Filed 12/12/19
                            CERTIFIED FOR PUBLICATION


                 COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                      DIVISION ONE

                                STATE OF CALIFORNIA



 PHYSICIANS COMMITTEE FOR                          D073797
 RESPONSIBLE MEDICINE et al.,

         Plaintiffs and Appellants,
                                                   (Super. Ct. No. 37-2017-00013190-
         v.                                        CU-MC-CTL)

 LOS ANGELES UNIFIED SCHOOL
 DISTRICT et al.,

         Defendants and Respondents.


        APPEAL from a judgment of the Superior Court of San Diego County,

Gregory W. Pollack, Judge. Affirmed.

        Evans & Page and Corey Allen Evans, for Plaintiffs and Appellants.

        Gutierrez, Preciado & House, Calvin House and Arthur C. Preciado, for Defendant

and Respondent Los Angeles Unified School District.

        Artiano Shinoff, Paul V. Carelli, IV and Justin C. Manganiello, for

Defendant and Respondent Poway Unified School District.
                                    INTRODUCTION

       Physicians Committee for Responsible Medicine (Physicians Committee) filed a

verified petition for writ of mandate seeking to prohibit local educational agencies Los

Angeles Unified School District (LAUSD) and Poway Unified School District (PUSD)

from serving processed meats in their schools and directing them to modify wellness

policies to reflect the goal of reducing or eliminating processed meats. The local

educational agencies demurred, arguing they were under no statutory obligation to reduce

or eliminate processed meat from schools. The trial court granted the demurrers.

Physicians Committee appeals, contending the local educational agencies' failure to

reduce or eliminate processed meat from schools abuses their discretion in developing

statutorily-mandated, local wellness policies. We disagree and affirm the judgment.

                                    BACKGROUND

       After exhausting administrative remedies, Physicians Committee filed a verified

petition for writ of mandate. Following an initial round of demurrers, Physicians

Committee filed a First Amended Verified Petition (FAVP) naming three defendants: the

California Department of Education (CDE),1 LAUSD, and PUSD. Its goal is to prevent

LAUSD and PUSD "from serving processed meat to children due to the recognized

association between eating processed meat (e.g. hotdogs, sausages, luncheon meat,

bacon, and turkey bacon) and developing cancer, diabetes, and cardiovascular disease."




1      The CDE is not a party to this appeal. Accordingly, the facts are limited to the
allegations raised against LAUSD and PUSD.
                                             2
                                A. The FAVP Allegations

       Paragraph 93 of the FAVP alleges that under the Child Nutrition and WIC

Reauthorization Act of 2004, and the Healthy, Hunger-Free Kids Act of 2010, local

educational agencies have a duty to issue local wellness policies that meet minimum

standards by including goals and basing the wellness policies on evidence and dietary

guidelines. Paragraph 95 of the FAVP alleges the local educational agencies serve

processed meats, and paragraph 96 alleges they fail to identify the serving of processed

meat as a problem or to discuss how and when processed meat will be reduced or phased

out of the school menus. Paragraph 97 alleges these failures violate the Healthy, Hunger-

Free Kids Act of 2010 and violate the school districts' local wellness policies. Paragraph

98 of the FAVP alleges PUSD violates its own wellness policy of promoting optimal

health and supporting student health and wellness.

       The petition seeks injunctive and declaratory relief, directing LAUSD and PUSD

to stop serving meat to children in school meals and to modify their wellness policies to

remove processed meat from school lunches.

                                    B. The Demurrers

       LAUSD and PUSD separately demurred to the FAVP, arguing Physicians

Committee did not allege a clear, mandatory, statutory duty that they failed to perform.

Physicians Committee opposed the demurrers.

       At the hearing, Physicians Committee claimed that federal law requires schools to

discuss and identify problem foods, based on evidence and the guidelines. It reasoned

that it was undisputed that processed meat is a problem food based on scientific literature

                                             3
identified in the petition; thus, the absence of any discussion about it in the wellness

policies demonstrated a failure to comply with federal law.

