Filed 9/19/23

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FOUR

KESHARA SHAW et al.,

Plaintiffs and Appellants,

v.

LOS ANGELES UNIFIED 

SCHOOL DISTRICT et al.,

Defendants and Respondents.

B315814

Los Angeles County

Super. Ct. No.

20STCV36489

APPEAL from a judgment of the Superior Court of Los

Angeles County, Yvette M. Palazuelos, Judge. Reversed in part, 

affirmed in part, and remanded with directions.

Kirkland & Ellis, Mark C. Holscher, Sierra Elizabeth, 

Edward S. Hillenbrand, Robert Carnes, Laura E. Uhlenhuth and 

Kathryn Panish for Plaintiffs and Appellants.

Dannis Woliver Kelley, Sue Ann Salmon Evans, Ellen C. 

Wu, Keith A. Yeomans, Luke L. Punnakanta and William Guy

Ash for Defendant and Respondent Los Angeles Unified School 

District.

Bush Gottlieb, Ira L. Gottlieb, Lisa C. Demidovich, Michael 

E. Plank and Dexter F. Rappleye for Relief Defendant and 

Respondent United Teachers Los Angeles.
2

INTRODUCTION

Plaintiffs and appellants allege that during the COVID-19 

pandemic, defendants and respondents Los Angeles Unified 

School District (LAUSD or the District) and its then

Superintendent, Austin Beutner, adopted distance-learning 

policies that discriminated against poor students and students of 

color—and deprived all students of basic statewide educational 

equality—in violation of the California Constitution.1 Plaintiffs 

rest their challenge on various side letter contract agreements 

between LAUSD and the teachers union, defendant and 

respondent United Teachers Los Angeles (UTLA), which 

plaintiffs contend implemented the distance-learning framework 

established by the Legislature in a discriminatory fashion.2 Since 

the suit was filed, however, the District has returned to in-person 

instruction, and both the side letter agreements and the 

statutory framework that authorized them have expired. 

Nevertheless, plaintiffs continue to seek injunctive relief to 

remedy what they contend are ongoing harms caused by the 

allegedly unconstitutional policies. 

1 Plaintiffs are Keshara Shaw, Alma Rosa Farias De Solano, 

Josue Ricardo Gastelum-Campista, Maritza Gonzalez, Ronnie 

Heard, Jr., Deyanira Hooper, Judith Larson, Vicenta Martinez, 

and Akela Wroten, Jr., on behalf of themselves and a proposed 

class of similarly situated people. On our own motion, we take 

judicial notice that Austin Beutner is no longer Superintendent of 

LAUSD.

2 Plaintiffs characterize UTLA as a relief defendant, which 

we understand to mean that they sued it to allow the trial court 

to afford complete relief. 
3

The trial court sustained, with leave to amend, LAUSD’s 

demurrer on mootness grounds and granted, with leave to 

amend, its motion to strike the prayer for relief, reasoning that 

the requested remedies would not be manageable on a class-wide 

basis. The trial court also sustained, with leave to amend, 

UTLA’s demurrer. Rather than amend, plaintiffs suffered 

dismissal and now appeal. We conclude the court prematurely 

struck the prayer for relief at the pleading stage,

notwithstanding the end of distance learning. Because the 

plaintiffs propose a seemingly viable remedy for the past and 

continuing harms they allege, their constitutional claims are not 

moot. We therefore reverse in part, affirm in part, and remand 

with instructions.3

BACKGROUND

1. Summary of Distance Learning Framework

On March 4, 2020, Governor Gavin Newsom declared a 

state of emergency in California due to the COVID-19 pandemic. 

(County of Los Angeles Dept. of Public Health v. Superior Court

(2021) 61 Cal.App.5th 478, 484.) Los Angeles Mayor Eric Garcetti 

declared a local state of emergency the same day.

On March 13, 2020, Governor Newsom signed Executive 

Order N-26-20 relating to school district operations during the 

crisis. Every LAUSD campus physically closed starting on 

March 16, 2020. The following day, the Legislature enacted 

Senate Bill No. 117, which, among other things, waived 

attendance and statewide testing requirements for the 2019–

3 We affirm the judgment as to former Superintendent 

Beutner on mootness grounds.
4

2020 school year for school districts that complied with the 

Executive Order. (Sen. Bill No. 117 (2019–2020 Reg. Sess.) Stats. 

2020, ch. 3.)

LAUSD and UTLA negotiated the impacts and effects of 

the emergency closures and the shift to distance learning. The 

resulting agreement, executed on April 8, 2020, was contained in 

an April 2020 side letter to their collective bargaining agreement.

That side letter expired on June 30, 2020.

On June 29, 2020, the Legislature enacted Senate Bill 

No. 98, which, among other things, established requirements for 

distance learning during the 2020–2021 school year. (Sen. Bill 

No. 98 (SB 98) (2019–2020 Reg. Sess.) Stats. 2020, ch. 24, § 34, 

enacting, e.g., Ed. Code,4 former §§ 43501 [minimum 

instructional minutes], 43503 [distance learning requirements], 

43504 [documenting attendance and progress], and 43509

[procedures for establishing distance learning policies].)

Section 43501 reduced the minimum required instructional 

time for a school day. The reduced times varied by grade: 180 

minutes for kindergarteners (§ 43501, subd. (a)), 230 minutes for 

first through third graders (id., subd. (b)), and 240 minutes for 

fourth through 12th graders (id., subd. (c)). Section 43503 

established the requirements for distance learning, including 

“[c]ontent aligned to grade level standards that is provided at a 

level of quality and intellectual challenge substantially 

equivalent to in-person instruction.” (§ 43503, subd. (b)(2).)5

4 All undesignated statutory references are to the Education 

Code.

5 Although the minimum instructional time set forth in 

section 43501 does not appear to distinguish between 
5

Section 43504 required school districts to document daily student 

participation and engagement. (§ 43504, subd. (d)(1); see id., 

subd. (e) [“Each local educational agency shall ensure that a 

weekly engagement record is completed for each pupil 

documenting synchronous or asynchronous instruction for each

whole or partial day of distance learning, verifying daily 

participation, and tracking assignments.”].) It also laid out 

requirements for tracking and mitigating absenteeism. (Id., 

subd. (f).) The distance learning provisions went into effect on

June 29, 2020. (Stats. 2020, ch. 24, § 124.)

LAUSD and UTLA negotiated the impacts and effects of 

this new regimen. Their agreement governing the fall 2020 

semester was contained in an August 2020 side letter, which 

expired on December 31, 2020. LAUSD and UTLA then

negotiated a December 2020 side letter to govern the spring 2021 

semester.

On May 25, 2021, the LAUSD board terminated the 

superintendent’s emergency authority to take actions necessary 

to respond to the pandemic. Governor Newsom terminated his 

own executive orders on June 15, 2021. Finally, on June 30, 2021, 

the state laws authorizing and delineating the contours of 

distance learning, including section 43503, expired. (Stats. 2020, 

ch. 24, § 34, enacting former § 43511, subd. (b) [“This part shall 

synchronous and asynchronous instructional time, section 43503 

required daily live interaction between students and teachers. 

(Former § 43503, subd. (b)(6).) Synchronous instruction occurs

when the teacher provides direct instruction; asynchronous 

instruction occurs when students work independently on 

assigned work or receive instruction via means other than direct 

instruction from a teacher, such as by watching a video.
6

become inoperative on June 30, 2021, and, as of January 1, 2022, 

is repealed.”].) The December 2020 side letter expired the same 

day.

2. Proceedings Below

2.1. First Amended Complaint

Plaintiffs filed their original class action complaint on 

September 24, 2020. On October 7, 2020, they filed a first 

amended complaint, which added UTLA as a relief defendant.6

On April 9, 2021, the trial court overruled LAUSD’s 

demurrer to the first amended complaint but granted LAUSD’s 

motion to strike language concerning the failure to provide 

students with special education instruction and services. The 

court held that the case was not moot because school closures 

were ongoing and could recur, thereby perpetuating the alleged 

side-letter problems, and section 43503 had not yet expired. It 

also observed that the complaint had requested only prospective 

relief; the court thus invited plaintiffs to revise it to include a 

prayer for remedial (or “retrospective”) relief. The court warned, 

however, that “retrospective relief on a class-wide basis may 

create commonality and typicality problems because each 

student’s educational shortfalls may be highly individualized.”

2.2. Second Amended Complaint

Plaintiffs filed the operative second amended class action 

complaint on May 12, 2021. It asserted eight causes of action: 

6 They did so because LAUSD had taken the position that 

UTLA is an indispensable party because it was a party to the 

challenged side letters—but plaintiffs stated that they were “not 

bringing any claims against the UTLA.”
7

wealth discrimination, in violation of the equal protection clauses 

of the California Constitution (first cause of action); racial 

discrimination, in violation of the equal protection clauses of the 

California Constitution (second cause of action); violation of the 

privileges and immunities clause of the California Constitution 

(third cause of action); violation of article IX, sections 1 and 5 of 

the California Constitution (fourth cause of action); violation of 

Government Code section 11135 (fifth cause of action); violation 

of section 43503 (sixth cause of action); declaratory relief (seventh 

cause of action); and failure to provide basic educational equality, 

in violation of the equal protection clauses of the California 

Constitution (eighth cause of action).7 The first, second, and 

eighth causes of action asserted that the constitutional violations

stemmed from the April, August, and December 2020 side letter 

agreements between LAUSD and UTLA, which implemented 

statutory distance learning policies in the District.

