ACLU Demurrer

7/29/2019 ACLU Demurrer

1/19

KAMALA D. HARRISAttorney General of California') .JENNIFER M. KIMSupervising Deputy Attorney General3 TARA L. NEWMAN (SBN 21 0960)CHRISTINE M. MURPHY (SBN 183835)4 Ci-IARA L. CRANE (SBN 250512)Deputy Attorneys General5 300 South Spring Street, Suite 1702Los Angeles, CA 900136 Telephone: (213)897-2446Fax: (213) 897-28057 E-mail: [email protected] for Respondents and Defendants

Exempt from filing fees per Gov. Code 6103

89101112131415161718192021

SUPERIOR COURT OF THE STATE OF CALIFORNIACOUNTY OF LOS ANGELES

22232425262728

CENTRAL DISTRICT

D.J. by Guardian Ad Litem E.A.; E.A.; B.S.by Guardian Ad Litem C.L.; F.S. byGuardian Ad Litem C.L.; C.L.; S.M. byGuardian Ad Litem M.R.; A.M. byGuardian Ad Litem M.R.; M.R.; S.Z.;WALT DUNLOP,

Petitioners and Plaintiffs,v.

Case No. BS142775RESPONDENTS' MEMORANDUM OFPOINTS AND AUTHORITIES IN REPLYTO PETITIONERS' OPPOSITION TORESPONDENTS' DEMURRERDate:Time:Dept.:Judge:

September 26,20139:30a.m.85The Honorable James C.ChalfantTATE OF CALIFORNIA; CALIFORNIADEPARTMENT OF EDUCATION; TO MTORLAKSON, STATESUPERINTENDENT OF PUBLICINSTRUCTION, in his official capacity;STATE BOARD OF EDUCATION; DOES1-20, INCLUSIVE, Trial Date: None set

Respondents and Action Filed: April 24, 2013Defendants.

Reply to Opposition to Demurrer (BS 142775)


2/19

2

456789

101112

TABLE OF CONTENTSPage

INTRCH)lJCTIC)N ........................................................................................................................... 1ARCitJMENT ................................................................................................................................... 2

I. THIS COURT HAS NO JURISDICTION OVER THIS CASE BECAUSEPETITIONERS FAILED TO A VAIL THEMSELVES OF THESTA'T"UTORILY-MANDATED ADMINISTRATIVE REMEDY ........................ 2ll. THE COURT SHOULD ABSTAIN FROM ADJUDICATING THECONTROVERSY ALLEGED IN THE PETITION BECAUSE THEFEDERAL DOJ JS ALREADY APPLYING ITS EXPERTISE TOINVESTIGATE THE SAME CONTROVERSY .................................................... 6III. NO FEDERAL OR STATE LAW REQUIRES RESPONDENTS TORESPOND TO LEA LANGUAGE CENSUS DATA, LET ALONERESPOND IN A CLEARLY -PRESCRIBED MANNER ...................................... 9IV. NO CAUSE OF ACTION FOR ILLEGAL EXPENDITURE OF

TAXPAYER FUNDS IS STATED ....................................................................... 10V. THE STATE OF CALIFORNIA IS NOT A PROPER PARTY. .......................... 12VI. THE PETITION FAILS BECAUSE IT IS UNCERTAIN .................................... 13

13 CONCLUSION .............................................................................................................................. 14141516

171819202122232425262728

Reply to Opposition to Demurrer (BS 142775)


3/19

2

45

789

10111213141516171819202122232425262728

TABLE OF AUTHORITIES

CASES

A helle ira 1'. [)istrict Court rdAppeal(1941) 17 Cal.2cl280 ................................................................................................................. 2

Alvarado v. Selma Convalescent Hosp.(2007) 153 Cai.App.4th I 292 ............................................................................................ 6, 7, 8

Bernstein v. Piller(1950) 98 Cal.App.2d 441 ....................................................................................................... 13

Cal!fhrnia Correctional Peace (!fficers Assn. v. Stale Personnel Bd.(1995) 10 Cal. 4th 1133 .............................................................................................................. 2

Coshow v. City ofEscondido(2005) 132 Cal.App.4th 687 .................................................................................................... 1 1Diaz v. Quitoriano

(1969) 268 Cai .App.2d 807 ....................................................................................................... 5Matthaei v. Housing Authority ofBaltimore City

(1939) 177 Md. 506 ................................................................................................................. 12People v. Burns

(1 888) 75 Cal. 627 ..................................................................................................................... 4Philbrook v. Randall

(1924) 195 Cal. 95, 103 .......................................................................................................... 13Sacramento County Deputy Sher(ffs 'Assn. v. County ofSacramento

(1990) 220 Cai.App.3d 280 ....................................................................................................... 2Schwartz v. Poizner

(20 10) 187 Cai.App.4th 592 ................................................................................................ 9, 10Serrano v. Priest