       The court asked Physicians Committee to point to a statute that requires a written

discussion of such foods to appear in local wellness policies, but Physicians Committee

never did.

       The court granted the demurrers without leave to amend and entered a judgment of

dismissal. This appeal timely followed.

                                       DISCUSSION

                                              I.

                                Requests for Judicial Notice

       Physicians Committee renews its opposition to the requests for judicial notice filed

by LAUSD and PUSD in support of their demurrers. The majority of Physicians

Committee's arguments center around procedural defects it contends should have

prevented the trial court from granting the requests. We review judicial notice rulings for

abuse of discretion (CREED-21 v. City of San Diego (2015) 234 Cal.App.4th 488, 520),

and we conclude the trial court did not abuse its discretion by granting the requests for

judicial notice.2




2      LAUSD separately filed an unopposed request for judicial notice as part of the
appeal, citing Evidence Code section 459. It seeks judicial notice of the same documents
of which it sought judicial notice before the trial court. We deny this request as
unnecessary.
                                              4
          LAUSD filed a request for judicial notice, citing Evidence Code section 452,

subdivisions (a) and (c). The request stated it was attaching "Exhibits 1 through 8," but it

listed and attached nine documents. The ninth document was the LAUSD local wellness

policy.

          PUSD also requested judicial notice. Its request cited Evidence Code section 452

and noted the relevant documents were regulations and legislative enactments issued

under the authority of a governmental entity or consisting of official acts of that entity. It

identified its Board Policy 5.31 (School Wellness Policy) and Administrative Procedure

5.31.1 (School Wellness Policy), and the CDE Nutrition Services Division Decision of

Appeal in the Physicians Committee matter (CDE Decision). PUSD attached the

documents to the memorandum in support of its demurrer, not to the request for judicial

notice.

          Physicians Committee challenges LAUSD's request for judicial notice on three

grounds. First, it contends LAUSD's notice of demurrer violated Code of Civil Procedure

section 1010 because it did not state it was based on the request for judicial notice or on

facts of which the court could take judicial notice. However, LAUSD's notice of

demurrer substantially complied with Code of Civil Procedure section 1010 because it

apprised Physicians Committee of the documents upon which it would rely for its

demurrer by serving those documents with the related notice of motion and motion. (See

Broderick v. Cochran (1912) 18 Cal.App. 202, 204.)

          Next, Physician's Committee contends LAUSD's request for judicial notice

violated Rule of Court number 3.1113(l) because, it alleges, LAUSD attached its

                                              5
wellness policy to the request for judicial notice without mentioning that exhibit in the

request. However, LAUSD's request for judicial notice complies with California Rule of

Court number 3.113(l) because it asks the court to take judicial notice "of the following

documents" and identifies the wellness policy by name on the list of items it supplied.

Although it states that "the following documents . . . are attached as Exhibits 1 through 8

hereto," it lists nine documents, and nine documents are attached. Thus, the

typographical error is not procedurally fatal.

       Finally, Physicians Committee argues that neither LAUSD nor PUSD provided a

specific argument for why their attachments, including their wellness policies, fell within

Evidence Code section 452, subdivisions (a) and (c).

       The Constitution and the Legislature have ceded substantial discretionary control

over education to local school districts. (Ed. Code,3 §§ 35160, 35160.1, subd. (b),

35161; Governing Bd. of Ripon Unified School Dist. v. Commission on Professional

Competence (2009) 177 Cal.App.4th 1379, 1385.) Thus, school board actions can be

official acts, and school board policies and regulations may be recognized by judicial

notice. (Evid. Code, § 452, subds. (a) & (c).) Physicians Committee does not actually

dispute that the adoption of wellness policies are official acts of a legislative agency.

Their adoption is appropriately judicially noticed under Evidence Code section 452,

subdivision (c). Physicians Committee also does not argue that the statutes and

regulations it referenced in its FAVP and which LAUSD attached to its request for



3      Further section references are to the Education Code unless otherwise specified.
                                                 6
judicial notice are not properly placed within Evidence Code section 452, subdivision (a).