Plaintiffs’ second amended complaint also sought remedial 

injunctive relief. The prayer for relief requested, in part: 

“Retrospective relief to address the ongoing, cumulative, and 

irreparable harms already suffered by LAUSD students, 

including but not limited to non-individualized forms of relief 

such as (1) additional live instructional minutes delivered by 

certified teachers, (2) mandatory assessments to evaluate student 

learning loss, (3) the provision of small group and one-on-one 

tutoring services to subclasses of students disproportionately 

impacted by the LAUSD’s distance learning policies, 

7 Only the first, second, and eighth causes of action are at 

issue in this appeal. We refer to them collectively as the 

“constitutional claims” or “constitutional causes of action.”
8

(4) mandatory training for teachers specific to remediating 

learning loss that students suffered as a result of the LAUSD’s 

distance learning policies, and (5) affirmative outreach measures 

to counter the student truancy trends that developed as a result 

of the LAUSD’s distance learning policies.”

2.3. Demurrers and Motions to Strike

LAUSD demurred to all of the causes of action on mootness 

grounds. The District asserted that each cause of action failed to 

state a claim because: the challenged side letters, SB 98, and 

section 43503 had all expired (see former § 43511, subd. (b)); 

intervening events rendered the present controversy unlikely to 

recur; and plaintiffs’ constitutional and discrimination claims and 

the statewide standard on which they rested were dependent 

upon an expired law.8

Separately, LAUSD also moved to strike the language 

concerning retrospective injunctive relief, arguing that such relief 

was improper as a matter of law and could not be maintained on 

a class-wide basis.

UTLA demurred to and moved to strike the class 

allegations in the second amended complaint on the ground that 

plaintiffs could not establish a well-defined community of interest

among class members. It also joined LAUSD’s demurrer on 

mootness grounds.

8 LAUSD also filed a request for judicial notice of various 

documents concerning post-pandemic return to learning and 

mitigation policies, which the court granted as to their existence 

but not as to the truth of any reasonably disputable matters 

therein.
9

2.4. Trial Court’s Ruling 

The trial court sustained both demurrers with leave to 

amend and granted the motion to strike with leave to amend. The 

court also struck the class allegations regarding retrospective 

relief with leave to amend.

The court held that changes in circumstance—namely, the 

expiration of SB 98 and the operative side letters, the return to 

in-person instruction, and LAUSD’s adoption of post-pandemic 

remedial policies—rendered plaintiffs’ claims moot, and the 

issues raised were not likely to recur. In light of its conclusion 

that distance learning was unlikely to resume, at least in its past 

form, the court rejected plaintiffs’ argument that the matter 

remained relevant to the general public interest. As to plaintiffs’ 

constitutional claims, the court held that because SB 98 and 

section 43503 had expired, plaintiffs could not establish the 

required “prevailing statewide standards” element of their 

claims. As such, they could no longer state facts sufficient to 

constitute a viable cause of action.9

Finally, the court held that even if the expiration of the 

side letters and section 43503 did not moot plaintiffs’ claims, 

their request for remedial injunctive relief would not be 

manageable on a class-wide basis because it would require 

9 As discussed below, when addressing the constitutional 

claims, the court did not distinguish the eighth cause of action, 

which required plaintiffs to prove that that “the actual quality of 

the district’s program, viewed as a whole, falls fundamentally 

below prevailing statewide standards” (Butt v. State of California

(1992) 4 Cal.4th 668, 686–687 (Butt)), from the first and second 

causes of action, which appellants contend do not share this 

requirement.
10

individualized inquiries into which students required what 

interventions. The court rejected plaintiffs’ assertion that they 

sought only non-individualized relief. Accordingly, the court 

sustained UTLA’s demurrer with leave to amend, granted 

LAUSD’s motion to strike the prayer for relief with leave to 

amend, and struck the class allegations regarding retrospective 

relief with leave to amend.

Ultimately, although the court had granted plaintiffs leave 

to amend to cure the defects it perceived in the second amended 

complaint, they declined to do so. The case was dismissed with 

prejudice on September 15, 2021. Appellants filed a timely notice 

of appeal.

CONTENTIONS

On appeal, appellants challenge only the dismissal of their 

constitutional claims—the first, second, and eighth causes of 

action—and the striking of their prayer for remedial injunctive 

relief. They concede that the court properly dismissed the third, 

fourth, fifth, sixth, and seventh causes of action.

Specifically, appellants contend the trial court erred by 

sustaining the demurrers because the second amended complaint 

alleged facts sufficient to state claims for race-, wealth-, and 

inter-district discrimination. Next, they argue that the court 

erred by striking the request for remedial class-wide injunctive 

relief. They contend the court misconstrued the relief sought as 

individualized rather than systemic and argue that it is improper 

to strike class allegations at the demurrer stage. Finally, 

appellants argue that the complex civil court’s supposed 

unwritten automatic-stay rule is invalid and unlawfully 

prevented them from obtaining preliminary injunctive relief.
11

LAUSD contends the judgment of dismissal must be 

affirmed because appellants do not challenge the trial court’s 

mootness ruling on appeal. On the merits, it argues that the first 

and second causes of action failed to state a claim because 

appellants did not establish causation—namely, that it was the 

District’s distance-learning policies that caused discrimination—

and the eighth cause of action failed to state a claim because 

appellants did not provide sufficient evidence of educational 

quality elsewhere in the state. As to the prayer for class-wide 

relief, in addition to contesting appellants’ arguments,

respondents contend the court properly struck the allegations 

because injunctions may not operate retrospectively, and the 

requested relief violates the separation of powers doctrine. 

Finally, concerning the asserted automatic-stay rule, respondents

argue that appellants have forfeited the claim by failing to 

challenge the rule below, and, in any event, any delay was caused 

not by court policy but by appellants’ own actions and strategic 

choices. 

In addition to the issues asserted by LAUSD, UTLA 

contends that the entire appeal of the rulings it obtained below 

has been forfeited because appellants do not clearly challenge the 

court’s ruling sustaining UTLA’s demurrer. It also argues that 

even if changed circumstances do not moot the entire case, UTLA 

should be dismissed because the expiration of the side letters 

extinguishes the reason for its presence.

DISCUSSION

1. Standard of Review

When, as here, a demurrer to a complaint is sustained with

leave to amend and the plaintiffs elect not to amend the 
12

complaint, the plaintiffs may test the validity of the order 

sustaining the demurrer by appealing from the ensuing judgment 

of dismissal. (County of Santa Clara v. Atlantic Richfield Co.

(2006) 137 Cal.App.4th 292, 312 [when a plaintiff chooses to 

stand on his or her pleading and not amend after a demurrer is 

sustained with leave to amend, “an appeal from the ensuing 

dismissal order may challenge the validity of the intermediate 

ruling sustaining the demurrer. [Citation.] On the other hand, 

where the plaintiff chooses to amend, any error in the sustaining 

of the demurrer is ordinarily waived.”].)

In reviewing a demurrer order, we independently evaluate 

the challenged pleading, construing it liberally, giving it a 

reasonable interpretation, reading it as a whole, and viewing its 

parts in context. (Milligan v. Golden Gate Bridge Highway & 

Transportation Dist. (2004) 120 Cal.App.4th 1, 5–6 (Milligan).) 

We treat the demurrer as admitting all material facts properly 

pleaded, but we do not assume the accuracy of contentions, 

deductions, or conclusions of law. (Aubry v. Tri–City Hospital 

Dist. (1992) 2 Cal.4th 962, 966–967.) 

Typically, the failure to amend a complaint constitutes an 

admission that the plaintiffs have stated the case as strongly as 

they could have, and no additional facts could be alleged to cure 

the defect. (Le Mere v. Los Angeles Unified School Dist. (2019) 35 

Cal.App.5th 237, 244.) Thus, on appeal, we treat failure to amend 

as a waiver of un-pled allegations. (See Estate of Pryor (2009) 177 

Cal.App.4th 1466, 1470.) We determine de novo whether the 

factual allegations of the challenged pleading adequately state a 

cause of action under any legal theory. (Milligan, supra, 120 

Cal.App.4th at p. 6.) 
13

The plaintiffs bear the burden of demonstrating that the 

trial court erroneously sustained the demurrer. (Friends of 

Shingle Springs Interchange, Inc. v. County of El Dorado (2011) 

200 Cal.App.4th 1470, 1485.) We will affirm the judgment if 

proper on any grounds stated in the demurrer, whether or not the 

trial court acted on that ground. (Carman v. Alvord (1982) 31 

Cal.3d 318, 324.) 

It is the parties’ responsibility to support claims of error 

with meaningful argument and citation to authority. (Cal. Rules 

of Court, rule 8.204(a)(1)(B); Badie v. Bank of America (1998) 67 

Cal.App.4th 779, 784–785.) When they do not furnish legal 

argument with citation to authority on a particular point, we may 

treat the point as forfeited and pass it without consideration. 

(Okasaki v. City of Elk Grove (2012) 203 Cal.App.4th 1043, 1045, 

fn. 1; Keyes v. Bowen (2010) 189 Cal.App.4th 647, 656.) In 

addition, citing cases without any discussion of their application 

to the present case results in forfeiture. (Nelson v. Avondale 

Homeowners Assn. (2009) 172 Cal.App.4th 857, 862; Tilbury 

Constructors, Inc. v. State Comp. Ins. Fund (2006) 137 

Cal.App.4th 466, 482–483.) We are not required to examine 

undeveloped claims or to supply arguments for the litigants. 