(1976) 18 Cal.3d 728 ............................................................................................................... 13State ofCal((ornia v. Superior Court

(1974) 12 Cal.3cl 237 ............................................................................................................... 13Tri-County Special Educ. Local Plan Area v. County r ~ ( T u o l u m n e

(2004) 123 Cal.App.4th 563 ...................................................................................................... 5Vasquez 1'. State

(2003) 105 Cal.App.4th 849 .................................................................................................... 11ii

Reply to Opposition to Demurrer (BSJ42775)


4/19

23456789

10111213141516

171819202122232425262728

TABLE OF AUTHORITIES(continued)

Waste A1anagement r ~ f A l a m e d a County, Jnc. v. County (dAlameda(2000) 79 Cal.App.4th 1223 .............................................................................................. 11. 12

STATUTES

Title 20 United States Code 6301 et seq ............................................................................................................................ 12

California Code ofRegulations Title 5 4600 ................................................................................................................................... 2, 3 4600 (d) ........................................................................................ ...................................... 3,6 4620 ........................................................................................................................................ 3 4630 (b) ................................................................................................................................... 3463l(a) ................................................................................................................................... 3

Code Civil Procedures 379 ................................................................................................................................. 12, 13 430.10 (f ) .............................................................................................................................. 13 526a ........................................................................................................................... 10, 11,12

Education Code305 ........................................................................................................................................ 10306(a) ..................................................................................................................................... l 310 ........................................................................................................................................ 10315 ........................................................................................................................................ 10 35160 ..................................................................................................................................... 5 35160.1 ................................................................................................................................... 552163 .................................................................................................................................... 10 54026 (b) ............................................................................................................................... I 0

111Reply to Opposition to Demurrer (BS 142775)


5/19

23456789

10111213141516171819202122232425262728

INTRODUCTION

Petitioners fail to refute any of the arguments raised in respondents' demurrer, optinginstead to use their opposition brief (Opposition) to recite general principles of federal and statelaw which are not even in dispute. Remarkably, the Opposition concedes that petitioners failed toexhaust their administrative remedies by availing themselves of the statutorily-mandated UniformComplaint Procedures (UCP) remedies that could have resolved any past claims of denialsof English language services, and that can resolve any current and future claims of denials ofrequired language services. This fatal defect deprives this Court of jurisdiction over this case.Further, the Opposition fails to cite to a single case where a court excused a party fromexhausting administrative remedies in a case like this one, where administrative remedies weremandated, available, and more-than-adequate.

Notably, the Opposition also fails to dispute that the federal Department of Justice (DOJ) isinvestigating the same controversy alleged in this case, thereby making it unnecessary andwasteful for this Court to do the same, especially when the federal DOJ possesses particularexpertise over the complexities surrounding the provision of English language services in a stateas large and diverse as California that serves more than 1.4 million English Learners 1 (ELs). The

Opposition fails to offer any valid reason why this Court should not abstain from resolving thiscase. Nor could it; every reason exists for this Court to abstain and defer to the federal DOJ'songoing and thorough inquiry into the very issues that triggered this lawsuit.

Further, the Opposition offers no legal support for the incorrect - yet pivotal -assumptionin the underlying petition for writ ofmandate (Petition) that respondents are violating the lawbecause school districts- or local educational agencies (LEAs)- collectively reported on theonline 2011 language census forms that 20,318 ELs were not receiving English languageinstructional services. (See P e t i t i o n , ~ ~ 50-52.) The Opposition cites no law or judiciallynoticeable fact that establishes that the online language census data which triggered this lawsuit is

1 "'English learner' means a child who does not speak English or whose native languageis not English and who is not currently able to perform ordinary classroom work in English, alsoknown as a Limited English Proficiency or LEP child." (Ed. Code, 306, subd. (a).)

Reply to Opposition to Demurrer (BS142775)


6/19

an accurate depiction of ELs who are not receiving required English language services, and the2 Opposition cites no state or federal law that requires respondents to respond to the online3 language census data in a specific manner, let alone at all. Finally, the Opposition fails to rebut4 the additional arguments raised in the demurrer regarding petitioners' lack of taxpayer standing,5 the State of California being an improper party, and the uncertain allegations in the Petition.6 Thus, respondents respectfully request the Court to sustain their demurrer in full without leave to7 amend because the Petition states no viable cause of action and cmmot be amended to state one8 because petitioners failed to exhaust their administrative remedies.9

10111213141516

171819202122232425262728

I.ARGUMENT

THIS COURT HAS NO JURISDICTION OVER THIS CASE BECAUSEPETITIONERS FAILED TO AVAIL THEMSELVES OF THESTATUTORILY-MANDATED ADMINISTRATIVE REMEDY.