The trial court did not abuse its discretion when taking judicial notice of these

documents. Accordingly, we likewise take judicial notice over the statutory and

regulatory materials, as well as the wellness policies. (Evid. Code, § 459.)

       Physicians Committee argues additionally that judicial notice of the CDE Decision

was improper because it only supports PUSD's position if its contents are considered for

their truth. We need not reach a conclusion as to whether its consideration was an abuse

of discretion because we affirm the court's judgment independently and without reference

to the CDE Decision.4

                                             II.

                                         Demurrers

       At issue is whether the duties alleged in the FAVP were discretionary or

mandatory, and if discretionary whether the school districts abused their discretion. We

conclude the FAVP fails to identify any mandatory duties with which the local

educational agencies failed to comply. We further conclude the FAVP does not

adequately allege an abuse of discretion, and we affirm the judgment.

                                             A.

                                      Legal Principles




4       Although the trial court granted judicial notice of the CDE Decision and identified
it as notable, it is not clear that the trial court relied on this document in reaching its
conclusion.
                                              7
       "A writ of mandate will lie to 'compel the performance of an act which the law

specifically enjoins, as a duty resulting from an office, trust, or station' (Code Civ. Proc.,

§ 1085) 'upon the verified petition of the party beneficially interested,' in cases 'where

there is not a plain, speedy, and adequate remedy, in the ordinary course of law.' (Code

of Civ. Proc., § 1086.)" (People ex rel. Younger v. County of El Dorado (1971) 5 Cal.3d

480, 490-491.)

       "The petitioner must demonstrate the public official or entity had a ministerial

duty to perform, and the petitioner had a clear and beneficial right to performance."

(AIDS Healthcare Foundation v. Los Angeles County Dept. of Public Health (2011)

197 Cal.App.4th 693, 700 (AIDS Healthcare).) " 'A ministerial act is an act that a public

officer is required to perform in a prescribed manner in obedience to the mandate of legal

authority and without regard to his [or her] own judgment or opinion concerning such

act's propriety or impropriety, when a given state of facts exists. Discretion . . . is the

power conferred on public functionaries to act officially according to the dictates of their

own judgment. [Citation.]' [Citations.]" (Ibid.) "A statute is deemed to impose a

mandatory duty on a public official only if the statute affirmatively imposes the duty and

provides implementing guidelines." (O'Toole v. Superior Court (2006) 140 Cal.App.4th

488, 510 (O'Toole).)

       "[A]bsent a clear duty imposed by law . . . mandamus is not a proper vehicle for

resolution for the asserted grievance." (Shamsian v. Department of Conservation (2006)

136 Cal.App.4th 621, 640 (Shamsian).) Moreover, "[m]andamus does not lie to compel a

public agency to exercise discretionary powers in a particular manner, only to compel it

                                               8
to exercise its discretion in some manner. [Citation.]" (AIDS Healthcare, supra, 197

Cal.App.4th at pp. 700-701.) Finally, " '[w]hether a particular statute is intended to

impose a mandatory duty . . . is a question of statutory interpretation for the courts.'

[Citation.]" (O'Toole, supra, 140 Cal.App.4th at p. 510.)

       On appeal from a motion for a writ, we resolve questions of law, including those

of statutory interpretation, de novo. (Marquez v. State Dept. of Health Care Services

(2015) 240 Cal.App.4th 87, 103, citing County of San Diego v. State of California (1997)

15 Cal.4th 68, 109.) Because the dismissal of the petition followed the trial court's

granting of a demurrer, we consider the properly-pleaded material facts (AIDS

Healthcare, supra, 197 Cal.App.4th at p. 698), as well as matters that may be judicially

noticed. (Zelig v. County of Los Angeles (2002) 27 Cal.4th 1112, 1126.) Additionally,

we will affirm a judgment of dismissal after a demurrer has been sustained without leave

to amend if doing so is proper on any ground stated in the demurrer, regardless of

whether the court acted on that ground. (Carman v. Alvord (1982) 31 Cal.3d 318, 324.)

