Preview
11 VANESSA L. HOLTON (111613)
ROBERT G. RETANA (148677)
22 SUZANNE C. GRANDT (304794) ELECTRONICALLY
CAROLINE W. HOLMES (299116)
STATE BAR OF CALIFORNIA
F I L E D
33 Superior Court of California,
OFFICE OF GENERAL COUNSEL County of San Francisco
44 180 Howard Street 07/16/2020
San Francisco, CA 94105-1639 Clerk of the Court
55 Telephone: (415) 538-2324 BY: RONNIE OTERO
Deputy Clerk
Fax: (415) 538-2321
66 caroline.holmes@calbar.ca.gov
77 Attorneys for Defendant
STATE BAR OF CALIFORNIA
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Exempt from Filing Fees Pursuant to
99 Government Code Section 6103
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SUPERIOR COURT OF THE STATE OF CALIFORNIA
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COUNTY OF SAN FRANCISCO
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Case No. CPF-20-517092
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CHRISTINE TUMA, DEFENDANT THE STATE BAR OF
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15 CALIFORNIA’S REPLY IN SUPPORT OF
Plaintiff, DEMURRER TO PLAINTIFF CHRISTINE
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16 TUMA’S COMPLAINT FOR INJUNCTIVE
v. RELIEF AND DECLARATORY RELIEF
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17 FOR VIOLATIONS OF BAGLEY-KEENE
THE STATE BAR OF CALIFORNIA OPEN MEETING ACT AND CALIFORNIA
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18 PUBLIC RECORDS ACT
Defendant. [Code of Civ. Proc., §§ 430.10, 430.30]
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DATE: July 23, 2020
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20 TIME: 9:30 a.m.
DEPT: 302
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21 JUDGE: Hon. Ethan P. Schulman
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22 Action Filed: May 26, 2020
Trial Date: None
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Reply ISO Demurrer to Complaint Case No. CPF-20-517092
11 Defendant the State Bar of California (“State Bar”) submits this Reply in support of its
22 Demurrer to Plaintiff Christine Tuma’s Complaint for Injunctive Relief and Declaratory Relief
33 for Violations of Bagley-Keene Open Meeting Act and California Public Records Act pursuant
44 to Code of Civil Procedure sections 430.10 and 430.30.
55 I. INTRODUCTION
66 The State Bar’s Demurrer establishes that Plaintiff’s Complaint does not state facts
77 sufficient to constitute a cause of action for violations of the Bagley-Keene Opening Meeting Act
88 (“Bagley-Keene Act”) and the California Public Records Act (“CPRA”). Plaintiff’s Opposition
99 fails to establish otherwise.
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10 On May 28, 2020, a Subcommittee of the Committee of Bar Examiners
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11 (“Subcommittee”) met to decide the single issue of whether to partially invalidate the
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12 examination test product of an individual applicant due to an isolated printing error. Following
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13 publication of the May 28, 2020 Subcommittee meeting agenda, Plaintiff speculated that the
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14 Subcommittee would also discuss “printing errors” affecting the “validity of grading” of the
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15 California Bar Examination, and demanded that she be granted access to the meeting and
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16 Attachment C-200. (Compl., ¶ 14.) Plaintiff fails to set forth any facts whatsoever in support of
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17 her speculation that the meeting or Attachment C-200 included any discussions of “printing
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18 errors” affecting the “validity of grading” of the California Bar Examination. Further, as
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19 Plaintiff herself recognizes, she is not entitled to access the grading of an individual applicant’s
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20 California Bar Examination under the Bagley-Keene Act and the CPRA.
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21 Plaintiff has not and cannot demonstrate how her Complaint can be amended to cure
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22 these factual and legal deficiencies. The State Bar’s Demurrer should therefore be sustained
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23 without leave to amend.
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24 II. ARGUMENT
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25 A. Plaintiff Is Not Entitled to a “Transfer” to the California Supreme Court.
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26 Plaintiff begins her Opposition by announcing that she “is not opposed to having our
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27 California Supreme Court assume direct control of the instant proceedings for all purposes.”
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28 (Opp., 1:22-23.) Plaintiff even suggests that the change of venue “would be especially
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Reply ISO Demurrer to Complaint Case No. CPF-20-517092
11 appropriate and efficient if this matter was consolidated with a relevant action pertaining to the
22 California Bar Examination in our Supreme Court’s jurisdiction,” though she does not identify
33 the action she is referring to by case name or number. (Id., at 1:25-27.) (The State Bar is
44 unaware of any such action.) In any event, Plaintiff is mistaken in her belief that she need only
55 stipulate to “transfer the instant proceedings to our Supreme Court’s inherent jurisdiction” to
66 overcome the jurisdictional defect identified in the State Bar’s Demurrer. (Id., at 1:24-25.)
77 The California Supreme Court has exclusive subject matter jurisdiction over attorney
88 admissions matters. (In re Rose (2000) 22 Cal.4th 430, 453; Rules of Ct., rule 9.3.) Review of
99 an attorney admissions decision is accomplished by petition for review to the California Supreme
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10 Court. (Rules of Ct., rule 9.13(d); see also State Bar Rule 4.9 [“An applicant refused
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11 certification to the Supreme Court of California for admission to practice law in California may
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12 have the action of the Committee reviewed by the Supreme Court of California in accordance
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13 with its procedures.”]) Plaintiff must follow the procedures for a petition for review set forth in
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14 the California Rules of Court in order to seek review of the Subcommittee’s May 28, 2020
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15 decision whether to partially invalidate an applicant’s examination test product. (Rules of Ct.,
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16 rule 8.500; see also Smith v. State Bar (1989) 212 Cal.App.3d 971, 978 [State Bar’s demurrer
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17 sustained where request for review of attorney admissions decision should have been by original
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18 petition to the California Supreme Court].)
