YOUNG, MINNEY & CORR, LLP PAUL C. MINNEY, SBN 166989 …library.ccsa.org/2018-01-16-PLD-Pltf's Opp to Demurrer (Final).pdf · CCSA’s evidence, a wholly inappropriate and futile

OPPOSITION TO RESPONDENTS’ DEMURRER TO PETITIONER/PLAINTIFF’S VERIFIED SECOND AMENDED AND SUPPLEMENTAL

PETITION FOR WRIT OF MANDATE AND COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF

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YOUNG, MINNEY

& CORR, LLP 655 UNIVERSITY AVENUE,

SUITE 150

SACRAMENTO, CA 95825

IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA

COUNTY OF ALAMEDA CALIFORNIA CHARTER SCHOOLS ASSOCIATION, a not-for-profit California Corporation, Petitioner/Plaintiff, v.

OAKLAND UNIFIED SCHOOL DISTRICT; and GOVERNING BOARD OF EDUCATION OF OAKLAND UNIFIED SCHOOL DISTRICT, Respondents/Defendants.

) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )

CASE NO.: RG16806690 OPPOSITION TO RESPONDENTS’ DEMURRER TO PETITIONER/ PLAINTIFF’S VERIFIED SECOND AMENDED AND SUPPLEMENTAL PETITION FOR WRIT OF MANDATE AND COMPLAINT FOR INJUNCTIVEE AND DECLARATORY RELIEF Date: January 29, 2018 Time: 9:00 a.m. Dept.: 511 [Assigned to the Honorable Kimberly E. Colwell] Petition filed: March 8, 2016

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YOUNG, MINNEY & CORR, LLP PAUL C. MINNEY, SBN 166989 SARAH J. KOLLMAN, SBN 244314 KEVIN M. TROY, SBN 304417 655 University Ave., Suite 150 Sacramento, CA 95825 Telephone: (916) 646-1400 Facsimile: (916) 646-1300

CALIFORNIA CHARTER SCHOOLS ASSOCIATION RICARDO J. SOTO, SBN 167588 PHILLIPA L. ALTMANN, SBN 186527 1107 9th Street, Suite 200 Sacramento, CA 95814 Telephone: (916) 448-0095 Facsimile: (916) 415-1093

Attorneys for Petitioner/Plaintiff, CALIFORNIA CHARTER SCHOOLS ASSOCIATION

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TABLE OF CONTENTS

Page

I. INTRODUCTION ......................................................................................................................... 1

II. STANDARD OF REVIEW ........................................................................................................... 2

III. LEGAL ARGUMENT ................................................................................................................... 2

A. The Petition Cannot Be “Uncertain” for Not Specifying Particular Schools...................... 2

B. The Petition Also Cannot be Uncertain for Not Attaching Facilities Offers ...................... 4

C. CCSA Has Associational Standing to Pursue this Action .................................................. 5

D. CCSA Member Schools Were Not Required to Exhaust Any Administrative “Remedy” ................................................................................................... 7

E. None of CCSA’s Causes of Action are Moot ..................................................................... 9

F. The Third, Fourth, Fifth, Sixth and Fifteenth Causes of Action are Sufficiently Pled ................................................................................................................ 11

1. The Third Cause of Action ........................................................................................ 11

2. The Fourth Cause of Action ...................................................................................... 12

3. The Fifth Cause of Action ......................................................................................... 12

4. The Sixth Cause of Action ........................................................................................ 14

5. The Fifteenth Cause of Action .................................................................................. 15

IV. CONCLUSION ............................................................................................................................ 15

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TABLE OF AUTHORITIES

Page(s)

Cases

Amalgamated Transit Union, Local 1756, AFL-CIO v. Superior Court (2009) 46 Cal.4th 993 ................................................................................................................................ 5

American Indian Model Schools v. Oakland Unified School Dist. (2014)

227 Cal.App.4th 258 .................................................................................................................... 14 Bacon v. Wahrhaftig (1950)

97 Cal.App.2d 599 ......................................................................................................................... 3 Ball v. Gte Mobilnet (2000)

81 Cal.App.4th 529 ........................................................................................................................ 4 Bullis Charter School v. Los Altos School Dist. (2012)

200 Cal.App.4th 1022 ............................................................................................................ 10, 11 California Charter Schools Assn. v. Los Angeles Unified School Dist. (2015)

60 Cal.4th 1221 ........................................................................................................................ 8, 10 California Dental Assn. v. California Dental Hygienists’ Assn. (1990)

222 Cal.App.3d 49 ......................................................................................................................... 6 City of Coachella v. Riverside County Airport Land Use Com. (1989)

210 Cal.App.3d, 1277 .................................................................................................................... 8 Cravens v. Coghlan (1957)

154 Cal.App.2d 215 ....................................................................................................................... 4 CrossTalk Productions, Inc. v. Jacobson (1998)

65 Cal.App.4th 631 ................................................................................................................ 12, 14 Environmental Charter High School v. Centinela Valley Union High School Dist. (2004)

122 Cal.App.4th 139 .................................................................................................................... 10 Fremont Indemnity Co. v. Fremont General Corp. (2007)

148 Cal.App.4th 97 ................................................................................................................ 12, 14 Gervase v. Superior Court (1991)

31 Cal.App.4th 1218 .................................................................................................................. 2, 4 Glaski v. Bank of America (2013)

218 Cal.App.4th 1079 .................................................................................................................. 15 Khoury v. Maly’s of California, Inc. (1993)

14 Cal.App.4th 612 ................................................................................................................ 2, 3, 6 Kong v. City of Hawaiian Gardens Redevelopment Agency (2002)

108 Cal.App.4th 1028 ................................................................................................................ 7, 9 Life Care Centers of America v. CalOptima (2005)

133 Cal.App.4th 1169 .................................................................................................................... 8

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TABLE OF AUTHORITIES (Cont.')

