1

Filed 11/13/13

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Sacramento)

----

SIM PICH et al.,

Plaintiffs and Appellants,

v.

WILL LIGHTBOURNE, as Director, etc., et al.,

Defendants and Respondents.

C066397

(Super. Ct. No. 07CS01306)

APPEAL from a judgment of the Superior Court of Sacramento County, Lloyd G. 

Connelly, Judge. Affirmed.

Manatt, Phelps & Phillips, Benjamin G. Shatz, Michael M. Berger, Ronald S. 

Katz; Legal Services of Northern California, Stephen Goldberg, Jodie Berger; Western 

Center on Law and Poverty Inc., Robert D. Newman; Coalition of California Welfare 

Rights Organizations, Grace Galligher, Seth E. Blackmon; Bay Area Legal Aid, Robert 

P. Capistrano, Stephen Bingham, for Plaintiffs and Appellants.

Kamala D. Harris, Attorney General, Ismael A. Castro and Pauline Gee, Deputy 

Attorneys General, for Defendants and Respondents.
2

A new computer system changed the way public welfare benefits are administered. 

The system automatically terminates or reduces aid if the recipient fails to submit 

required eligibility reports within certain deadlines unless the case worker inputs the 

required information upon the recipient’s ultimate submittal. 

Plaintiffs alleged this feature of the computer system results in thousands of 

benefit recipients incorrectly losing their benefits or not receiving them within the time 

required by law. They sought a traditional writ of mandate compelling the state agency 

that supervises the administration of public welfare services by the state’s counties to 

exercise its supervisory mandate and alter the computer system, and the governing 

structure that oversees the system, to prevent the system from executing these automatic 

functions.

The trial court sustained general demurrers to plaintiffs’ first and second amended 

petitions without leave to amend. Disagreeing with plaintiffs’ appeal, we conclude the 

trial court did not err. Plaintiffs sought mandamus relief to compel the exercise of 

discretion in a particular manner, something a writ of mandate cannot do. Also, plaintiffs 

submitted exhibits which contradicted their factual claims that the state agency was not 

fulfilling its duty to supervise or that the counties were failing to comply with law on 

account of the computer system’s operation. We affirm.

BACKGROUND INFORMATION AND ALLEGED FACTS

Defendant State Department of Social Services (the Department) supervises the 

provision of public welfare services in the state. It is “designated as the single state 

agency with full power to supervise every phase of the administration of public social 

services . . . made by the state in order to secure full compliance with the applicable 

provisions of state and federal laws.” (Welf. & Inst. Code, § 10600.)1 Two of the social 

 

1 Undesignated section references are to the Welfare and Institutions Code.
3

service programs the Department oversees are CalWORKs and CalFresh.2 Defendant 

Will Lightbourne is the Department’s current director. 

The Department supervises the state’s 58 counties, which are charged with 

actually administering public social services within their boundaries. In the case of social 

services for which federal or state funds are provided, such as CalWORKs and CalFresh, 

counties are subject to the Department’s regulations and its control over the allocation of 

funds among the counties. (§ 10800; City and County of San Francisco v. State of 

California (1978) 87 Cal.App.3d 959, 966.) Counties must comply with the 

Department’s regulations and abide by all of its lawful directives. (§ 10802.)

“Thus, the statutes establish an administrative hierarchy in which the [Department] 

exercises ultimate supervisory authority over the payment of welfare benefits and the 

county boards of supervisors, acting through the county welfare departments, function as 

agents of the [Department] in administering such payments.” (Ross v. Superior Court

(1977) 19 Cal.3d 899, 907.) 

In 1997, the Legislature directed the Health and Welfare Data Center (now called 

the Office of Systems Integration (OSI)) to implement a “statewide automated welfare 

system” for a number of public social services programs, including CalWORKs and 

CalFresh. (§ 10823, subd. (a).)3 OSI was to implement this automated system through 

no more than four county consortia. (Ibid.) However, nothing in this legislative mandate 

 

2 CalWORKs (California Work Opportunity and Responsibility to Kids, § 11200 et 

seq.) provides assistance to eligible low-income families with related children under 18 

years of age whose parents cannot support them. (§ 11250; Barron v. Superior Court

(2009) 173 Cal.App.4th 293, 299-300.) CalFresh, formerly known as the Food Stamp 

Program, provides monthly benefits to low-income households that can be used for the 

purchase of food. (§ 18900 et seq.) 

3 The OSI is part of the California Health and Human Services Agency. (Gov. 

Code, § 12803.3.)
4

to OSI transferred the Department’s program policy responsibilities over CalWORKs and 

CalFresh to OSI. (§ 10823, subd. (b).) 

The Welfare Client Data System Consortium (the consortium) is one of the four 

county consortia that implemented an automated system. (§ 10823, subd. (a)(5).) It 

developed the CalWIN (CalWORKs Information Network) computer system to 

administer the CalWORKs and CalFresh programs and other social service programs in 

its 18 member counties.4 It did so at a cost of $744 million, creating allegedly the largest 

program of its kind in the nation. 

CalWIN is owned by the member counties and operated and maintained by the 

consortium. The consortium, in turn, contracts with a private company, Electronic Data 

Systems, to operate and maintain CalWIN on a day-to-day basis. 

CalWIN automatically processes recipient information entered by a county case 

worker and makes eligibility determinations. Those determinations include initial 

eligibility determinations, calculations of monthly benefit amounts based on eligibility 

factors, quarterly and annual redeterminations of eligibility, and other determinations of 

when a recipient’s benefits should be reduced or terminated. 

CalWIN also generates notices of action which warn benefit recipients of possible 

termination or other adverse action if required eligibility reports and information are not 

timely submitted or are incomplete. If the required information is not received, CalWIN 

may automatically terminate benefits or impose a penalty. 

The automatic termination function is a significant change from past practice. 

Prior to the use of CalWIN, if the existing system was not timely updated by a case 

worker with a benefit recipient’s required information, eligibility continued until the case 

 

4 The member counties are Alameda, Contra Costa, Fresno, Orange, Placer, 

Sacramento, San Diego, San Francisco, San Luis Obispo, San Mateo, Santa Barbara, 

Santa Clara, Santa Cruz, Solano, Sonoma, Tulare, Ventura, and Yolo Counties. 
5

worker took action to discontinue benefits. In CalWIN, the reverse is true. If CalWIN is 

not timely updated by the case worker with the recipient’s required information, it will 

issue a notice to the recipient and eligibility will automatically be discontinued. The case 

worker will have to take some affirmative action to reinstate benefits in those 

circumstances where the recipient ultimately provides the required information. 

