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 SLAPP. Show all posts
Showing posts with label SLAPP. Show all posts
Tuesday, July 16, 2013
Sunday, June 9, 2013
Win at the Court of Appeals
Last fall, the lead attorney for BCS mocked the Superior Court judges, saying that they just don't have the time to study complex issues and that they generally don't understand cases like the ones we are involved in. Given the BCS willingness to run to the appellate courts, it seems that they've viewed the 2009-10 case as the sign that teh appellate courts are "in the BCS camp".
Back in December 2012, the Appellate court took just days to rule against BCS on one of their appeals. (link)
More recently, (this past week), the District was pleased to have the Appellate Courts dismiss the BCS appeal in the Anti-SLAPP case. Recall that BCS brought an anti-SLAPP motion against LASD in an attempt to kill the District's cross-complaint. By filing the anti-SLAPP, and by appealing when they lost at the trial court, BCS was holding at bay any legal discovery activities that might otherwise proceed. Now that BCS has lost their appeal, LASD will be able to move forward with discovery.
The Cross Complaint is an important action because it asks the courts to examine BCS admissions practices and their treatment of certain student groups, and asks the court to then determine whether those actions should impact LASD facilities allocation to BCS. Now that the roadblocks are cleared, we'll begin the important excavation work that is necessary to pull together the information we need to put before the court.
I have no illusions that the Cross-Complaint is moving swiftly to trial. BCS has, in the recent past, defied Discovery, and has been sanctioned by the courts for their behavior. (They've appealed those sanctions too, so we'll have to wait and see what happens there.) However, clearing these roadblocks is important- we need to move forward and get clarity from the court on the questions we've raised.
Regardless of what BCS attorneys seem to think of the trial courts, the Appellate Courts seem to think they've been "getting it right", because they have affirmed their decisions.
Back in December 2012, the Appellate court took just days to rule against BCS on one of their appeals. (link)
More recently, (this past week), the District was pleased to have the Appellate Courts dismiss the BCS appeal in the Anti-SLAPP case. Recall that BCS brought an anti-SLAPP motion against LASD in an attempt to kill the District's cross-complaint. By filing the anti-SLAPP, and by appealing when they lost at the trial court, BCS was holding at bay any legal discovery activities that might otherwise proceed. Now that BCS has lost their appeal, LASD will be able to move forward with discovery.
The Cross Complaint is an important action because it asks the courts to examine BCS admissions practices and their treatment of certain student groups, and asks the court to then determine whether those actions should impact LASD facilities allocation to BCS. Now that the roadblocks are cleared, we'll begin the important excavation work that is necessary to pull together the information we need to put before the court.
I have no illusions that the Cross-Complaint is moving swiftly to trial. BCS has, in the recent past, defied Discovery, and has been sanctioned by the courts for their behavior. (They've appealed those sanctions too, so we'll have to wait and see what happens there.) However, clearing these roadblocks is important- we need to move forward and get clarity from the court on the questions we've raised.
Regardless of what BCS attorneys seem to think of the trial courts, the Appellate Courts seem to think they've been "getting it right", because they have affirmed their decisions.
Thursday, April 11, 2013
LASD Responds to BCS Appeal of anti-SLAPP Ruling
In early March, BCS asked the Superior Court to dismiss the district's cross complaint using the anti-SLAPP statue. Judge Overton rightly ruled that the cross-complaint should not be dismissed, on the grounds that it raises issues of public interest, and therefore is not subject to the anti-SLAPP statue. (Judge Overton's ruling can be found here).
Right before spring break, we received notice that BCS filed an appeal of Judge Overton's ruling. We notified them that this is not permissible under the law (See my blog post to discuss this here, including our letter to BCS). Sadly, BCS has decided not to withdraw their appeal. The District has therefore been forced to file a response to this illegal appeal by BCS.
In my previous blog post, I mentioned that this was an opportunity for BCS to demonstrate that they really are interested in dialogue, and that they aren't going to file needless litigation. Indeed, the law specifically bars the action they've just filed. Many times as an LASD Trustee, I've had BCS parents urge me to "follow the law" when allocating facilities. I would ask those same folks to please reach out to the BCS board and also urge them to "follow the law". The statues are unambiguous on this point. Judge Overton ruled for LASD, and that ruling is not appealable. Yet here we are, wasting time and money on something that is completely within the control of the BCS Board.
The District's response can be found here:
LASD Motion to Dismiss Appeal of Anti-SLAPP Suit 2013-04-11
(I don't have the exhibits yet, but will add them when I receive them)
Updated 23 April 2013 to add the exhibits.
Exhibits A thru D part I
Exhibits D part II - thru Exhibit I
Exhibit J thru AA
Right before spring break, we received notice that BCS filed an appeal of Judge Overton's ruling. We notified them that this is not permissible under the law (See my blog post to discuss this here, including our letter to BCS). Sadly, BCS has decided not to withdraw their appeal. The District has therefore been forced to file a response to this illegal appeal by BCS.