Under the doctrine of exhaustion of administrative remedies, "the rule is that where anadministrative remedy is provided by statute, relief must be sought from the administrative bodyand this remedy exhausted before the courts will act." (Abelleira v. District Court ofAppeal (1941) 17 Cal.2d 280, 292; see also California Correctional Peace Officers Assn. v. StatePersonnel Ed. (1995) 10 Cal.4th 1133, 1151 [holding, "Exhaustion of administrative remediesusually contemplates termination of all available, nonduplicative administrative reviewprocedures . . . in California a requirement that administrative remedies be exhausted isjurisdictional"] (emphasis added); Sacramento County Deputy Sherif fs' Assn. v. County ofSacramento (1990) 220 Cal.App.3d 280, 286 [holding that, when a defendant timely raises thedefense of exhaustion of administrative remedies and none of the recognized exceptions apply,"exhaustion remains a prerequisite to judicial relief'] (emphasis added).) In sum, it is settled lawin California that a plaintiffs failure to exhaust available administrative remedies deprives a trialcourt of jurisdiction over the case when the issue is timely raised- as it has been here- and whenno exception exists- as is the case here.

Notably, the Petition fails to allege that any petitioner availed himself or herself of his orher administrative remedies by filing a UCP complaint pursuant to California Code ofRegulations, title 5, section 4600 et seq., setting forth the alleged discriminatory conduct now

2Reply to Opposit ion to Demurrer (BS 142775)


7/19

being complained of in the Petition. In fact, the Opposition concedes that administrative2 remedies were not exhausted. (See Opposition, pp. 10-14.) However, in an attempt to avoid the3 implications of petitioners' undisputed failure to exhaust administrative remedies, the Opposition4 argues (1) that the doctrine of exhaustion of administrative remedies is inapplicable because5 petitioners seek systemic relief (Opposition, pp. 1 0-12), and (2) seeking administrative relief6 would be futile. (Id., pp. 13-14.) Neither argument contains any merit.7 First and foremost, a UCP complaint would have obviated the need for this lawsuit because8 each LEA has "the primary responsibility to insure compliance with applicable state and federal9 laws and regulations" and "shall investigate complaints alleging failure to comply with applicable

10 state and federal laws and regulations and/or alleging discrimination, and seek to resolve those11 complaints . . . . " (Cal. Code Regs., tit. 5, 4620.) Subject to exceptions, an LEA shall conduct12 and complete an investigation of a UCP complaint within 60 days from the date of the receipt of13 the complaint. (!d., tit. 5, 4631, subd. (a).) Thus, assuming for the sake of argument that14 petitioners were aggrieved by their respective LEAs, complying with the UCP process would15 have afforded petitioners a speedy resolution to their allegations of lack of delivery ofEnglish16 language services. In addition, a UCP complaint would be the proper vehicle for raising a17 complaint about the lack of delivery of English language services because, according to18 petitioners, failure to provide required services to ELs is discrimination, and a UCP complaint19 "may include an allegation ofunlawful discrimination." (!d., tit. 5, 4600, subd. (d).) Indeed,20 the law mandates that one who believes he has been discriminated against in an educational21 setting- as petitioners allege- file a UCP complaint to resolve the alleged discrimination. (Id.,22 tit. 5, 4630, subd. (b) l However, nowhere in the Petition or Opposition do petitioners contend232425262728

2 California Code of Regulations, title 5, section 4630, subdivision (b), provides in part:An investigation of alleged unlawful discrimination shall be initiated by filing a complaintnot later than six months from the date the alleged discrimination occurred . . .(1) The complaint shall be filed by one who alleges that he or she has personally sufferedunlawful discrimination, or by one who believes an individual or any specific class ofindividuals has been subjected to discrimination prohibited by this part.(2) The complaint shall be filed with the local educational agency in accordance with thecomplaint procedures of the local educational agency. (continued .. . )

3Reply to Opposition to Demurrer (BS142775)


8/19

23456789

10111213141516171819202122232425262728

they filed a UCP complaint. Moreover, petitioners cannot amend the Petition to allege that theywere unaware or the UCP process because ignorance of the law is not an excuse fornoncompliance with the law. (See, e.g., People v. Burns (1888) 75 Cal. 627, 648.) Equally asimportant, information regarding the UCP process is publicly available online (see Request forJudicial Notice in Support of Demurrer (R.TN), Exs. 6 & 7), and LEAs annually notify parents,employees, committees, students, and other interested parties of the UCP process. (Id., Ex. 7 )