                                              B.

                                     Ministerial Duties

       Physicians Committee contends the court's determination that the local educational

agencies did not have a ministerial duty was improper because it did not consider all the

mandatory duties alleged in the FAVP. Our independent review of the allegations in the

FAVP and the corresponding law confirms the trial court's conclusion.

       As an initial observation, Physicians Committee brought its petition for a writ of

mandate "to prevent the Los Angeles Unified School District ('LAUSD') and the Poway

                                              9
Unified School District ('PUSD') from serving processed meat to children due to the

recognized association between eating processed meat (e.g., hotdogs, sausages, luncheon

meat, bacon, and turkey bacon) and developing cancer, diabetes, and cardiovascular

disease." However, as we discuss more fully below, none of the statutes identified by the

Physicians Committee requires schools to eliminate or reduce the amount of processed

meats or to label or identify processed meats as unhealthy; therefore, Physicians

Committee fails to meet the first requirement for issuance of a writ of mandate.

       1. National School Lunch Program

       The FAVP cites the National School Lunch Program as part of its description of

the statutory framework that controls school food service. The National School Lunch

Program, title 42 United States Code section 1758, requires lunches served by schools

participating in the program to meet minimum nutritional requirements prescribed by the

Secretary of Agriculture; those requirements are based on tested nutritional research. (42

U.S.C. §§ 1758(a)(1)(A), 1752.) Although the FAVP alleges California schools

participate in the National School Lunch Program, it does not allege the schools violate

any particular statutory requirement contained in this law, including meeting nutritional

requirements.

       2. Healthy, Hunger-Free Kids Act of 2010

       The Healthy, Hunger-Free Kids Act of 2010 is a reauthorization of the Child

Nutrition Act. (Pub.L. No. 111-296 (Dec. 13, 2010) 124 Stat. 3183 (HHFKA).) Among

other things, it gives the U.S Department of Agriculture the authority to set science-based

nutrition standards for food sold in schools. (HHFKA, Pub.L. No. 111-296, § 208 (Dec.

                                            10
13, 2010) 124 Stat. 3221; 42 U.S.C. § 1758(a)(1).) It also requires all participating local

educational agencies to establish a local school wellness policy (HHFKA, Pub.L. No.

111-296, § 204 (Dec. 13, 2010) 124 Stat. 3216; 42 U.S.C. § 1758b(a)) and to permit

parents, students, school food authority representatives, P.E. teachers, school health

professionals, school administrators, the general public, and the school board to

participate in the development, implementation, and periodic review of the wellness

policy. (HHFKA, Pub.L. No. 111-296, § 204 (Dec. 13, 2010) 124 Stat. 3217; 42 U.S.C.

§ 1758b(b)(4).) The HHFKA provides for local discretion, requiring local educational

agencies to use guidelines promulgated by the Secretary of Agriculture "to determine

specific policies appropriate for the schools" under their jurisdiction. (HHFKA, Pub.L.

No. 111-296, § 204 (Dec. 13, 2010) Stat. 3217; 42 U.S.C. § 1758b(c).)

       This law establishes a ministerial duty to develop wellness policies. (HHFKA,

Pub.L. No. 111-296, § 204 (Dec. 13, 2010) 124 Stat. 3216; 42 U.S.C. § 1758b(a).)

However, it does not detail what must be included in the wellness policies other than a

directive to use federal guidelines, which presumably take into consideration science-

based nutrition standards, as required by law. (42 U.S.C. §§ 1758(a)(1) and 1758b(c).)