In my previous blog post, I mentioned that this was an opportunity for BCS to demonstrate that they really are interested in dialogue, and that they aren't going to file needless litigation. Indeed, the law specifically bars the action they've just filed. Many times as an LASD Trustee, I've had BCS parents urge me to "follow the law" when allocating facilities. I would ask those same folks to please reach out to the BCS board and also urge them to "follow the law". The statues are unambiguous on this point. Judge Overton ruled for LASD, and that ruling is not appealable. Yet here we are, wasting time and money on something that is completely within the control of the BCS Board.
The District's response can be found here:
LASD Motion to Dismiss Appeal of Anti-SLAPP Suit 2013-04-11
Updated 23 April 2013 to add the exhibits.
Exhibits A thru D part I
Exhibits D part II - thru Exhibit I
Exhibit J thru AA
Tuesday, March 26, 2013
Anti-SLAPP Appeal by BCS
2012-13 Facilities Litigation: anti-SLAPP Motion
Late last week, the District received notice that BCS has decided to appeal the anti-SLAPP ruling. You'll recall that BCS filed the anti-SLAPP motion back in early December 2012. (my blog post describing the motion, and all of the SLAPP-related posts). There was a flurry of filings back and forth, and the courts ruled on this motion in January 2013, declaring that the District was not engaging in an effort to stifle debate, but that we were seeking guidance from the court on an issue of public importance. At the time of that ruling, BCS elected not to present oral arguments, instead letting the ruling stand.
On Thursday, March 21st, the District received a formal notification of appeal from BCS. This is all very curious because the legislature specifically prohibits appealing a ruling such as the one we have received. In an email to BCS counsel, LASD counsel has pointed out that this appeal is unlawful, and has asked BCS to withdraw their appeal. If BCS does not do so, the District will once again ask the court to impose sanctions against BCS.
There are those who oppose the District's cross-complaint, and I've heard a number of their concerns. However, the courts have ruled three times now that LASD should be permitted to move forward with the action.
I'd like to point out that LASD is not required to give this sort of notice to BCS. We've done it out of a sincere effort to see if BCS is interested in dialing down the rhetoric. In the bigger debate, there are significant legal issues that we see differently:
The lawyers in the crowd will want to read the email, linked here
Email to BCS Counsel
Late last week, the District received notice that BCS has decided to appeal the anti-SLAPP ruling. You'll recall that BCS filed the anti-SLAPP motion back in early December 2012. (my blog post describing the motion, and all of the SLAPP-related posts). There was a flurry of filings back and forth, and the courts ruled on this motion in January 2013, declaring that the District was not engaging in an effort to stifle debate, but that we were seeking guidance from the court on an issue of public importance. At the time of that ruling, BCS elected not to present oral arguments, instead letting the ruling stand.
On Thursday, March 21st, the District received a formal notification of appeal from BCS. This is all very curious because the legislature specifically prohibits appealing a ruling such as the one we have received. In an email to BCS counsel, LASD counsel has pointed out that this appeal is unlawful, and has asked BCS to withdraw their appeal. If BCS does not do so, the District will once again ask the court to impose sanctions against BCS.
There are those who oppose the District's cross-complaint, and I've heard a number of their concerns. However, the courts have ruled three times now that LASD should be permitted to move forward with the action.
I'd like to point out that LASD is not required to give this sort of notice to BCS. We've done it out of a sincere effort to see if BCS is interested in dialing down the rhetoric. In the bigger debate, there are significant legal issues that we see differently:
- the depth and breath of the discretion afforded to elected officials as they balance the needs of multiple constituencies
- the rights of the public to understand financing behind lawsuits which claim a public benefit
- the responsibility of a public entity to take action based the concerns of citizens who come forward with complaints
The lawyers in the crowd will want to read the email, linked here
Email to BCS Counsel
Monday, January 7, 2013
No Court Tomorrow
2012-13 Complaint: Cross-Complaint and Anti-SLAPP
If you were planning on coming to the court hearing tomorrow, you can make other plans.
Judge Lucas handed down a tentative ruling today at about 2pm. (We're item 5 on the list, starting on page 11.) The ruling is generally favorable for the District- she declined to dismiss the cross-complaint, and ruled against BCS in the issue of the demurrer.
We received a phone message late this afternoon indicating that BCS will not appear to contest the tentative ruling. Thus, no day in court tomorrow. As we get a date for the actual trial related to the cross-complaint, I'll be sure to post it here.
I'm certainly glad that this appears to have gone our way. My only disappointment is that we had to spend the money on things like this in the first place.
This ruling is tentative, and Judge Lucas may update it if she so chooses. I'll be sure to post the final ruling here when it is released.