CalWIN allows county case workers to bypass its automatic processing and to 

issue benefits manually if circumstances require. This override operation is called NonSystem Determined Issuance (NSDI). Department regulations require counties to have in 

place procedures to issue benefits manually when necessary, and NSDI is one of those 

procedures. 

Plaintiffs are five individuals who allege CalWIN at one time or another 

automatically and erroneously terminated, reduced, or delayed their CalWORKs and

CalFresh benefits. All of them ultimately had their benefits fully restored through 

administrative appeals. 

Nonetheless, in 2007, they filed a petition for writ of traditional mandate against 

the Department and its director. They alleged their experiences with CalWIN were 

indicative of those had by other benefit recipients. They alleged on information and 

belief that CalWIN had systemic programming flaws that caused erroneous and 

automatic benefit terminations, reductions, and delays to thousands of benefit recipients. 

The Department filed a demurrer to the original petition. It also filed a motion for 

a protective order to stay discovery plaintiffs had demanded be completed before the 

hearing on the demurrer. 

In January 2008, the trial court sustained the Department’s demurrer with leave to 

amend. It found the plaintiffs’ individual contentions of harm did not support any 

contention of a systemic failure of CalWIN to perform in compliance with laws and 

regulations: “There is just no factual allegation that support[s] that there is a systemic 

problem here.” 
6

The court also granted the motion for protective order in part, but directed the 

parties to agree to a discovery schedule. Also, in light of its intention to be “reasonable 

but liberal” regarding discovery, the court placed no time limit on the plaintiffs’ right to 

file an amended petition. 

Plaintiffs filed their first amended petition in 2009. They alleged the same 

erroneous termination or reduction in their own benefits that they had alleged in the 

original complaint, with one plaintiff alleging an additional instance.5 They again alleged 

they had subsequently received the full amount of benefits owed to them. 

They continued to allege on information and belief that their experiences and those 

of others whose experiences were documented in exhibits attached to the first amended 

petition were indicative of systemic programming flaws in CalWIN that resulted in 

CalWORKs and CalFresh benefits being terminated, delayed, or reduced in violation of 

state regulations in thousands of individual cases. They pleaded five causes of action that 

alleged separate systemic failures in CalWIN and the Department’s supervision of the 

counties using CalWIN. 

In support of their allegations, plaintiffs attached 42 exhibits to the first amended 

petition which they had obtained through discovery. We will discuss the causes of action 

and relevant exhibits in greater detail below. 

The Department again filed a demurrer, and in November 2009, the trial court 

sustained the demurrer without leave to amend as to all causes of action except one. The 

 

5 Plaintiff Sim Pich alleged CalWIN wrongly terminated his CalWORKs benefits, 

notifying him incorrectly that he had reached the maximum time allowed to receive 

benefits. Plaintiff Maria Robles alleged CalWIN wrongly denied her aid while she 

pursued an administrative appeal. Plaintiff Monica Rowland alleged CalWIN denied her 

aid for failing to timely submit a quarterly eligibility report when she had in fact 

submitted it. Plaintiff Sharita Thomas alleged CalWIN wrongly denied her aid without 

accounting for her fluctuating income. Plaintiff Rachael Vejraska alleged CalWIN did 

not provide her with food stamps timely and incorrectly penalized her. 
7

court granted leave to amend as to the second cause of action regarding the alleged lack 

of use and oversight of CalWIN’s NSDI function, the override function that allows case 

workers to issue benefits manually. The trial court determined the first amended petition 

pleaded “no clear, specific or direct factual allegations to support [plaintiffs’] claims that 

[the Department], as a single state agency, failed to supervise and oversee the 18 CalWIN 

counties and their implementation of the automated CalWIN computer system in 

violation of state and federal law or to support their claims that the CalWIN system is 

defectively programmed and operates in violation of law or regulations.” The court noted 

the exhibits attached to the first amended petition demonstrated the Department in fact 

monitored and supervised the counties, contrary to the first amended petition’s 

allegations. 

The trial court stated there was nothing in law that “prohibits [the Department] 

from delegating to the counties the operation of and the decision-making as to the 

functionality of an automated computer welfare system. The Court further finds there is 

no violation of law or regulation based on the manner in which the CalWIN computer 

system is programmed to operate under any of the counts where there are no facts 

showing any widespread violations of law or regulations. Any alleged failures of data 

entries by a county case worker in conjunction with the CalWIN computer system or 

outside of the CalWIN system do not constitute systematic automated CalWIN problems 

that have resulted in widespread violations of law or regulations under any of the five 

counts. What functions are to be performed by the computer and what functions are to be 

reserved for human action or input is an administrative and management decision, and are 

not contrary to law and regulations.” 

The court granted leave to amend on the second cause of action based solely on 

counsel’s representations that two consortium counties had written policies prohibiting 

the use of NSDI when CalWIN erroneously did not issue benefits. 
8

Plaintiffs filed a second amended petition in December 2009. This petition 

alleged the Department had violated its single state agency responsibilities by not 

determining whether any of the 18 member counties had a policy regarding the use of 

NSDI. It also alleged the Department had violated its responsibilities by failing to 

monitor whether CalWIN actually issued benefits timely when NSDI is used, and by 

failing to issue corrective instructions to counties on the proper use of NSDI. Plaintiffs 

sought a writ enjoining the Department to review county policies and monitor counties to 

ensure they require timely issuance of benefits through NSDI when CalWIN will not 

issue correct benefits. Plaintiffs attached a letter from the Department sent to counties 

reminding them of their need to use NSDI. 

Once again, the Department filed a demurrer, and the trial court sustained the 

demurrer without leave to amend. The court found plaintiffs failed to allege any new or 

material facts to support their cause of action regarding NSDI polices. “There are no 

examples specifically pled that some CalWIN counties’ NSDI policies are causing any 

real problems of untimely or inaccurate benefits in violation of law or regulation.” 

Plaintiffs appeal from the judgment of dismissal. They contend:

(1) The trial court applied the wrong standard of review by not accepting 

plaintiffs’ allegations as true for purposes of demurrer;

(2) The court erred by not enforcing the Department’s nondelegable duty as the 

single state agency to ensure timely issuance of benefits; and

(3) They pleaded sufficient facts showing the Department violated its duties as the 

single state supervising agency by allowing the consortium to make substantive policy, 

by allowing CalWIN’s automatic termination and reduction actions to continue in 

violation of due process, and by failing to ensure timely issuance of benefits.

