprised by the decision to discipline her, and failed to establish that CURCI’s failure to follow regulations requiring proper notice prejudiced her in any way. Petitioner’s allegations therefore establish that she was provided with the required elements of due process, and any procedural error was harmless. D. The Petition Fails to Establish an Arbitrary, Capricious, or Patently Abusive Exercise of Discretion REYES admits in her Amended Petition that she was given two “less than satisfactory” evaluations, and was therefore referred to PAR and that she repeatedly refused to participate in PAR, despite repeatedly being directed to do so. The DISTRICT’s decision to impose discipline on REYES was clearly within its discretion. In Opposition, REYES argued that the DISTRICT opted to cease all performance reviews, and violated the Education Code to attempt to coerce her into a “retaliatory, ageist (and likely racist) program, and then claim [she was] insubordinate for refusing participation in that same program, resulting in two 15-day suspensions.” REYES further included several irrelevant allegations regarding her statistical analysis of PAR, and a letter from Daniel Menezes regarding the reasons that teachers are referred to PAR in general. These allegations are not related to the fairness or impartiality of the two Skelly hearings that are the subject of the Amended Petition. Further, REYES’ contentions regarding the cessation of performance reviews and violation of the Education Code should be disregarded, as they were not plead in the Amended Petition, and are also unrelated to the subject of the Amended Petition. 2 CURCI'S REPLY IN SUPPORT OF DEMURRER TO AMENDED PETITION FOR WRIT OF MANDATEw wn REYES’ contentions in her Opposition appear to challenge the existence of the PAR program itself, and the DISTRICT’s referral of REYES to the PAR program. However, such contentions exceed the scope of her Amended Petition for writ, as the Amended Petition requests a Writ of Mandate directing the DISTRICT to make her whole for the wages and benefits she lost as a result of her suspensions, directing the DISTRICT to correct her record with the California Commission on Teacher Credentialing, and Directing the DISTRICT to remove references to her suspensions in her personnel files. The allegations in her Amended Petition for writ demonstrate that it was within the DISTRICT’s discretion to discipline REYES after her repeated refusal to participate in PAR, as directed. Therefore, REYES is not entitled to the relief requested. Il. CONCLUSION For the reasons set forth above, CURCI respectfully request that this Demurrer to the Amended Petition for Writ of Mandate of MARGARET K REYES be sustained without leave to amend. Dated: October 2, 2018 BERTRAND, FOX, ELLIOT, OSMAN & WENZEL By: Get fe atagage Jasbioda K. Kashyap Attorneys for Respondent RICHARD CURCI 6 CURCI'S REPLY IN SUPPORT OF DEMURRER TO AMENDED PETITION FOR WRIT OF MANDATEw wn PROOF OF SERVICE I, the undersigned, declare that I am employed in the County of San Francisco, California; I am over the age of eighteen years and not a party to the within cause; and my business address is 2749 Hyde Street, San Francisco, California 94109. Iam readily familiar with the practice of Bertrand, Fox, Elliot, Osman & Wenzel with respect to the collection and processing of pleadings, discovery documents, motions and all other documents which must be served upon opposing parties or other counsel in litigation. On the same day that correspondence is placed for collection and mailing, it is deposited in the ordinary course of business with the United States Postal Service in a sealed envelope with postage fully prepaid. On October 2, 2018, I served the following documents: RESPONDENT RICHARD CURCI’S REPLY IN SUPPORT OF DEMURRER TO AMENDED PETITION FOR WRIT OF MANDATE on the following interested parties: Margaret K Reyes Petitioner in Pro Per P.O. Box 590323 San Francisco, California 94159 Said service was performed in the following manner: (¥) | BY EXPRESS MAIL SERVICE (USPS or Federal Express): I placed each such document in a sealed envelope addressed as noted above, for collection and mailing by express mail service at San Francisco, California, following the above state business practice, on this date. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed October 2, 2018, at San Francisco, California. Doris L. Com, PROOF OF SERVICE