It's the summertime, and we'd all like to forget about some of the drama- but I still get questions, so I thought it would be good to share a quick update on the litigation.
2013-14 Lawsuit
This suit, filed by BCS shortly after the final offer was delivered, raised two challenges to the District's Final Offer of Facilities. The first part of the challenge asserted that the District could not split BCS across two campuses. (blog post) Judge Pierce issued a ruling in favor of the District on the first part just a few days after the hearing. (ruling for LASD).
The other part of that lawsuit challenged the District's underlying CEQA study that authorizes the split and provides facilities for BCS at each site. All CEQA suits are heard by CEQA judges (not the normal Superior Court judges) so we will be in front of yet another judge. The hearing date for that final part of the 13-14 lawsuit has not yet been set. We are currently working with BCS on the gathering of documents for the evidence in this effort. I don't have a court date for this, but the schedules are proscribed by statue, and they're pretty aggressive. I believe we'll be in court late this summer or early this fall.
"Raynor" Challenge
When the District began exploring the purchase of Raynor in Sunnyvale, we filed a request to the courts for declaratory relief- basically, asking the courts to rule in advance that it is legal for the District to acquire a site outside the District boundaries. BCS filed a separate lawsuit asking that the District's bid for Raynor be voided by the courts. Although LASD was not selected by Sunnyvale as the preferred bidder, our request for delcaratory relief is still before the courts because it asks the general question of whether this is legal (vs. the specific question of whether Raynor is legal). We will have a court date to hear arguments on this issue some time the week of July 22, 2013. It is my understanding that the Charter School Association has filed an amicus brief in this issue. (brief) I'm not surprised by their position -- nor their involvement. However, it should come as no surprise that I don't agree with what they've said. We'll see what the courts have to say next week.
2012-13 Lawsuit
When BCS filed their challenge to the 2012-13 facilities allocation, they peeled off key issues to litigate first. Those issues were all won by LASD back in October 2012. (court docs, blog post) There remain a few questions on the BCS case, but I'm not clear on how would those proceed given the fact that the 2012-13 school year is complete. As a positive step, the 2013-14 case seems to have been moving at a much faster pace, so we shouldn't find ourselves in that position again.
2012-13 Cross Complaint
When the District was approached by community members with concerns about BCS behavior, we filed a cross-complaint asking the court to determine how such actions might impact our duties under prop 39. For most of last year, BCS tied up that cross-complaint using the anti-SLAPP statute. (blog post) With the Appeals court clearing the anti-SLAPP suit, the District is able to move forward with discovery in that lawsuit.
2009-10 Appeal and Attorney's Fees
From the 2009-10 lawsuit, we are still working on the attorney's fee demand from BCS. The courts sanctioned BCS in November 2013 for refusal to conduct discovery in this case. (blog post) BCS appealed these sanctions, but the appeal was denied. At this point, we've received discovery from the BPEF (Their version of the LAEF), but have not yet completed discovery with BCS itself. Once that discovery is complete, we will move toward a hearing on the actual fee demand from BCS. There is not a date set for that yet.
So, the litigation machine moves forward. I am reminded of some very sage advice I received last year. "The best way to win a court case is to do the right thing in the first place." I continue to be encouraged by the consistent rulings from the court for LASD. I believe it shows that we have been doing the "right thing" throughout this process. I say that not with any sense of gloating or malice- I simply hope that folks begin to understand that the District is, in fact, acting in accordance with the law. If we all want a different outcome, we're going to need to find a way to negotiate our way to that outcome.
Showing posts with label Sanctions. Show all posts
Showing posts with label Sanctions. Show all posts
Tuesday, July 16, 2013
Wednesday, February 20, 2013
BCS Defies the Courts (Again)
2009-10 Attorney's Fees
Regular readers will recall that, along with the 2012-13 litigation, we still have another sword hanging over our heads- the BCS motion for attorney's fees in the 2009-10 case. A quick refresher of that activity:
February 2012: BCS began threatening that they wanted to collect attorney fees.
July 2012: BCS files actual demand for $1.3M in fees.
Aug 2012: LASD files discovery to understand the fee demands. BCS refuses to answer the discovery.
Sept 2012: During the "meet and confer process", the Judge decides she'll need to hear full arguments on discovery.