(Maral v. City of Live Oak (2013) 221 Cal.App.4th 975, 984–985; 

Mansell v. Board of Administration (1994) 30 Cal.App.4th 539, 

546 [it is not the court’s function to serve as the appellant’s 

backup counsel].)

Moreover, we do not consider points raised for the first time 

in the reply brief absent a showing of good cause for the failure to 

present them earlier. (Garcia v. McCutchen (1997) 16 Cal.4th 

469, 482, fn. 10.) This rule is based on considerations of 

fairness—withholding a point until the closing brief deprives the 
14

opposing party of the opportunity to file a written response 

unless supplemental briefing is ordered. (Neighbours v. Buzz 

Oates Enterprises (1990) 217 Cal.App.3d 325, 335, fn. 8.)

2. Forfeiture

Appellants contend the court erred by sustaining the 

demurrers to their constitutional claims—the first, second, and 

eighth causes of action. The first cause of action asserted that the 

side letter agreements discriminated on the basis of wealth; the 

second cause of action asserted that the side letter agreements 

discriminated on the basis of race; and the eighth cause of action 

asserted that the side letter agreements denied LAUSD students 

an education basically equivalent to that provided elsewhere in 

the state.

LAUSD argues that appellants have failed to challenge the 

court’s holding that the constitutional causes of action are moot, 

and as such, have forfeited the appellate claim that the court 

erred by sustaining the demurrers. Likewise, UTLA argues that 

appellants concede by abandonment that the bulk of their case 

has become moot. UTLA also contends appellants’ appeal is 

forfeited in its entirety because it does not clearly encompass 

UTLA’s demurrer.

Appellants respond that LAUSD did not demur to the 

constitutional claims on mootness grounds, and the court did not 

sustain the demurrer on that basis. They also contend they have 

adequately challenged the issues raised in UTLA’s demurrer.

As discussed below, we conclude that although appellants’ 

briefs are not a model of clarity, they have preserved their 

challenges to both demurrers.
15

2.1. Appellants adequately address the court’s 

mootness ruling.

LAUSD demurred to each cause of action in the second 

amended complaint—including the constitutional claims at issue 

here—on mootness grounds. By sustaining LAUSD’s demurrer, 

the trial court necessarily held that all three constitutional 

causes of action were moot. Although the court devoted scant 

attention to that question in its order, appellants were 

nonetheless required to challenge the ruling on appeal. (See E.L. 

White, Inc. v. City of Huntington Beach (1978) 21 Cal.3d 497, 504, 

fn. 2 [“‘[I]t is the validity of the court’s action, and not of the 

reason for its action, which is reviewable.’” (Original italics.)].) 

Certainly, appellants have not addressed the issue head-on.

Nevertheless, the question of mootness in this case is 

fundamentally entwined with the question of remedy. We 

conclude appellants’ discussion of the latter question is sufficient 

to preserve a challenge to the former. As we will explain, if the 

trial court erred in striking the prayer for relief, appellants still 

have a viable remedy for past and continuing harms, and their 

constitutional claims are not moot. 

2.1.1. The court impliedly held that striking the 

prayer for relief rendered the constitutional 

claims moot. 10

Appellants contend LAUSD did not demur—and the trial

court did not sustain the demurrer—to the constitutional causes 

10 We address mootness in detail in section 5, post. In general, 

however, a “case is considered moot when ‘the question addressed 

was at one time a live issue in the case,’ but has been deprived of 
16

of action on mootness grounds; instead, they argue, those causes 

of action were stricken when the court granted LAUSD’s motion 

to strike. Appellants insist: “LAUSD did not seek dismissal of 

Appellants’ request for remedial injunctive relief on mootness 

grounds. Nor would doing so have made any sense, as the 

requested programmatic reforms undoubtedly would have a 

‘practical impact’ and offer ‘effectual relief’ if ordered by the trial 

court.” Appellants also offer a convoluted theory that the court 

treated their prayer for remedial relief as its own free-standing 

claim, suggesting that “the trial court cabined its ruling on 

Appellants’ request (or ‘claims’) for remedial injunctive relief to 

the arguments raised in LAUSD’s motion to strike, and did not 

find that the request was moot.”11 (But see, e.g., Shell Oil Co. v. 

life ‘because of events occurring after the judicial process was 

initiated.’ [Citation] . . . The pivotal question in determining if a 

case is moot is . . . whether the court can grant the plaintiff any 

effectual relief.” (Wilson & Wilson v. City Council of Redwood 

City (2011) 191 Cal.App.4th 1559, 1574.)

11 Appellants argue: “While a defendant usually demurs to an 

entire ‘cause of action,’ LAUSD instead addressed its demurrer to 

two forms of relief—prospective injunctive relief and declaratory 

relief. It attacked a third form of relief—remedial (or 

retrospective) injunctive relief—by way of a separate motion to 

strike class allegations pertaining to that remedy. Appellants and 

the trial court accepted LAUSD’s framework, and the trial court 

(1) dismissed Appellants’ ‘claims’ for prospective injunctive relief 

and declaratory relief as moot, and (2) struck their ‘claims’ for 

remedial injunctive relief as not susceptible to class treatment. 

LAUSD, and thereafter Appellants and the trial court, elected to 

treat each of Appellants’ demanded remedies as essentially 

separate ‘causes of action’ or ‘claims.’ Having prompted that 

framework in the trial court, LAUSD should not be permitted to 
17

Richter (1942) 52 Cal.App.2d 164, 168 [relief by injunction is a 

remedy and not, in itself, a cause of action; cause of action must 

exist before injunctive relief can be granted].)

The District asserts that it has always argued the 

constitutional causes of action were moot, but it also argued that, 

to the extent remedial injunctive relief could provide a practical 

impact that would render those claims non-moot, such relief 

would be improper for the reasons addressed in the motion to 

strike.

Both sides overstate the case.

LAUSD overstates the argument it made in its demurrer. 

To state a claim for denial of basic educational equality, the 

plaintiff must show that “the actual quality of the district’s 

program, viewed as a whole, falls fundamentally below prevailing 

statewide standards.” (Butt, supra, 4 Cal.4th at pp. 686–687.) 

LAUSD argued that the repeal of SB 98 and section 43503 

deprived plaintiffs of a prevailing statewide standard by which to 

measure the District’s distance-learning policies. The District 

also mentioned, in a footnote in its reply brief: “To the extent 

Plaintiffs argue that a decision in Plaintiffs’ favor can have a 

‘practical’ impact, any such relief would come in the form of what 

Plaintiffs allege is remedial or retrospective relief, which is 

subject to LAUSD’s concurrently-filed Motion to Strike.” Plainly, 

the District did not address practical impact in any substantive 

way.

now argue that Appellants were required to challenge the trial 

court’s mootness decision in order for their request (or ‘claims’) 

for remedial injunctive relief to survive dismissal.”
18

But appellants are wrong that “the trial court’s mootness 

analysis addressed only Appellants’ requests for prospective 

injunctive relief and declaratory relief.” Although the court did 

not explicitly address the practical-impact question, it did

address the statewide standards issue. The court observed: 

“Plaintiffs also contend that SB 98’s expiration does not moot 

their constitutional claims.” The court noted that in overruling 

LAUSD’s demurrer to the first amended complaint, it had relied 

on appellants’ “allegations that prevailing statewide standards 

for distance learning could be determined from LAUSD’s policies 

before the pandemic, SB 98’s requirements, and the policies 

implemented by the four next largest public school districts in 

California . . . .” 

In ruling on the motions attacking the second amended 

complaint, however, the trial court said, “Now that SB 98 and 

Section 43503 are no longer operative, [the] ‘prevailing statewide 

standards’ cannot be established based only on LAUSD’s prepandemic policies and the policies implemented by the four next 

largest public school districts in California. Policies from only five 

California school districts—no matter how large they are—are 

insufficient to establish ‘prevailing statewide standards,’ absent a 

statewide statutory baseline such as Section 43503.” 

In other words, the trial court held that because section 

43503 and the side letter agreements were no longer operative, 

appellants’ claims based on them—including their constitutional 

claims—were no longer justiciable.

To be sure, this section of the court’s order was brief in 

comparison to the court’s thorough discussion of other issues. In 

particular, the court did not distinguish the eighth cause of 

action, which requires plaintiffs to establish prevailing statewide 
19

standards, from the first and second causes of action, which do 

not share this requirement. (See Butt, supra, 4 Cal.4th at p. 691 

[“nothing in our analysis is intended to immunize local school 

officials for accountability for mismanagement”].) Nor did the

trial court explicitly address the question of whether it could 

grant effective relief.

But the latter issue was plainly on the court’s mind. For 

example, at oral argument, the court asked: “Defendants, I would 

like you to address the mootness argument but then also address 

the court’s comment . . . concerning even if mootness is aside [sic], 

what about the constitutional violations and the [disparate] 

impact of the policies on Black and Latino students independent 

of your letters? In other words, right now we’re stuck with 

children that have fallen behind. Going forward, they’re going to 

ask you for certain types of relief. Why can’t that just be an 

independent basis to allow them to continue?” 