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19 Despite her willingness to proceed with her claims before the California Supreme Court,
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20 Plaintiff “conversely” argues the State Bar’s Demurrer should not be sustained on jurisdictional
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21 grounds because “such a ruling would render Bagley-Keene Open Meeting Act and California
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22 Public Records Act meaningless with respect to attorney admissions matters.” (Opp., 2:3-6.) A
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23 similar argument was rejected by the Court of Appeals in Disenhouse v. Peevey. (Cf.
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24 Disenhouse v. Peevey (2014) 226 Cal.App.4th 1096, 1102.) There, the Court of Appeals held
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25 that the plaintiff was required to file for writ of mandate to the California Supreme Court or
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26 Court of Appeals to enforce her rights under the Bagley-Keene Act against the Public Utilities
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27 Commission. (Ibid.) The Court of Appeals explained, “Our conclusion does not, as Disenhouse
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28 asserts, effectively exempt the commission from the [Bagley-Keene] Act’s reach.” (Ibid.)
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Reply ISO Demurrer to Complaint Case No. CPF-20-517092
11 “Rather, it respects both the Legislature’s aims in placing limits on judicial review of
22 commission actions as well as the Legislature's aims under the Act.” (Ibid.) Plaintiff’s argument
33 is equally unavailing because it asks this Court to disregard the California Supreme Court’s
44 exclusive jurisdiction over attorney admission matters.
55 B. The Bagley-Keene Act and the CPRA Do Not Grant Plaintiff Access to the
Grading of an Individual’s California Bar Examination.
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77 The only legal theory advanced by Plaintiff in support of her claims is the general
88 principle that the Bagley-Keene Act and the CPRA should be construed broadly to further the
99 people’s right of access. (Opp., 2:7-25.) But even if these laws are broadly construed, they do
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10 not support Plaintiff’s demands to be granted access to a closed session meeting and record
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11 regarding the grading of an individual’s California Bar Examination. By its own terms,
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12 “Nothing in [the Bagley-Keene Act] shall be construed to … [p]revent state bodies that
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13 administer the licensing of persons engaging in businesses or professions from holding closed
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14 session to prepare, approve, grade, or administer examinations.” (Gov. Code § 11126(c)(1).) “In
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15 addition to the grounds authorized in the Bagley-Keene Open Meeting Act,” Business and
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16 Professions Code section 6026.7, subdivision (c)(3), provides that “a closed session may be held
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17 for those meetings, or portions thereof, relating to … [t]he preparation, approval, grading, or
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18 administration of the California Bar Examination.” (Bus. & Prof. Code § 6026.7(c)(3).)
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19 Similarly, the CPRA expressly exempts from disclosure “examination data used to
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20 administer a licensing examination,” which includes records reflecting the grading of an
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21 individual’s California Bar Examination. (Gov. Code § 6254(g).) Such records are also exempt
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22 from disclosure under a number of other exemptions that protect the privacy rights of individual
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23 applicants. (Gov. Code § 6254(c) [where disclosure is prohibited because it would constitute “an
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24 unwarranted invasion of personal privacy”], 6254(k) [where disclosure is prohibited by law;
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25 here, by Bus. & Prof. Code § 6060.25, which requires confidentiality of applicant data], 6255
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26 [where the public interest served by not disclosing the record clearly outweighs the public
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27 interest served by disclosure of the record].)
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Reply ISO Demurrer to Complaint Case No. CPF-20-517092
11 Relying on the principle of broad construction, Plaintiff ostensibly argues that even if the
22 May 28, 2020 Subcommittee meeting and Attachment C-200 pertain to the grading of an
33 individual applicant’s California Bar Examination—as indicated on the meeting notice and
44 agenda—the Court should conduct an exploratory review of the contents of the meeting
55 discussion and Attachment C-200 to determine whether there are any individual items of
66 “nonconfidential” information that are subject to public disclosure. Plaintiff’s argument is
77 flawed for several reasons. First, it flies in the face of the plain language of the exceptions to the
88 Bagley-Keene Act and the CPRA set forth above. While such exceptions must be narrowly
99 construed, they must not be read in a way that is contrary to the purposes behind the exception or
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10 that would “lead to unreasonable, impractical, absurd, or arbitrary results.” (Travis v. Board of
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11 Trustees of Cal. State Univ. (2008) 161 Cal.App.4th 335, 347 [applying this principle to the
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12 Bagley-Keene Act]; see Regents of Univ. of Cal. v. Super. Ct. (2013) 222 Cal.App.4th 383, 397
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13 [applying this principle to the CPRA].)
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14 Further, the Court already denied Plaintiff’s request to record the May 28, 2020 closed
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15 session meeting and Plaintiff is not entitled to an in camera review of those discussions. (May
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16 28, 2020 Order Denying Pl.’s Temporary Restraining Order (“TRO”), 3:16-23.) Nor is she
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17 entitled to an in camera review of Attachment C-200 because she has not filed a verified petition
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18 in this matter. (Gov. Code § 6259(c).) Even if she had, she fails to allege any facts whatsoever
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19 that the record was improperly withheld under multiple exemptions to the CPRA. (Ibid.)
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20 Plaintiff’s conclusory allegation that the record was “improperly withheld” is insufficient as a
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21 matter of law. (Savea v. YRC Inc. (2019) 34 Cal.App.5th 173, 178 [In determining the
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22 sufficiency of a complaint, the court disregards “contentions, deductions, or conclusions of fact
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23 or law”]; see also Ellis v. Cnty. of Calaveras (2016) 245 Cal.App.4th 64, 70 [same].)
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24 C. The State Bar’s Demurrer Is Procedurally Proper.
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25 1. Demurrer Is Proper Vehicle for Challenging Plaintiff’s Entire Causes of Action.
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26 In her Opposition, Plaintiff argues that “[a] motion to strike, not a general demurrer, is
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27 the procedure to attack an improper … remedy demanded in the complaint.” (Opp., 3:6-8.) A
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28 motion to strike is similar to a demurrer in that it challenges defects in a petition or complaint.