The law does not direct schools to address the reduction or elimination of processed

meats. The law does not mandate obedience without regard to a local educational

agency's own judgment. It even includes a provision requiring local discretion (42

U.S.C. § 1758b(c)), making clear it does not create a mandatory duty to address the

reduction or elimination of processed meat. (See AIDS Healthcare, supra, 197

Cal.App.4th at pp. 700-701.) Because a writ cannot be used to control discretion that has

                                            11
been conferred on a public agency, this law does not provide a statutory basis for the

petition. (Shamsian, supra, 136 Cal.App.4th at p. 640.)

       Paragraph 97 alleges that LAUSD and PUSD violate the HHFKA by "failing to

identify processed meat as a problem" and by "fail[ing] to discuss how and when

processed meat will be reduced and/or phased out of school meals." However, accepting

this factual allegation as true does not provide a basis for the writ because there is no

mandatory obligation to discuss how and when processed meat will be reduced and/or

phased out.

       Similarly, paragraph 25 of the FAVP alleges the National School Lunch Act

requires school meals to reflect the latest Dietary Guidelines for Americans. However,

Physicians Committee does not allege that the guidelines prohibit eating processed meat

or require its reduction in schools. Nor is there an allegation that the school meals fail to

reflect the dietary guidelines or fail to comply with the nutritional standards promulgated

by the Department of Agriculture. (See 42 U.S.C. § 1758(a)(1).) Moreover, because

nothing in the HHFKA requires the districts to identify processed meat as a problem or to

discuss how and when processed meat will be reduced or eliminated, the absence of this

discussion from the substance of the wellness policies does not constitute a violation of

the local educational agencies' ministerial duties under this act.

       3. Child Nutrition and WIC Reauthorization Act of 2004

       The Child Nutrition and WIC Reauthorization Act of 2004 amended the National

School Lunch Act (42 U.S.C. § 1751 et seq.) and the Child Nutrition Act of 1966

(42 U.S.C. § 1771 et seq.) to simplify programs, improve management, and reauthorize

                                             12
programs. (Pub.L. 108-265 (June 30, 2004) 118 Stat. 729, [204].) This act requires local

educational agencies participating in the National School Lunch Act or the Child

Nutrition Act of 1966 to establish a local school wellness policy that "(1) includes goals

for nutrition education, physical activity, and other school-based activities that are

designed to promote student wellness in a manner that the local educational agency

determines is appropriate; [¶] (2) includes nutrition guidelines selected by the local

educational agency for all foods available on each school campus . . . with the objectives

of promoting student health and reducing childhood obesity; [¶] (3) provides an

assurance that guidelines for reimbursable school meals shall not be less restrictive than

regulations and guidance issued by the Secretary of Agriculture . . . ; [¶] (4) establishes

a plan for measuring implementation of the local wellness policy . . . ; and [¶]

(5) involves parents, students, and representatives of the school food authority, the school

board, school administrators, and the public in the development of the school wellness

policy." (HHFKA, Pub.L. 108-265, § 204, subd. (a)(1)-(5) (June 30, 2004) 118 Stat. 780-

781.)

        Although the Child Nutrition and WIC Reauthorization Act of 2004 requires local

educational agencies to establish wellness policies that have the goals of promoting

health and reducing obesity, the specific details of those policies are discretionary.

(Child Nutrition and WIC Reauthorization Act of 2004, § 204, subd. (a)(1).) Nothing

cited by Physicians Committee requires schools to promote health by reducing or

eliminating processed meats on school campuses. The first requirement permits local



                                             13
educational agencies to determine goals for education and activities in a manner

appropriate to the individual local educational agency, a discretionary duty.

         The second requirement is addressed in the FAVP, which alleges that LAUSD and

PUSD "have a clear public duty to issue local wellness policies that meet the minimum

legal standards of promoting health and addressing childhood obesity by including

specific goals for nutrition promotion and education and basing said policies on evidence

and dietary guidelines." However, this too permits discretion because the local

educational agencies can determine the manner they use to achieve the objectives; they

are not required to do so by reducing or eliminating processed meats. There are no

allegations in the FAVP that LASUD or PUSD fail to fulfill the requirements of this act,

only that the school districts did not do so in the particular way Physicians Committee

would prefer, i.e., by banning or reducing the distribution of processed meats.