Page(s)

Cases (Cont.')

Lord v. Garland (1946)

27 Cal.2d 840 ............................................................................................................................. 2, 3 Los Angeles Internat. Charter High School v. Los Angeles Unified School Dist. (2012)

209 Cal.App.4th 1348 .................................................................................................................. 10 National Shooting Sports Foundation, Inc. v. State of California (2016)

6 Cal.App.5th 298 .......................................................................................................................... 5 Payne v. Anaheim Memorial Medical Center (2005)

130 Cal.App.4th 729 .................................................................................................................. 8, 9 Property Owners of Whispering Palms, Inc. v. Newport Pacific, Inc. (2005)

132 Cal.App.4th 666 ...................................................................................................................... 5 Quelimane Co. v. Stewart Title Guaranty Co. (1998)

19 Cal.4th 26 .................................................................................................................................. 2 Rosenfield v. Malcolm (1967)

65 Cal.2d 559, 566 ......................................................................................................................... 8 Schaefer v. Berinstein (1956)

140 Cal.App.2d 278 ....................................................................................................................... 4 Sequoia Union High School District v. Aurora Charter High School (2003)

112 Cal.App.4th 185 .................................................................................................................... 12 Sunset Drive Corp. v. City of Redlands (1999)

73 Cal.App.4th 215 ........................................................................................................................ 2 Wells v. One2One Learning Foundation (2006)

39 Cal.4th 1164 .............................................................................................................................. 9 Williams v. Beechnut Nutrition Corp. (1986)

185 Cal.App.3d 135 ....................................................................................................................... 2 Wilner v. Sunset Life Ins. Co. (2000)

78 Cal.App.4th 952 ........................................................................................................................ 2

Statutes

Cal. Code of Civil Procedure § 430.50(a) ................................................................................................................................. 7, 9 § 1085........................................................................................................................................... 12 Education Code § 47601(g) ...................................................................................................................................... 8

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I. INTRODUCTION

Prior to filing this lawsuit the California Charter Schools Association (“CCSA”) had tried for

years to work with Oakland Unified School District (“OUSD”) to ensure that its member schools and

the public students that they serve receive the fair and equitable access to OUSD facilities to which

they are legally entitled under Proposition 39 (“Prop. 39”) without resorting to litigation. Even after it

was forced to file this lawsuit because of OUSD’s continued failure to comply with Prop. 39, at the

expense of its public school students served by charter schools, CCSA still tried to informally resolve

this matter, culminating in a voluntary stay of this litigation from October 2016 to August 2017 to

allow the parties to engage in mediation and formal settlement negotiations. In another disappointing

turn, despite promises made by OUSD following the September 2016 mediation to improve its Prop.

39 compliance, OUSD’s compliance with Prop. 39 actually worsened over the 2017-2018 cycle. Yet

another year went by that OUSD failed to comply with Prop. 39 at the expense of public school

students served by charter schools who did not receive the facilities to which they are legal entitled.

Now, OUSD has come upon what can only be interpreted as a new tactic for delay - a demurrer

(the “Demurrer”) based on nearly every possible boilerplate ground- uncertainty, standing, exhaustion

of administrative remedies, mootness, and failure to state a cause of action—none of which have the

slightest merit, as is discussed in further detail below. With respect to uncertainty, it cannot be said that

without identifying by name the CCSA member schools receiving offers in 2016-2017 and 2017-2018

the Second Amended Petition is “uncertain,” since the challenged OUSD conduct is common to all

offers during those years and, moreover, OUSD is already in possession of this information.

Additionally, under the guise of an “uncertainty” argument, OUSD challenges the sufficiency of

CCSA’s evidence, a wholly inappropriate and futile argument to make at the demurrer stage, and

invokes a requirement to plead “all information relevant” to CCSA’s causes of action—which is not

the California pleading standard. With respect to standing, associational standing has been adequately

pled. With respect to the exhaustion of administrative remedies, OUSD ignores the fact that the Prop.

39 implementing regulations impose mandatory duties in connection with both the preliminary and

final offer, and that under California law the opportunity to make a grievance or express concerns does

not, considered alone, constitute an adequate “remedy” for purposes of the exhaustion doctrine. With

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respect to mootness, OUSD ignores the numerous appellate court cases that specifically hold that a

lawsuit regarding a school district’s compliance with the Prop. 39 process of an already-expired school

year is not moot, since such a lawsuit implicates an important question that is likely to recur yet evade

review because of the relatively short duration of the academic year in which a facilities offer is made.

And with respect to a failure to state a cause of action, OUSD mischaracterizes CCSA’s arguments and

the evidence and, in any event, asks this court to engage in an assessment and weighing of evidence

that is wholly inappropriate at the demurrer stage.

OUSD has failed to demonstrate any basis for demurrer, and OUSD’s Demurrer should

accordingly be overruled.