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Reply ISO Demurrer to Complaint Case No. CPF-20-517092
11 However, the two pleadings challenge different types of defects: A motion to strike is used to
22 challenge improper or irrelevant information, or complaints not made in conformity with laws,
33 rules, or court orders (id., at § 436); a demurrer is used to challenge the legal sufficiency of a
44 cause of action (id., at § 430.10). A motion to strike can be used to attack portions of a cause of
55 action, while a demurrer is used to attack an entire cause of action. (PH II, Inc. v. Super. Ct.
66 (1995) 33 Cal.App.4th 1680, 1681.) The State Bar’s Demurrer establishes that Plaintiff’s
77 Complaint does not state facts sufficient to constitute causes of action for violations of the
88 Bagley-Keene Act or the CPRA. As a result, Plaintiff is not entitled to any form of relief,
99 whether or not her prayers for relief are properly or improperly pleaded.
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10 2. The State Bar’s Grounds for Demurrer Are Proper.
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11 Plaintiff alleges that “[t]he State Bar appears to ask this Court to grant its demurrer on
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12 grounds of the Federal Rules of Civil Procedure” by including the words “fails to state a claim”
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13 in its Demurrer. (Opp., 3:18-20.) A motion to dismiss for “failure to state a claim for relief” is
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14 the federal counterpart to California’s “general” demurrer. (See, e.g., Arce v. Childrens Hospital
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15 Los Angeles (2012) 211 Cal.App.4th 1455, 1471.) As indicated throughout the State Bar’s
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16 pleading papers, the State Bar’s Demurrer is brought pursuant to California Code of Civil
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17 Procedure sections 430.10 and 430.30, which authorize a demurrer where, as here, “[t]he
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18 pleading does not state facts sufficient to constitute a cause of action.” (Code Civ. Proc. §§
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19 430.10(e), 430.30.) Nowhere in its Demurrer does the State Bar cite to or rely on the parallel
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20 grounds for dismissal set forth in the Federal Rules of Civil Procedure, as Plaintiff contends.
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21 This objection to nomenclature thus falls flat.
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22 3. The State Bar’s Reliance on Matters Subject to Judicial Notice Is Proper.
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23 Plaintiff argues that the State Bar’s Demurrer should be overruled because the State Bar
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24 “relies very heavily on extrinsic evidence outside of the face of the complaint.” (Opp., 4:9-5:5.)
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25 Specifically, Plaintiff challenges the State Bar’s reliance on her own declaration, previously filed
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26 by Plaintiff in this matter in support of her application for Temporary Restraining Order
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27 (“TRO”), and the State Bar’s May 24, 2020 letter attached as an exhibit thereto, as well as the
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28 Court’s May 28, 2020 Order Denying Plaintiff’s TRO. (Opp., 4:9-5:5.) The State Bar’s
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Reply ISO Demurrer to Complaint Case No. CPF-20-517092
11 Demurrer does not depend upon the Court’s consideration of these matters: The deficiencies of
22 the Complaint are clear on the face of the Complaint alone. Even so, the Court may consider
33 such matters as they are the proper subject of judicial notice, and Plaintiff has not provided any
44 legal authority as to why the Court should not do so. (Code of Civ. Proc. § 430.30(a).)
55 Plaintiff admits that the Court may take judicial notice of her previously-filed declaration
66 and the State Bar’s May 24, 2020 letter. (Opp., 4:24-25.) The Court’s May 28, 2020 Order
77 Denying Plaintiff’s TRO is also the proper subject of mandatory and discretionary judicial
88 notice. (Evid. Code §§ 451(a), 452(a).) That issue does not appear to be seriously in dispute as
99 Plaintiff herself makes multiple references to the TRO proceedings throughout her Opposition.
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10 (Id., at 2:3-6; 5:21-23.) Plaintiff even makes a bald-faced reference to “subsequent witness
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11 declarations” that were rejected by this Court during her TRO proceedings. (Opp., 5:16-19.)
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12 Plaintiff’s reference to extraneous documents that are themselves not subject to judicial notice
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13 only serves to further undermine the credibility of her challenge to the State Bar’s limited
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14 reliance on matters that are properly subject to judicial notice.
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15 D. The State Bar Accurately States the Law Regarding Declaratory Relief.
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16 Plaintiff argues the State Bar’s Demurrer “misstates the law” with respect to the
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17 availability of declaratory relief under the Bagley-Keene Act and the CPRA. (Opp., 3:22-4:5.)
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18 Plaintiff cites to a single case, North Pacifica LLC v. California Coastal Commission (2008), 166
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19 Cal.App.4th 1416, for the proposition that the Bagley-Keene Act’s open meeting requirements
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20 “can be challenged by way of … declaratory relief.” (Opp., 3:24-26.) North Pacifica is not at
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21 odds with the authority cited in the State Bar’s Demurrer—namely, the plain language of
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22 Government Code section 11130.3. Rather, Plaintiff erroneously assumes that because an action
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23 for declaratory relief is one of the ways to commence a Bagley-Keene Act action, she is entitled
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24 to a declaratory judgment that goes beyond what is provided for in the relevant statutes. For
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25 example, Plaintiff requests a declaratory judgment that the State Bar “is not authorized to
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26 convene in closed session to discuss matters that do not legitimately involve examination
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27 security….” (Compl., 12:12-15.) Her request far exceeds the declaratory relief available under
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28 Government Code section 11130, which is limited to a determination of “the applicability of this
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Reply ISO Demurrer to Complaint Case No. CPF-20-517092
11 article to past actions.” (Gov. Code § 11130(a).)
22 With respect to her requests for declaratory relief under the CPRA, Plaintiff cites to two
33 cases, County of Santa Clara v. Superior Court (2009) 171 Cal.App.4th 119, and Younger v.