Accordingly, this statute does not provide a basis for a ministerial duty that has not been

performed.

         4. California Education Code

         Finally, the FAVP identifies several sections of the Education Code that it

contends create mandatory duties for the local educational agencies. We address these

below.

                a. Section 49530

         Section 49530 of the Education Code states, "The Legislature finds that . . . the

proper nutrition of children is a matter of highest state priority. . . ." (§ 49530,

subd. (a)(1).) Moreover, because of the relationship between nutritious food and the

                                              14
capacity to develop and learn, students at all income levels should be taught principles of

good nutrition to help develop "the proper eating habits essential for lifelong good health

and productivity." (§ 49530, subds. (a)(2) & (3).) Accordingly, the Child Nutrition Act

of 1974 was established to obligate schools and child development programs to provide

for the nutritional needs and education of students. (§ 49530, subd. (b).)

       However, a statute's statement of legislative intent does not create any affirmative

duty that is enforceable via writ of mandate. (Common Cause v. Board of Supervisors

(1989) 49 Cal.3d 432, 444 (Common Cause) [declaration of intent cannot be viewed as

independently creating substantive duties]; Shamsian, supra, 136 Cal.App.4th at pp. 640-

641.) Thus, this statute does not provide a basis for this suit.

              b. Section 49531

       Section 49531 allows local educational agencies to apply to their state departments

of education for federal and state funds in order to provide "a nutritionally adequate

breakfast or lunch, or both" to students. (§ 49531, subd. (a).) It defines nutritionally

adequate breakfasts as those that qualify for reimbursement under the most current meal

patterns defined by federal regulations, incorporate the United States Dietary Guidelines

for Americans, and meet a minimum of one-fourth of the Recommended Dietary

Allowance set by the National Research Council.5 (§ 49531, subds. (a) & (b).) A

nutritionally adequate lunch must qualify for reimbursement under federal regulations,



5      The CDE is tasked with developing and maintaining nutrition guidelines for
breakfast and lunch that are consistent with the meal patterns defined by federal
regulation. (§ 49531.1.)
                                              15
must incorporate the United States Dietary Guidelines for Americans, and must meet

one-third of the Recommended Dietary Allowance set by the National Research Council.

(Ibid.)

          Section 49531 establishes a duty for school districts that use the federal and state

funds to provide breakfasts and lunches for qualifying students, but the duty it creates is

one of nutritional adequacy. Thus, local educational agencies that apply for state and

federal funds comply with the duties created here when they serve nutritionally adequate

food. Notably, state and federal guidelines include the option of serving lean meat. (Cal.

Code Regs., tit. 5, § 15558; 7 C.F.R. § 210.10; 7 C.F.R. § 220.8.)

          Although the FAVP alleges LAUSD and PUSD receive funding from the CDE for

meals that satisfy the National School Lunch Program, it does not allege LAUSD or

PUSD neglect to provide nutritionally adequate meals. It also does not allege the school

districts fail to comply with state and federal nutrition guidelines, fail to meet the

minimum required Recommended Dietary Allowances, or fail to incorporate the United

States Dietary Guidelines for Americans in their food service programs. Thus, the FAVP

does not state a cause of action upon which relief can be granted against the local

educational agencies under this portion of the Education Code.6




6      The FAVP alleges the CDE is out of compliance with sections 495901 and
49531.1. The allegations against the CDE are not the subject of this appeal, and we do
not address their substance.
                                                16
              c. Section 32060

       The FAVP also references part 19, article 6 of the Education Code, which

addresses toxic art supplies in schools. Section 32060 offers the Legislature's finding and

declaration that "art supplies which contain toxic substances or which are potential

human carcinogens pose a significant danger to the health and safety of school children,"

who "are not sufficiently protected by present health laws" because they fail to require

labels for materials which may be seriously harmful. (§ 32060, subd. (a).)