II. STANDARD OF REVIEW

A demurrer tests the sufficiency of a complaint by raising questions of law. (Wilner v. Sunset

Life Ins. Co. (2000) 78 Cal.App.4th 952, 958.) The test is whether the complaint states any valid claim

entitling plaintiff to relief. Thus, if some valid cause of action is alleged, the demurrer must be

overruled. (Quelimane Co. v. Stewart Title Guaranty Co. (1998) 19 Cal.4th 26, 38.) In ruling on a

demurrer, the court must assume the truth of “all material facts which have been properly pleaded” and

“facts which may be inferred from those expressly pleaded. . ..” (Sunset Drive Corp. v. City of

Redlands (1999) 73 Cal.App.4th 215, 218.) The question raised by a demurrer to a complaint is

simply whether it alleges sufficient facts to state a cause of action. (Gervase v. Superior Court (1991)

31 Cal.App.4th 1218, 1224.) A demurrer is not concerned with the likelihood that the plaintiffs will

prevail, nor whether they have evidence to support their allegations. (Ibid.)

III. LEGAL ARGUMENT

A. The Petition Cannot Be “Uncertain” for Not Specifying Particular Schools

“A demurrer for uncertainty is strictly construed, even where a complaint is in some respects

uncertain, because ambiguities can be clarified under modern discovery procedures.” (Khoury v.

Maly’s of California, Inc. (1993) 14 Cal.App.4th 612, 615-616.) When the allegations of the

complaint are sufficiently clear to apprise the defendant of the issues to be met, a demurrer to the

complaint on the ground of uncertainty should be overruled. (Lord v. Garland (1946) 27 Cal.2d 840,

853; Williams v. Beechnut Nutrition Corp. (1986) 185 Cal.App.3d 135, 139 n.2.)

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In structuring its Second Amended Petition (“SAP”), CCSA did not specify individual charter

schools because of the commonality of content, timing, methodology, and rule of law among all

preliminary and final offers extended by OUSD to charter schools in both the 2016-2017 and 2017-

2018 school years. That high degree of commonality allows for judicial assessment of such content,

timing, and methodology without overburdening the court with extensive duplicative allegations added

to an SAP that is already 54 legally and factually dense pages in length (with another 50 pages of

attachments). In fact, OUSD’s Demurrer readily demonstrates that commonality. For example, in

response to CCSA’s First Cause of Action, OUSD refers to its Request for Judicial Notice, Exhs. 1-6,

pages 2-3 therein. In other words, page 2-3 of every final offer contains the same allegedly legally

sufficient method of comparison group analysis, on the same page. Similarly, OUSD responds to

CCSA’s Seventh Cause of Action by referring to pages 4-5 of each of the final offers, and responds to

the Eighth Cause of Action by referring to pages 5-7 of each of the final offers.

Of particular significance to an “uncertainty” challenge, OUSD does not and cannot claim that it

is actually unclear of the claims it must defend or of the legal issues to be met. (Lord v. Garland,

supra, 27 Cal.2d at 853.) Indeed, that OUSD is fully apprised of the issues to be met in this case is

amply demonstrated by the extent to which OUSD attempts to contradict, in minute detail, specific

SAP causes of action. (See, e.g. Demurrer p. 7:24-8:3; 12:21-13:4; 13:11-15:24.) Nor can OUSD

reasonably claim that it does not know the identities of the charter schools receiving preliminary and

final offers in 2016-2017 and 2017-2018. All such preliminary offers, final offers, and all other Prop.

39 communications between OUSD and each OUSD-located Prop. 39 requesting school is in OUSD’s

possession and are available on OUSD’s own website. (See, e.g., the 2017-2018 documents located

https://www.ousdcharters.net/proposition-39-2017-18-cycle.html, which indisputably demonstrates

that OUSD is well aware of which schools requested Prop. 39 facilities, which received preliminary

offers, which received final offers, etc.) In short, OUSD argues that the SAP is “uncertain” not

because certain of the allegations actually made are vague, ambiguous, unintelligible or otherwise

uncertain, but rather that CCSA has failed to incorporate sufficient facts. However, a demurrer for

uncertainty is not intended to reach the failure to incorporate sufficient facts in a pleading. (Bacon v.

Wahrhaftig (1950) 97 Cal.App.2d 599, 605.) Per Khoury, any remaining questions about specific

https://www.ousdcharters.net/proposition-39-2017-18-cycle.html

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CCSA member schools and the specifics of their offers can be resolved in discovery, but such

discovery would hardly be necessary, as OUSD is already well aware of the identities of the charter

schools in question and the content of the offers extended to such schools.

The fact that all the challenged preliminary and final offers are already entirely within the

possession of OUSD makes demurrer on the ground of uncertainty particularly inappropriate here, for

a demurrer does not lie for uncertainties concerning matters in a complaint that are within defendant’s

knowledge. (Schaefer v. Berinstein (1956) 140 Cal.App.2d 278, 283.)

B. The Petition Also Cannot be Uncertain for Not Attaching Facilities Offers

OUSD also makes the meritless argument that without attaching certain publicly available

evidence (in the form of preliminary and final offers) that support CCSA’s allegations, the SAP is

fatally uncertain.1 (Demurrer, pg. 7: 11-13.) Putting aside CCSA’s strong disagreement with this claim,

the more critical point to be made at this stage of the litigation is that OUSD’s argument, though

couched in terms of “uncertainty” is actually an evidentiary argument, necessitating a weighing and

consideration of evidence that is inappropriate at the pleading stage and very evidently not a ground

for demurrer. “It is an elementary rule that the sole function of a demurrer is to test the sufficiency of

the challenged pleading. It cannot, properly, be addressed to or based upon evidence or other extrinsic

matters.” (Cravens v. Coghlan (1957) 154 Cal.App.2d 215, 217 (Emphasis added).) “A general

demurrer challenges only the legal sufficiency of the complaint, not the truth or the accuracy of its

factual allegations or the plaintiff’s ability to prove those allegations.” (Ball v. Gte Mobilnet (2000) 81

Cal.App.4th 529, 534-535.) Accordingly, a demurrer is not concerned with the likelihood that the

plaintiffs have evidence to support their allegations. (Gervase v. Superior Court (1991) 31

Cal.App.4th 1218, 1224.)

