Answer to First Amended Petition for Writ of Mandate in Balde v. AUSD

8/14/2019 Answer to First Amended Petition for Writ of Mandate in Balde v. AUSD

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LOUIS A. LEONE (SBN: 099874)KATHER INE A. ALBERTS (SBN: 212825)STUBBS & LEONEA Professional Corporation2175 N. California Blvd., Suite 900Walnut Creek, CA 94596Telephone: (925) 974-8600Facsimile: (925) 974-8601

Attorneys for RespondentsALAM EDA UNIFIED SCHOOL DISTRICT andKIRSTEN VITAL

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F L.E DA L A mE D A COUNTY

O CT 2 2 2009

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SUPERIOR COURT OF THE STATE OF CALIFORNIA

COUNTY OF ALAMEDA

Case No .:. RG 09-468037ISHA BALDE, JOLELE CHAN, TOMM YCHEUN G, DANIEL CHIN, HANDF ORDCHIU, RICHARD CLARK, DIANECLARK, MIKEL DEL ROS ARIO, ARCHIEFELIX, J'AIME FELIX, WENDY FONG,SUE FONG, MARIA GUADALUPEGOM EZ, JUDY JOHANSING, DANLINLI, KERRI LONER GAN, MATTLONGERAN, LIND M ORGAN,JONATHAN STAIRS, and VICKISTAIRS,

Petitioners,V S .

ALAMEDA UNIFIED SCHOOLDISTRICT, KIRSTEN VITAL,SUPERINTENDENT, in her officialcapacity.

Respondents.

ANSWER TO FIRST AMENDEDVERIFIED PETITION FO R WRIT OFMANDAMUS

BY FAX


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COMES NOW Respondents ALAMED A UNIFIED SCHOO L DISTRICT

("DIST RICT ") and KIRSTE N V ITA L, and for their answer to the First Am ended Verified

Petition for W rit of Mandam us by Petitioners AIESH A BA LD E E T AL . on file herein,

admits, denies and allege as follows:

INTRODUCTION

Respondents oppose the issuance of the Writ of Mandamus prayed for by

Petitioners in this action. The Education Code allows a parent to opt out their child from

school lesson in very limited circumstances. California Education Code 51240 allows

an opt out for a "school's instruction in health." The lesson at issue in this Petition,

Lesson 9, is not part of the school's instruction in health, but rather was adopted by the

District as part of its Caring School Community Curriculum. Lesson 9 is part of an anti-

bullying and anti-harassment curriculum adopted pursuant to the District's statutory duty

to provide safe and non-discriminatory schools to all students. Therefore, the Caring

School Community Curriculum is not part of the "school's instruction in health" and not

subject to the opt out in Education Code 51240.

PARTIES

1. Responding to paragraph 1 of the Petition, Respondents lack sufficient

information and belief upon which to admit or deny the allegations in paragraph 1, and

as such, the allegations are denied.


information and belief upon which to admit or deny the allegations in paragraph 2, and


3. Responding to paragraph 3 of the Petition, Respondents lack sufficientinformation and belief upon which to admit or deny the allegations in paragraph 3, and


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4. Responding to paragrap h 4 of the Petition, Respondents lack sufficient

information and belief upon which to adm it or deny the allegations in paragraph 4, and

as such, the allegations are denied.5. Responding to paragraph 5 of the Petition, Respondents lack sufficient
























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as such, the allegations are denied.14. Responding to paragrap h 14 of the Petition, Respondents lack sufficient






16. Responding to paragrap h 16 of the Petition, Respondents admit the

allegations co ntained therein.'

17. Responding to paragraph 17 of the Petition, Respondents admit the

allegations contained therein.

Jurisdiction and Venue

18. Responding to paragraph 18 of the Petition, Respondents admit that

Petitioners purport to bring this action pursuant to California Civil Code 1085.


venue is proper in Alameda C ounty.