In the alternative, plaintiffs assert the court erred by sustaining the demurrers

without leave to amend, as they allegedly can cure any defects in their pleadings.
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DISCUSSION

I

Standard of Review

“In reviewing the sufficiency of a complaint against a general demurrer, we are 

guided by long-settled rules. ‘We treat the demurrer as admitting all material facts 

properly pleaded, but not contentions, deductions or conclusions of fact or law. 

[Citation.] We also consider matters which may be judicially noticed.’ (Serrano v.

Priest (1971) 5 Cal.3d 584, 591.) Further, we give the complaint a reasonable 

interpretation, reading it as a whole and its parts in their context. (Speegle v. Board of 

Fire Underwriters (1946) 29 Cal.2d 34, 42.) When a demurrer is sustained, we 

determine whether the complaint states facts sufficient to constitute a cause of action. 

(See Hill v. Miller (1966) 64 Cal.2d 757, 759.) And when it is sustained without leave to 

amend, we decide whether there is a reasonable possibility that the defect can be cured by 

amendment: if it can be, the trial court has abused its discretion and we reverse; if not, 

there has been no abuse of discretion and we affirm. (Kilgore v. Younger (1982) 30 

Cal.3d 770, 781; Cooper v. Leslie Salt Co. (1969) 70 Cal.2d 627, 636.) The burden of 

proving such reasonable possibility is squarely on the plaintiff. (Cooper v. Leslie Salt 

Co., supra, at p. 636.)” (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)

Also, in testing a complaint against a demurrer, we may disregard allegations that 

are inconsistent with attached exhibits and matters judicially noticed. (Del E. Webb 

Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604.)

To obtain a traditional writ of mandate, as plaintiffs seek here, plaintiffs must 

plead sufficient ultimate facts establishing three elements. First, they must demonstrate 

they seek to compel the Department to perform “an act which the law specially enjoins, 

as a duty resulting from an office, trust, or station,” and which the Department refuses to 

perform. (Code Civ. Proc., § 1085, subd. (a).) Such acts consist of ministerial actions or 
10

mandatory duties to exercise discretion. (California Assn. of Professional Scientists v. 

Department of Finance (2011) 195 Cal.App.4th 1228, 1236; Daily Journal Corp. v. 

County of Los Angeles (2009) 172 Cal.App.4th 1550, 1555.)6

Second, plaintiffs must plead they have a beneficial interest in the outcome of the 

proceedings. (Code Civ. Proc., § 1086.) Plaintiffs must have “ ‘ “ ‘ a clear, present and 

beneficial right’ ” ’ ” to the performance of the duty allegedly owed by the defendants. 

(California Assn. of Medical Products Suppliers v. Maxwell-Jolly (2011) 199 

Cal.App.4th 286, 302.) A beneficial interest generally means plaintiffs have some special 

interest to be served or some particular right to be preserved or protected over and above 

the interest held in common with the public at large. (Save the Plastic Bag Coalition v.

City of Manhattan Beach (2011) 52 Cal.4th 155, 166.) A citizen’s interest in having laws 

executed and public duties enforced may be sufficient to meet the beneficial interest 

requirement. (Green v. Obledo (1981) 29 Cal.3d 126, 144.) 

Third, plaintiffs must plead facts showing they have no other plain, speedy, or 

adequate remedy at law. (Code Civ. Proc., § 1086.) When plaintiffs are pursuing 

traditional mandate, “ ‘the exhaustion requirement speaks to whether there exists an 

adequate legal remedy. If an administrative remedy is available and has not yet been 

exhausted, an adequate remedy exists and the petitioner is not entitled to extraordinary 

relief.’ [Citation.]” (Eight Unnamed Physicians v. Medical Executive Com. (2007) 150 

Cal.App.4th 503, 510, quoting Unnamed Physician v. Board of Trustees (2001) 93 

Cal.App.4th 607, 620.)

The Department does not contend plaintiffs failed to plead they are beneficially 

interested parties. We thus turn to determine whether the pleadings sufficiently plead 

ultimate facts alleging the Department failed or refused to perform a ministerial duty or a 

 

6 Traditional mandate may also be used to correct a legislative abuse of discretion 

(Santa Clara County Counsel Attys. Assn. v. Woodside (1994) 7 Cal.4th 525, 539), but 

plaintiffs do not allege that occurred here.
11

duty to exercise discretion, and alleging plaintiffs have no other adequate remedy at law. 

Because we conclude plaintiffs have not, and cannot, plead the Department failed to 

perform a ministerial duty or to exercise discretion where required, we do not reach the 

issue of whether plaintiffs have no other adequate remedy at law.

II

Failure of Department to Perform an Act Enjoined by Law

Plaintiffs allege the Department has a statutory mandate to ensure counties timely 

and accurately deliver CalWORKs and CalFresh benefits to eligible recipients. Plaintiffs 

assert the Department violated this duty by allowing the consortium to control CalWIN, 

and by allowing CalWIN to perform its automatic functions at the risk of erroneously 

terminating, reducing, or denying benefits. In each of their causes of action, they seek a 

writ of mandate enjoining the Department to fulfill its statutory oversight duties and 

ensure that counties using CalWIN deliver benefits on a timely basis. They also seek writ 

relief to compel the Department to make changes in CalWIN and CalWIN’s governance 

by the consortium so that the system will no longer automatically terminate, reduce, or 

deny benefits to recipients. 

We will review each of plaintiffs’ five causes of action to determine whether they 

state a claim for relief. But our discussion of the first cause of action also affects the 

relief sought in the third, fourth, and fifth causes of action, that of a writ compelling the 

Department to make changes in CalWIN and the consortium. We turn first to that cause 

of action. In short, we conclude plaintiffs cannot recover to the extent they seek an order 

compelling the Department to change the governance of the consortium and make 

changes to CalWIN. No law imposes such a ministerial duty on the Department. 

We also conclude plaintiffs cannot recover on their remaining causes of action. 