Instead, the Opposition argues that petitioners are excused from complying with the UCPprocess because they seek "systemic" relief (Opposition, pp. 11 & 12) and, thus, "have not suedthe school districts and do not seek in this action any relief against individual school districts."(Id., p. 10.) There is no merit to this argument because, assuming the truth of the allegations inthe Petition, the direct and immediate injuries at the heart of this case were denials of Englishlanguage services by each petitioner's respective LEA (See generally Petition.) Thus, theinjuries complained of in this case were indeed subject to the UCP process described in theopening paragraphs of this argument. Contrary to petitioners' argument, an administrativeremedy was available, required, and more-than-adequate to resolve each petitioner's importantconcerns regarding the delivery of English language services. The Opposi tion further argues thatthe relief afforded by the UCP process is inadequate because it would resolve only "case-by-casecomplaints and would not achieve systemic reform . . . . " (Opposition, pp. 11-12.) However,the very point and great benefit of the UCP process is that it does resolve each student's (or otherinterested party's) concerns on a case-by-case basis so that "systemic" problems, like thosealleged in this lawsuit, are nipped in the bud, resolved right away, and not pennitted to linger.Moreover, students are entitled to appropriate services given the local circumstances, as LEAs areinvested with the authority to choose the appropriate programs and/or services that suit theirparticular students' needs. (Ed. Code, 35160 & 35160.1.)( ... continued)(3) An investigation of a discrimination complaint shall be conducted in a mmmer that

protects confidentiality of the parties and maintains the integrity of the process. (Emphasisadded.)



9/19

23456789

10111213141516171819202122232425262728

Relying on Diaz v. Quitoriano (1969) 268 Cai.App.2d 807 (Diaz), petitionerstry to bolster their "systemic" relief argument. (Opposition, p. 1 1 ) However, Diaz is inappositebecause the writ of mandate in that case was framed as a class action. (Diaz, supra, 268Cai.App.2d at p. 809.) The Court explained the significance of this factor, in the context of thedoctrine of exhaustion of administrative remedies, as follows:

In its aspect as a class action, this mandate proceeding seeks reliefthat is unavailable on the administrative appeal. As a class action,if supported by the evidence, it can yield a decree which can beavailed of by every member of the represented class, present andfuture.

(Jd., p. 812.) 11 is undisputed that this case is not a class action; instead, the case is triggered byeach student petitioner's distinct allegation that he or she was harmed by a denial of Englishlanguage services and, in the case of the parent petitioners and petitioner Dunlop, harmed byschool districts' failures to provide English language services. ( P e t i t i o n , ~ ~ 17-26.) Thus, therationale of Diaz does not apply to a lawsuit like this one that is not brought in a representativecapacity and that could have been obviated had each petitioner simply addressed his or herindividual concerns regarding the delivery of his or her individual English language servicesthrough the UCP process. Petitioners also rely on Tri-County Special Educ. Local Plan Area v.County a/Tuolumne (2004) 123 Cal.App.4th 563 (Tri-County) to justify their contention thatthey, unlike every other public school student in California, did not have to raise their claims ofdiscrimination through the UCP process before filing suit. (Opposition, p. 11.) However, in TriCounty, the Court actually held that the UCP process afforded an adequate administrative remedyto the pariies. (Tri-County, supra, at pp. 575-576.) Notably, like this case, Tri-County was not aclass action although the petitioners in that case, like petitioners here, sought remedies that wouldimpact more than just the named petitioners. (Id., at p. 569.)

In a final attempt to excuse their noncompliance with the UCP process, petitioners arguethat pursuing UCP remedies would have been futile because respondents have made clear howthey would respond to UCP complaints regarding the delivery ofEnglish language services.(Opposition, pp. 13-14.) Again, there is no merit to this argument. The Petition contains noallegations on this point. Further, the law governing the UCP process and Exhibits 6 and 7 to the



10/19

RJN demonstrate that the process is fair and not predetermined, and the Opposition cites no law2 or judicially-noticeable fact that demonstrates that the UCP process is anything other than fair.3 Also, neither the Petition nor the Opposition alleges that any petitioner participated in the UCP4 process and received a rubber-stamped decision finding no merit to the UCP complaint. Finally,5 as a matter of law, the census forms, on which petitioners rely to argue that respondents have6 made clear how they would rule, are not UCP complaints. (See Cal. Code Regs., tit. 5, 4600,7 subd. (d).) Thus, respondents' position in the demurrer regarding the meaning of data on the8 census forms does not translate to a predetermination of a UCP complaint filed by an individual9 student concerning a specific LEA's failure to provide required language services.

10 In sum, by proceeding with this lawsuit even though they did not exhaust readily-available,11 mandated, and efficient UCP remedies, petitioners are calling upon this Court to assume the12 functions of an LEA and resolve alleged discriminatory education practices that could have been13 resolved promptly and efficiently months (or years) ago by the LEAs that served petitioners.14 Because petitioners failed to exhaust their administrative remedies and because no exception to15 exhaustion exists, this Court has no jurisdiction over the Petition. The demurrer should be16 sustained without leave to amend for this reason alone.171819202122232425262728

II. THE COURT SHOULD ABSTAIN FROM ADJUDICATING THECONTROVERSY ALLEGED IN THE PETITION BECAUSE THE FEDERALDOJ IS ALREADY APPLYING ITS EXPERTISE TO INVESTIGATE THESAME CONTROVERSY.