Statement of Facts

20 , esponding to paragraph 20 of the Petition, Respondents admit that

Lesson 9 of the District's Caring School Com munity curriculum was adopted by the

District's Board of Edu cation on May 2 6, 2009. Respondents also admit that Lesson 9

and the entire Caring School Comm unity curriculum were adopted pursuant to the

District's duties under the Student Safety and Violence Prevention Act of 2000,

Education Code 200, Penal Code 42 2.6(a) and the District's Board Policies

concerning student safety, discrimination and harassment. Respondents also admit

that the entire Caring School Com munity curriculum is aimed at teaching safety and

tolerance on the District's campuses as well as to prevent bullying and harassment.


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Respondents admit that the goal of Lesson 9 is to create safe schools and to ensure

that all students feel safe in our schools and that all students have equal access to a

quality education. Respondents further admit that Lesson 9 is the part of the CaringSchool Community Curriculum. Except as expressly stated herein, Respondents denies

each and every rem aining allegation contained in paragraph 20.

21. Responding to paragraph 21 of the Petit ion, Respondents admit that the

Kindergarten lesson in L esson 9 is an introductory lesson to help students understand

what m akes children feel welcome, and to discover what the effect is of unw elcoming

behavior, such as hurtful teasing, name calling and exclusion. Respondents also admit

that the lessons for grades 1 3 discuss different family structures. Except as

eipressly stated herein, Respondents denies each and every remaining allegation

contained in paragraph 21.


Exhibit 1 page 5 states under the heading "Lesson Purpo se" are three bullet points,

which state: "To identify what makes a fam ily" "To identify and describe a variety of

families" and "To understand fam ilies have som e similarities and some differences."

Respondents also admit that Exhibit 1, page 6 states "Ask the class the following

questions and record their answers on paper" and tw o of the listed questions are "W hat

do family m embers give or share with each other?" and "What responsibilities do family

members have?" Respondent admits that Exhibit 1 page 9 lists under "Lesson

Purpose" tw o bullet points and that one of the bullet points is "To be a ble to identify

alternative types of family structures." Respondents adm it that Exhibit 1 page 13 lists

under "About Talking About F amilies Class Meeting three bullet points and one of the

bullet points is "The class meeting will also assist students in developing sensitivity to

gay and lesbian fam ily structures." Responden ts admit that Exhibit 1, page 13 lists

under "About Developing Empathy and B eing an Ally" two paragraphs and one of the

paragraphs states "Students will be introduced to an article by Robert, an 11 yea r old,


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whose families have two moms.' Except as expressly stated herein, Respondents

denies each and every remaining allegation contained in paragraph 22.

23. Responding to paragraph 23 of the Petition, Respondents admit thatExhibit 1 page 23 states under "About Stereotypes including Lesbian, Gay, Bisexual

and Transqender People" that "In this lesson students will increase their awareness of

all stereotypes, including lesbian, gay, bisexual and transgender people." Respondents

also admit that Exhibit 1 page 23 lists under "Lesson Purpose" four bullet points and

one of them is "To learn that LGBT people are represented among all races, genders,

religions, socio-economic classes and professions." Except as expressly stated herein,

Respondents denies each and every remaining allegation contained in paragraph 23.24. Responding to paragrap h 24 of the Petition, Respondents lack sufficient

information and belief upon which to adm it or deny the allegations in paragraph 24

regarding whether Petitioners' religious training and beliefs and personal moral beliefs

and Petitioners' ability to provide mo ral and religious training to their children, and as

such, the allegations are denied. Moreover, Respondents admit that they received

letters from parents purporting to opt their children out of L esson 9 pursuant to

Education Code 51240. Respondents admit that Section 51240 is quoted accurately.

Except as expressly stated herein, Respondents denies each and every remaining

allegation contained in paragraph 24.


information and belief upon which to adm it or deny the allegations in paragraph 25

regarding whether the attorney for Petitioners sent a letter to Superintendent Vital and

the contents of said letter, and as such, the allegations are denied. Respondents deny

each and every rem aining allegation in paragraph 25.

26. Responding to paragrap h 26 of the Petition, Respondents admit that

Superintendent Vital sent a letter to parents who requ ested an opt out of Lesson 9

pursuant to Education Code 51 240, and informed them that the Board's motion and


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1 approval of Lesson 9 did not include an opt out. Except as expressly stated herein,2 Respondents denies each and every remaining allegation contained in paragraph 26.