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1 To bolster this argument, OUSD baselessly accuses CCSA of “deception” in having

“concealed” evidence. (See, e.g., Demurrer p. 1:16-17;7: 10-22; 13:5; 14: 23-25; 15:4-6). Apart from the fact that this argument has no place in a demurrer (there is no “concealment” ground for demurrer and an assessment of evidence is, in any event, inappropriate at the demurrer stage) and apart from the fact that this argument does not follow logically (query how can it be said that CCSA has “concealed” publicly available documents in OUSD’s possession), this argument relies on contradictory accusations. Most obviously, OUSD repeatedly states that CCSA has “concealed” OUSD’s 2017-2018 Multi-Site Resolution by failing to attach it to the Second Amended Petition and “practices deception” thereby (Demurrer, p. 14:8-10; 23-25; 15:4-5) yet this document was indeed attached as Exhibit E to the Second Amended Petition, a fact that OUSD itself concedes. (Id., pg. 14:6-8; 15:5-10.)

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OUSD provides absolutely no legal support for the notion that CCSA must, as part of its SAP,

attach all evidence supporting its various allegations. Instead, OUSD rather incredibly (and without a

single citation to law) asserts that CCSA was required to have “brought all information relevant to its

causes of action before [the] Court.” (Demurrer, p. 8: 6.) In short, OUSD argues that under California

law a petitioner is required to both give notice as to the nature of its action and--simultaneously—

submit all supporting documentation that might be “relevant” to such action and if it does not do so,

the causes of action contained therein are insufficiently pled. This argument unsurprisingly is

unsupported by a single statutory or case reference as it is contrary to black letter law of California on

pleading and practice and must be rejected.

C. CCSA Has Associational Standing to Pursue this Action

OUSD erroneously argues that “because the SAP neither identifies the aggrieved charter

schools, nor whether they are CCSA member schools, nor identifies the specific DISTRICT offers

being challenged, the SAP fails to allege, let alone demonstrate, that CCSA satisfies the critical first

prong of the associational standing test.” (Demurrer, pg. 9:3-7.)

An association that does not have standing in its own right may nonetheless have standing to

bring a lawsuit on behalf of its members. (National Shooting Sports Foundation, Inc. v. State of

California (2016) 6 Cal.App.5th 298, 308. “Association standing exists when: ‘(a) [the association’s]

members would otherwise have standing to sue in their own right; (b) the interests [the association]

seeks to protect are germane to the organization’s purpose; and (c) neither the claim asserted nor the

relief requested requires the participation of individual members in the lawsuit.” (Id. at 308, citing

Amalgamated Transit Union, Local 1756, AFL-CIO v. Superior Court (2009) 46 Cal.4th 993, 1003.)

With respect to the first prong (upon which OUSD’s argument depends), this prong is satisfied

when any one of the members of the association would have standing to sue in their own right.

(Property Owners of Whispering Palms, Inc. v. Newport Pacific, Inc. (2005) 132 Cal.App.4th 666,

673.) Here, the SAP expressly alleges that at least 14 member schools within OUSD requested

facilities pursuant to Prop. 39 for the 2016-2017 Prop. 39 cycle and that at least 16 member schools

within OUSD submitted facilities pursuant to Prop. 39 for the 2017-2018 school year. (SAP, ¶¶ 37,

94.) Any remaining specific questions about the specifics of CCSA’s member schools can be resolved

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in discovery. (Khoury v. Maly’s of California, Inc., supra, 14 Cal.App.4th at 615-616.)2 Having

submitted legally compliant Prop. 39 requests to OUSD, these member schools would certainly have

standing to sue OUSD in their own right. Under California law, such representation is more than

sufficient for associational standing purposes. (Property Owners of Whispering Palms, Inc. v. Newport

Pacific, Inc., supra,132 Cal.App.4th at 673 [noting with approval that “the United States Supreme

Court has repeatedly recognized that an association has standing to sue when ‘its members, or any one

of them, are suffering immediate or threatened injury as a result of the challenged action of the sort that

would make out a justiciable case had the members themselves brought suit.”] (Emphasis added).)

Similarly, OUSD’s evident argument that all of CCSA’s OUSD-located members must have submitted

Prop. 39 requests for associational standing to be appropriate is not accurate. (Ibid.)

With respect to the second requirement, the SAP clearly establishes that the interests that CCSA

here seeks to protect are germane to its organizational purpose. (Id., ¶ 6.) With respect to the third

requirement, neither the claim asserted nor the relief requested requires the participation of the

member schools; as is made plain in the SAP, this case turns on the legal sufficiency of OUSD’s

preliminary and final offers and other official OUSD actions—in other words, publicly available

information—and CCSA does not seek damages on behalf of its member schools, but rather the

prospective relief of mandamus, declaratory, and injunctive relief. (California Dental Assn. v.

California Dental Hygienists’ Assn. (1990) 222 Cal.App.3d 49, 62 [rejecting argument that individual

participation of association members was necessary by citing with approval U.S. Supreme Court

precedent that “[i]f in a proper case the association seeks a declaration, injunction, or some other form

of prospective relief, it can reasonably be supposed that the remedy, if granted, will inure to the benefit

of those members of the association actually injured.”].) CCSA has pled more than sufficient facts to

support its claim for associational standing.