The exhibits plaintiffs attached to their first and second amended petitions contradict 

plaintiffs’ allegations and demonstrate the Department is not failing to supervise the 

counties and that CalWIN does not suffer from systemic programming errors.
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A. First cause of action

Plaintiffs’ first cause of action alleged the Department wrongfully ceded control of 

CalWIN to the consortium, such that the consortium independently interpreted laws and 

regulations, resolved legal conflicts, and programmed CalWIN accordingly, even if the 

Department had requested otherwise. They also sought a writ declaring the Department 

has the authority to change the governance of CalWIN so that it may order changes to the 

system without approval from the consortium, and that the consortium cannot disregard 

the changes ordered by the Department. In their third, fourth, and fifth causes of action, 

as explained in more detail below, they also sought relief compelling the Department to 

make changes in CalWIN. 

We conclude the Department’s duty to supervise the counties in their 

administration of CalWORKs and CalFresh does not include a ministerial or mandatory 

duty to control or change CalWIN. How the Department supervises the counties to 

ensure benefits are timely and correctly delivered is a matter of discretion, and mandamus 

does not lie to compel the exercise of discretion in a particular way. Plaintiffs thus 

cannot obtain the relief they seek in their first, third, fourth, and fifth causes of action as a 

matter of law.

To obtain their requested relief, plaintiffs must show the Department has a “clear, 

present, and ministerial duty” not only to supervise the counties to obtain full compliance 

with governing laws, but also to take control of CalWIN and make changes to it so that it 

can no longer automatically terminate, reduce, or deny benefits in the manner it is 

programmed to do. (Kavanaugh v. West Sonoma County Union High School Dist. (2003) 

29 Cal.4th 911, 916 (Kavanaugh).) Plaintiffs cannot show the Department is subject to 

such a ministerial duty.

A ministerial duty imposes on a public officer an obligation “ ‘to perform in a 

prescribed manner in obedience to the mandate of legal authority and without regard to 
13

his own judgment or opinion concerning such act’s propriety or impropriety, when a 

given state of facts exists.’ [Citation.]” (Kavanaugh, supra, 29 Cal.4th at p. 916.) 

To be enforceable by writ of mandate, a statutory duty must “ ‘be obligatory,

rather than merely discretionary or permissive, in its directions to the public entity; it 

must require, rather than merely authorize or permit, that a particular action be taken or 

not taken. [Citation.] It is not enough, moreover, that the public entity or officer have 

been under an obligation to perform a function if the function itself involves the exercise 

of discretion.’ [Citations.]” (Shamsian v. Department of Conservation (2006) 136 

Cal.App.4th 621, 633, original italics.)

No such legal mandate obligates the Department to take control of CalWIN or its 

governance to ensure the counties fully comply with governing law.

To be sure, the Department has “full power to supervise every phase of the 

administration of public social services . . . in order to secure full compliance with the 

applicable provisions of state and federal laws.” (§ 10600.) In its supervisory role, the 

Department is required to “advise public officers regarding the administration of public 

social services by public agencies throughout the state, and shall supervise the

administration of state public social services . . . to all persons receiving or eligible to 

receive such state public social services. . . .” (§ 10603.)7 

However, how the Department supervises the counties and brings them into full 

compliance is a matter left to the Department’s discretion. The Department is authorized 

to exercise its discretion when fulfilling its supervisory duty, including when determining 

how to bring a noncompliant county into compliance.

Governing statutes vest discretion in the Department when it both supervises the 

counties and attempts to correct them. The Legislature has directed the Department, 

 

7 The Department director’s duties include administering the laws regarding the 

administration of public social services, and adopting regulations and general policies 

affecting the purposes, responsibilities, and jurisdiction of the Department. (§ 10553.)
14

when supervising the counties, to be flexible, and to aid them, as opposed to direct them, 

in establishing their own methods of operation. Section 10615 states: “California’s 58 

counties vary greatly in their welfare problems, and therefore they should not be treated 

alike in the supervision of welfare programs. The Legislature hereby declares its intent 

that the [D]epartment examine the extent of state control needed over county operations, 

with a view toward eliminating excessive rigidity in procedure; the state should 

differentiate between those counties which need general direction as opposed to tight 

supervision.

“Within these guidelines, the [D]epartment shall aid county departments in 

establishing economic, efficient, and effective methods of operation, including, but not 

limited to, advising and consulting with county departments with regard to the 

introduction of electronic computer and data processing systems . . . .” (§ 10615, italics 

added.) 

Thus, the Department is mandated only to aid counties in establishing systems 

such as CalWIN, and it retains significant discretion in determining how it supervises 

each county. 

Similarly, the Department exercises discretion in enforcing governing laws. The 

Department is not directed to correct the counties every time an error is made. Section 

10605 requires the Department to act if a county is “substantially failing” to comply with 

its legal obligations. Under that statute, if the Department’s director believes a county is 

“substantially failing” to comply with governing law or Department regulations, and if 

the director determines formal action may be necessary to secure compliance, only then 

does he have a mandatory duty to inform the county of its failure and provide the county 

with time to bring itself into compliance with the law. (§ 10605, subd. (a).)

If the county fails to correct its actions, the director has discretion to determine 

whether he will pursue additional remedies. He may seek injunctive or mandamus relief

to secure immediate compliance, and he may also impose sanctions following an 
15

administrative hearing. (§ 10605, subds. (a), (b), (e).) The director may, as sanctions,

either withhold state and federal funds, or he may temporarily assume administration of 

the county’s programs until the county assures the Department it will comply. (§ 10605, 

subd. (b).)

As can be seen, no law imposes on the Department the ministerial or mandatory 

obligation to respond to CalWIN’s alleged deficiencies by taking control of CalWIN or 

the consortium, or making changes to CalWIN. If the director determines counties are 

substantially failing to comply with law as a result of their use of CalWIN, he can notify 

the county formally or informally of the need to bring their practices into compliance. 

Compliance in this instance could be achieved in more than one way, and the director and 

the counties have discretion to determine how best to achieve compliance. As plaintiffs 

admit, CalWIN’s allegedly erroneous automatic actions usually take place when a case 

worker fails to enter updated or correct data into the system. As a result, compliance may 

be achieved by correcting and training against human error instead of, or as part of, 

correcting CalWIN’s operations. Because the law provides the director and the counties 

with this discretion, we cannot order the Department to exercise its discretion in any 

particular way, as plaintiffs would have us do. The trial court thus correctly sustained the 

Department’s demurrer to plaintiffs’ first cause of action without leave to amend. It also 

correctly sustained the demurrer to the third, fourth, and fifth causes of action without 

leave to amend to the extent they seek relief compelling the Department to make changes 

in CalWIN.