Oct 2012: Oral arguments are heard on the discovery motion. BCS counsel is defiant during the hearing, despite several cautions from the Judge.
Nov 2012: The Judge rules for LASD on the discovery, and grants sanctions of $51,000 for BCS' incomprehensible stonewalling of the discovery process.
Dec 2012: BCS appeals the sanctions, and the discovery (as closely as they can). The appeals court returns a ruling in < 48 hours, denying both requests. BCS attorney calls the sanctions "monopoly money", and insists the District "will never see a dime"
Jan 2013: District follows up on discovery. BCS asserts that they have "no documents responsive to the request.
Now at this point, one might wonder why BCS put up so much of a fight. If they had no documents, it would seem strange to spend a lot of energy fighting the issue.
Feb 2013: The reality, though, is that there are documents- but BCS has apparently decided to defy the courts and not produce them. The District is following up with BCS, and is making clear that we will once again seek sanctions, including "issue sanctions". (Basically, in addition to reimbursing LASD for the money we've spent forcing them to comply with a court order, the Judge could simply rule in our favor on something, essentially as a penalty for their abuse of the discovery process.)
As always, I've included the complete correspondence.
Letter to BCS counsel
3rd Set of Interrogatories
3rd Set of Request for Production
We've also prepared the documentation to request the actual sanctions. According to the court rules, we prepare these, but wait to file them later. Yes, we're following the process, because we intend to follow through and request these sanctions.
Notice of Motion for Monetary Sanctions
POS Motion for Monetary Sanctions
For those who wonder why we can't spend as much time in negotiations, this kind of nonsense is a great example. Complying with Discovery is one of the most basic things you do in litigation. Yet BCS has chosen to litigate this issue several times over, fighting LASD every step of the way. There simply is no justification for it (as evidenced by the sanctions imposed by Judge Lucas, and upheld by the Appellate Court). When we have to do this sort of work every day, there just isn't much time for anything else.
To see related blog posts, click the "Attorney's Fees" label below.
Regular readers will recall that, along with the 2012-13 litigation, we still have another sword hanging over our heads- the BCS motion for attorney's fees in the 2009-10 case. A quick refresher of that activity:
February 2012: BCS began threatening that they wanted to collect attorney fees.
July 2012: BCS files actual demand for $1.3M in fees.
Aug 2012: LASD files discovery to understand the fee demands. BCS refuses to answer the discovery.
Sept 2012: During the "meet and confer process", the Judge decides she'll need to hear full arguments on discovery.
Oct 2012: Oral arguments are heard on the discovery motion. BCS counsel is defiant during the hearing, despite several cautions from the Judge.
Nov 2012: The Judge rules for LASD on the discovery, and grants sanctions of $51,000 for BCS' incomprehensible stonewalling of the discovery process.
Dec 2012: BCS appeals the sanctions, and the discovery (as closely as they can). The appeals court returns a ruling in < 48 hours, denying both requests. BCS attorney calls the sanctions "monopoly money", and insists the District "will never see a dime"
Jan 2013: District follows up on discovery. BCS asserts that they have "no documents responsive to the request.
Now at this point, one might wonder why BCS put up so much of a fight. If they had no documents, it would seem strange to spend a lot of energy fighting the issue.
Feb 2013: The reality, though, is that there are documents- but BCS has apparently decided to defy the courts and not produce them. The District is following up with BCS, and is making clear that we will once again seek sanctions, including "issue sanctions". (Basically, in addition to reimbursing LASD for the money we've spent forcing them to comply with a court order, the Judge could simply rule in our favor on something, essentially as a penalty for their abuse of the discovery process.)
As always, I've included the complete correspondence.
Letter to BCS counsel
3rd Set of Interrogatories
3rd Set of Request for Production
We've also prepared the documentation to request the actual sanctions. According to the court rules, we prepare these, but wait to file them later. Yes, we're following the process, because we intend to follow through and request these sanctions.
Notice of Motion for Monetary Sanctions
POS Motion for Monetary Sanctions
For those who wonder why we can't spend as much time in negotiations, this kind of nonsense is a great example. Complying with Discovery is one of the most basic things you do in litigation. Yet BCS has chosen to litigate this issue several times over, fighting LASD every step of the way. There simply is no justification for it (as evidenced by the sanctions imposed by Judge Lucas, and upheld by the Appellate Court). When we have to do this sort of work every day, there just isn't much time for anything else.