2 Moreover, the SAP alleges that “over 40 of the 44 charter public schools operating in OUSD

are CCSA members.” (Id., para. 6.) Even if one were to assume that the 4 public charter schools operating in OUSD that are not CCSA members constituted 4 of the at least 14 charter schools submitting facilities requests for the 2016-2017 cycle (which is not the case) and that 4 of the at least 16 schools submitting requests for the 2017-2018 cycle (again not the case), this still results in CCSA representing 10 of the charter schools submitting facilities requests for 2016-2017 and representing at least 12 of the charter schools submitting requests for the 2017-2018 cycle. As a matter of simple mathematics, CCSA has indisputably pled that it represents at a minimum ten member schools each year that submitted Prop. 39 facilities and, in fact, as it will be established that number is much higher.

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D. CCSA Member Schools Were Not Required to Exhaust Any Administrative “Remedy”

OUSD also erroneously argues that the SAP is “uncertain as to which charter schools exhausted

administrative remedies as to each and every cause of action through the process set forth in

Proposition 39 and the implementing regulations.” (Demurrer pg. 9.) There is no administrative

response (still less an administrative “remedy”) available to final offers. Once the school district has

provided its final offer pursuant to 5 CCR 11969.9, subdivision (h), the charter school has only two

options under 5 CCR 11969.9, subdivision (i) with respect to its “response” to the final offer: either

accept the offer or not accept the offer. Therefore, as an initial matter OUSD’s exhaustion of

administrative remedies argument as to the First, Third through Thirteenth, and Fifteenth through

Sixteenth causes of action (which relate to both preliminary and final offers) obviously fails as to the

final offers, and therefore fails generally. (Kong v. City of Hawaiian Gardens Redevelopment Agency

(2002) 108 Cal.App.4th 1028, 1047 [demurrer cannot be sustained as to part of a cause of action];

Code Civ. Proc. Section 430.50(a).)

With respect to those causes of action relating to preliminary offers, OUSD completely

misrepresents the Prop. 39 process and argues that it gets a “free pass” to violate the law at the

preliminary offer stage. It is OUSD’s position that in order to exhaust all administrative remedies, a

charter school receiving what it deems a defective or unlawful preliminary offer must express any such

concerns to the district pursuant to 5 CCR 11969.9, subdivision (g), so that the district may modify its

final offer accordingly, thus “mooting” or “curing” the violation of laws committed as part of the

preliminary offer. (Demurrer pg. 8; 4-7.) The obvious error in this argument is that the Prop. 39

Implementing Regulations set forth specific mandatory legal duties of the school district receiving the

Prop. 39 request, both at the preliminary offer stage and at the final offer stage. Although certainly

related in the sense that they are both part of the larger Prop. 39 process, these are separate, standalone

legal duties—requiring the school district to perform specific acts by a specific date. There is no

principle of law by which a school district could reasonably be said to have “cured” its failure to

perform a particular mandatory, nondiscretionary duty that was required to be performed under 5 CCR

11969.9, subdivision (f) by February 1 (the date on which preliminary offers must be provided) so long

as the school district subsequently performs separate legal duties imposed upon it by 5 CCR 11969.9,

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subdivision (h) by April 1, the date on which the final offer is due. Given that (as discussed

immediately below) OUSD is incentivized to discourage charter schools from pursuing its Prop. 39

facilities by extending clearly unlawful preliminary offers, to force applicant schools to continue to

pursue a final offer (while scrambling to secure the private facilities it now knows it must quickly find)

merely to preserve its later judicial rights would impose an inequitable burden on applicant schools

and, in all likelihood, would allow OUSD to violate 5 CCR 11969.9, subdivision (f) (preliminary

offers) with impunity.

Moreover, a true administrative “remedy” for purposes of the exhaustion doctrine is provided

only in those instances where an impartial trier of fact is required to actually accept, evaluate, and

resolve disputes or complaints after a hearing. “Our courts have repeatedly held that the mere

possession by some official body of a continuing supervisory or investigatory power does not itself

suffice to afford an ‘administrative remedy’ unless the statute or regulation under which that power is

exercised established clearly defined machinery for the submission, evaluation and resolution of

complaints by aggrieved parties.” (Rosenfield v. Malcolm (1967) 65 Cal.2d 559, 566; City of

Coachella v. Riverside County Airport Land Use Com. (1989) 210 Cal.App.3d, 1277, 1287.)

Critically, such “machinery” must include some sort of hearing and a decision rendered by an impartial

trier of fact. (Life Care Centers of America v. CalOptima (2005) 133 Cal.App.4th 1169, 1177; Payne v.

Anaheim Memorial Medical Center (2005) 130 Cal.App.4th 729, 740-741.)

Should a charter school express its “concerns” about a preliminary offer pursuant to 5 CCR

11969.9, subdivision (g), the school district must, pursuant to 5 CCR 11969.9, subdivision (h), include

within its final offer “a response to the charter school’s concerns and/or counter proposals.” There is

no requirement to hold a hearing to discuss these “concerns,” either before or after the school district

submits its “response.” Even more obviously, in “responding” to charter schools’ “concerns,” OUSD

is not acting as an impartial trier of fact. A school district and the charter schools located within the

school district’s boundaries (and thus to whom the schools submit Prop. 39 requests) are, by legislative

design, direct competitors. (Ed. Code § 47601, subdivision (g); California Charter Schools Assn. v.