This conclusion does not end our analysis. We still must determine whether 

plaintiffs pleaded sufficient facts to recover under any theory. “ ‘[It] is error for a . . . 

court to sustain a demurrer when the plaintiff has stated a cause of action under any 

possible legal theory.’ [Citations.]” (Fox v. Ethicon Endo-Surgery, Inc. (2005) 35 

Cal.4th 797, 810.) 
16

Specifically, we must determine whether plaintiffs’ remaining causes of action

pleaded sufficient facts alleging the Department is failing to supervise the CalWIN 

counties, or the CalWIN counties are substantially failing to comply with governing laws 

as a result of their use of CalWIN, thereby entitling plaintiffs to a writ of mandate 

compelling the Department to exercise its discretion to determine how best to supervise 

the counties or to determine whether informal or formal action may be necessary to 

obtain compliance and then to seek compliance accordingly. 

Our standards governing this review are well established. “[T]he complaint need 

only allege facts sufficient to state a cause of action; each evidentiary fact that might 

eventually form part of the plaintiff’s proof need not be alleged. [Citation.]” (C.A. v. 

William S. Hart Union High School Dist. (2012) 53 Cal.4th 861, 872.) “[T]he complaint 

ordinarily is sufficient if it alleges ultimate rather than evidentiary facts. (Burks v. Poppy 

Construction Co. (1962) 57 Cal.2d 463, 473-474; Doheny Park Terrace Homeowners 

Assn., Inc. v. Truck Ins. Exchange (2005) 132 Cal.App.4th 1076, 1099 [‘It has been 

consistently held that “ ‘a plaintiff is required only to set forth the essential facts of his 

case with reasonable precision and with particularity sufficient to acquaint a defendant 

with the nature, source and extent of his cause of action’ ” ’].) Moreover, ‘[p]laintiff may 

allege on information and belief any matters that are not within his personal knowledge, 

if he has information leading him to believe that the allegations are true.’ (Pridonoff v. 

Balokovich (1951) 36 Cal.2d 788, 792.)” (Doe v. City of Los Angeles (2007) 42 Cal.4th 

531, 550; Code Civ. Proc., § 425.10, subd. (a).)

“A complaint is adequate if its factual allegations are sufficient to support a cause 

of action on any available legal theory (whether specifically pleaded or not). [Citation.]” 

(Smith v. Wells Fargo Bank, N.A. (2005) 135 Cal.App.4th 1463, 1485.) The complaint 

also need not particularize matters presumptively within the knowledge of the demurring 

defendant. (Smith v. Kern County Land Co. (1958) 51 Cal.2d 205, 209.)
17

However, the complaint must do more than plead general allegations, contentions, 

deductions, or conclusions of law. Although the distinction between conclusions of law 

and ultimate facts “ ‘is not at all clear and involves at most a matter of degree,’ ” the 

complaint must allege specific and sufficient facts to apprise the defendants of the basis 

upon which plaintiffs seek relief. (Perkins v. Superior Court (1981) 117 Cal.App.3d 1, 

6.)

B. Second cause of action

Plaintiffs’ second cause of action alleged the Department violated its duty to 

supervise and ensure full compliance with law by failing to require counties to utilize the 

NSDI process to issue benefits manually when CalWIN, for whatever reason, will not or 

when it incorrectly delays, reduces or terminates an individual’s benefits. They claim on 

information and belief that county case workers fail to use NSDI and counties 

inappropriately limit the use of NSDI. As a result, benefit recipients do not receive their 

benefits within the times required by Department regulations and in violation of their 

constitutional due process rights. Plaintiffs seek a writ requiring the Department to 

review the CalWIN counties’ policies to ensure they require timely issuance of benefits 

through the NSDI or other manual process when CalWIN will not timely issue correct 

benefits. They also seek a writ requiring the Department to monitor the counties’ 

compliance with their NSDI policies. 

We conclude the trial court correctly sustained the Department’s demurrer to this 

cause of action without leave to amend. Exhibits both attached to the pleadings and 

judicially noticed contradict plaintiffs’ allegations and defeat their claim. 

To support their allegations regarding NSDI, plaintiffs attached eight declarations 

that described the experiences of 11 benefit recipients who did not receive their aid 

timely. Plaintiffs allege these exhibits support their contentions that counties are not 

using NSDI to issue benefits timely when CalWIN refuses to do so. 
18

Plaintiffs included additional attachments to their second amended petition to 

support their allegations regarding NSDI. They attached copies of the NSDI policies 

adopted by two CalWIN counties, Ventura County and San Diego County, they claimed 

limited the respective county case workers from utilizing the NSDI process when needed. 

Other exhibits, however, contradict plaintiffs’ allegations. Plaintiffs attached to 

their second amended petition a letter issued by the Department in 2007 to all CalWIN 

counties. In the letter, the Department acknowledged receiving complaints of aid 

recipients not receiving their benefits in a timely and accurate manner. The Department 

had the consortium investigate 12 specific case examples advocates for recipients had 

forwarded to the Department. The consortium found that in each case, CalWIN had 

performed correctly, but the case workers had not. The consortium also found that in a 

number of the cases, cases workers had in fact used the NSDI process to issue benefits

manually, but had not always done so timely. 

In response to these findings, the Department issued the following instruction to 

the CalWIN counties: “Given the importance of timely benefit issuance, in the event that 

a CalWIN county is unable to issue benefits within the defined state and federal 

timeframes, the County is required to use any means necessary, including the use of its 

NSDI process (which overrides functionality in CalWIN), to comply with the regulations. 

Counties will need to ensure that this requirement is reflected in their written policies and 

procedures to staff.” 

The Department acknowledged that “the vast majority of applicants and recipients 

in CalWIN counties are receiving their benefits each month in a timely and accurate 

manner. [¶] However, we need to ensure that the few impacted by these problems have 

their circumstances resolved in as timely a manner as possible. We anticipate that as 

workers gain more experience using the system, there will be fewer worker errors.” 

This letter submitted by plaintiffs contradicts their allegations in their petitions and 

thus takes precedence over them. (Del E. Webb Corp. v. Structural Materials Co., supra, 
19

123 Cal.App.3d at p. 604.) The letter indicates the Department in fact is supervising the 

CalWIN counties to ensure they use NSDI processes to comply with federal and state 

laws and issue all benefits timely. It required counties to use NSDI and to revise their 

policies if necessary to reflect the requirement to use NSDI. This is the exact relief 

plaintiffs seek with their second cause of action. 