44 Berkeley City Council (1975) 45 Cal.App.3d 825, for the proposition that the CPRA authorizes
55 “a declaratory relief proceeding.” (Opp., 4:1-5.) These cases do not contradict the legal
66 authority set forth in the State Bar’s Demurrer; in fact, the State Bar relies upon County of Santa
77 Clara in support of its position regarding available remedies. Again, Plaintiff erroneously
88 assumes that because a CPRA action may be brought by a declaratory relief proceeding, she is
99 therefore entitled to the expansive declaratory relief she seeks. However, as County of Santa
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10 Clara makes clear, “[t]he CPRA provides no judicial remedy … that may be utilized for any
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11 purpose other than to determine whether a particular record or class of records must be
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12 disclosed.” (Cnty. of Santa Clara, supra,171 Cal.App.4th at 127, citing Gov. Code § 6258.)
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13 Plaintiff’s request for a declaratory judgment that the State Bar “was unjustified in failing to set
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14 forth the names and titles or positions of each person responsible for the May 24, 2020 denial of
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15 Plaintiff[’s CPRA] request” (Compl., 12:3-7), for example, is not an available remedy under
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16 County of Santa Clara, as it is not sought for the purpose of determining whether a particular
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17 record must be disclosed. (Ibid.)
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18 E. Plaintiff Fails to Address the Deficiencies of Her Complaint.
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19 Plaintiff argues that she has sufficiently pleaded a violation of the Bagley-Keene Act
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20 because “[t]he State Bar admits the [May 28, 2020 Subcommittee] meeting is closed” and she
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21 “sought to have nonconfidential portions of that meeting held in open session.” (Opp., 5:19-21.)
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22 As set forth in the State Bar’s Demurrer, Plaintiff fails to allege any facts whatsoever in support
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23 of her speculation that the May 28, 2020 closed session meeting included “nonconfidential”
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24 discussions. Further, Plaintiff fails to supply any legal authority for the proposition that the mere
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25 possibility the State Bar may discuss some individual item of nonconfidential information while
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26 addressing an exempt topic prevents the State Bar from holding a closed session. Plaintiff’s
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27 speculation about the meeting is factually and legally insufficient to state a cause of action for
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28 violation of the Bagley-Keene Act. (Savea, supra, 34 Cal.App.5th at 178; see also Ellis, supra,
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Reply ISO Demurrer to Complaint Case No. CPF-20-517092
11 245 Cal.App.4th at 70.)
22 Plaintiff also argues that because the Complaint was sufficient for purposes of
33 adjudicating her TRO, it is sufficient to withstand the State Bar’s Demurrer. (Opp., 5:21-23.)
44 Her argument is unpersuasive. The Court did not address the factual and legal sufficiency of
55 Plaintiff’s Complaint when it denied her request for a TRO, but if it had, it would have
66 determined her unverified Complaint insufficient to support her application for TRO as a matter
77 of law. (Code Civ. Proc., § 527 [“No temporary restraining order shall be granted … unless …
88 [i]t appears from facts shown by affidavit or by the verified complaint that great or irreparable
99 injury will result to the applicant before the matter can be heard on notice.”])
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10 In denying Plaintiff’s application for a TRO, the Court did, however, point out the
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11 deficiency of Plaintiff’s legal argument when it held,“The mere possibility that the Bar may
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12 discuss some individual item of nonconfidential information while addressing an exempt topic
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13 does not prevent it from holding a closed session, much less entitle plaintiff to emergency
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14 injunctive relief.” (May 28, 2020 Order Denying Pl.’s TRO, p. 3:9-11.) Undaunted, Plaintiff
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15 repeats the same argument in her Opposition. It has not improved with repetition.
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16 III. CONCLUSION
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17 For the reasons set forth herein, Defendant the State Bar of California respectfully
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18 requests that the Court sustain its Demurrer in its entirety and dismiss Plaintiff’s Complaint with
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19 prejudice.
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Dated: July 16, 2020 STATE BAR OF CALIFORNIA
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21 OFFICE OF THE GENERAL COUNSEL
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By: __________________________________________
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24 CAROLINE W. HOLMES
Assistant General Counsel
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Attorneys for Defendant
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26 STATE BAR OF CALIFORNIA
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Reply ISO Demurrer to Complaint Case No. CPF-20-517092
11 PROOF OF SERVICE
22 I, Joan Randolph, hereby declare: that I am over the age of eighteen years and am not a
33 party to the within above-entitled action, that I am employed in the City and County of San
44 Francisco, that my business address is The State Bar of California, 180 Howard Street, San
55 Francisco, CA 94105.
66 On July 16, 2020, I served a copy of:
77 DEFENDANT THE STATE BAR OF CALIFORNIA’S REPLY IN SUPPORT OF
DEMURRER TO PLAINTIFF CHRISTINE TUMA’S COMPLAINT FOR
88 INJUNCTIVE RELIEF AND DECLARATORY RELIEF FOR VIOLATIONS OF
BAGLEY-KEENE OPEN MEETING ACT AND CALIFORNIA PUBLIC RECORDS
99 ACT [Code of Civ. Proc., §§ 430.10, 430.30]
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10 on the party(s) listed below:
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11 Julian Sarkar
SarkarLaw
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345 Franklin Street
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13 San Francisco, CA 94102
Counsel for Petitioners Jane Does (1) and (2)
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14 jsarkar@sarkar.law
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15 ☒ By electronic mail by personally transmitting a true copy thereof via an electronic mail
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16 service connected to the internet, addressed to the email address listed above.
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17 I declare under penalty of perjury under the laws of the State of California that the
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18 foregoing is true and correct.
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19 Executed at San Francisco, California on July 16, 2020.