Counsel for LAUSD responded “they don’t even get to 

relief . . . until they state a viable cause of action,” which “is now 

moot.” The trial court then pressed: “You’re saying you have 

money now going forward, but are they addressing the past 

problems that were caused by distance learning? You’re just 

saying we’re not going to do it anymore in the future. Okay, that’s 

great. But how do you remedy the past deficiency? Can’t the court 

declare enough to get a program—not necessarily for each 

student—but programs to [be] put in place to remedy . . . those 

situations, those problems?”

UTLA suggests what ultimately happened is that the trial

court “struck the request for classwide retrospective remedies 

from the [second amended complaint], with the result that no 

part of the case remained that was not moot.” We agree that this 
20

is the only reasonable interpretation of the court’s order and the 

proceedings below. It appears the court recognized plaintiffs’

proposed remedy would provide a practical impact, which would 

normally mean the constitutional claims would remain viable. 

But the court’s holding that the requested relief could not proceed 

on a class-wide basis negated that practical impact, thereby 

mooting the claims.12

The question before us, then, is whether appellants have 

adequately challenged the court’s implied holding. We conclude 

that they have.

2.1.2. Mootness and remedy are intertwined.

As we address in detail below, if appellants can assert a 

viable remedy, their constitutional causes of action are not moot. 

Yet on appeal, after challenging the trial court’s order granting 

the motion to strike, appellants do not argue—at least, not 

explicitly—that because the court erred by striking the prayer for 

relief, it also erred by impliedly holding that the constitutional 

claims were moot because they could have no practical impact.

Nevertheless, if the central issue in this case is whether the 

court erred by striking appellants’ prayer for relief, mootness 

12 Although the court also held that the constitutional claims 

were moot because the expiration of SB 98 deprived appellants of 

a prevailing statewide standard for the eighth cause of action, 

that discussion was relatively brief in the context of the order as 

a whole. More importantly, the discussion did not apply to the 

claims of intra-district discrimination asserted in the first and 

second causes of action because those causes of action do not 

require plaintiffs to establish a statewide standard. Thus, the 

court must have had some other basis for sustaining the 

demurrer to those two causes of action.
21

merely addresses the legal effect of the answer to that question.

In other words, relief and mootness are two sides of the same

coin. By arguing in detail and at length that the court erred by 

striking their prayer for relief, appellants have thereby preserved 

their claim that their constitutional causes of action remain 

viable.

In any event, even if appellants’ discussion of mootness 

were insufficient to preserve the issue for appeal, we would 

exercise our discretion to consider whether appellants can state a

claim. Because appellants raised the issue below and address the 

substance of the trial court’s discussion of this matter on appeal, 

and in light of the important constitutional issues at stake in this 

case, we conclude rigid application of the forfeiture doctrine 

would not serve the interests of justice. (See Barriga v. 99 Cents 

Only Stores LLC (2020) 51 Cal.App.5th 299, 321 [appellate courts 

have discretion to consider arguments asserted in the trial court 

and not reasserted in an opening brief on appeal]; Scott v. City of 

San Diego (2019) 38 Cal.App.5th 228, 234, fn. 4 [exercising 

discretion to consider merits of argument not raised in opening 

brief that presented pure legal issue and was material to 

disposition of appeal].)

2.2. Appellants adequately address UTLA’s demurrer.

UTLA contends that appellants have forfeited the entire 

appeal as to UTLA because they do not clearly challenge the 

court’s ruling sustaining UTLA’s demurrer. We disagree. 

Although appellants do not explicitly parse the differences 

between the two demurrers, UTLA’s demurrer covered the same 

essential ground as LAUSD’s motion to strike—namely, the 

validity of the prayer for class-wide remedial injunctive relief—

and appellants devote ample attention to that topic.
22

In any event, UTLA does not explain why appellants’ 

discussion of the class allegations is insufficient to encompass the 

issues raised by UTLA’s demurrer. Nor does UTLA explain how 

its demurrer differs from LAUSD’s motion to strike. Accordingly, 

it has forfeited this argument. (See Benach v. County of Los 

Angeles (2007) 149 Cal.App.4th 836, 852 [failure to develop claim 

with reasoned legal argument and supporting authority forfeits 

the issue].)

3. The court erred by striking the prayer for relief at the 

pleading stage.

Appellants contend the trial court erred by striking their 

class-wide prayer for remedial injunctive relief. They argue the 

court misconstrued the relief sought as individualized rather 

than systemic and argue that it is improper to strike class 

allegations at the pleading stage. LAUSD argues the court 

properly struck the prayer for relief because crafting such relief 

would require myriad individualized inquiries. UTLA argues the 

court properly struck the prayer for relief because there is no 

community of interest within the proposed class.

Class allegations may be stricken at the pleading stage 

only when it is clear from the face of the complaint, the exhibits, 

and judicially-noticed documents that liability isn’t subject to 

common proof. Here, the court held that relief was not subject to 

common proof. This ruling was premature.

3.1. Legal Principles and Standard of Review

“Courts long have acknowledged the importance of class 

actions as a means to prevent a failure of justice in our judicial 

system. [Citations.] ‘“By establishing a technique whereby the 

claims of many individuals can be resolved at the same time, the 
23

class suit both eliminates the possibility of repetitious litigation 

and provides small claimants with a method of obtaining 

redress. . . .”’ [Citation.] Generally, a class suit is appropriate 

‘when numerous parties suffer injury of insufficient size to 

warrant individual action and when denial of class relief would 

result in unjust advantage to the wrongdoer.’ [Citations.] But 

because group action also has the potential to create injustice, 

trial courts are required to ‘“carefully weigh respective benefits 

and burdens and to allow maintenance of the class action only 

where substantial benefits accrue both to litigants and the 

courts.”’ [Citations.]

“Section 382 of the Code of Civil Procedure authorizes class 

suits in California when ‘the question is one of a common or 

general interest, of many persons, or when the parties are 

numerous, and it is impracticable to bring them all before the 

court.’ To obtain certification, a party must establish the 

existence of both an ascertainable class and a well-defined 

community of interest among the class members. [Citations.] The 

community of interest requirement involves three factors: 

‘(1) predominant common questions of law or fact; (2) class 

representatives with claims or defenses typical of the class; and 

(3) class representatives who can adequately represent the 

class.’” (Linder v. Thrifty Oil Co. (2000) 23 Cal.4th 429, 434–435.)

“The decision whether a case is suitable to proceed as a 

class action ordinarily is made on a motion for class certification.” 

(Bridgeford v. Pacific Health Corp. (2012) 202 Cal.App.4th 1034, 

1041.) When the invalidity of the class allegations is revealed on 

the face of the complaint, the trial court may decide the issue by 

demurrer or motion to strike. (Ortega v. Topa Ins. Co. (2012) 206 

Cal.App.4th 463, 478.) But California courts have long disfavored 
24

disposing of class allegations at the pleading stage. (Gutierrez v. 

California Commerce Club, Inc. (2010) 187 Cal.App.4th 969, 976

(Gutierrez).)

Accordingly, a court may decide the question on demurrer 

only if it is clear “‘“there is no reasonable possibility that the 

plaintiffs could establish a community of interest among the 

potential class members and that individual issues predominate 

over common questions of law and fact.”’” (Gutierrez, supra, 187 

Cal.App.4th at p. 975; see Tucker v. Pacific Bell Mobile Services

(2012) 208 Cal.App.4th 201, 211 (Tucker) [court may sustain a 

demurrer as to class claims “‘only if it concludes as a matter of 

law that, assuming the truth of the factual allegations in the 

complaint, there is no reasonable possibility that the 

requirements for class certification will be satisfied’”].) 

“‘If there is a reasonable possibility the plaintiffs can plead 

a prima facie community of interest among class members, “‘“the 

preferred course is to defer decision on the propriety of the class 

action until an evidentiary hearing has been held on the 

appropriateness of class litigation.”’”’” (Tucker, supra, 208 

Cal.App.4th at p. 215, citing Gutierrez, supra, 187 Cal.App.4th at 

p. 975.) Thus, “‘all that is normally required for a complaint to 

survive demurrers to the propriety of class litigation is that the 

complaint allege facts that tend to show: (1) an ascertainable 

class of plaintiffs, and (2) questions of law and fact which are 

common to the class.’” (Prince v. CLS Transportation, Inc. (2004) 

118 Cal.App.4th 1320, 1326 (Prince); see Blakemore v. Superior 

Court (2005) 129 Cal.App.4th 36, 59 (Blakemore) [“Absent ‘strong 

factual showings’ in the complaint that negate the possibility of a 

community of interest, determination of the propriety of a class 
25

action should be deferred ‘until a time when [the court] may 

better make the decision.’”].)

“A motion to strike, like a demurrer, challenges the legal 

sufficiency of the complaint’s allegations, which are assumed to 

be true.” (Blakemore, supra, 129 Cal.App.4th at p. 53.) Thus, as 

with a demurrer, a “motion to strike the class allegations ‘raises 

only the narrow issue whether this suit as a matter of law lacks 

sufficient community of interest to sustain a class action.’” (Id. at 

p. 54.) We review matters of law de novo. (Ibid.)

3.2. The court erred by striking the class allegations 

based on individualized questions of remedy.