If you were planning on coming to the court hearing tomorrow, you can make other plans.
Judge Lucas handed down a tentative ruling today at about 2pm. (We're item 5 on the list, starting on page 11.) The ruling is generally favorable for the District- she declined to dismiss the cross-complaint, and ruled against BCS in the issue of the demurrer.
We received a phone message late this afternoon indicating that BCS will not appear to contest the tentative ruling. Thus, no day in court tomorrow. As we get a date for the actual trial related to the cross-complaint, I'll be sure to post it here.
I'm certainly glad that this appears to have gone our way. My only disappointment is that we had to spend the money on things like this in the first place.
This ruling is tentative, and Judge Lucas may update it if she so chooses. I'll be sure to post the final ruling here when it is released.
Wednesday, January 2, 2013
BCS Response to Cross Complaint
In their response, BCS not surprisingly says that the allegations raised by the District aren't true, and that even if they are true, BCS says it shouldn't impact their facilities allocation.
I won't get into chapter-and-verse of our legal argument, but the BCS demurer shows a frightening lack of understanding of what a public school is all about. If public schools are free to discriminate against students they don't wish to educate, the entire system will fail. Public schools don't exist to educate an aristocracy- they exist to educate the entire citizenry. Jefferson would be spinning in his grave at the positions BCS takes here.
BCS reply in support of demurrer to FACC
The District recently responded to the BCS anti-SLAPP suit (as posted here). BCS gets one more bite at the apple before we go to court next week. Here is their response:
BCS Reply in support of BCS anti-SLAPP
As an added bonus, BCS has also objected to the amicus submission made by Huttlinger. This seems to go with the theme of quashing debate and shutting out voices that speak in opposition. Ironic, given their attempts to misuse the anti-SLAPP statues.
BCS Objection to Huttlinger
I'll try to update this post with the various supporting documents, but they came via email in a widely scattered group.
The next important date is January 8th, 2013. We will be in front of Judge Lucas again, discussing the BCS anti-SLAPP motion and various other matters. More to come, I'm sure...
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 3, 2012
Update on 2012-13 lawsuit
BCS has filed two actions with the court today, both related to the 2012-13 facilities offer.
#1) BCS filed an anti-SLAPP suit. These actions are generally intended to allow someone to halt frivolous litigation that doesn't have merits on it's own. However, in this case, the process is being misapplied as a way for BCS to attempt to eliminate the District's cross-complaint in the facilities issue. I won't go into the legal reasoning, but we are very confident that the Distr'ct amended cross-complaint will be permitted to stand, and that the anti-SLAPP suit will be defeated. However, it does serve to drag out the process.
#2) BCS filed actions trying to eliminate the District's cross-complaint on other grounds. if you're a legal eagle, you can probably make good sense out of this. I read it as yet another attemtp to ignore what's really going on. I haven't had a lot of time with it yet, but wanted to get it all out there so people can review it.
Attached are all of the relevant documents.
Amended Cross-Complaint
LASD Amended Cross Complaint
Anti-SLAPP Motion
BCS Special Notice (Anti-SLAPP Motion)
Memo of Points and Authorities (case arguement)
Eyring Decl. (anti-SLAPP)
Proof of Service
Actions of 2012-13 Ruling
BCS Notice Demurrer
Memo, of Points and Authorities (Demurrer)
Request for Judicial Notice
Exhibit A
Exhibit B
Exhibit C
Exhibit D
Exhibit E
Exhibit F
Exhibit G
Proposed Order
#1) BCS filed an anti-SLAPP suit. These actions are generally intended to allow someone to halt frivolous litigation that doesn't have merits on it's own. However, in this case, the process is being misapplied as a way for BCS to attempt to eliminate the District's cross-complaint in the facilities issue. I won't go into the legal reasoning, but we are very confident that the Distr'ct amended cross-complaint will be permitted to stand, and that the anti-SLAPP suit will be defeated. However, it does serve to drag out the process.
#2) BCS filed actions trying to eliminate the District's cross-complaint on other grounds. if you're a legal eagle, you can probably make good sense out of this. I read it as yet another attemtp to ignore what's really going on. I haven't had a lot of time with it yet, but wanted to get it all out there so people can review it.
Attached are all of the relevant documents.
Amended Cross-Complaint
LASD Amended Cross Complaint
Anti-SLAPP Motion
BCS Special Notice (Anti-SLAPP Motion)
Memo of Points and Authorities (case arguement)
Eyring Decl. (anti-SLAPP)
Proof of Service
Actions of 2012-13 Ruling
BCS Notice Demurrer
Memo, of Points and Authorities (Demurrer)
Request for Judicial Notice
Exhibit A
Exhibit B
Exhibit C
Exhibit D
Exhibit E
Exhibit F
Exhibit G
Proposed Order
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