Indeed, the trial court judicially noticed updated versions of the Ventura and San 

Diego County NSDI policies, adopted after the Department’s letter, that order county 

case workers to use NSDI or any other available process when benefits determined by 

CalWIN are incorrect and at risk of not meeting regulatory time requirements. 

The exhibit and the judicially noticeable facts defeat plaintiffs’ claim alleging the 

Department is not fulfilling its supervisory role in ensuring counties use NSDI processes 

when CalWIN incorrectly determines benefits, or that counties are limiting the use of 

NSDI. The trial court thus correctly sustained the demurrer to the second cause of action 

without leave to amend.

C. Third, fourth, and fifth causes of action

Plaintiffs’ remaining causes of action concern CalWIN’s ability to automatically 

terminate aid to recipients who fail to comply with reporting requirements timely. Each 

cause of action effectively asks us to determine the counties are substantially failing to 

comply with law (particularly laws governing the timely issuance of benefits) because 

CalWIN systemically and incorrectly terminates benefits, and the Department is failing to 

supervise the counties to correct these violations. We conclude the trial court correctly 

sustained demurrers to each cause of action, as exhibits submitted by plaintiffs contradict 

their allegations and demonstrate the Department is supervising the counties and CalWIN 

is not subject to systemic programming errors. We describe each cause of action in 

detail.
20

1. Third cause of action

The third cause of action concerns how CalWIN automatically terminates 

CalWORKs and CalFresh benefits when a recipient fails to file a quarterly eligibility 

report known as a QR 7. The QR 7 is due on the 11th day of the last month of the 

recipient’s quarterly reporting cycle. (§ 11265.1, subd. (b).) If a recipient fails to submit 

a completed QR 7 by that day, his benefits do not terminate that day. Rather, the county 

must notify the recipient that it will terminate his benefits at the end of the month if the 

QR 7 is not submitted by then. (§ 11265.1, subd. (f).) 

Prior to terminating benefits, however, the county must also attempt to make 

personal contact with the recipient reminding him a completed QR 7 is due. If contact is 

not made, the county must send a reminder notice no later than five days before the end 

of the month. (§ 11265.1, subd. (f).) The county must rescind the discontinuance notice 

if the recipient submits a complete QR 7 by the first working day of the first month 

following the quarterly reporting cycle. (Ibid.)

At the county’s or the recipient’s request, the county “may determine” at any time 

prior to the last day of the calendar month following discontinuance of benefits for failure 

to submit a QR 7 that the recipient had good cause for failing to submit the QR 7. If the 

county finds the recipient had good cause, it must rescind the discontinuance notice and 

restore benefits. (§ 11265.1, subd. (g).) 

Plaintiffs allege in their third cause of action that CalWIN operates in violation of 

these QR 7 rules in three respects. First, they allege CalWIN wrongfully terminates a 

recipient’s benefits when he submits his QR 7 after the 11th day of the reporting month 

but before the first day of the next month. They claim if a recipient fails to submit a 

QR 7 prior to the 11th day of the month, or submits an incomplete QR 7, CalWIN places 

a recipient’s benefits in “hold” status. Unless a county worker affirmatively acts to 

release the hold, benefits automatically terminate, even if the recipient submits his QR 7 
21

between the 11th day and the last day of the reporting month. Plaintiffs assert the 

automatic termination of benefits when a county worker fails to process a QR 7 submitted 

between the 11th and the last day of the reporting month violates their rights to receive 

benefits timely, and it effectively terminates their benefits as of the 11th day of the 

reporting month. 

Second, plaintiffs allege CalWIN wrongfully terminates benefits without receiving 

verification that a county worker attempted to contact the recipient or sent a written 

notice before the termination would take effect. Although the attempted contact must be 

documented in the recipient’s file, CalWIN automatically terminates benefits without 

documentation from the worker that the attempted contact was made or written notice 

was sent. 

Third, plaintiffs allege CalWIN wrongfully does not require a case worker to 

evaluate whether good cause justified a recipient’s failure to timely submit his QR 7. 

They claim the failure to program CalWIN to require case workers to make a good cause 

evaluation whenever a QR 7 is submitted within the first month after the end of the 

reporting quarter denies recipients their right to good cause evaluations. 

2. Fourth cause of action

Plaintiffs’ fourth cause of action concerns CalWIN’s automatic termination of 

CalWORKs benefits when a recipient fails to comply with annual recertification 

requirements timely. Counties must redetermine the continuing eligibility of benefit 

recipients annually, a process known as an RRR. (§ 11265.) If a recipient fails to submit 

the necessary information timely, benefits will be terminated.

Plaintiffs complain that CalWIN terminates benefits 11 days before the end of the 

month the RRR is due, in violation of Department regulations requiring discontinuance of 

benefits on account of ineligibility to be effective the last day of the month for which the 

last benefits were paid. 
22

CalWIN determines, tracks, initiates, and maintains the RRR process for benefit 

recipients, but the case worker is responsible for documenting the recipient’s progress 

through the RRR process into CalWIN. If, for whatever reason, the case worker has not 

noted in CalWIN by the 11th day before the end of the month that the RRR process has 

been started or completed by the recipient, CalWIN will automatically discontinue the 

recipient’s benefits as of the end of the month. If at sometime during the last 11 days of 

the month the recipient complies with all eligibility requirements, the case worker must 

manually rescind the discontinuance and complete the RRR process in order to prevent 

the recipient’s benefits from being terminated. Plaintiffs claim this automatic termination 

process, when not corrected by a case worker, results in benefits not being issued timely 

to eligible recipients.

3. Fifth cause of action

Plaintiffs’ fifth cause of action seeks to stop any other automatic termination or 

reduction of benefits that occur without case worker action. CalWIN allegedly is 

programmed to impose penalties automatically when child support documentation, school 

attendance verifications, and proof of child immunizations are not submitted timely. The 

child support documentation penalty occurs even though the Department allegedly 

directed that CalWIN not impose it. CalWIN also automatically terminates benefits 

wherever a recipient misses an appointment with the county, even though there allegedly 

is no legal authority for automatically terminating benefits solely because the recipient 

missed an appointment. 