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22 Joan Randolph
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PROOF OF SERVICE Ca se No. CPF-20-517092
Preview
11 VANESSA L. HOLTON (111613) ROBERT G. RETANA (148677) 22 SUZANNE C. GRANDT (304794) ELECTRONICALLY CAROLINE W. HOLMES (299116) STATE BAR OF CALIFORNIA F I L E D 33 Superior Court of California, OFFICE OF GENERAL COUNSEL County of San Francisco 44 180 Howard Street 07/16/2020 San Francisco, CA 94105-1639 Clerk of the Court 55 Telephone: (415) 538-2324 BY: RONNIE OTERO Deputy Clerk Fax: (415) 538-2321 66 caroline.holmes@calbar.ca.gov 77 Attorneys for Defendant STATE BAR OF CALIFORNIA 88 Exempt from Filing Fees Pursuant to 99 Government Code Section 6103 10 10 SUPERIOR COURT OF THE STATE OF CALIFORNIA 11 11 COUNTY OF SAN FRANCISCO 12 12 13 13 Case No. CPF-20-517092 14 14 CHRISTINE TUMA, DEFENDANT THE STATE BAR OF 15 15 CALIFORNIA’S REPLY IN SUPPORT OF Plaintiff, DEMURRER TO PLAINTIFF CHRISTINE 16 16 TUMA’S COMPLAINT FOR INJUNCTIVE v. RELIEF AND DECLARATORY RELIEF 17 17 FOR VIOLATIONS OF BAGLEY-KEENE THE STATE BAR OF CALIFORNIA OPEN MEETING ACT AND CALIFORNIA 18 18 PUBLIC RECORDS ACT Defendant. [Code of Civ. Proc., §§ 430.10, 430.30] 19 19 DATE: July 23, 2020 20 20 TIME: 9:30 a.m. DEPT: 302 21 21 JUDGE: Hon. Ethan P. Schulman 22 22 Action Filed: May 26, 2020 Trial Date: None 23 23 24 24 25 25 26 26 27 27 28 28 Reply ISO Demurrer to Complaint Case No. CPF-20-517092 11 Defendant the State Bar of California (“State Bar”) submits this Reply in support of its 22 Demurrer to Plaintiff Christine Tuma’s Complaint for Injunctive Relief and Declaratory Relief 33 for Violations of Bagley-Keene Open Meeting Act and California Public Records Act pursuant 44 to Code of Civil Procedure sections 430.10 and 430.30. 55 I. INTRODUCTION 66 The State Bar’s Demurrer establishes that Plaintiff’s Complaint does not state facts 77 sufficient to constitute a cause of action for violations of the Bagley-Keene Opening Meeting Act 88 (“Bagley-Keene Act”) and the California Public Records Act (“CPRA”). Plaintiff’s Opposition 99 fails to establish otherwise. 10 10 On May 28, 2020, a Subcommittee of the Committee of Bar Examiners 11 11 (“Subcommittee”) met to decide the single issue of whether to partially invalidate the 12 12 examination test product of an individual applicant due to an isolated printing error. Following 13 13 publication of the May 28, 2020 Subcommittee meeting agenda, Plaintiff speculated that the 14 14 Subcommittee would also discuss “printing errors” affecting the “validity of grading” of the 15 15 California Bar Examination, and demanded that she be granted access to the meeting and 16 16 Attachment C-200. (Compl., ¶ 14.) Plaintiff fails to set forth any facts whatsoever in support of 17 17 her speculation that the meeting or Attachment C-200 included any discussions of “printing 18 18 errors” affecting the “validity of grading” of the California Bar Examination. Further, as 19 19 Plaintiff herself recognizes, she is not entitled to access the grading of an individual applicant’s 20 20 California Bar Examination under the Bagley-Keene Act and the CPRA. 21 21 Plaintiff has not and cannot demonstrate how her Complaint can be amended to cure 22 22 these factual and legal deficiencies. The State Bar’s Demurrer should therefore be sustained 23 23 without leave to amend. 24 24 II. ARGUMENT 25 25 A. Plaintiff Is Not Entitled to a “Transfer” to the California Supreme Court. 26 26 Plaintiff begins her Opposition by announcing that she “is not opposed to having our 27 27 California Supreme Court assume direct control of the instant proceedings for all purposes.” 28 28 (Opp., 1:22-23.) Plaintiff even suggests that the change of venue “would be especially 1 Reply ISO Demurrer to Complaint Case No. CPF-20-517092 11 appropriate and efficient if this matter was consolidated with a relevant action pertaining to the 22 California Bar Examination in our Supreme Court’s jurisdiction,” though she does not identify 33 the action she is referring to by case name or number. (Id., at 1:25-27.) (The State Bar is 44 unaware of any such action.) In any event, Plaintiff is mistaken in her belief that she need only 55 stipulate to “transfer the instant proceedings to our Supreme Court’s inherent jurisdiction” to 66 overcome the jurisdictional defect identified in the State Bar’s Demurrer. (Id., at 1:24-25.) 77 The California Supreme Court has exclusive subject matter jurisdiction over attorney 88 admissions matters. (In re Rose (2000) 22 Cal.4th 430, 453; Rules of Ct., rule 9.3.) Review of 99 an attorney admissions decision is accomplished by petition for review to the California Supreme 10 10 Court. (Rules of Ct., rule 9.13(d); see also State Bar Rule 4.9 [“An applicant refused 11 11 certification to the Supreme Court of California for admission to practice law in California may 12 12 have the action of the Committee reviewed by the Supreme Court of California in accordance 13 13 with its procedures.”]) Plaintiff must follow the procedures for a petition for review set forth in 14 14 the California Rules of Court in order to seek review of the Subcommittee’s May 28, 2020 15 15 decision whether to partially invalidate an applicant’s examination test product. (Rules of Ct., 16 16 rule 8.500; see also Smith v. State Bar (1989) 212 Cal.App.3d 971, 978 [State Bar’s demurrer 17 17 sustained where request for review of attorney admissions decision should have been by original 18 18 petition to the California Supreme Court].) 