The issue before the trial court was: “Considering the 

allegations of the [complaint], the pleading exhibits, and the 

judicially noticed facts, have Plaintiffs pled a prima facie 

community of interest among class members?” (Tucker, supra, 

208 Cal.App.4th at p. 220.) The court concluded they had: 

“Plaintiffs correctly state that the legality of the challenged Side 

Letters is a liability issue susceptible to common proof.” The 

court seemingly reached this conclusion in passing, apparently 

believing it was self-evident; it did not address the elements of 

the constitutional claims nor discuss what would be needed to 

prove them. 

Nevertheless, as there was no question the proposed class 

is ascertainable, this should have been the end of the inquiry. 

(Blakemore, supra, 129 Cal.App.4th at p. 59; Prince, supra, 118 

Cal.App.4th at p. 1326.) Instead, the court expounded that “even 

if Plaintiffs could establish commonality as to this liability issue, 

this case would remain unmanageable because of the highly 

individualized determinations required to determine damages 
26

and to fashion appropriate relief.” That is, the court focused not 

on liability but on remedy.13

Both respondents and the court below cite a variety of cases 

in which individual issues predominated as to both liability and

remedy.14 For example, Silva v. Block involved a proposed class of 

people wrongly and unjustifiably attacked by police dogs used by 

a sheriff’s department. (Silva v. Block (1996) 49 Cal.App.4th 345, 

352.) The appellate court held that the question of liability to 

individual class members “would depend upon the particular 

conduct in which the suspect was engaged and the facts apparent 

to the handler before the police dog was employed.” (Ibid.; see 

also Newell v. State Farm General Ins. Co. (2004) 118 

Cal.App.4th 1094, 1099, 1103 [proposed class of people

wrongfully denied policy benefits for damage caused to their 

13 It appears the court may have also applied the wrong legal 

standard in resolving the question. A court may not strike class 

allegations at the pleading stage if “‘there is a reasonable 

possibility the plaintiffs can plead a prima facie community of 

interest among class members . . . .’” (Tucker, supra, 208 

Cal.App.4th at p. 215.) Here, the court held that “[b]ecause 

Plaintiffs’ request for retroactive injunctive relief will make class 

treatment unmanageable, a class action is not a superior means 

of resolving this dispute.”

14 The trial court also relied on a variety of federal district 

court cases, at least one of which is unpublished, as well as an 

opinion from the Seventh Circuit Court of Appeals. As those 

opinions are not binding on this court, we do not address them. 

(See Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 

450, 455–456.) For the same reason, we deny UTLA’s request, 

made in its respondent’s brief, that we take judicial notice of 

various federal cases dealing with the pandemic and its effects.
27

homes by the Northridge earthquake; even if insurers adopted 

improper claims practices to adjust earthquake claims, each class 

member “still could recover for breach of contract and bad faith 

only by proving his or her individual claim was wrongfully 

denied, in whole or in part, and the insurer’s action in doing so 

was unreasonable”] (original italics); Brown v. Regents of 

University of California (1984) 151 Cal.App.3d 982, 989–990 

[proposed class of people allegedly injured by hospital’s failure to 

provide adequate coronary care; case presented “a veritable 

quagmire of tough factual questions” that could only be resolved 

by individual proof, as opposed to a “relatively simple consumer 

fraud action”].)

Similarly, in Clausing v. San Francisco Unified School 

District, the proposed class was disabled students who had 

allegedly been abused, beaten, and publicly humiliated by school 

district employees. (Clausing v. San Francisco Unified School

Dist. (1990) 221 Cal.App.3d 1224, 1233–1234.) To establish 

liability, the appellate court noted, each individual would have 

had to prove “overwhelmingly numerous” separate issues, 

including the fact that he or she was a victim of abuse, the 

identity of the abuser, and the capacity in which the abuser 

acted. (Ibid.) Even if it could be determined that the district’s 

policies and practices encouraged abuse of students, “this 

determination could not resolve the lawsuit, which would still 

require a full trial on each and every alleged incident of abuse 

with respect to fault, causation, damages, and affirmative 

defenses.” (Ibid.)

Yet neither the court below nor the parties on appeal have 

pointed to any California authority in which a court properly 

struck class allegations at the demurrer stage based only on the 
28

supposed unavailability of a class-wide remedy—and our 

research has revealed none. Indeed, in Tucker, which LAUSD 

holds up as an example of a “modern” case that takes a 

permissive view of striking class allegations at the pleading 

stage, the appellate court held that questions about damages 

were irrelevant to its analysis. (Tucker, supra, 208 Cal.App.4th

p. 230 [“Regardless of whether Plaintiffs are able to pursue 

claims for individual damages or class restitution, the adequacy 

of Defendants’ disclosures of the contested billing practice, and 

whether at least some members of the public are likely to be 

deceived are not issues that can be resolved as a matter of law on 

demurrer, even with the matter judicially noticed.”].)

In any event, it appears to be within the realm of 

probability that the trial court—with the assistance of the 

parties—could fashion appropriate injunctive relief consisting of 

workable programs and techniques for evaluating and 

remediating any learning deficits occasioned by the District’s

distance learning program. School districts across the country are 

developing programs to identify and remediate pandemic 

learning loss, so it is not as if the court will have no models to 

consider. And it is far from obvious at this point that all possible 

remedies would necessitate prohibitively cumbersome individual 

inquiries. 

Accordingly, we conclude the court erred by striking the 

class allegations based on concerns about the supposed 

individualized nature of all possible remedies.
29

3.3. There is a reasonable possibility that appellants 

can establish a community of interest among 

class members.

As discussed above, a court may sustain a demurrer to 

class claims only if it concludes as a matter of law that, assuming 

the truth of the factual allegations in the complaint, plaintiffs are 

unable to make a prima facie showing that a community of 

interest exists among the proposed class members.15 (Tucker, 

supra, 208 Cal.App.4th at pp. 211, 220.) UTLA contends 

appellants cannot make that showing here. We disagree.

“Since its admission to the Union, California has assumed 

specific responsibility for a statewide public education system 

open on equal terms to all. The Constitution of 1849 directed the 

Legislature to ‘provide for a system of common schools, by which 

a school shall be kept up and supported in each district . . . .’ (Cal. 

Const. of 1849, art. IX, § 3.) That constitutional command, with 

the additional proviso that the school maintained by each district 

be ‘free,’ has persisted to the present day. (Cal. Const., art. IX, 

§ 5.)” (Butt, supra, 4 Cal.4th at p. 680.)

Courts have interpreted these provisions, together with our 

state equal protection clauses, to guarantee California children “a 

fundamental right of equal access to public education, warranting 

strict scrutiny of legislative and executive action that is alleged to 

infringe on that right.” (O’Connell v. Superior Court (2006) 141 

Cal.App.4th 1452, 1465.) Students are entitled to educational 

equality both within school districts (meaning a given district 

cannot discriminate against them based on their race or their 

wealth) and between districts (meaning school districts must 

15 Ascertainability is not at issue here.
30

provide an education at least basically equivalent to that afforded 

students statewide). Here, appellants allege LAUSD’s policies

discriminated against them in both of these ways.

3.3.1. Intra-District Discrimination

To state a claim for intra-district race or wealth 

discrimination in education, as asserted in the first and second 

causes of action, plaintiffs must allege that “a policy adopted in 

California has a substantial disparate impact on the minority 

children of its schools . . . and no action is taken to correct that 

policy when its impacts are identified.” (Collins v. Thurmond

(2019) 41 Cal.App.5th 879, 896–897; see Vergara v. State of 

California (2016) 246 Cal.App.4th 619, 648 [race is a “‘suspect 

classification’” under equal protection analysis; in “the context of 

education, under California law, wealth is considered a suspect 

classification as well”].)

Here, appellants allege that LAUSD policy, established

through the side letter agreements with UTLA, significantly 

reduced teacher work hours, instructional time, and training and 

professional development time; limited synchronistic teacher 

time; and ended the District’s practice of proactively reaching out 

to disengaged students. Appellants allege these policies—

especially the reduced learning hours and failure to require 

student assessments—affected all students district-wide.

The complaint also alleges that LAUSD’s policies 

disparately, and inevitably, impacted poor and minority students

more than others. After the District established its distancelearning policies, appellants allege, the majority of Black and 

Latino secondary students appeared in class only once or twice a 

week—or not at all—a figure 10 to 20 percent lower than their 

white and Asian peers. By the ninth week of instruction, only 6 in 
31

10 Black and Latino middle school students appeared in class at 

least once per week, compared to 8 in 10 of their peers. And 

although the District committed to providing all students with 

free electronic devices and internet connections to enable them to 

participate in distance learning, appellants contend many lowincome students received either nonfunctional equipment or 

nothing at all. Plaintiffs allege that LAUSD did not remedy these 

failures, and others, when they were brought to the District’s 

attention.

Although the experiences of students throughout Los 

Angeles undoubtedly varied, these allegations are sufficient, at 

the pleading stage, to state a prima facie community of interest 

among the proposed class.

3.3.2. Inter-District Discrimination

In addition to guaranteeing students a right to an 

education equivalent to that received by other students in the 

same school district, the California Constitution guarantees 

students “an education basically equivalent to that provided 

elsewhere throughout” the state. (Butt, supra, 4 Cal.4th at p. 685; 

id. at p. 692 [“Because education is a fundamental interest in 

California, denials of basic educational quality on the basis of 

district residence are subject to strict scrutiny.”]; Cal. Const., 

art. I, § 7; art. IV, § 16.) A finding of constitutional disparity 

occurs when a school “district’s program, viewed as a whole, falls 

fundamentally below prevailing statewide standards . . . .” (Butt,

at pp. 686–687.) Here, appellants allege, in the eighth cause of 

action, that LAUSD policy, established in the side letter 

agreements, violated this right.