       This law contains mandatory, prohibitory language; it prohibits schools from

purchasing art or craft materials containing toxic substances for use by first through sixth

graders, and it prohibits the purchase of art or craft materials containing toxic substances

for use by seventh through twelfth grade students unless the materials are properly

labeled.7 (§ 32064, subds. (a) & (b).)

       The FAVP cites to this portion of the Education Code to define toxic substances

causing chronic illnesses and to include human carcinogens within the definition of toxic

substances. It then explains that processed meats are a human carcinogen that can

increase risk for cancer.8 Physicians Committee implies because schools are prohibited



7      There are exemptions which allow the purchase of the art or craft supplies if the
chronically toxic carcinogenic or radioactive substance contained in the product cannot
be ingested, inhaled, or otherwise absorbed into the human body. (§ 32064, subd. (c).)
Otherwise, art or craft materials that contain at least one percent of a toxic substance
causing chronic illness must have affixed warning labels containing information "on the
health-related dangers of the art or craft material." (§ 32065, subd. (b).)

8      There are also allegations that processed meats increase the likelihood of diabetes,
high blood pressure, cardiovascular disease, and obesity.
                                             17
from purchasing art supplies with toxic substances, they must also be prohibited from

purchasing food that contains human carcinogens or must be required to provide warning

labels. Although the FAVP treats section 32060 as prohibiting the purchase of any toxic

substance causing chronic illness unless labeling standards are met, subsection (b)

references the definitions provided in subdivision (a), which are specific to art or craft

materials. (§ 32064, subds. (a) & (b).)

       We read article 6 to apply to school art supplies and nothing more. Sections

32064 and 32065 repeatedly reference art supplies or craft materials, not food (see

§ 32064), and the legislative intent is specific to art supplies (§ 32060, subd. (a)).

Accordingly, this section of the Education Code does not supply a mandatory statutory

duty for school nutritional policies.

       5. Local Wellness Policies

       Paragraph 97 of the FAVP alleges that LAUSD and PUSD violate their local

wellness policies, but it does not contain any allegations identifying an action LAUSD

has taken in violation of its wellness policy. Nor does it put forth any argument in its

briefing that challenges LAUSD with being out of compliance with its own wellness

policy. Accordingly, the FAVP does not state a cause of against LAUSD on this basis.

       Paragraph 97(b) of the FAVP alleges the PUSD wellness policy "states that food

available to children should promote 'optimal health' and its goal and purpose is to

support 'student health and wellness.' " It also alleges: "PUSD served processed meat,

which causes negative health effects [], and PUSD continues to serve processed meat



                                              18
despite being aware of the negative health effects. PUSD is not providing food that

promotes a child's 'optimal health.' "

       Physicians Committee contends PUSD violated its wellness policy to promote

optimal health and support student health and wellness because it serves processed meat

and does not explain how it will reduce the amounts of processed meats it will serve in

the future.

       The wellness policy language quoted in the FAVP does not mandate any particular

action on the part of PUSD. It states that food should promote optimal health, not that it

must. Moreover, this language is a statement of intent, and such a statement cannot be

viewed as creating a substantive duty. (See, e.g., Common Cause, supra, 49 Cal.3d at

p. 444 [declaration of intent cannot be viewed as independently creating substantive

duties]; Shamsian, supra, 136 Cal.App.4th at pp. 640-641.) At best, this language creates

a discretionary duty for PUSD to promote optimal health in the way it sees fit.

       Because the FAVP does not identify ministerial duties which it alleges have been

violated, we conclude a writ is not appropriate. "Mandamus does not lie to compel a

public agency to exercise discretionary powers in a particular manner, only to compel it

to exercise its discretion in some manner. [Citation.]" (AIDS Healthcare, supra, 197

Cal.App.4th at pp. 700-701.) Although Physicians Committee repeatedly points to its

allegation that the wellness policies fail to discuss how and when processed meat will be

reduced and/or phased out of school, absent a showing that the wellness policies are

obligated to do so, this cannot be a basis upon which relief can be granted. (See ibid.)