Los Angeles Unified School Dist. (2015) 60 Cal.4th 1221,1228 [“[b]ecause charter schools have

limited means of obtaining public funds to cover the cost of facilities, they often must rely on school

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facilities within the control of the school districts they compete with.”].) OUSD is thus clearly

incentivized to offer as small, non-contiguous and generally undesirable a facilities offer as possible,

thereby rendering its competitor’s facilities unattractive and retaining students within the OUSD

traditional public school system (along with the state funding that follows such students). (Wells v.

One2One Learning Foundation (2006) 39 Cal.4th 1164,1203-1204 [“charter schools compete with

traditional public schools for students, and they receive funding based on the number of students they

recruit and retain at the expense of the traditional system.”].). Therefore, in no way can it be said that

there is a “clearly defined machinery for the submission, evaluation and resolution of complaints”

made by charter schools as part of the Prop. 39 facilities process.3 Thus, there is no “exhaustion”

requirement as a condition precedent to pursuing a challenge to a school district’s failure to comply

with Prop. 39 in making unlawful preliminary offers.

E. None of CCSA’s Causes of Action are Moot

Despite having agreed during the 2016-2017 school year to improve its Prop. 39 compliance (in

exchange for an October 2016 to August 2017 stay of this litigation), OUSD’s compliance with Prop.

39 actually worsened over the 2017-2018 cycle. (SAP ¶¶ 32-34, 93.) Now, OUSD tries to shield its

illegal actions from judicial review by claiming that all CCSA’s causes of action relating to the 2016-

2017 Prop. 39 cycle are no longer justiciable and are moot because the Prop. 39 process for the 2016-

2017 school year, as well as the school year itself, are already complete and thus no effective relief can

be granted by this Court to remedy those claims. (Demurrer, pg. 12: 6-21.)

As an initial matter, OUSD concedes that all but one of the causes of action concern the Prop.

39 cycles for both the 2016-2017 school year and the current 2017-2018 school year, (Demurrer, pg.

12: 14-17), meaning that even if OUSD’s claim of mootness as to the 2016-2017 school year were to

be accepted, only part of each of these causes of action would be subject to demurrer. Because

demurrer cannot be sustained as to part of a cause of action (Kong v. City of Hawaiian Gardens

Redevelopment Agency, supra, 108 Cal.App.4th at 1047; Code Civ. Proc. Section 430.50(a)), the vast

3 This remains true even if, as OUSD might argue, the airing of concerns pursuant to 5 CCR

11969.9, subdivision (g) might have been theoretically beneficial to a resolution of the issues alleged in the SAP, for “[t]his is not the test for what constitutes a proper alternative remedy, or whether exhaustion is required.” (Payne v. Anaheim Memorial Medical Center, supra, 130 Cal.App.4th at 742.)

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majority of OUSD’s mootness argument fails for this simple reason alone.

But even if OUSD’s mootness claim was not fatally flawed procedurally it has been soundly

rejected by case law. In the SAP, CCSA seeks declaratory, injunctive, and mandamus relief. With

respect to the declaratory relief and injunctive relief sought by CCSA (SAP, ¶¶ 185-187 pgs. 51:26-

54:5), such relief will govern responses to future facilities requests, and as such claims for relief are

not moot. (California Charter Schools Assn. v. Los Angeles Unified School Dist. (2015) 60 Cal.4th

1221, 1233 (“CCSA v. LAUSD”)[“Although this litigation primarily concerned the allocation of

facilities to charter schools in the 2012-2013 school year, the trial court’s declaratory relief order

prohibiting the District from using norming ratios will govern responses to future facilities requests. In

that sense, this case is not moot.”].)

With respect to the mandamus relief sought by CCSA, since “the legality of a school district’s

offer of facilities to charter schools in a given school year is an important question that is likely to

recur yet evade review because of the relatively short duration of the academic year in which a

facilities offer is made” such claims constitute a clear exception to the mootness doctrine. (CCSA v.

LAUSD at 1333; see also, Westchester Secondary Charter School v. Los Angeles Unified School Dist.

(2015) 237 Cal.App.4th 1226, 1233, fn. 2 [Because the process by which charter schools must request

facilities is an annual one, the same or a similar controversy is likely to recur between these parties,

and the controversy is therefore not moot.”]; Bullis Charter School v. Los Altos School Dist. (2012)

200 Cal.App.4th 1022, 1034 [“In this instance, although the 2009-2010 school year has long since

passed -- as has, of course, the 2010-2011 school year…the controversy raised by Bullis’ Petition is

one that possibly, if not probably, will recur. The process by which Bullis, like all other charter

schools, must request facilities from the District is an annual one…We conclude that the controversy is

not moot because of the likely recurrence of a similar controversy concerning a future Bullis facilities

request.”]; Los Angeles Internat. Charter High School v. Los Angeles Unified School Dist. (2012) 209

Cal.App.4th 1348, 1354 [same]; Environmental Charter High School v. Centinela Valley Union High

School Dist. (2004) 122 Cal.App.4th 139, 144 [same].)

It appears that OUSD argues that since CCSA has alleged that some violations of law took place

as part of the 2016-2017 Prop. 39 but did not recur during the 2017-2018 process, these causes of

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action are moot. In other words, OUSD appears to argue that the mootness exception detailed above

does not apply if a school district does not violate the law in the same way in the Prop. 39 cycle

following the challenged year. Yet the Bullis court made it clear that “recurrence” does not simply

mean recur in the next year, noting that: “We are cognizant that the Board recently renewed Bullis’

charter for an additional five-year period, through June 2017. [cite omitted.] Thus, there are at least

five years in which the same or similar controversies between the parties concerning Bullis’ right to

receive reasonably equivalent facilities may potentially recur.”] (Id. at 1034, n.5 (Emphasis added).)