The complaint alleges that “the prevailing statewide 

standards are established by the LAUSD’s policies before the 
32

pandemic, SB 98’s requirements, and the policies implemented by 

the four next largest public school districts in California—San 

Diego Unified School District, Fresno Unified School District, Elk 

Grove Unified School District, and Long Beach Unified School 

District.” In particular, it alleges that the LAUSD policies

established in the side letter agreements fell “fundamentally 

below these prevailing statewide standards because each 

provided less total instructional time than the LAUSD provided 

before the pandemic and all of the four next largest public school 

districts in California.” 

Further, the complaint alleges the policies established in 

the side letters did not comply with SB 98. For example, plaintiffs 

allege that LAUSD failed “to provide the minimum instructional 

minutes required by SB 98” (see former § 43501), violated 

“SB 98’s requirements that students receive an education that is 

aligned to grade level standards and provides a level of quality 

and intellectual challenge that is substantially equivalent to 

what students would have received in person” (see former 

§ 43503, subd. (b)(2)), and violated SB 98’s attendance and 

engagement requirements (see former § 43504, subds. (d)–(g)).

Plaintiffs allege that LAUSD did not remedy these failures, and 

others, when they were brought to the District’s attention.

As with the intra-district causes of action, these allegations 

are sufficient, at the pleading stage, to state a prima facie 

community of interest among the proposed class.

In sum, we conclude the trial court erred by granting 

LAUSD’s motion to strike, sustaining UTLA’s demurrer, and 

striking the prayer for relief on class grounds. “We do not hold,” 

however, “that a class action is appropriate in this case. That 

issue is for the trial court to determine at a later stage of the 
33

case.” (Blakemore, supra, 129 Cal.App.4th at p. 59.) At that point, 

the court will presumably need to consider anew the complicated 

question of whether the relief plaintiffs seek is manageable on a 

class basis—an issue we need not and do not decide. Rather, as in 

Blakemore, “‘we hold only that no argument has been made 

which would allow the judge to rule at the pleading stage that the 

suit was without the realm of probability of being properly tried 

as class litigation.’” (Ibid., fn. omitted; see Tucker, supra, 208 

Cal.App.4th at p. 230 [“Ultimately, it is still up to the trial court, 

in the exercise of its considerable discretion, to determine if 

Plaintiffs’ [claims] for equitable relief are appropriate for class 

treatment at all.”].)

4. Respondents’ other challenges to the prayer for relief 

likewise fail.

Respondents also contend that the trial court properly 

granted LAUSD’s motion to strike the prayer for relief because 

injunctions may only operate prospectively and because any relief 

that could be awarded would violate the separation of powers 

doctrine.16

Because the trial court did not reach these issues, 

appellants ask us to remand the matter for decision in the first 

instance. We decline to do so. We must affirm the judgment of 

dismissal “if the unamended complaint is objectionable on any 

ground raised by the demurrer” or motion to strike. (Otworth v. 

Southern Pac. Transportation Co. (1985) 166 Cal.App.3d 452, 

16 Although LAUSD has forfeited the former claim by failing 

to develop it, UTLA adequately addresses the issue, thereby 

obviating any prejudice to appellants. We therefore exercise our 

discretion to consider the claim as to both respondents.
34

457.) Both of these issues were raised below. In addition, each 

contention “entails the resolution of a mixed question of law and 

fact that is predominantly one of law, inasmuch as it ‘requires a 

critical consideration, in a factual context, of legal principles and 

their underlying values’ rather than merely ‘experience with 

human affairs.’” (Aguilar v. Atlantic Richfield Co. (2001) 25 

Cal.4th 826, 860.) Because we are as equipped to evaluate such 

questions as the court below, and in the interest of judicial 

economy, we reject appellants’ request for remand and turn to 

consider these issues.

4.1. Remedial injunctive relief is proper.

Respondents contend appellants’ prayer for relief was 

properly stricken because injunctions cannot issue to restrain 

completed acts. Appellants argue that respondents have conflated 

completed acts (the expiration of the challenged distance-learning 

policies) with harm caused by those acts (learning loss and 

disengagement stemming from the policies). Because the alleged 

harm is ongoing, appellants contend, injunctive relief is proper. 

We agree with appellants.

The dispute appears to lie in the difference between 

mandatory and prohibitory injunctions. A prohibitory injunction 

is “a writ or order requiring a person [or entity] to refrain from a 

particular act.” (Code Civ. Proc., § 525.) A mandatory injunction, 

by contrast, requires a person to take affirmative action that 

changes the parties’ positions. (See Civ. Code, § 3367, subd. (2); 

ITV Gurney Holding Inc. v Gurney (2017) 18 Cal.App.5th 22, 29.)

The “purpose of a prohibitory injunction is to prevent 

future harm to the applicant by ordering the defendant to refrain 

from doing a particular act”; such relief exists “only to prevent 

threatened injury and has no application to wrongs that have 
35

been completed.” (Scripps Health v. Marin (1999) 72 Cal.App.4th 

324, 332 [injunction not warranted to restrain defendant from 

contacting plaintiff’s employees where defendant had committed 

only one act of violence and there was no showing of any threat of 

future acts].) Because a prohibitory injunction does not serve to 

punish past acts, it should not be issued unless there is “evidence 

establishing the reasonable probability the acts will be repeated 

in the future.” (Ibid.) 

A mandatory injunction, on the other hand, orders a party 

to take action to remedy some harm. Thus, mandatory “injunctive 

relief has been upheld where the defendant’s completed act 

causes ongoing harm or is part of a continuing course of conduct.” 

(Sahlolbei v. Providence Healthcare, Inc. (2003) 112 Cal.App.4th 

1137, 1156 (Sahlolbei); see Ojavan Investors, Inc. v. California 

Coastal Com. (1997) 54 Cal.App.4th 373, 394 [“It is well 

established the judiciary possesses broad discretion in deciding 

the type of equitable relief to fit a case’s particular circumstances. 

[Citation.] This broad discretion includes a court’s power to grant 

a mandatory injunction.”].)

In Sahlolbei, for example, a plaintiff physician who had 

been denied reappointment to a hospital staff sought an 

injunction requiring reinstatement of his staff privileges. 

(Sahlolbei, supra, 112 Cal.App.4th at pp. 1144–1145.) The trial 

court denied injunctive relief based on the completed act 

principle, and the appellate court reversed. (Id. at pp. 1156–

1157.) The appellate court explained that notwithstanding the 

completed act, injunctive relief was proper where “the harm was 

a continuing interference with the plaintiff’s rights, which could 

be prevented by granting an injunction.” (Id. at p. 1157.) In other 

words, the “harm plaintiff sought to prevent—his exclusion from 
36

the staff without a prior hearing—continued as long as his staff 

privileges remained terminated. The continuation of the harm 

could be prevented by reinstating his privileges and ordering a 

hearing as a prerequisite to any subsequent termination.” (Ibid.)

Likewise, in Dibona v. Matthews, community college 

administrators cancelled a drama course to prevent the 

performance of a controversial play. (Dibona v. Matthews (1990) 

220 Cal.App.3d 1329, 1333–1336.) The play was performed offcampus instead. (Id. at p. 1336.) The trial court held that because 

the summer session in which the class was to have been held had 

ended, the case was moot. (Id. at pp. 1336–1338.) The appellate 

court reversed. It noted that although the summer session was 

over, the student who brought the action continued to seek 

academic credit for having completed the class based on his 

performance in the off-campus play. (Id. at p. 1339.) Thus, it held, 

if the student could show he had satisfied all the course 

requirements except those made impossible by the college, the 

court could properly conclude that course credit should be 

awarded and order appropriate injunctive relief. (Ibid.)

Here, appellants contend the District’s distance-learning 

policies have caused continuing harm in the form of learning loss 

and disengagement. Should they be proven, the court has broad 

powers to remedy those harms, including by ordering remedial 

injunctive relief.

4.2. Remedial injunctive relief does not violate the 

separation of powers doctrine.

Respondents argue that the trial court properly struck the 

prayer for relief because any remedial injunctive relief that could 

be awarded would necessarily violate the separation of powers 

doctrine. We disagree.
37

UTLA’s argument rests largely on Campaign for Quality 

Education v. State of California (2016) 246 Cal.App.4th 896 

(Quality Education). In that case—a split decision that drew both 

a concurrence and a lengthy dissent—the appellate court held 

that the California Constitution does not guarantee children the 

right to an education of any minimum quality.17 After finding no 

support for such a right in the text of the Constitution, the court 

opined in dicta that “‘the question of educational quality is 

inherently one of policy involving philosophical and practical 

considerations that call for the exercise of legislative and 

administrative discretion.’” (Id. at p. 911.)

LAUSD rests its argument on Crawford v. Board of 

Education (1976) 17 Cal.3d 280. Yet that case addressed how the 

courts should fashion remedies to constitutional violations; it did 

not hold that courts should avoid injunctive relief in general. 

Fundamentally, at the heart of both respondents’ 

arguments lies the premise that LAUSD is already taking steps 

to ameliorate pandemic learning loss, and the courts may not 

second-guess the District’s methods. As we discuss below, 

however, the impact, if any, of the District’s remedial programs is 

a question of disputed fact that cannot be resolved at the 

pleadings stage. (See section 5.4, post.)