4. Exhibits attached in support of the third, fourth, and fifth causes of action

Plaintiffs attached numerous exhibits to their second amended petition as facts to 

support their allegations that these actions by the counties and CalWIN were systemic, 

were harming thousands of benefit recipients in the state, were a failure to comply with 

governing laws, and demonstrated the Department was failing to supervise the counties. 

The exhibits resulted from discovery allowed by the trial court after it sustained the 
23

Department’s demurrer to plaintiffs’ original petition. From May to August 2008, the 

Department provided plaintiffs with approximately 10,300 pages of documents. The 

Department also provided plaintiffs with over three years of administrative hearing 

decisions involving alleged benefit terminations, reductions, and delays in the 18 counties 

that make up the consortium. 

In addition, plaintiffs propounded third party subpoenas and public records 

requests to the member counties. They allegedly obtained “snapshots” of the counties’ 

problems with CalWIN over a single month, March 2008. They also noticed third party 

depositions, but after the Department sought a protective order, the parties agreed 

plaintiffs would not notice third party depositions until after they filed their first amended 

petition. 

The “snapshot” evidence of one month’s operation of CalWIN consisted of 

tabulations from five CalWIN counties regarding the number of “trouble tickets” that 

were opened in March 2008. Plaintiffs allege trouble tickets are opened by case workers 

when they experience a problem with CalWIN and cannot resolve it through routine 

means. If the county cannot resolve the problem, they “escalate” the trouble ticket to the 

consortium for resolution. According to the exhibits, trouble tickets were reported in the 

following counties in March 2008:

County Tickets opened Tickets escalated

San Diego 973 82

San Luis Obispo 68 0

Santa Barbara 326 31

Ventura 545 45

San Francisco 273 156

(Some of San Francisco’s escalated tickets may have been opened prior to March 

2008.) 
24

Plaintiffs also alleged, without any supporting documentation, that a sixth CalWIN 

county, Sonoma County, opened 469 trouble tickets in March 2008. 449 of those were 

resolved at the county level, 40 were escalated to the consortium, and 20 were in progress 

at the county level (plaintiffs’ numbers). 

From this information, plaintiffs allege “there could be more than 75,000 trouble 

tickets per year for all eighteen counties.” Plaintiffs assert this number reflects the 

number of individuals who are affected each year by erroneous calculations by CalWIN. 

One of the plaintiffs alleged she had received notices of action warning her that 

her benefits would be terminated for failing to timely submit a QR 7, when in fact she 

had timely submitted the report. 

Plaintiffs also supported their allegations regarding QR 7 terminations with eight 

different administrative hearing decisions made by the Department from 2005 into 2008. 

In each, the Department rescinded a county’s decision to terminate benefits for failure to 

submit a QR 7 timely. In four of the decisions, the Department ruled the counties had 

failed to personally contact the recipient about the omission before terminating aid. In 

one of those four, and in three others, the Department credited the recipients’ testimony 

that they had in fact submitted their QR 7’s timely, even though the county had no record 

of timely receipt. In another, the county admitted it had received the QR 7 timely and 

agreed to restore benefits. 

Plaintiffs also supported their allegations regarding QR 7 terminations with 

declarations by three benefit recipients who received notices of termination for failure to 

submit a QR 7 when they had allegedly submitted one. 

Joni Halpern, an attorney who represents benefit recipients in San Diego County, 

declared that from June 2006 when the county implemented CalWIN until January 2009, 

she represented clients she claimed were adversely affected by CalWIN. She represented 

clients (she does not say how many) whose CalWORKs or CalFresh benefits were placed 

on hold when the clients filed their QR 7’s after the 11th day of the submit month but 
25

before the 1st of the following month, and vaguely claims CalWIN “was not responsive” 

to this information. 

Halpern represented about 20 clients for whom she claims CalWIN denied 

CalWORKs benefits on the basis of immigration status, even though they were either 

United States citizens or qualified immigrants. She and others in her organization claim 

they represented at least 40 clients for whom CalWIN would not authorize CalFresh 

benefits. County workers allegedly could not override CalWIN in those instances. 

Halpern also claims she noticed CalWIN on occasion would send out a notice of 

action untimely. She said she has seen “dozens of cases” where the negative action was 

to take place in the month preceding the date of the notice of action, thereby denying the 

client an opportunity to ask for an administrative hearing. 

Halpern claimed that in all cases in which she asked for an administrative hearing 

to address a benefit termination or reduction allegedly caused by CalWIN not functioning 

correctly, the county stipulated to withdraw the notice of action and take corrective 

action. As a result, during 2007 and 2008, “not a single CalWIN problem [she] handled 

went to hearing, because they were all resolved by conditional withdrawal, and 

sometimes by withdrawal in cases where the benefits were fully authorized and issued 

before a hearing.” 

The exhibits included 12 declarations by nonparties describing the difficulties they 

or their clients encountered when they, for example, responded to notices of action or 

attempted to file their QR 7 or redetermination applications. In each of the incidents, the 

loss or reduction of benefits was ultimately remedied.

The exhibits also include a few e-mail communications between county staff and 

Department staff regarding problems encountered with CalWIN. In one, cited repeatedly 

by plaintiffs, a county staff member complains to a Department staff member that “clients 

are getting burned left and right and they just keep saying the system is functioning as 

designed. . . .” 
26

However, other exhibits submitted by plaintiffs demonstrate the Department, the 

consortium, and the CalWIN counties have addressed plaintiffs’ concerns as a matter of 

supervision and training. They show the problems of which plaintiffs complain are not 

with CalWIN; they are with the case workers learning how to use CalWIN. They also

show the governing agencies are systematically supervising and training those workers to 

correct the problems.

Many of the exhibits to the first amended complaint are policy statements and 

training materials produced by the Department and the various counties on how to 

implement CalWIN and even work around some of its glitches. Some of them clearly 

explain the change CalWIN introduced into the provision of social services. Regarding 

how CalWIN handles RRR, the annual redetermination process, a Department e-mail

states: “The CalWIN process is different than the legacy system process. In the legacy 

process, if the system was not updated with the appropriate RRR information, eligibility 

continued. The worker had to take a positive action for benefits to discontinue. In 

CalWIN the reverse [is] true. If CalWIN is not updated with the appropriate RRR 

information on time, the client will be noticed and eligibility discontinued. The worker 

has to take positive action for benefits to continue. This is how CalWIN was designed 

and how similar systems are designed.” 