As explained in the demurrer, a court may abstain when the lawsuit involves detenniningcomplex policy, which is best handled by the legislature or an agency. (Alvarado v. SelmaConvalescent Hasp. (2007) 153 Cal.App.4th 1292, 1298 (Alvarado).) Or, a court may abstainwhen granting injunctive relief would be unnecessarily burdensome for the court to monitor andenforce given the availability of more effective means of redress. (Ibid.) Alternatively, a courtmay abstain when federal enforcement ofthe law at issue in the case would be more orderly,more effective, and less burdensome. (Ibid.) A court may also abstain when granting the reliefsought would compel the court to assume the functions of an administrative agency or interfere



11/19

with such functions. (!hid) Finally, a court may abstain when an agency is better-suited to2 provide an alternative and more effective remedy. (ld. at p. 1306.)3 Pursuant to Alvarado, supra, the Court should abstain from resolving this lawsuit because,4 in May ofthis year, the Educational Opportunities Section in the Civil Rights Division ofthe5 federal DOJ began an inquiry into the very allegations raised in the Petition (RJN, Ex. 1 , and6 respondents are actively participating in, and responding to, that federal inquiry. (ld., Ex. 2.) In7 fact, it was petitioners' counsel who alerted the federal DOJ to the issues raised in this lawsuit.8 (Jd., Ex. 1, p. 1, fn. 2 [reference in the federal DO.T's letter to letter dated January 23,2013, from9 petit ioners' counsel Mr. Rosenbaum to respondents]; id., Ex. 1, p. 2, fn. 5 [reference in the federal

10 DOJ's letter to the Petition in this case]; Opposition, 19:4-5 ["it was Petitioners' demand letter11 that prompted the federal government's letter to Respondents . . . . "].) Thus, it cannot be disputed12 that the federal DOJ inquiry was prompted by the identical data that triggered this lawsuit: the13 alleged fact that more than 20,000 ELs did not receive language instructional services between14 the 2007-08 and 2010-11 school years. (See RJN, Ex. 1, p. 1; see P e t i t i o n , ~ ~ 11-14.)15 Based on this alleged fact, the federal DOJ is presently investigating whether respondents16 are complying with the Equal Educational Opportunities Act (EEOA) of 1974 and Title VI of the17 Civil Rights Act of 1964 (Title VI). (RJN, Ex. 1, p. 2.) The federal DOJ's inquiry into the18 alleged EEOA and civil rights violations at issue in this case is appropriate given that it "is19 charged with enforcing the EEOA." (Ibid.) However, despite initiating a complaint with the20 federal DO.T regarding the alleged facts in this case and despite knowing of the federal DOJ' s21 ongoing investigation, petitioners insist on maintaining a lawsuit against respondents based on22 alleged violations of the EEOA (Petition, 120-127) and state civil rights laws. (I . , ~ ~ 128-23 136.) Therefore, because each cause of action in the Petition is rooted in the san1e fundamental24 facts (see id., 34-1 06), the federal DOJ's resolution of the EEOA cause of action will probably25 resolve this entire lawsuit, meaning it would be counterproductive and wasteful for this Court to26 resolve this lawsuit concurrently with the federal DOJ.27 The Opposition does not dispute that the federal DOJ is currently investigating the alleged28 EEOA violation in this case; nor does the Opposition dispute that the federal DOJ is charged with



12/19

enforcing the EEOA and has the obvious expertise to do so. Rather, in opposing the abstention2 argument, petitioners erroneously argue that the "only cases cited by Respondents to support their3 abstention argument would have required the court to make complex determinations about4 specific decisions that were handled by administrative agencies." (Opposition, p. 18.) However,5 as seen in the examples cited above from Alvarado, supra, there are least five distinct scenarios6 which justify abstention, including where abstention would ease the burden on the trial court,7 where federal enforcement ofthe subject laws would be more orderly and effective, and where8 not abstaining would compel the trial court to assume the functions of an agency or interfere with9 such functions. (Alvarado, supra, 153 Cal.App.4th at p. 1298.) All scenarios exist here.