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27. esponding to paragraph 27 of the Petition, Respondents adm it that the4 letter sent by Superintendent Vital to parents who requested an opt out of Lesson 95 pursuant to Education Code 51 240, stated that "On M ay 26, 2009, the Board of

6 Education approved the motion to adopt the Caring School Com munity curriculum

7 supplement, Lesson 9 as part of its Safe School Community program. Lesson 98 addresses issues of sexual orientation/gender identity. The Board's motion and

9 approval did not provide an op t out option." Except as expressly stated herein,10 Respondents denies each and every remaining allegation contained in paragraph 27.

1 1 ' 8. esponding to paragraph 28 of the Petition, Respondents deny each and

12 every allegation in paragraph 28.

13 29 . esponding to paragraph 29 of the Petition, Respondents deny each and


15 FIRST CAUSE OF ACTION FOR WRIT OF MANDAMUS

16 30. esponding to paragraph 30 o f the Petition, Respondents incorporate by

17 reference their responses to paragraphs 1 -29 as though fu lly set forth herein.

16 31. Responding to paragraph 31 of the Petition, Respondents deny each and


2 0 32 . esponding to paragrap h 32 of the Petition, Respondents lack sufficient21 information and belief upon which to adm it or deny the allegations in paragraph 32, and22 as such, the allegations are denied.

2 3 33. esponding to paragrap h 33 of the Petition, Respondents lack sufficient

24 information and belief upon which to adm it or deny the allegations in paragraph 33, and25 as such, the allegations are denied.

2 6 34. Responding to paragraph 34 of the Petition, Respondents deny each and


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35 . Responding to paragraph 35 of the Petition, Respondents deny each and

every allegation in paragraph 35.

36. Responding to paragraph 36 of the Peti tion, Respondents admit thatPetitioners purport to petition this Court to issue a writ of mandamus, requiring

Respondents to co mply w ith Petitioners' written requests and excuse Petitioners'

children from the parts of theSafe School Community Curriculumthat conflict with their

religious training and belief or personal moral convictions.

37 . Responding to paragraph 37 of the Petition, Respondents deny each and

every allegation in paragraph 37.

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AFFIRMATIVE DEFENSES

FIRST AFFIRMATIVE DEFENSE

(Failure to State Claim)

1. As a first affirmative defense, Respon dents allege and aver that

Petitioners' Petition, and each and every claim purportedly set forth therein, fails to sta

a claim upon w hich relief can be granted.

SECOND AFFIRMATIVE DEFENSE

(Statute of L imitations)

2. As a second affirmative defense, Respondents allege and aver that some

or all of Petitioners' claims are barred by the applicable statutes of limitations, including

but not limited to Cal. Gov't Code 920 and 945.6 and C al. Code Civ. Proc. 338-

340, inclusive.2 3

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THIRD AFFIRMATIVE DEFEN SE2 4

(Waiver and Estoppel)2 5

3. s a third affirmative defense, Responde nts allege and aver that the2 6

Petition, and each and every claim purportedly set forth therein, is barred by the2 7

doctrines of waiver and estoppel.

FOURTH AFFIRMATIVE DEFENSE


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(Laches)

4. As a fourth affirmative defense, Respondents allege and aver that the

Petition, and each and every claim purportedly set forth therein, is barred by the

doctrine of laches.

FIFTH AFFIRMATIVE D EFENSE

(Failure to Mitigate)

5. As a sixth affirmative defense, Respondents allege and aver that any

recovery on Petitioners' Petition, or any cause of action purportedly alleged therein, is

barred in whole or in part by Petitioners' failure to mitigate damages.

SIXTH AFFIRMATIVE DEFENSE

(Privilege and/or Justification)

6. As a sixth affirmative defense, Respondents allege and aver that any

recovery on Petitioners' Petition, or any cause of action purportedly alleged therein, is

barred because Respondents' conduct was privileged and/or justified.