Allowing OUSD to engage in a “crop rotation” strategy of violating the Prop. 39 regulations in

different ways in alternating years and then insulating a challenge of such practices through a

“mootness” argument is inconsistent with the above-cited cases and with public policy favoring the

redress of grievances. This would be a particularly inequitable outcome given the fact that CCSA has

been attempting to resolve the challenged conduct since mid-2014 without immediately resorting to

litigation (SAP, Exhs. A-D) and even after filing this lawsuit agreed to an extended stay on the basis of

OUSD’s having promised to improve compliance for the 2017-2018 Prop. 39 cycle. To sustain

demurrer on the basis of mootness here would effectively punish CCSA for trying to resolve this

matter out of court, an outcome clearly at odds with public policy.

F. The Third, Fourth, Fifth, Sixth and Fifteenth Causes of Action are Sufficiently Pled

1. The Third Cause of Action

OUSD states that “CCSA alleges in the Third Cause of Action that the DISTRICT was

prohibited from considering the impact of Proposition 39 allocations on DISTRICT students.”

(Demurrer, p. 13: 11-13.) Tellingly, OUSD provides no citation for this statement, and indeed CCSA

makes no such allegation. Rather, as is clearly stated in paragraph 142 of the SAP, CCSA does not

challenge OUSD’s ability to consider the impact of a charter school’s proposed use of facilities on

OUSD students, but instead challenges OUSD’s stated a priori policy of not even considering the

possibility of displacing OUSD students as a matter of policy, irrespective of the particular Prop. 39

requests made in a given year, and the factual circumstances within OUSD in a given year. CCSA has

cited to the regulatory bases and the caselaw that supports its claim the OUSD policy violates its duties

under Prop. 39 and therefore has sufficiently alleged the Third Cause of Action.

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2. The Fourth Cause of Action

OUSD argues that the Multi-Site Resolutions of 2016-2017 and 2017-2018 “clearly refutes

CCSA’s allegation that the findings in support of multi-site Final Offers had ‘no factual support.’”

(Demurrer, pg. 14: 6-8.) Tellingly, OUSD does not provide any page numbers in its citation to the

Multi-Site Resolutions to demonstrate such factual support. Moreover, in the SAP CCSA sets forth in

great detail why such claimed ‘factual support’ in fact provided no evidentiary support for the multi-

site final offers. (Id, paras. 59-68; 101-104.) In any event, even assuming that OUSD had pointed to

specific statements within the Multi-Site Resolutions that ostensibly provided such claimed “factual

support,” whether these or any other statements made by OUSD in the Multi-Site Resolutions are

accurate and supported – and not merely a legal recitation – is factual and not an issue that can be

resolved on demurrer. (CrossTalk Productions, Inc. v. Jacobson (1998) 65 Cal.App.4th 631, 635 [a

demurrer is not the appropriate procedure “for determining the truth of disputed facts or what

inferences should be drawn where competing inferences are possible.”]; Fremont Indemnity Co. v.

Fremont General Corp. (2007) 148 Cal.App.4th 97, 115 [“a court ruling on a demurrer cannot decide a

question that may depend on disputed facts by means of judicial notice”].)

OUSD also argues (without citation to the SAP) that CCSA misstates the legal standard in

ordinary mandamus actions, and that the court cannot reweigh the evidence. (Demurrer, pg. 14:11-6.)

However, the allegations contained within and cross-referenced by in the Fourth Cause of Action

certainly support the argument that the multi-site findings were “arbitrary, capricious, lacking in

evidentiary support or was made without due regard for the petitioner’s rights.” (Sequoia Union High

School District v. Aurora Charter High School (2003) 112 Cal.App.4th 185, 194-195.) Therefore, the

legal standard for a writ of mandate under Cal. Code Civ. Pro. Section 1085 is not misstated, and the

factual allegations support the legal standard that the CCSA cites.

3. The Fifth Cause of Action

OUSD argues that the allegation that OUSD failed to consider charter school student safety

when making multi-site offers is contradicted by the Multi-Site Resolution that is attached as Exhibit 5

to the SAP. Presumably OUSD here refers to pages 10-15 of this Staff Report accompanying this

Resolution, which sets forth a discussion of “Student Safety Considerations” purportedly considered in

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connection with the offers made to those six charter schools receiving multi-site offers for the 2017-

2018 Prop. 39 cycle. A review of this discussion quickly reveals that such “student safety

considerations” consists of a cut-and-pasted paragraph, school non-specific statement that “[t]he

District was mindful of keeping campus occupancy and traffic at a level that would not subject

students or personnel to increased physical safety risks. The safety concern of managing student safety

would be disproportionately exacerbated if total in-District classroom at any one site.” No findings as

to or discussion of the current campus occupancy and traffic situation is included, nor is it specified

what campuses are referred to here. No explanation is made as to what is meant by the reference to

“disproportionately exacerbated.”

This discussion also includes conclusory statements that the multiple sites in question are

located a “mere” [1.0, 1.8, 2.1] miles away from one another.” No discussion is provided as the

consequences of this distance on the safety of the students; OUSD simply concludes that two sites 1.0

mile away are “in very close proximity” to each other (SAP 000048) and ends the discussion there.