10 Further, as demonstrated by Alvarado's enumeration ofthe variety of scenarios thatjustify11 abstention (Alvarado, supra, 153 Cal.App.4th at pp. 1298 & 1306), there is no merit to the12 inference in the Opposition that state courts may only abstain from a case on the basis of federal13 enforcement when a federal agency has "exclusive jurisdiction to enforce the underlying statutes .14 . . . " (See Opposition, p. 19.) Indeed, neither of the cases cited in the Opposition for this15 proposition hold as such. In addition, the Opposition's attempt to diminish the import and extent16 of the federal DOJ's inquiry into the issues raised in this lawsuit by dismissing the inquiry as a17 "mere initiation of a preliminary investigation" (id., p. 18) is belied by the sheer detail contained18 in the federal DOJ's May 2013 letter to respondents and in respondents ' response letter. (See19 RJN, Exs. 1 & 2.)20 Finally, petitioners cannot credibly argue that this case would not call upon this Comito21 assume the functions of an administrative agency. (See Opposition, p. 18) Again, this argument22 is belied by the very existence of the federal DOJ's May 3, 2013, letter to respondents, inquiring23 about respondents' compliance with federal education and civil rights laws. To issue the relief24 sought by petitioners in this lawsuit- compel respondents to take some action in response to the25 2011 online language census forms- this Court would first be compelled to determine if a legal26 basis existed to issue the relief. To make this determination, this Court would be assuming- and27 duplicating- efforts currently being undertaken by the division in the federal DOJ that is28 uniquely equipped to investigate and resolve the complex issues in this case. (See RJN, Ex. 1.)

8Reply to Opposition to Demurre r (BSJ42775)


13/19

23456789

10111213141516

171819202122232425262728

Specifically, this Court would be compelled to delve into the complexities of, at a minimum,these issues:

1. The online language census forms completed annually by LEAs;2. California's sheltered English immersion programs;3. The obligations of LEAs, the California Department of Education (CDE), and the State

Board of Education (SBE) under the EEOA and Title VI;4. CDE's Federal Program Monitoring process; and5. The UCP process.

(See RJN, Exs. 1 & 2.) Each ofthese topic areas is already being addressed in the federal DOJ'songoing investigation into the provision of services to ELs in California. (Ibid) Thus, this Courtshould abstain.

III. NO FEDERAL OR STATE LAW REQUIRES RESPONDENTS TO RESPONDTO LEA LANGUAGE CENSUS DATA, LET ALONE RESPOND IN ACLEARLY -PRESCRIBED MANNER.

The Opposition argues that the EEOA and the California Constitution are the two sourcesof respondents' mandatory duty to take action in response to the information contained on the2011 online language census forms. (Opposition, pp. 3-6.) And, under their first three causes ofaction for a writ ofmandate, petitioners seek to compel respondents to "( 1) cease doing nothing inresponse to [language census] reports from districts indicating that nothing is being done to serveEL students; and (2) establish polices and procedures to effectively ensure that all EL students inCalifornia public schools receive required English language instructional services." ( P e t i t i o n , ~ ~112, 119, & 127.)

However, the Opposition fails to cite to one single provision in the EEOA or CaliforniaConstitution that governs the online language census forms at issue or that prescribes the mannerin which respondents must respond to data entered by LEAs on these forms, whereas a writ ofmandate may only be issued to compel the performance of a clear, present, and ministerial dutywhen the petitioner has a right to the performance of that duty or to correct the exercise ofdiscretionary legislative power, but only if he action taken is undeniably arbitrary. (Schwartz v.Poizner (20 1 0) 187 Cal.App.4th 592, 596.) Thus, the writ sought in this case may not issue



14/19

23456789

1011

12131415161718192021

22232425262728

because none of the constitutional provisions or state or federal laws cited in the Petition requirerespondents to respond to the data reported annually on the online language census forms in anyparticular manner, let alone at all. The Opposition fails to show otherwise.

Further, the language census forms on which petitioners base this entire lawsuit are usedfor .funding purposes only, not to determine if ELs are receiving required language services. (SeeEd. Code 54026, subd. (b)[" 'English learner' means a pupil described in subdivision (a) ofSection 306 or identified as a pupil of limited English proficiency, as that term is defined insubdivision (m) of Section 52163. Counts of he pupils described in this subdivision shall be thecounts reported in the prior year language census"], emphasis added.) The judicially-noticeablefacts in support of the demurrer also establish that the language census forms are not a means formonitoring LEA compliance with federal and state obligat ions to ELs. (RJN, Ex. 2, pp. 2-4.)Finally, as demonstrated by the governing law,3 English language services can be provided to ELsin a variety of ways, not just through instructional services in a traditional classroom setting.

The judicially-not iceable facts in support of the demurrer also illustrate that respondentsmonitor and ensure the delivery of English language services to ELs through a process calledFederal Program Monitoring (RJN, Ex. 2, pp. 4-5; id., Ex. 3) and, as explained above, through theUCP process. The Opposition fails rebut these points and fails to cite a single law that prescribesthe manner in which respondents should respond to the data collected annually on the onlinelanguage census forms. Thus, no writ may issue.