To see related blog posts, click the "Attorney's Fees" label below.
Wednesday, December 19, 2012
District Response to BCS anti-SLAPP motion
In the continuing saga of the 2012-13 complaint, BCS has filed an anti-SLAPP motion against LASD. I have mentioned the SLAPP suit in letters to parents, but it worth highlighting here what the suit is and what they seek to do.
A SLAPP suit is a Strategic Lawsuit Against Public Participation. This is generally when someone uses litigation as a tool to force someone to stop raising difficult issues. The California Legislature has created an "anti-SLAPP statute"- basically, a law making it illegal to bring SLAPP suits, and giving people who are targeted by such suits a way to get the SLAPP suit thrown out.
A casual reader could be forgiven for thinking I was describing BCS as the aggressor. In fact, that is how the law is intended to be used. However, in this case, BCS has actually alleged that LASD is the aggressor, and that our counter-complaint is really just an attempt by the District to hurt them. Nothing could be further from the truth.
LASD has brought this counter-suit because many community members have raised issues with us, and we feel obliged to place those concerns before the court. We do not do this lightly, but we feel that the issues are serious, and merit the review of the court. We are asking the court for clarification of our obligations under Prop 39 if the allegations raised by members of the public are, in fact, true.
You can read about the BCS anti-SLAPP suit here, in an earlier blog post. (includes all documentation).
Today, the District filed our response to this frivolous suit. In our response, we've highlighted a couple of key issues. First, the anti-SLAPP statue specifically permits entities such as LASD to bring these kinds of issues forward on behalf of the public. Second, there are considerable legal cases on record already that deal with this, that BCS has neglected to address. We have asked the court to award fees and costs, as we believe the BCS anti-SLAPP suit to be completely without merit.
Again, we look forward to hearing from the court on this matter.
LASD Opposition to Special Motion to Strike
Decl. of Ray Cardozo
Decl. of Doug Smith
Decl. of Adam Forest (part 1 of 3)
Decl. of Adam Forest (part 2 of 3)
Decl. of Adam Forest (part 3 of 3)
Joint Stip. to Extended Pages
POS of Opposition to anti-SLAPP
A SLAPP suit is a Strategic Lawsuit Against Public Participation. This is generally when someone uses litigation as a tool to force someone to stop raising difficult issues. The California Legislature has created an "anti-SLAPP statute"- basically, a law making it illegal to bring SLAPP suits, and giving people who are targeted by such suits a way to get the SLAPP suit thrown out.
A casual reader could be forgiven for thinking I was describing BCS as the aggressor. In fact, that is how the law is intended to be used. However, in this case, BCS has actually alleged that LASD is the aggressor, and that our counter-complaint is really just an attempt by the District to hurt them. Nothing could be further from the truth.
LASD has brought this counter-suit because many community members have raised issues with us, and we feel obliged to place those concerns before the court. We do not do this lightly, but we feel that the issues are serious, and merit the review of the court. We are asking the court for clarification of our obligations under Prop 39 if the allegations raised by members of the public are, in fact, true.
You can read about the BCS anti-SLAPP suit here, in an earlier blog post. (includes all documentation).
Today, the District filed our response to this frivolous suit. In our response, we've highlighted a couple of key issues. First, the anti-SLAPP statue specifically permits entities such as LASD to bring these kinds of issues forward on behalf of the public. Second, there are considerable legal cases on record already that deal with this, that BCS has neglected to address. We have asked the court to award fees and costs, as we believe the BCS anti-SLAPP suit to be completely without merit.
Again, we look forward to hearing from the court on this matter.
LASD Opposition to Special Motion to Strike
Decl. of Ray Cardozo
Decl. of Doug Smith
Decl. of Adam Forest (part 1 of 3)
Decl. of Adam Forest (part 2 of 3)
Decl. of Adam Forest (part 3 of 3)
Joint Stip. to Extended Pages
POS of Opposition to anti-SLAPP
Monday, December 10, 2012
District Discovery Requests & Data Privacy
Note: This is a fairly long post, but it addresses the nuances of our legal position on the discovery requests as part of the BCS litigation. I'll come back and add hyperlinks to the various documents, but I wanted to get this out today.