OUSD does not even provide any description of the specific neighborhoods the students attending

multi-site schools will be required to traverse to get from one site to another, a startling omission given

that elsewhere in very same Staff Report, OUSD states, with respect to students attending OUSD

traditional public schools, that:

“[T]he District spans the territory of more than 20 competing gangs. Gang violence is unfortunately prevalent on some campuses and within the neighborhoods of several District schools…requiring students and their families to commute through and to the communities of rival gangs creates a huge concern for student and family safety before students even arrive at school grounds. Further, if students are placed in the position of risking their own safety just to travel to school, the likelihood of non-attendance, truancy, and drop-out increase exponentially.” (SAP 000052.)

Somehow, this OUSD-identified gang concern which is a “huge concern for student and family

safety” does not even warrant a mention, much less a discussion, in OUSD’s extension of a multi-site

offers to charter schools, despite the express requirement of 5 CCR 11969.2, subdivision (d) that a

multi-site offer satisfies the requirement of Ed. Code section 47614, subdivision (b) to provide

“contiguous” facilities only if the school district has considered the safety of the charter school

students and that in evaluating and accommodating a charter school’s Prop. 39 request, “the charter

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school’s in-district students must be given the same consideration as students in the district-run

schools.”

Given the lack of substance of the supposed “Student Safety Considerations” discussion,

CCSA’s allegation that OUSD failed to consider charter school student safety when making multi-site

offers (and that any student safety consideration finding was arbitrary, capricious and lacking in

evidentiary support) is not contradicted by the 2017-2018 Multi-Site Resolution. Moreover, whether

this or any statement made by OUSD in the Multi-Site Resolutions is accurate and supported – and not

merely a legal recitation – is factual and not an issue that can be resolved on demurrer. (CrossTalk

Productions, Inc. v. Jacobson, supra, 65 Cal.App.4th at 635.)

4. The Sixth Cause of Action

OUSD argues that that the allegations that OUSD “failed to describe any reasonable efforts to

locate charter schools near to where they wished to be located” and “failed to adequately address

alternative, geographically appealing locations proposed by charter schools in response to OUSD’s

preliminary proposals” is contradicted by language in the 2016-2017 and 2017-2018 Multi-Site

Resolutions that state that “having analyzed the available space in the specific area where charter

schools wish to locate, the DISTRICT is unable to extend a single site offer at their desired school

site.” (Demurrer, p. 14: 26 – 15:1-10.)

Whether this or any statement made by OUSD in the Multi-Site Resolution is accurate and

supported – and not merely a legal recitation – is factual and not an issue that can be resolved on

demurrer. (CrossTalk Productions, Inc. v. Jacobson, supra, 65 Cal.App.4th at 635; Fremont

Indemnity Co. v. Fremont General Corp., supra, 148 Cal.App.4th at 115; American Indian Model

Schools v. Oakland Unified School Dist. (2014) 227 Cal.App.4th 258, 285 [a school district’s bare

conclusory statement that a relevant factor was “considered” is not itself evidence that it was indeed

considered].) Additionally, because OUSD is relying on the unsupported truth of the statement

contained in the Multi-Site Resolution that OUSD “had analyzed the available space…” rather than

actually indicating in the Multi-Site Resolution (or elsewhere) where such analysis actually takes

place, OUSD is inappropriately asking this court to take judicial notice not of the content of the Multi-

Site Resolution but of the truth of the factual matters asserted therein. (Glaski v. Bank of America

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(2013) 218 Cal.App.4th 1079, 1090 [“Courts can take judicial notice of the existence, content and

authenticity of public records and other specified documents, but do not take judicial notice of the

factual matters asserted in those documents.”].)

5. The Fifteenth Cause of Action

OUSD states “[t]he Fifteenth cause of action attempts to prohibit the District from entering into

Joint Use Agreements with the City of Oakland, on the grounds that such agreements unlawfully

prioritize use of DISTRICT facilities over charter schools.” (Demurrer, p. 15:12-14.) Again, OUSD

grossly misstates the argument actually made by CCSA. As clearly stated in the SAP, CCSA does not

challenge OUSD’s right to enter into joint facilities use agreements with the City of Oakland at all, but

rather challenges any such agreement that prioritizes the City’s use of OUSD facilities over the use of

those facilities by OUSD’s public school students that are served by charter public schools. (SAP, ¶

183.)

OUSD’s argument that CCSA alleges no statutory duty under Prop. 39 to prioritize use of

school facilities is directly contradicted by the express language of paragraph 183 of the SAP, which

sets forth this duty. This ministerial duty is further enshrined in 5 CCR 11969.2, subdivision (d), which

provides that “[i]n evaluating and accommodating a charter school’s request for facilities pursuant to

Education Code section 47614, the charter school’s in-district students must be given the same

consideration as students in the district-run schools, subject to the requirement that the facilities

provided to the charter school must be contiguous.” Because the current Joint Facilities Use

Agreement clearly prioritizes OUSD student use, then City use -- and only after OUSD and the City

use then charter school use -- (see discussion SAP, ¶¶ 120-123), the agreement clearly violates this

ministerial duty (by failing to place district and charter school student use on equal plain before City

use). CCSA has sufficiently alleged the Fifteenth Cause of Action.

IV. CONCLUSION

For the foregoing reasons, OUSD’s demurrer should be overruled in its entirety.

///

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Dated: January 16, 2018

YOUNG, MINNEY & CORR, LLP

By: PAUL C. MINNEY Attorney for Plaintiff, CALIFORNIA CHARTER SCHOOLS ASSOCIATION

Documents

YOUNG, MINNEY & CORR, LLP PAUL C. MINNEY, SBN 166989 …library.ccsa.org/2018-01-16-PLD-Pltf's Opp to Demurrer (Final).pdf · CCSA’s evidence, a wholly inappropriate and futile