IV. NO CAUSE OF ACTION FOR ILLEGAL EXPENDITURE OF TAXPAYERFUNDS IS STATED.

Petitioners claim they have taxpayer standing under Code of Civil Procedure section 526a(section 526a) because respondents have allegedly illegally expended and wasted EconomicImpact Aid and Title Il l funds. (See P e t i t i o n , ~ 15.) Yet, petitioners concede that "[t]he purpose

3 See, e.g., Ed. Code, 305 [providing that children shall be taught English by beingtaught in English; in other words, being taught a core subject in the English language is a way toprovide English language services to an EL]; 310 [providing for different educational programs,other than sheltered English immersion, for helping an EL become proficient in the Englishlanguage]; and 315 [providing funding for community-based English language tutoringprograms].

l 0Reply to Opposition to Demurrer (BS142775)


15/19

of section 526a . . . is to permit a large body of persons to challenge wasteful government action2 that otherwise would go unchallenged because of the standing requirement." (Vasquez v. State3 (2003) 105 Cal.App.4th 849, 854, internal quotations omitted; Opposition, p. 8.) And, as4 explained in Section I of this reply, an aggrieved party who claims to have been denied English5 language services has standing to challenge the denial through the UCP process and then, after6 exhausting that process, through the court system. Thus, because petitioners have standing to7 challenge the denial of English language services through means other than section 526a, the8 underlying purpose of section 526a- which the Opposition acknowledges- would be frustrated9 were the Court to find that petitioners have standing to maintain their section 526a cause of

I 0 action.11 Further, petitioners contend they have made allegations of misuse because the "programs12 for delivering language instructional services to the state's English learner students, including the13 development and operation of the monitoring program . . . necessarily involves the expenditure of14 public funds . . . " (Opposition, pp. 9:24-10:2.) However, by this very statement, petitioners are15 expressly acknowledging that respondents have spent the funds at issue, in part, to develop and16 operate the comprehensive Federal Program Monitoring process. Thus, it is apparent that the17 section 526a cause of action is based, not on fact or law, but on petitioners' dissatisfaction with18 the current programs used by CDE to monitor LEAs. Such dissatisfaction does not give rise to a19 section 526a claim. "[A] taxpayer is not entitled to injunctive relief under Code of Civil20 Procedure section 526a where the real issue is a disagreement with the manner in which21 government has chosen to address a problem . . . . " (Coshow v. City ofEscondido (2005) 13222 Cal.App.4th 687, 714, intemal citations and quotations omitted.)23 In addition, "the essence of a taxpayer action remains an illegal or wasteful expenditure of24 public funds or damage to public property. The taxpayer action must involve an actual or25 threatened expenditure of public funds. General allegations, innuendo, and legal conclusions are26 not sufficient; rather, the plaintiff must cite specific facts and reasons for a belief that some illegal27 expenditure or injury to the public fisc [sic] is occurring or will occur." (Waste Management of28 Alameda County, Inc. v. County ofAlameda (2000) 79 Cal.App.4th 1223, 1240, internal citations

]]

Reply to Opposition to Demurrer (BSJ42775)


16/19

omitted, disapproved on other grounds by the California Supreme Court.) Neither the Petition2 nor the Opposition cites specific facts to support petitioners' general, and inaccurate, belief that3 "[t]he State disburses money dedicated for EL services to districts that report denying English4 language instructional services to EL students." (Petition, ,I 15 .) This vague and conclusory5 allegation is insufficient to maintain a section 526a cause of action, especially in light of the6 guidelines issued by the U.S. Department of Education for the use ofTitle III funds. These7 guidelines set forth the obligations of State educational agencies which receive Title II I grants.8 (See generally supplemental RJN filed concurrently herewith, Exs. 9 & 10; see specifically id.,9 Ex. 9, p. 4.) Neither the Petition nor the Opposition alleges that respondents have failed to fulfill

10 any of these obligations or otherwise used Title III funds in an illegal or wasteful manner.11 Finally, petitioners may not challenge the expenditure of federal funds under section 526a.12 Title III funds are not state or city taxpayer dollars but are federal funds granted to states under13 the No Child Left Behind Act. (20 U.S.C. 6301 et seq.; Petition, ,-r 15.) Alleged misuse of14 federal funds does not result in injury that permits standing for a state taxpayer suit. (See, e.g.,15 Matthaei v. Housing Authori ty ofBaltimore City (193 9) 177 Md. 506, 513 ["misuse of Federal16 funds would not cause injury to the complainants as state and city taxpayers, and support a suit by17 them"].) In sum, petitioners' cause of action for violation of section 526a fails as a matter of law,18 as to the expenditure of state and federal funds.19 V. THE STATE OF CALIFORNIA IS NOT A PROPER PARTY.20 The Opposition argues that the State of California is a proper party because "more than21 100 years of case law" provides that the State is the ultimate guarantor of educational rights22 (Opposition, p. 14), and because the demurrer fails to cite "a single case in which a California23 court held the State was not a proper party under Section 379 of the Code of Civil Procedure."24 (ld., pp. 14-15.) Neither argument contains any merit.25 First, Code of Civil Procedure section 3 79 is inapplicable where, as here, case law makes26 clear that the State is not a proper defendant when an agency or state officer is charged with27 enforcing the laws at issue in the case. Specifically, the State is not a proper party in cases for28 declaratory or injunctive reliefwhen an administrative agency or other state body has the