19 19 Despite her willingness to proceed with her claims before the California Supreme Court, 20 20 Plaintiff “conversely” argues the State Bar’s Demurrer should not be sustained on jurisdictional 21 21 grounds because “such a ruling would render Bagley-Keene Open Meeting Act and California 22 22 Public Records Act meaningless with respect to attorney admissions matters.” (Opp., 2:3-6.) A 23 23 similar argument was rejected by the Court of Appeals in Disenhouse v. Peevey. (Cf. 24 24 Disenhouse v. Peevey (2014) 226 Cal.App.4th 1096, 1102.) There, the Court of Appeals held 25 25 that the plaintiff was required to file for writ of mandate to the California Supreme Court or 26 26 Court of Appeals to enforce her rights under the Bagley-Keene Act against the Public Utilities 27 27 Commission. (Ibid.) The Court of Appeals explained, “Our conclusion does not, as Disenhouse 28 28 asserts, effectively exempt the commission from the [Bagley-Keene] Act’s reach.” (Ibid.) 2 Reply ISO Demurrer to Complaint Case No. CPF-20-517092 11 “Rather, it respects both the Legislature’s aims in placing limits on judicial review of 22 commission actions as well as the Legislature's aims under the Act.” (Ibid.) Plaintiff’s argument 33 is equally unavailing because it asks this Court to disregard the California Supreme Court’s 44 exclusive jurisdiction over attorney admission matters. 55 B. The Bagley-Keene Act and the CPRA Do Not Grant Plaintiff Access to the Grading of an Individual’s California Bar Examination. 66 77 The only legal theory advanced by Plaintiff in support of her claims is the general 88 principle that the Bagley-Keene Act and the CPRA should be construed broadly to further the 99 people’s right of access. (Opp., 2:7-25.) But even if these laws are broadly construed, they do 10 10 not support Plaintiff’s demands to be granted access to a closed session meeting and record 11 11 regarding the grading of an individual’s California Bar Examination. By its own terms, 12 12 “Nothing in [the Bagley-Keene Act] shall be construed to … [p]revent state bodies that 13 13 administer the licensing of persons engaging in businesses or professions from holding closed 14 14 session to prepare, approve, grade, or administer examinations.” (Gov. Code § 11126(c)(1).) “In 15 15 addition to the grounds authorized in the Bagley-Keene Open Meeting Act,” Business and 16 16 Professions Code section 6026.7, subdivision (c)(3), provides that “a closed session may be held 17 17 for those meetings, or portions thereof, relating to … [t]he preparation, approval, grading, or 18 18 administration of the California Bar Examination.” (Bus. & Prof. Code § 6026.7(c)(3).) 19 19 Similarly, the CPRA expressly exempts from disclosure “examination data used to 20 20 administer a licensing examination,” which includes records reflecting the grading of an 21 21 individual’s California Bar Examination. (Gov. Code § 6254(g).) Such records are also exempt 22 22 from disclosure under a number of other exemptions that protect the privacy rights of individual 23 23 applicants. (Gov. Code § 6254(c) [where disclosure is prohibited because it would constitute “an 24 24 unwarranted invasion of personal privacy”], 6254(k) [where disclosure is prohibited by law; 25 25 here, by Bus. & Prof. Code § 6060.25, which requires confidentiality of applicant data], 6255 26 26 [where the public interest served by not disclosing the record clearly outweighs the public 27 27 interest served by disclosure of the record].) 28 28 3 Reply ISO Demurrer to Complaint Case No. CPF-20-517092 11 Relying on the principle of broad construction, Plaintiff ostensibly argues that even if the 22 May 28, 2020 Subcommittee meeting and Attachment C-200 pertain to the grading of an 33 individual applicant’s California Bar Examination—as indicated on the meeting notice and 44 agenda—the Court should conduct an exploratory review of the contents of the meeting 55 discussion and Attachment C-200 to determine whether there are any individual items of 66 “nonconfidential” information that are subject to public disclosure. Plaintiff’s argument is 77 flawed for several reasons. First, it flies in the face of the plain language of the exceptions to the 88 Bagley-Keene Act and the CPRA set forth above. While such exceptions must be narrowly 99 construed, they must not be read in a way that is contrary to the purposes behind the exception or 10 10 that would “lead to unreasonable, impractical, absurd, or arbitrary results.” (Travis v. Board of 11 11 Trustees of Cal. State Univ. (2008) 161 Cal.App.4th 335, 347 [applying this principle to the 12 12 Bagley-Keene Act]; see Regents of Univ. of Cal. v. Super. Ct. (2013) 222 Cal.App.4th 383, 397 13 13 [applying this principle to the CPRA].) 14 14 Further, the Court already denied Plaintiff’s request to record the May 28, 2020 closed 15 15 session meeting and Plaintiff is not entitled to an in camera review of those discussions. (May 16 16 28, 2020 Order Denying Pl.’s Temporary Restraining Order (“TRO”), 3:16-23.) Nor is she 17 17 entitled to an in camera review of Attachment C-200 because she has not filed a verified petition 18 18 in this matter. (Gov. Code § 6259(c).) Even if she had, she fails to allege any facts whatsoever 19 19 that the record was improperly withheld under multiple exemptions to the CPRA. (Ibid.) 20 20 Plaintiff’s conclusory allegation that the record was “improperly withheld” is insufficient as a 21 21 matter of law. (Savea v. YRC Inc. (2019) 34 Cal.App.5th 173, 178 [In determining the 22 22 sufficiency of a complaint, the court disregards “contentions, deductions, or conclusions of fact 23 23 or law”]; see also Ellis v. Cnty. of Calaveras (2016) 245 Cal.App.4th 64, 70 [same].) 24 24 C. The State Bar’s Demurrer Is Procedurally Proper. 25 25 1. Demurrer Is Proper Vehicle for Challenging Plaintiff’s Entire Causes of Action. 26 26 In her Opposition, Plaintiff argues that “[a] motion to strike, not a general demurrer, is 27 27 the procedure to attack an improper … remedy demanded in the complaint.” (Opp., 3:6-8.) A 28 28 motion to strike is similar to a demurrer in that it challenges defects in a petition or complaint. 