Dear Parents and Community Members
Just last week, I sent a letter to BCS parents in an effort to clarify what I felt were inaccurate remarks in a letter from BCS Board Chairman Ken Moore. This Friday, Mr. Moore sent another letter that continues to misrepresent the current situation in the BCS litigation against LASD. While I don’t wish to engage in a long-running letter war with BCS, I am also very aware of the damage that can be done if factual inaccuracies are left unanswered. Therefore, I’m writing again to help shed some light on the LASD view of the situation.
BCS has launched several parallel tracks of litigation against LASD. Each of these tracks requires a separate response from the District. Mr. Moore’s letter blends these tracks together, either intentionally or otherwise. It is my belief that by doing so, BCS is creating unnecessary fear within it's parent community.
I want to be very clear: This letter represents my layman’s view of the litigation. If you would like to understand the totality of our legal position, it is important to read our complete legal filings. Nothing in this letter should be construed as limiting the District’s legal position in any way.
Attorney Fees/ Donation Records
In the 2009-10 case, BCS has demanded that LASD pay their $1.3m legal bill. This is based on a legal theory that BCS launched this lawsuit “for the greater public good”, rather than simply to obtain benefit for themselves. In order to respond to this suit, one important question to answer is, “who funded the lawsuit?” LASD is therefore seeking information about the donations that paid the BCS legal bills.
The District has requested information about the 25 largest donations received in each of the prior 6 years at BCS. We’re asking for the amount of the donations, and the nature of the donor- (parent, non-parent, corporation, non-profit, etc.) We are not requesting specific names of donors.
BCS has refused to provide this information and Judge Lucas has sanctioned them $51,000 for failing to produce the records. BCS has filed an appeal of Judge Lucas’ order, and their attorney has openly mocked the order in recent press articles. LASD will continue to pursue this data, as we feel it is vital to our ability to assess the nature of the BCS claims that would siphon valuable funds away from public education in our community.
Facilities Requests and Student Data
As custodians of public assets, LASD has a legal obligation to ensure our facilities are used in a manner consistent with the law. In our own schools, that means the District ensures that each child an LASD school is supposed to be there. It gives me no pleasure to say that occasionally we discover a child in an LASD school who does not live within our boundaries and we are forced to ask that child to leave. From a human standpoint, it is heartbreaking- a family seeks a better education for their child so they use a local address and enroll that child in an LASD school. However, the reality is that we can’t afford to educate every child in the State. Our resources are finite, and we have to restrict our services to those students who live within our community.
Under Prop 39, LASD is legally required to provide facilities to BCS for their “in district students”. In order to understand how many in-district students they have, we need to review the student records. This is hardly unusual. LASD currently enrolls 4500 students, and we have records for students stretching back nearly 5 decades. Student data is nothing new to LASD. We are simply making sure that the students that BCS represents as “in district”, in fact, are in district students.
BCS has turned this issue into something much larger than it needs to be. The District has requested that we enter into a protective order, which is a formal mechanism from the courts that would limit access to the BCS student data only to those people who need to review it. We would treat the data with great care, and frankly it would be more compartmentalized than even LASD student information. Instead of simply providing the data and allowing the District to confirm that the students are in-district, the BCS legal team has turned this into yet another fight that consumes taxpayer funds.
Student Discrimination and the BCS anti-SLAPP Suit
Over the past several years, an increasing number of parents have approached LASD with disturbing allegations about BCS behavior. They have raised concerns with us about the BCS application process, the pressure to make a $5000 “donation” each year, the chilling effect that request has in the application process, and the way that BCS does or does not meet the needs of students who might require extra help in reaching their educational goals. LASD does not have direct oversight of BCS, but we are a public agency, and we have an obligation to ensure these concerns are raised.
As a result of these allegations made by members of the public, the District filed a cross-complaint with the Superior Court to bring these issues to light. We are asking the court to review this information and determine whether BCS is a public school or if they fall into a different category (such as a private or semi-private school). If the courts find that these allegations raised by the community are true, we’ve asked the court to clarify LASD’s only interaction with BCS- our facilities obligations. We have not asked the court for any other relief. For example, we have not asked the court to deprive BCS of the funds we transfer to them (though it would be in the court’s power to do so.) We haven’t asked the court to order BCS to change their enrollment process, or how they recruit. We’ve only asked for clarity on how this might impact the facilities we need to provide.