17/19

authority or duty to issue the relief sought. (State ofCal(fhrnia v. Superior Court (1974) 122 Cal.3d 237, 255.) Further, the California Supreme Court has held that: "it is the general and3 long-established rule that in actions for declaratory and injunctive relief challenging the4 constitutionality of state statutes, state officers with statewide administrative functions under the5 challenged statute are the proper parties [sic] defendant." (Serrano v. Priest (1976) 18 Cal. 3d6 728, 752.) In light of the above case law, which was cited in the demurrer, there is no merit to the7 Opposition's argument that the State is a proper party under Code of Civil Procedure section 379.8 Tellingly, the Opposition fails to explain why the State is a proper party in light of the other9 named respondents who petitioners expressly acknowledge are responsible for administering and

10 enforcing all laws related to public education. (See P e t i t i o n , ~ ~ 28-30.)11 As to the claimed "years of case law" holding that the State is the ultimate guarantor of12 educational rights, the Opposition fails to show that, in any of these alleged cases, the State13 demurred on the ground that its co-defendants were the educational agencies and/or officers14 specifically charged with administering and enforcing the education laws at issue in the case, as15 the State is doing here. Thus, the State is not a proper respondent in this lawsuit.16 VI. THE PETITION FAILS BECAUSE IT IS UNCERTAIN.17 The Petition is not clear, and its "headings" do not save it from a demurrer for uncertainty,18 as argued in the Opposition. (Opposition, p. 16.) A defendant may demur if a complaint is19 uncertain. (Code Civ. Proc., 430.10, subd. (f).) "Uncertain" means "ambiguous and20 unintelligible." (Ibid.) A complaint should be clear and precise "so that nothing is left to21 surmise." (Bernstein v. Piller (1950) 98 Cal.App.2d 441, 443, citing Philbrook v. Randall (1924)22 195 Cal. 95, 103.) Here, the Petition cites more than 35 different statutes, not to mention23 constitutional provisions, cases, and regulations, yet it fails to allege that any of these authorities24 imposes a mandatory non-discretionary duty on respondents that respondents have not performed.25 Thus, much is left to surmise, and the demurrer should be sustained for this additional reason.26 CONCLUSION27 Because this Court lacks jurisdiction over the Petition and because the Petition otherwise28 states no cause of action, the demurrer should be sustained in full, without leave to amend.



18/19

23456789

10111213141516171819202122232425262728

Dated: September 19,2013

LA20 1350915751369429.doc

14

Respectfully submitted,KAMALA D. HARRISAttorney General of CaliforniaJENNIFER M. KIMSupervising Deputy Attorney GeneralCHRISTINE M. MURPHYTARA L. NEWMANDeputy Attorneys General

~ L , R N ~ -Deputy Attorney GeneralAttorneys.for Respondents and Defcmdants

Reply to Opposition to Demurrer (BS142775)


19/19

DECLARATION OF SERVICE BY OVERNIGHT COURIERCase Name: D.J., et al., v. Dept. of Education, et al.Case No.: BS142775

I declare:I am employed in the Office of the Attorney General, which is the office of a member of theCaliforn ia State Bar, at which member's direction this service is made. Jam 18 years of age orolder and not a party to this matter; my business address is: 300 South Spring Street, Suite 1702,Los Angeles, CA 90013.On September 19, 2013, I served the attached RESPONDENTS' MEMORANDUM OFPOINTS AND AUTHORITIES IN REPLY TO PETITIONERS' OPPOSITION TORESPONDENTS' DEMURRER by placing a true copy thereof enclosed in a sealed envelopewith the FEDEX, addressed as follows:Mark Rosenbaum, Esq.Jessica Price, Esq.Brooks Allen, Esq.David Sapp, Esq.ACLU Foundation of Southem California1313 West Eighth StreetLos Angeles, CA 90017

Justin Ma, Esq.Asian Pacific American Legal Center1145 Wilshire Blvd.2nd FloorLos Angeles, CA 90017

Robert D. Crockett, Esq.Monica R. Klosterman, Esq.Stefanie C. Hyder, Esq.Latham & Watkins LLP355 South Grand AvenueLos Angeles, CA 90071-1560

David Loy, Esq.ACLU Foundation of San Diego &Imperial CountiesP.O. BOX 87131San Diego, CA 92138-7131

J declare w1der penalty of perjury under the laws of the State of California the foregoing is trueand correct and that this declaration was executed on September 19, 2013, at Los Angeles,California.

LA201350915751369732.doc51369732.DOC

Mmiha OchoaDeclarant Signature 1

Documents

ACLU Demurrer