4 Reply ISO Demurrer to Complaint Case No. CPF-20-517092 11 However, the two pleadings challenge different types of defects: A motion to strike is used to 22 challenge improper or irrelevant information, or complaints not made in conformity with laws, 33 rules, or court orders (id., at § 436); a demurrer is used to challenge the legal sufficiency of a 44 cause of action (id., at § 430.10). A motion to strike can be used to attack portions of a cause of 55 action, while a demurrer is used to attack an entire cause of action. (PH II, Inc. v. Super. Ct. 66 (1995) 33 Cal.App.4th 1680, 1681.) The State Bar’s Demurrer establishes that Plaintiff’s 77 Complaint does not state facts sufficient to constitute causes of action for violations of the 88 Bagley-Keene Act or the CPRA. As a result, Plaintiff is not entitled to any form of relief, 99 whether or not her prayers for relief are properly or improperly pleaded. 10 10 2. The State Bar’s Grounds for Demurrer Are Proper. 11 11 Plaintiff alleges that “[t]he State Bar appears to ask this Court to grant its demurrer on 12 12 grounds of the Federal Rules of Civil Procedure” by including the words “fails to state a claim” 13 13 in its Demurrer. (Opp., 3:18-20.) A motion to dismiss for “failure to state a claim for relief” is 14 14 the federal counterpart to California’s “general” demurrer. (See, e.g., Arce v. Childrens Hospital 15 15 Los Angeles (2012) 211 Cal.App.4th 1455, 1471.) As indicated throughout the State Bar’s 16 16 pleading papers, the State Bar’s Demurrer is brought pursuant to California Code of Civil 17 17 Procedure sections 430.10 and 430.30, which authorize a demurrer where, as here, “[t]he 18 18 pleading does not state facts sufficient to constitute a cause of action.” (Code Civ. Proc. §§ 19 19 430.10(e), 430.30.) Nowhere in its Demurrer does the State Bar cite to or rely on the parallel 20 20 grounds for dismissal set forth in the Federal Rules of Civil Procedure, as Plaintiff contends. 21 21 This objection to nomenclature thus falls flat. 22 22 3. The State Bar’s Reliance on Matters Subject to Judicial Notice Is Proper. 23 23 Plaintiff argues that the State Bar’s Demurrer should be overruled because the State Bar 24 24 “relies very heavily on extrinsic evidence outside of the face of the complaint.” (Opp., 4:9-5:5.) 25 25 Specifically, Plaintiff challenges the State Bar’s reliance on her own declaration, previously filed 26 26 by Plaintiff in this matter in support of her application for Temporary Restraining Order 27 27 (“TRO”), and the State Bar’s May 24, 2020 letter attached as an exhibit thereto, as well as the 28 28 Court’s May 28, 2020 Order Denying Plaintiff’s TRO. (Opp., 4:9-5:5.) The State Bar’s 5 Reply ISO Demurrer to Complaint Case No. CPF-20-517092 11 Demurrer does not depend upon the Court’s consideration of these matters: The deficiencies of 22 the Complaint are clear on the face of the Complaint alone. Even so, the Court may consider 33 such matters as they are the proper subject of judicial notice, and Plaintiff has not provided any 44 legal authority as to why the Court should not do so. (Code of Civ. Proc. § 430.30(a).) 55 Plaintiff admits that the Court may take judicial notice of her previously-filed declaration 66 and the State Bar’s May 24, 2020 letter. (Opp., 4:24-25.) The Court’s May 28, 2020 Order 77 Denying Plaintiff’s TRO is also the proper subject of mandatory and discretionary judicial 88 notice. (Evid. Code §§ 451(a), 452(a).) That issue does not appear to be seriously in dispute as 99 Plaintiff herself makes multiple references to the TRO proceedings throughout her Opposition. 10 10 (Id., at 2:3-6; 5:21-23.) Plaintiff even makes a bald-faced reference to “subsequent witness 11 11 declarations” that were rejected by this Court during her TRO proceedings. (Opp., 5:16-19.) 12 12 Plaintiff’s reference to extraneous documents that are themselves not subject to judicial notice 13 13 only serves to further undermine the credibility of her challenge to the State Bar’s limited 14 14 reliance on matters that are properly subject to judicial notice. 15 15 D. The State Bar Accurately States the Law Regarding Declaratory Relief. 16 16 Plaintiff argues the State Bar’s Demurrer “misstates the law” with respect to the 17 17 availability of declaratory relief under the Bagley-Keene Act and the CPRA. (Opp., 3:22-4:5.) 18 18 Plaintiff cites to a single case, North Pacifica LLC v. California Coastal Commission (2008), 166 19 19 Cal.App.4th 1416, for the proposition that the Bagley-Keene Act’s open meeting requirements 20 20 “can be challenged by way of … declaratory relief.” (Opp., 3:24-26.) North Pacifica is not at 21 21 odds with the authority cited in the State Bar’s Demurrer—namely, the plain language of 22 22 Government Code section 11130.3. Rather, Plaintiff erroneously assumes that because an action 23 23 for declaratory relief is one of the ways to commence a Bagley-Keene Act action, she is entitled 24 24 to a declaratory judgment that goes beyond what is provided for in the relevant statutes. For 25 25 example, Plaintiff requests a declaratory judgment that the State Bar “is not authorized to 26 26 convene in closed session to discuss matters that do not legitimately involve examination 27 27 security….” (Compl., 12:12-15.) Her request far exceeds the declaratory relief available under 28 28 Government Code section 11130, which is limited to a determination of “the applicability of this 6 Reply ISO Demurrer to Complaint Case No. CPF-20-517092 11 article to past actions.” (Gov. Code § 11130(a).) 