The courts have long recognized that while they may not 

craft educational policy out of whole cloth, they are manifestly 

17 Appellants neither argue that Quality Education was 

wrongly decided nor ask us to consider that constitutional 

question anew. We note, however, that no other appellate court 

has examined the issue in detail, and Quality Education is not 

binding on us. (See Auto Equity Sales, Inc. v. Superior Court, 

supra, 57 Cal.2d at pp. 455–456.)
38

empowered to correct constitutional violations that are brought 

before them. Should appellants prove the discrimination they 

have alleged, it will be up to the trial court to craft an 

appropriate remedy based on the circumstances then in effect, 

unless the parties agree that the District and UTLA have by then

already embarked on appropriate remedial action. Courts 

routinely impose injunctive relief to remedy unconstitutional or 

otherwise unlawful actions by government agencies. 

4.3. UTLA is a necessary party notwithstanding the 

expiration of the side letter agreements.

UTLA argues that even if changed circumstances do not 

moot the entire case, it should be dismissed from the matter 

because the expiration of the side letters extinguishes the reason 

for its presence. Appellants respond that UTLA remains a 

necessary party because any ultimate relief in appellants’ favor 

would impact the teachers and their contractual rights. 

Appellants have the better argument.

Code of Civil Procedure section 389, subdivision (a),

governs whether a person, sometimes called a “necessary party,”

must be joined as a party to a lawsuit.18 (TG Oceanside, L.P. v.

18 It provides: “A person who is subject to service of process 

and whose joinder will not deprive the court of jurisdiction over 

the subject matter of the action shall be joined as a party in the 

action if (1) in his absence complete relief cannot be accorded 

among those already parties or (2) he claims an interest relating 

to the subject of the action and is so situated that the disposition 

of the action in his absence may (i) as a practical matter impair 

or impede his ability to protect that interest or (ii) leave any of 

the persons already parties subject to a substantial risk of 

incurring double, multiple, or otherwise inconsistent obligations 
39

City of Oceanside (2007) 156 Cal.App.4th 1355, 1365.) 

“Section 389 calls upon the trial court to weigh practical realities 

and other considerations in determining whether a person is 

necessary or indispensable.” (Pinto Lake MHP LLC v. County of 

Santa Cruz (2020) 56 Cal.App.5th 1006, 1014.) “The inquiry 

under subdivision (a)(2), applicable here, is ‘whether the person is 

one whose rights must necessarily be affected by the judgment in 

the proceeding.’” (Id. at p. 1013.)

Reed v. United Teachers L.A. is instructive. (Reed v. United 

Teachers Los Angeles (2012) 208 Cal.App.4th 322.) In that case, 

plaintiffs entered into a consent decree with LAUSD “to resolve 

claims that teacher layoffs had disproportionately and adversely 

impacted the [s]tudents’ constitutional and statutory rights to 

equal educational opportunities, and that additional layoffs 

would exacerbate the harm.” (Id. at p. 327.) UTLA, a non-settling 

defendant, objected, arguing that because the consent decree had 

the potential to abrogate the seniority rights of its members, it 

was entitled to a decision on the merits as a matter of federal due 

process. (Ibid.) Our colleagues in Division Two agreed, holding 

that due process required a decision on the merits before a 

consent decree or judgment could affect teachers’ contractual and 

statutory rights. (Id. at pp. 329–336, 339.) 

Here, appellants seek remedies, such as additional 

instructional time, that carry the potential to impact the 

collectively-bargained-for contractual rights of UTLA’s members. 

Indeed, UTLA has previously represented that it would seek to 

by reason of his claimed interest. If he has not been so joined, the 

court shall order that he be made a party.” (Code Civ. Proc.,

§ 389, subd. (a).)
40

set aside “any request for relief involving modifying or 

eliminating the defending parties’ collective bargaining 

agreements.” As such, UTLA remains a necessary party to this 

lawsuit. (See Washington Mutual Bank v. Blechman (2007) 157 

Cal.App.4th 662, 667–668 [“[a]n ‘“indispensable party is not 

bound by a judgment in an action in which he was not joined”’”];

Save Our Bay, Inc. v. San Diego Unified Port Dist. (1996) 42 

Cal.App.4th 686, 692 [a party is indispensable where the plaintiff 

seeks some type of affirmative relief which, if granted, would 

injure or affect the interest of a third party not joined].)

5. Appellants’ constitutional causes of action are not 

moot.

Appellants allege that for a year-and-a-half, LAUSD policy 

ensured students received an unconstitutional education, that 

the policies harmed students, and that the resulting learning 

deficits persist. Respondents contend that any constitutional 

violations ended with distance learning, rendering appellants’ 

claims moot. While any violations may be over, the harm 

allegedly remains. Having concluded the trial court can still 

grant appellants a remedy for any past harms, we further 

conclude appellants’ claims are justiciable.

5.1. Legal Principles

It is well settled that appellate courts will decide only 

actual controversies. We will not opine on moot questions or 

abstract propositions, nor declare principles of law that cannot 

affect the matter at issue on appeal. (Giles v. Horn (2002) 100 

Cal.App.4th 206, 226–227 (Giles).) “A case becomes moot when a 

court ruling can have no practical impact or cannot provide the 

parties with effective relief.” (Simi Corp. v. Garamendi (2003) 109 
41

Cal.App.4th 1496, 1503; Panoche Energy Center, LLC v. Pacific 

Gas & Electric Co. (2016) 1 Cal.App.5th 68, 95–96 (Panoche 

Energy Center) [availability of “effectual relief” is the “pivotal 

question” in mootness analysis].) By the same token, an “appeal 

is not moot . . . where ‘a material question remains for the court’s 

consideration,’ so long as the appellate decision can grant a party 

to the appeal effectual relief.” (Panoche Energy Center, at p. 96; 

see, e.g., San Diego Police Department v. Geoffrey S. (2022) 86 

Cal.App.5th 550, 564 [appeal from an expired restraining order 

was not moot where expired order could have collateral 

consequences in future proceedings].) 

Courts regularly find cases non-justiciable when injunctive 

relief is sought but, pending appeal, the act sought to be enjoined 

has been performed. (Giles, supra, 100 Cal.App.4th at p. 227.) In 

Giles, for instance, plaintiffs sued to enjoin as illegal a county’s 

expenditure of public funds to hire private contractors to provide 

services under a state welfare program. Because those contracts

had expired and were fully performed pending appeal, the appeal 

was dismissed as moot. (Id. at pp. 227–228; see also Daily 

Journal Corp. v. County of Los Angeles (2009) 172 Cal.App.4th 

1550, 1557 [case moot where challenged contract had expired, a 

new bidding process took place, and court could not award the 

contract to disappointed bidder]; Jennings v. Strathmore Public 

Utility Dist. (1951) 102 Cal.App.2d 548, 549 [appeal, in action to 

enjoin and declare invalid a public utility district contract after 

the contract had been awarded and work was fully completed,

was moot].)

Similarly, an intervening change in the law—namely, the 

repeal or modification of a statute under attack or subsequent 

legislation correcting a challenged deficiency—that is the crux of 
42

a case may result in mootness. (Jordan v. County of Los Angeles

(1968) 267 Cal.App.2d 794, 799; see, e.g., Sierra Club v. Board of 

Supervisors (1981) 126 Cal.App.3d 698, 704–706 [challenge to 

zoning ordinance based on inconsistency with general plan 

became moot when, during pendency of appeal, a new general 

plan was adopted with which the ordinance was consistent]; 

O’Neal v. Seabury (1938) 24 Cal.App.2d 308, 309–312 [ordinance 

superseded by regulation made pursuant to state statute]; Equi 

v. San Francisco (1936) 13 Cal.App.2d 140, 141–142 [lower court 

held ordinance void; city appealed but ordinance repealed 

pending appeal].)

For instance, a taxpayer association’s claim for injunctive 

and declaratory relief to prevent future collection of a registration 

fee from people engaged in home employment was rendered moot 

when the city revoked the fee requirement. (Howard Jarvis 

Taxpayers Assn. v. City of Los Angeles (2000) 79 Cal.App.4th 242, 

249.) Likewise, the expiration of a challenged moratorium 

ordinance rendered moot a lawsuit challenging the ordinance.

(Colony Cove Properties, LLC v. City of Carson (2010) 187 

Cal.App.4th 1487, 1509 (Colony Cove).) And, when the California 

Department of Forestry adopted a new policy that changed its 

requirements and practices for timber harvest notices in a way 

that corrected the challenged deficiencies in those notices, the 

lack of an ongoing controversy rendered the case moot. (East Bay 

Mun. Utility Dist. v. Department of Forestry & Fire Protection

(1996) 43 Cal.App.4th 1113, 1119, 1132.)

But “enactment of subsequent legislation does not

automatically render a matter moot.” (Davis v. Superior Court

(1985) 169 Cal.App.3d 1054, 1057, original italics.) The key 

question is still whether a court can grant effective relief in a 
43

case. (Syngenta Crop Protection, Inc. v. Helliker (2006) 138 

Cal.App.4th 1135, 1158–1159; see also Schmidt v. Superior Court

(1989) 48 Cal.3d 370, 373 [federal legislation rendering invalid, in 

future mobile home park, a policy restricting residency to persons 

25 years old or older did not moot appeal challenging policy, 

where plaintiffs sought damages for enforcement of rule prior to 

effective date of federal legislation]; Vernon v. State of California

(2004) 116 Cal.App.4th 114, 120–121 [plaintiff’s claim that CAL–

OSHA regulations discriminated against him not rendered moot 

by State Department of Industrial Relations grant of temporary 

“‘experimental variance’” from compliance with regulation; 

effectual relief attainable because if regulation declared invalid, 

plaintiff would “not need to rely upon additional, speculative 

variances that may or may not be granted”].) 