The San Francisco Department of Human Services similarly wrote: CalWIN has a 

number of automated actions. These are actions that CalWIN takes when certain data is 

not entered into the system by a certain time. . . . [¶] Staff must take appropriate action 

to make sure CalWIN does not take an improper negative action on cases.” 

Other training materials and communications inform county case workers it is 

their responsibility to timely enter the necessary information into CalWIN to prevent the 

system from incorrectly terminating benefits. Consortium training manuals instruct 

workers how to process QR 7 reports and RRR applications that are submitted after the 

first deadline so that aid is not automatically terminated. Other instructions by CalWIN 
27

counties provide similar instructions for case workers to avoid incorrect terminations due 

to lack of information on immunizations and school verification for six-year-old children, 

late filed QR 7’s, and where good cause exists for the recipient’s failure to keep an 

appointment. 

Judith Levy Baker, a former appeals officer for the Alameda County Social 

Services Agency, declared the incorrect automatic terminations were caused by case 

workers. She worked as an appeals officer during CalWIN’s first year of operation in her 

county, 2005. She declared that during that time, she noticed an increase of appeals from 

recipients claiming their QR 7’s had been turned in timely but their benefits had been 

terminated anyway. However, she attributed the problem to case workers being 

overwhelmed by the demands of CalWIN. They were not answering phones or 

responding to messages from recipients who had received a notice of action. Clerical 

staff would often not accept forms from clients if the case worker was not in, and when 

they did, the forms would not be reviewed or processed timely. Verification documents 

such as birth certificates and social security numbers often were not scanned into the 

system timely, resulting in a termination of benefits even though the client had filed the 

information. Even when the documents were scanned, case workers usually failed to 

check CalWIN to find the documentation before terminating benefits, or they did not 

know where to look for the documentation in the system. In addition, workers could not 

keep pace with the system’s requirements for data entry, so notices and deadlines issued 

by the system were being ignored. 

Two other exhibits submitted by the plaintiffs and expressly relied upon by the 

trial court also demonstrate the Department was in fact supervising the counties and 

directing them to take corrective action on matters the Department believed were 

inconsistent with governing law. These exhibits, audit reports prepared by the 

Department, memorialized the Department’s findings after auditing the San Mateo and 

Alameda County welfare departments’ food stamp programs. In San Mateo County, the 
28

Department found that in fiscal year 2007, the county, among other things, was not 

processing 54 percent of its QR 7’s and 25 percent of its Food Stamp applications timely. 

The Department directed the county to prepare a response plan to address these 

deficiencies. 

In fiscal year 2006, the Department found in Alameda County a welfare 

department staff that was struggling with the transition to CalWIN. The amount of errors 

had increased, quality controls had been reduced, and caseloads had significantly 

increased as resources were devoted to implementing CalWIN and a case imaging 

project. Staff members were “overwhelmed” with the challenges of implementing 

CalWIN. They were failing to issue correct payments and were unable to locate QR 7’s 

and other documents in the system. Many of the staff members felt their CalWIN 

training had been inadequate and had not prepared them to process cases in a timely and 

proficient manner. 

To address these concerns, the Department advised the county to monitor the case 

screening project so that QR 7’s and other case documents were placed into the system in 

a timely manner, and to consider caseload reductions and management training. The 

Department also directed the county to provide “mandatory ongoing CAL-WIN training 

to ensure eligibility staff proficiency with the system.” As it did with San Mateo County, 

the Department ordered Alameda County to submit a response plan detailing how it 

would address the problems identified in the audit. 

These latter exhibits conflict with many of plaintiffs’ allegations. They 

demonstrate CalWIN suffers from no systemic programming error. Rather, it is designed 

to terminate benefits when aid recipients fail to demonstrate their eligibility when 

required by law, and it requires human intervention to prevent any incorrect terminations. 

That it puts recipients’ eligibility in a “hold” status pending completion of filing 

requirements and case worker intervention does not terminate benefits prematurely, as the 

termination does not become effective until the first day of the next month when benefits 
29

would otherwise be due. The system’s incorrect automatic terminations are the result of 

staff error, not CalWIN error. 

The exhibits also demonstrate the Department has taken steps to supervise the 

counties’ use of CalWIN. In communications, training, and auditing, the Department has 

directed the counties to take corrective actions to ensure benefits are timely issued and 

not incorrectly terminated due to case worker error. Because the facts contained in these 

exhibits contradict plaintiffs’ allegations, we disregard the latter. (Del E. Webb Corp. v. 

Structural Materials Co., supra, 123 Cal.App.3d at p. 604.)

Plaintiffs’ other allegations do not plead the counties are substantially failing to 

comply with law such that we could order the Department to exercise its discretion to 

address the violations. The evidence of trouble tickets does not support plaintiffs’ claims. 

Plaintiffs give us no idea what difficulty with CalWIN each trouble ticket represents. We

cannot determine from their mere existence that CalWIN is incorrectly terminating 

benefits when case workers are using the system correctly and timely, that counties are 

substantially failing to comply with law, or that the Department is somehow not fulfilling 

its supervisory duties. Their use here adds nothing to plaintiffs’ claims. 

Plaintiffs’ own allegations and the declarations by other benefit recipients and 

attorneys also do not support the allegations that the counties are substantially failing to 

comply with law and the Department is not fulfilling its duty to supervise. At best, they 

show errors were made in individual circumstances, but in a system as large and 

complicated as CalWIN -- allegedly the largest of its kind in the country -- that assists in 

the administration of welfare benefits to 18 counties, they do not demonstrate the 

Department is failing to supervise the counties.

Because plaintiffs have already had two opportunities to plead sufficient facts and 

have failed to do so, and because the evidence submitted by plaintiffs demonstrates they 

cannot plead facts sufficient to demonstrate the Department is failing to perform a 
30

mandatory duty, we conclude the trial court did not abuse its discretion when it denied 

the third, fourth, and fifth causes of action without leave to amend.8 

DISPOSITION

The judgment is affirmed. Costs on appeal are awarded to defendants. (Cal. 

Rules of Court, rule 8.278(a).)

 NICHOLSON , Acting P. J.

We concur:

 HULL , J.

 MAURO , J.

 

8 At oral argument, counsel for plaintiffs accused the trial court of turning a hearing 

on demurrer into a summary judgment motion. It did no such thing. It granted plaintiffs 

generous time to conduct discovery to find facts to support further allegations, but it did 

not require them to attach that discovery to their petition.