                                            19
                                              D.

                                     Abuse of Discretion

       Physicians Committee contends that even if LAUSD and PUSD were exercising

discretion, their actions abused discretion. The crux of Physicians Committee's argument

is that LAUSD's and PUSD's wellness policies are irrational because the school districts

serve processed meat to children, and this irrationality can only be challenged by

evidence which is not available for consideration at the demurrer stage because it would

require review of the entire administrative record.

       A traditional writ may be appropriate to correct an abuse of discretion, and it can

force a particular action if the law clearly establishes a right to the particular action

sought. (Miller Family Home, Inc. v. Department of Social Services (1997) 57

Cal.App.4th 488, 491.) "It is well-settled in mandamus proceedings (Code Civ. Proc.,

§ 1085) that the party seeking review 'must make some showing that the body invested

with discretion has acted arbitrarily, capriciously, fraudulently, or without due regard for

his rights and that the action was prejudicial to him. [Citations.]' [Citations.]"

(Huntington Park Redevelopment Agency v. Duncan (1983) 142 Cal.App.3d 17, 25.)

       Physicians Committee focuses on a federal regulation that requires schools

participating in the National School Lunch Program and/or Breakfast Program to

establish a wellness policy that ensures food and beverages made available on school

campuses are consistent with applicable minimum federal standards. (7 C.F.R.

§ 210.31(a).) The regulation requires local educational agencies to "review and consider

evidence-based strategies and techniques." (7 C.F.R. § 210.31(c)(1).)

                                              20
       Physicians Committee argues that a reviewing court must ensure the agency

" ' adequately considered all relevant factors, and has demonstrated a rational connection

between those factors, the choice made, and the purposes of the enabling statute.'

[Citation.]" (McGill v. Regents of University of California (1996) 44 Cal.App.4th 1776,

1786.) It further argues that to do so, a court must consider the administrative record

before the agency at the time of the rule-making.

       The FAVP does not directly allege the local educational agencies failed to

consider evidence-based strategies in developing their wellness policies. It does not seek

review of the local educational agencies' processes at all. It asks the court to direct the

local educational agencies to stop serving processed meat to children in schools and to

require LAUSD and PUSD to modify their wellness policies to remove processed meat

from school lunches.

       Physicians Committee contends that a wellness policy drafted after consideration

of evidence-based strategies and techniques could not rationally decide to serve

processed meats. We disagree that no rational person could have reviewed evidence-

based strategies and nonetheless decided to serve processed meats or to omit reference to

its reduction in a wellness policy. For example, the National School Lunch Program

requires the use of science-based nutritional standards and tested nutritional research (42

U.S.C. § 1758(a)(1)), but the related regulations do not prohibit processed meats or even

require or recommend schools reduce use of processed meats over current amounts (see 7

C.F.R. § 210.10; 7 C.F.R. § 220.8).



                                             21
       The petitioner bears the burden of showing an amendment could cure the defect in

the pleading. (See Schifando v. City of Los Angeles (2003) 31 Cal.4th 1074, 1081).

Physicians Committee offers in its appellate reply brief to amend the FAVP to include the

words "arbitrary and capricious" or "abuse of discretion." This argument is not properly

before us because it was not included in the opening brief. (Reichardt v. Hoffman (1997)

52 Cal.App.4th 754, 764-765.) Even assuming it were, such an amendment would be

insufficient because it would not add factual allegations, and we disregard legal

conclusions in reviewing the adequacy of the petition. (See Moore v. Regents of

University of California (1990) 51 Cal.3d 120, 125.)

       Given the presumption that agencies have performed their official duties (Evid.

Code, § 664) and the lack of any direct allegation to the contrary, we conclude there is no

basis for the claim the local educational agencies abused their discretion here.




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                                  DISPOSITION

     The judgment is affirmed. Costs are awarded to respondents on appeal.




                                                                      HUFFMAN, J.

WE CONCUR:




McCONNELL, P. J.




GUERRERO, J.




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