In order to examine these questions, the court will necessarily need to review BCS student data. For example, it is impossible to see whether BCS is discriminating against children with special needs without examining whether they enroll and service children with those types of needs. This is all part of the cross-complaint LASD filed against BCS on behalf of the public.
To protect citizens who speak out on issues of public significance or who petition the court to have a grievance heard, the California Legislature passed the anti-SLAPP law. Since the District has asked the Court to clarify the law on an issue of public significance, the District is engaged in the exact type of conduct that this law seeks to protect. I will leave it to our lawyers to present the anti-SLAPP response, and will post it on my blog when the response is filed on December 19. For the moment I will just say that BCS has completely misstated the anti-SLAPP law. I will not be surprised if the BCS motion results in the Court imposing a monetary penalty (known as “sanctions”) again—just like the Court did the last time we were in Court.
I am deeply disappointed to have to continue to write letters like this one. Frankly, I don’t want to end up in some tit-for-tat letter writing campaign with BCS. (For starters, I don’t have a PR firm to write my letters, and it diverts my time away from the more important business of our School District). However, I am also painfully aware that for too long BCS has been willing to spread misinformation to their parents and to the wider community. When this happens, it distorts the public’s understanding of the issues, and that just isn’t right. I will continue to speak out when I feel it necessary to ensure that our entire community has the facts.
I look forward to speaking with you all soon about some of the more positive things going on in our District. We held new-family information nights this week, and the excitement in the room I attended was palpable. Parents and the broader educational community are realizing that LASD has an incredibly successful way of helping each child to reach their fullest potential, and I am incredibly proud to serve our community in this way. I invite each of you to stay engaged, to remain informed about the litigation, but also to focus on the much greater educational success we are enjoying with your support.
As always, you may reach out to me with thoughtful comments at dsmith@lasdschools.org .
Best wishes,
Doug Smith
Vice President, LASD Board of Trustees
Dear Parents and Community Members
Just last week, I sent a letter to BCS parents in an effort to clarify what I felt were inaccurate remarks in a letter from BCS Board Chairman Ken Moore. This Friday, Mr. Moore sent another letter that continues to misrepresent the current situation in the BCS litigation against LASD. While I don’t wish to engage in a long-running letter war with BCS, I am also very aware of the damage that can be done if factual inaccuracies are left unanswered. Therefore, I’m writing again to help shed some light on the LASD view of the situation.
BCS has launched several parallel tracks of litigation against LASD. Each of these tracks requires a separate response from the District. Mr. Moore’s letter blends these tracks together, either intentionally or otherwise. It is my belief that by doing so, BCS is creating unnecessary fear within it's parent community.
I want to be very clear: This letter represents my layman’s view of the litigation. If you would like to understand the totality of our legal position, it is important to read our complete legal filings. Nothing in this letter should be construed as limiting the District’s legal position in any way.
Attorney Fees/ Donation Records
In the 2009-10 case, BCS has demanded that LASD pay their $1.3m legal bill. This is based on a legal theory that BCS launched this lawsuit “for the greater public good”, rather than simply to obtain benefit for themselves. In order to respond to this suit, one important question to answer is, “who funded the lawsuit?” LASD is therefore seeking information about the donations that paid the BCS legal bills.
The District has requested information about the 25 largest donations received in each of the prior 6 years at BCS. We’re asking for the amount of the donations, and the nature of the donor- (parent, non-parent, corporation, non-profit, etc.) We are not requesting specific names of donors.
BCS has refused to provide this information and Judge Lucas has sanctioned them $51,000 for failing to produce the records. BCS has filed an appeal of Judge Lucas’ order, and their attorney has openly mocked the order in recent press articles. LASD will continue to pursue this data, as we feel it is vital to our ability to assess the nature of the BCS claims that would siphon valuable funds away from public education in our community.