SEVENTH AFFIRMATIVE DEFENSE

(Governmental Tort C laim)7. As a ninth affirmative defense, Respondents allege and aver that

Petitioners failed to comply with the claim provisions of the California Governmental

Code with respect to the timely presentation of a Governmental Claim. Further,

Petitioners' claim, if submitted, differs materially from the allegations contained within

the Petition, and as such, said claims not referenced in the Governmental Claim are

barred.

EIGHTH AFFIRMATIVE DE FENSE(Good F aith Imm unities)

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8. As a eighth affirmative defense, Respondents allege and aver that its is

immune from the allegations and causes of action contained within the Petition based

upon the qualified and good faith immunities available under California Law.NINTH AFFIRMATIVE DEFENSE

(Failure to Exhaust Remedies)

9. As an ninth affirmative defense, Respondents allege and aver that any

recovery on Petitioners' Petition, or any purportedly alleged claim therein, is barred

because Petitioners has failed to invoke and exhaust administrative remedies required

to be invoked and exhausted prior to the commencement of any action for recovery on

the grounds asserted in the Petition.TENTH AFFIRMATIVE DEFENSE

(Government Code Immunities)

10. As a tenth affirmative defense, Respondents allege and aver that they are

immune from the allegations and causes of action contained within the Petition based

upon the immunities available under California Government Code 815 at seq. and

820 at seq., including but not limited to Government Code 820.2 and 815.2(b).

ELEVENTH AFFIRMATIVE DEFENSE

(Failure to Exhaust Judicial Remedies)

11 . As a eleventh affirmative defense, Respondents allege and aver that any

recovery on Petitioners' Petition, or any purportedly alleged claim therein, is barred

because Petitioners failed to exhaust the judicial remedies available to them.

TWELFTH AFFIRMATIVE DEFENSE

(Unclean Hands)

12. As a twelfth affirmative defense, Respondents allege and aver that the

Petition, or any purportedly alleged claim therein, is barred in whole or in part by reason

of Petitioners' unclean hands.

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THIRTEENTH AFFIRMATIVE DEFENSE

(Failure to State Sufficient Facts)

13. As a thirteenth affirmative defense, Respondents allege and aver thatneither the Petition nor any of the alleged causes of action therein state facts sufficient

to constitute a cause of action against these answering Respondents.

FOURTEENTH AFFIRMATIVE DEFENSE

(Separation of Powers)

14. As a fourteenth affirmative defense, Respondents allege and aver that

the relief sought in the Petition, if awarded, w ould violate the separation of powers

doctrine between the judicial branch and a state adm inistrative/legislative agency.

FIFTEENTH AFFIRMATIVE DEFENSE

(Lack of Standing)

15. As a fifteenth affirmative defense, Respondents allege and aver that any

recovery on the Petition, or any cause of action purportedly alleged therein, is barred in

whole or in part by the fact that Petitioners and each them lack standing.

SIXTEENTH AFFIRMATIVE DEFENSE

(Good Faith)

16. As a sixteenth affirmative defense, Respondents allege and aver that any

recovery on the Petition, or any cause of action purportedly alleged therein, is barred in

whole or in part by the fact that the subject program is mand ated by state law and as

such, Respondents acted in good faith.

SEVENTEENTH AFFIRMATIVE DEFENSE

(Mootness)

17 . As a seventeenth affirmative defense, Respondents allege and aver that

any recovery on the P etition, or any cause of action purportedly alleged therein, is

barred in whole or in part because such causes of action are moot.

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PRAYER

WHEREFORE,these answ ering Respo ndents pray that Petitioners take nothing

by their Petition and that these an swering Respo ndents be d ismissed hence with itscosts of suit incurred herein and for such other further relief as the C ourt deem s fit a

proper.

Dated: October4, 2009 STUBBS & LEONE

LOUIS A. LEONE, ESQ.KATHERINEA. ALBERTS, ESQ.Attorney for Respon dentsALAM EDA UNIFIED SCHOO L DISTRICT aridKIRSTEN VITAL

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Documents

Answer to First Amended Petition for Writ of Mandate in Balde v. AUSD