22 With respect to her requests for declaratory relief under the CPRA, Plaintiff cites to two 33 cases, County of Santa Clara v. Superior Court (2009) 171 Cal.App.4th 119, and Younger v. 44 Berkeley City Council (1975) 45 Cal.App.3d 825, for the proposition that the CPRA authorizes 55 “a declaratory relief proceeding.” (Opp., 4:1-5.) These cases do not contradict the legal 66 authority set forth in the State Bar’s Demurrer; in fact, the State Bar relies upon County of Santa 77 Clara in support of its position regarding available remedies. Again, Plaintiff erroneously 88 assumes that because a CPRA action may be brought by a declaratory relief proceeding, she is 99 therefore entitled to the expansive declaratory relief she seeks. However, as County of Santa 10 10 Clara makes clear, “[t]he CPRA provides no judicial remedy … that may be utilized for any 11 11 purpose other than to determine whether a particular record or class of records must be 12 12 disclosed.” (Cnty. of Santa Clara, supra,171 Cal.App.4th at 127, citing Gov. Code § 6258.) 13 13 Plaintiff’s request for a declaratory judgment that the State Bar “was unjustified in failing to set 14 14 forth the names and titles or positions of each person responsible for the May 24, 2020 denial of 15 15 Plaintiff[’s CPRA] request” (Compl., 12:3-7), for example, is not an available remedy under 16 16 County of Santa Clara, as it is not sought for the purpose of determining whether a particular 17 17 record must be disclosed. (Ibid.) 18 18 E. Plaintiff Fails to Address the Deficiencies of Her Complaint. 19 19 Plaintiff argues that she has sufficiently pleaded a violation of the Bagley-Keene Act 20 20 because “[t]he State Bar admits the [May 28, 2020 Subcommittee] meeting is closed” and she 21 21 “sought to have nonconfidential portions of that meeting held in open session.” (Opp., 5:19-21.) 22 22 As set forth in the State Bar’s Demurrer, Plaintiff fails to allege any facts whatsoever in support 23 23 of her speculation that the May 28, 2020 closed session meeting included “nonconfidential” 24 24 discussions. Further, Plaintiff fails to supply any legal authority for the proposition that the mere 25 25 possibility the State Bar may discuss some individual item of nonconfidential information while 26 26 addressing an exempt topic prevents the State Bar from holding a closed session. Plaintiff’s 27 27 speculation about the meeting is factually and legally insufficient to state a cause of action for 28 28 violation of the Bagley-Keene Act. (Savea, supra, 34 Cal.App.5th at 178; see also Ellis, supra, 7 Reply ISO Demurrer to Complaint Case No. CPF-20-517092 11 245 Cal.App.4th at 70.) 22 Plaintiff also argues that because the Complaint was sufficient for purposes of 33 adjudicating her TRO, it is sufficient to withstand the State Bar’s Demurrer. (Opp., 5:21-23.) 44 Her argument is unpersuasive. The Court did not address the factual and legal sufficiency of 55 Plaintiff’s Complaint when it denied her request for a TRO, but if it had, it would have 66 determined her unverified Complaint insufficient to support her application for TRO as a matter 77 of law. (Code Civ. Proc., § 527 [“No temporary restraining order shall be granted … unless … 88 [i]t appears from facts shown by affidavit or by the verified complaint that great or irreparable 99 injury will result to the applicant before the matter can be heard on notice.”]) 10 10 In denying Plaintiff’s application for a TRO, the Court did, however, point out the 11 11 deficiency of Plaintiff’s legal argument when it held,“The mere possibility that the Bar may 12 12 discuss some individual item of nonconfidential information while addressing an exempt topic 13 13 does not prevent it from holding a closed session, much less entitle plaintiff to emergency 14 14 injunctive relief.” (May 28, 2020 Order Denying Pl.’s TRO, p. 3:9-11.) Undaunted, Plaintiff 15 15 repeats the same argument in her Opposition. It has not improved with repetition. 16 16 III. CONCLUSION 17 17 For the reasons set forth herein, Defendant the State Bar of California respectfully 18 18 requests that the Court sustain its Demurrer in its entirety and dismiss Plaintiff’s Complaint with 19 19 prejudice. 20 20 Dated: July 16, 2020 STATE BAR OF CALIFORNIA 21 21 OFFICE OF THE GENERAL COUNSEL 22 22 23 23 By: __________________________________________ 24 24 CAROLINE W. HOLMES Assistant General Counsel 25 25 Attorneys for Defendant 26 26 STATE BAR OF CALIFORNIA 27 27 28 28 8 Reply ISO Demurrer to Complaint Case No. CPF-20-517092 11 PROOF OF SERVICE 22 I, Joan Randolph, hereby declare: that I am over the age of eighteen years and am not a 33 party to the within above-entitled action, that I am employed in the City and County of San 44 Francisco, that my business address is The State Bar of California, 180 Howard Street, San 55 Francisco, CA 94105. 66 On July 16, 2020, I served a copy of: 77 DEFENDANT THE STATE BAR OF CALIFORNIA’S REPLY IN SUPPORT OF DEMURRER TO PLAINTIFF CHRISTINE TUMA’S COMPLAINT FOR 88 INJUNCTIVE RELIEF AND DECLARATORY RELIEF FOR VIOLATIONS OF BAGLEY-KEENE OPEN MEETING ACT AND CALIFORNIA PUBLIC RECORDS 99 ACT [Code of Civ. Proc., §§ 430.10, 430.30] 10 10 on the party(s) listed below: 11 11 Julian Sarkar SarkarLaw 12 12 345 Franklin Street 13 13 San Francisco, CA 94102 Counsel for Petitioners Jane Does (1) and (2) 14 14 jsarkar@sarkar.law 15 15 ☒ By electronic mail by personally transmitting a true copy thereof via an electronic mail 16 16 service connected to the internet, addressed to the email address listed above. 17 17 I declare under penalty of perjury under the laws of the State of California that the 18 18 foregoing is true and correct. 19 19 Executed at San Francisco, California on July 16, 2020. 20 20 21 21 22 22 Joan Randolph 23 23 24 24 25 25 26 26 27 27 28 28 PROOF OF SERVICE Ca se No. CPF-20-517092