Opening to Opposition to Demurrer

 I. INTRODUCTION

    As an arts educator, the first day of class Petitioner uses a metaphor to help bring focus and clarity to students who are set to engage in the act of creating art—a framing hammer: while it can be used as a doorstop or paperweight for plans on a windy job-site, its ultimate use is to drive nails into lumber to create shelter—art can be used to decorate and entertain, but its ultimate use is to elevate perception and create meaning in the world we all inhabit. Similarly, while a Writ proceeding can command a simple ministerial duty between private parties, its ultimate use as established in Neto v. Brazil is to exact substantial justice where substantial harm is present and ongoing, and further, as established in Betty v. Superior Court—to promote justice—to vitalize and strengthen justice. This Writ Petition is not mere private dispute, but a matter of profound public interest. When one of California’s largest auto insurers, representing nearly 7% of this State’s motorists, is permitted to use the word “discretion” to defray investigation costs and/or justify an arbitrary premium hike while simultaneously placing a sword of imminent harm over an insured’s head in the form of DMV points, the California Code of Regulations is rendered a nullity and public records become a repository of taint. This proceeding in part aims to protect 1.4 million policyholders from a parasitic loop which prioritizes profit over mandatory duties of this State’s laws.

    Petitioner here reminds Respondent that what has been set forth in the Petition are not allegations, but Verified Facts stated under penalty of perjury. For the purposes of this Demurrer, these facts must be accepted as true. (See Thomas v. Regents, supra). While Respondent repeatedly uses the term ‘allege’ to characterize elements of the Petition, they are sworn testimony of a direct witness. Unless and until Respondent provides evidence to the contrary, Petitioner’s sworn record is the factual reality of this case.

    Petitioner has often subbed for high school classes where government and civics are discussed and Petitioner informs students that all law is composed of two things—letter and spirit: what does the law say and why does it say what it does? CCP 1085 states a writ may be granted without notice—express in its implication of the broad discretion the Superior Court of this State has in this proceeding. 

    The Petition was filed March 10 of this year, and on that date Petitioner was thoroughly exhausted mentally and emotionally, as if suddenly trapped in a dark wood without vision or direction as to what might happen from that date. In the weeks since, sunlight has dawned, risen overhead, and as Petitioner will show unto the Court below, the scope of this dispute has evolved from a private disagreement into a clear matter of public interest regarding the integrity of public records. Through diligent review of administrative records and notable silences discovered therein, Petitioner brings this Opposition not only to contest a procedural motion, but to defend the structural integrity of public records.

    As a dynamic instrument of equity the writ proceeding exists precisely for this moment—where with time and diligence the truth has exposed a parasitic practice previously hidden. Petitioner does not merely seek damages; Petitioner seeks enforcement of State regulations which are prerequisite to the constitutional right of due process under the Vehicle Code.

    Finally, Respondent’s Demurrer, based on foundational misapprehension and mischaracterizations of law and facts, argues a Writ here is improper because Petitioner has an adequate remedy at law (a civil suit) and that no ministerial duty was breached, thus Respondent’s Demurrer’s premise of “absolute discretion” effectively argues for a license to ignore objective physical evidence and sworn witness testimony, a position that would render 10 CCR § 2695.7(d)—which mandates a reasonable investigation—meaningless. A civil suit for damages cannot purify a tainted public record—damages are compensatory, a writ is rectifying.

II. THE APPLICABLE STANDARD

    The standard for evaluating a Demurrer is well-settled: a demurrer tests only the legal sufficiency of the pleading, not the truth of its verified subject matter, and a Court “must treat the demurrer as admitting all material facts properly pleaded.” (Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 966). Because this Petition is Verified, a court must treat its record as factual, admitted, and draw every reasonable inference in Petitioner’s favor. (Perez v. Golden Empire Transit Dist. (2012) 209 Cal.App.4th 1228, 1238). At this stage the inquiry is simple: if the facts are true—which law states they are—does the Petition warrant a remedy? Respondent’s Demurrer rests on the flawed premise that Petitioner has failed to state a cause of action. However, a Demurrer cannot be sustained if the facts—viewed through the lens of liberal construction—show the Petitioner is entitled to forms of relief. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318). In a Code of Civil Procedure § 1085 proceeding, the Court’s inquiry is whether the Respondent has failed to perform an act which the law “specially enjoins.” While Respondent argues for “absolute discretion,” the Standard of Review dictates that if Petitioner has pleaded facts showing an abuse of discretion or a failure to comply with mandatory regulations (such as 10 CCR § 2695.7), the Demurrer must be overruled. The Court is not here to weigh evidence today; it is here to determine if the facts, if proven, warrant a remedy. A demurrer tests only the legal sufficiency of the pleading, leaving the truth of the underlying facts for a later determination on the merits.