In short, “where a court can afford the party at least some 

relief, even if not all the relief originally requested, the court 

should not dismiss a case as moot.” (City of Cerritos v. State of 

California (2015) 239 Cal.App.4th 1020, 1031–1032.)

5.2. This matter is not moot because the court can 

provide practical relief.

We conclude this matter is justiciable notwithstanding the 

expiration of SB 98, section 43503, and the relevant side letter 

agreements. Appellants claim that LAUSD’s distance-learning 

policies unconstitutionally discriminated against certain Los 

Angeles students, who continue to suffer academic harm. If the 

trial court finds those claims have merit, it can fashion injunctive 

relief to address students’ continuing learning deficits.

UTLA’s reliance on Cerletti v. Newsom (2021) 71 

Cal.App.5th 760 is misplaced. In that case, taxpayers brought an 

action seeking to declare as illegal spending under the Disaster 
44

Relief for Immigrants Project, which established a $75 million 

Disaster Relief Fund to support undocumented Californians 

impacted by COVID-19, who were ineligible for unemployment 

insurance and disaster relief due to their immigration status. (Id. 

at pp. 762–764.) Plaintiffs filed an application for a temporary 

restraining order to halt the distribution of benefits, which the 

trial court denied. (Id. at p. 764.) Plaintiffs appealed, but, while 

the appeal was pending, all $75 million in project benefits were 

distributed. (Id. at p. 765.) Our colleagues in Division Five held 

that the issue of whether the trial court should temporarily 

restrain the distribution of payments was moot because the 

project had provided for one-time payments, and the payments 

had been made more than a year earlier. (Id. at p. 766.) In other 

words, the case was moot because the court could not afford the 

plaintiffs a remedy. Here, however, plaintiffs have identified 

potential remedies. 

County of San Diego v. Brown is instructive. (County of San 

Diego v. Brown (1993) 19 Cal.App.4th 1054 (Brown).) In Brown, 

plaintiffs challenged the constitutionality of California’s mental 

health funding scheme, and the trial court found the scheme 

unconstitutional. After trial but before entry of judgment, 

however, realignment legislation overhauled the system for 

funding county mental health services, fundamentally changing 

the way state mental health resources were allocated. (Id. at 

p. 1087.) On appeal, defendants argued that the portions of the 

judgment involving constitutional and statutory issues should be 

reversed and dismissed as moot. (Id. at p. 1088.) They reasoned 

that because realignment legislation had created an entirely new 

system for distributing state mental health funds to counties and 
45

had ended the challenged allocation system, the constitutionality 

of the old system was irrelevant. (Ibid.)

The appellate court rejected that contention. It held that 

even if realignment had mooted the forward-looking portions of 

the judgment involving the constitutionality of funding and bed 

allocations, the court was nevertheless required to resolve the 

constitutional issues to determine the propriety of injunctive 

relief based on the past violations. (Brown, supra, 19 Cal.App.4th 

at p. 1088.) That is, the court concluded that, notwithstanding 

the former statute’s repeal, if the former statute was 

unconstitutional, the court still had the power to approve 

injunctive relief to remedy resulting harms.

Finally, in Grier v. Alameda–Contra Costa Transit Dist., as 

in this case, the plaintiffs asserted the illegality of an expired 

labor contract. (Grier v. Alameda–Contra Costa Transit Dist.

(1976) 55 Cal.App.3d 325, 329–331.) There, a proposed class of 

bus drivers and their union brought an action for declaratory 

relief and damages, alleging that a provision of their collective 

bargaining agreement with a transit district violated the Labor 

Code by requiring drivers who arrived late to work without pay 

for periods exceeding the time actually lost. (Ibid.) Although the 

parties subsequently adopted a new collective bargaining 

agreement that did not contain the provision, the legality of the 

former provision was not moot because the question of damages 

for any past violations of state law remained. (Ibid.)

Here, appellants allege that during the pandemic, LAUSD 

adopted unconstitutional distance-learning policies that 

inevitably and disparately harmed students. They further allege 

that notwithstanding the return to in-person instruction, those 

harms persist, and the court can fashion a remedy to alleviate 
46

them. Accordingly, under the required standard of review, the 

trial court erred by sustaining LAUSD’s demurrer to the first, 

second, and eighth causes of action on mootness grounds.

5.3. Appellants can establish a prevailing statewide 

standard based on the expired statute.

Respondents insist that the expiration of the remotelearning statutes deprives appellants of a prevailing statewide 

standard by which to measure the District’s distance-learning 

policies—a necessary element of the eighth cause of action for 

inter-district discrimination. But respondents cite no relevant 

authority for that proposition. Both Colony Cove, supra, 187 

Cal.App.4th 1487 and Gafcon, Inc. v. Ponsor & Associates (2002) 

98 Cal.App.4th 1388 involved requests for declaratory relief; the 

plaintiffs were not seeking remedies for past harms. (Colony 

Cove, at p. 1492 [petitioners sought a writ of mandate directing 

the city to vacate an ordinance]; Gafcon, at p. 1404 [“Because 

declaratory relief operates prospectively only, rather than to 

redress past wrongs, Gafcon’s remedy as against Ponsor lies in 

pursuit of a fully matured cause of action for money, if any exists 

at all.”].)

Plainly, the constitutionality of expired policies is 

measured by reference to the statewide standards that existed 

when the policies were in effect. Accordingly, the trial court erred 

by sustaining LAUSD’s demurrer to the eighth cause of action on 

mootness grounds.

5.4. The impact of the District’s remedial actions is a 

question of disputed fact.

UTLA claims that appellants’ proposed relief has been 

rendered moot by the remedial actions the District is already 
47

undertaking. Although the court took judicial notice of various 

documents relating to LAUSD’s remedial plans, it did not 

judicially notice those documents for their truth, and it expressed 

no opinion on whether the new programs eliminated the harm 

the previous policies allegedly caused. We agree with appellants, 

therefore, that the nature and impact of the District’s current 

policies are questions of disputed fact that cannot be resolved at 

the demurrer stage. (Fremont Indemnity Co. v. Fremont General 

Corp. (2007) 148 Cal.App.4th 97, 113–114 [“‘“A demurrer is 

simply not the appropriate procedure for determining the truth of 

disputed facts.”’”].)19

6. Appellants’ challenge to the complex civil court’s 

automatic-stay rule is not justiciable.

Although we have concluded appellants’ constitutional 

claims are justiciable, the same cannot be said of their challenge 

to the complex civil court’s supposed automatic-stay rule.

Appellants insist that the complex civil court, which 

handles class actions in Los Angeles, has an informal practice of 

staying all filings until an initial case status conference can be 

held. They claim this practice delayed their preliminary 

injunction motion for an entire school year. Appellants contend 

the practice conflicts with both the Civil Code and the Rules of 

Court and ask us to invalidate it. Respondents argue any delay 

19 For the same reason, we also deny appellants’ request for 

judicial notice of an LAUSD press release about post-pandemic 

problems and a Los Angeles Times article about deep pandemic 

setbacks in math, which were not before the court below. LAUSD 

opposed the request and objected to various newspaper articles 

on the same topic cited in appellants’ opening brief.
48

was the result of appellants’ strategic choices rather than the 

complex court’s filing practices, and, in any event, the prospective 

injunctive relief appellants sought is no longer available to them, 

rendering the issue moot. We decline to reach this issue.20

Through their request for a preliminary injunction, 

appellants were seeking to enjoin side letter agreements and 

distance learning polices, all of which have now expired. Because 

we cannot turn back the clock to offer appellants a remedy, the 

issue is non-justiciable. (Giles, supra, 100 Cal.App.4th at p. 227.)

Nor is this a question of broad public interest that is likely 

to evade timely review without our intervention. (See Steiner v. 

Superior Court (2013) 220 Cal.App.4th 1479, 1486.) Appellants 

had a remedy: They could have sought a writ of mandate. (Elkins

v. Superior Court (2007) 41 Cal.4th 1337, 1350–1351.) Although 

they chose not to seek writ relief in this case, future plaintiffs 

can.

20 In light of the non-justiciability of this claim, we do not 

reach LAUSD’s contention that appellants forfeited this 

argument by failing to challenge the practice’s validity below.
49

DISPOSITION

The judgment is reversed as to LAUSD and UTLA, and the 

matter is remanded to the trial court with directions to vacate its 

orders sustaining the demurrers to the second amended 

complaint and granting the motion to strike. The court is directed 

to enter new orders denying the motion to strike, overruling 

UTLA’s demurrer, overruling LAUSD’s demurrer as to the first, 

second, and eighth causes of action, and sustaining LAUSD’s 

demurrer without leave to amend as to the third, fourth, fifth, 

sixth, and seventh causes of action. The judgment is affirmed as 

to former Superintendent Beutner.

Appellants shall recover their costs on appeal.

CERTIFIED FOR PUBLICATION

CURREY, P. J.

We concur: 

COLLINS, J.

MORI, J.