Facilities Requests and Student Data
As custodians of public assets, LASD has a legal obligation to ensure our facilities are used in a manner consistent with the law. In our own schools, that means the District ensures that each child an LASD school is supposed to be there. It gives me no pleasure to say that occasionally we discover a child in an LASD school who does not live within our boundaries and we are forced to ask that child to leave. From a human standpoint, it is heartbreaking- a family seeks a better education for their child so they use a local address and enroll that child in an LASD school. However, the reality is that we can’t afford to educate every child in the State. Our resources are finite, and we have to restrict our services to those students who live within our community.
Under Prop 39, LASD is legally required to provide facilities to BCS for their “in district students”. In order to understand how many in-district students they have, we need to review the student records. This is hardly unusual. LASD currently enrolls 4500 students, and we have records for students stretching back nearly 5 decades. Student data is nothing new to LASD. We are simply making sure that the students that BCS represents as “in district”, in fact, are in district students.
BCS has turned this issue into something much larger than it needs to be. The District has requested that we enter into a protective order, which is a formal mechanism from the courts that would limit access to the BCS student data only to those people who need to review it. We would treat the data with great care, and frankly it would be more compartmentalized than even LASD student information. Instead of simply providing the data and allowing the District to confirm that the students are in-district, the BCS legal team has turned this into yet another fight that consumes taxpayer funds.
Student Discrimination and the BCS anti-SLAPP Suit
Over the past several years, an increasing number of parents have approached LASD with disturbing allegations about BCS behavior. They have raised concerns with us about the BCS application process, the pressure to make a $5000 “donation” each year, the chilling effect that request has in the application process, and the way that BCS does or does not meet the needs of students who might require extra help in reaching their educational goals. LASD does not have direct oversight of BCS, but we are a public agency, and we have an obligation to ensure these concerns are raised.
As a result of these allegations made by members of the public, the District filed a cross-complaint with the Superior Court to bring these issues to light. We are asking the court to review this information and determine whether BCS is a public school or if they fall into a different category (such as a private or semi-private school). If the courts find that these allegations raised by the community are true, we’ve asked the court to clarify LASD’s only interaction with BCS- our facilities obligations. We have not asked the court for any other relief. For example, we have not asked the court to deprive BCS of the funds we transfer to them (though it would be in the court’s power to do so.) We haven’t asked the court to order BCS to change their enrollment process, or how they recruit. We’ve only asked for clarity on how this might impact the facilities we need to provide.
In order to examine these questions, the court will necessarily need to review BCS student data. For example, it is impossible to see whether BCS is discriminating against children with special needs without examining whether they enroll and service children with those types of needs. This is all part of the cross-complaint LASD filed against BCS on behalf of the public.
To protect citizens who speak out on issues of public significance or who petition the court to have a grievance heard, the California Legislature passed the anti-SLAPP law. Since the District has asked the Court to clarify the law on an issue of public significance, the District is engaged in the exact type of conduct that this law seeks to protect. I will leave it to our lawyers to present the anti-SLAPP response, and will post it on my blog when the response is filed on December 19. For the moment I will just say that BCS has completely misstated the anti-SLAPP law. I will not be surprised if the BCS motion results in the Court imposing a monetary penalty (known as “sanctions”) again—just like the Court did the last time we were in Court.
I am deeply disappointed to have to continue to write letters like this one. Frankly, I don’t want to end up in some tit-for-tat letter writing campaign with BCS. (For starters, I don’t have a PR firm to write my letters, and it diverts my time away from the more important business of our School District). However, I am also painfully aware that for too long BCS has been willing to spread misinformation to their parents and to the wider community. When this happens, it distorts the public’s understanding of the issues, and that just isn’t right. I will continue to speak out when I feel it necessary to ensure that our entire community has the facts.
I look forward to speaking with you all soon about some of the more positive things going on in our District. We held new-family information nights this week, and the excitement in the room I attended was palpable. Parents and the broader educational community are realizing that LASD has an incredibly successful way of helping each child to reach their fullest potential, and I am incredibly proud to serve our community in this way. I invite each of you to stay engaged, to remain informed about the litigation, but also to focus on the much greater educational success we are enjoying with your support.
As always, you may reach out to me with thoughtful comments at dsmith@lasdschools.org .
Best wishes,
Doug Smith
Vice President, LASD Board of Trustees
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