Motion Re Notice of Motion And Motion For Writ of Administrative MandamusMotionCal. Super. - 2nd Dist.September 16, 2019Electronically FILED by Superior Court of California, County of Los Angeles on 07/02/2020 03:54 PM Sherri R. Carter, Executive Officer/Clerk of Court, by M. Soto,Deputy Clerk 1 2 3 4 5 6 7 8 9 10 1 5 E07 35: 14 qué 15 17 18 19 20 21 22 23 24 25 26 27 28 DWK DMS 3573819v1 SUE ANN SALMON EVANS, State Bar No. 151562 CANDACE M. BANDOIAN, State Bar No. 212636 ELLEN C. WU, State Bar No. 258515 DANNIS WOLIVER KELLEY 115 Pine Avenue, Suite 500 Long Beach, CA 90802 Telephone: 562.366.8500 Facsimile: 562.366.8505 Attorneys for Petitioner Los Angeles Unified School District SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF LOS ANGELES LOS ANGELES UNIFIED SCHOOL DISTRICT, Petitioner, Vv. COMMISSION ON PROFESSIONAL COMPETENCE, Respondent. JULIO BELTRAN, Real Party in Interest, And Does 1 through 10, inclusive. Case No. 19STCP03977 PETITIONER LOS ANGELES UNIFIED SCHOOL DISTRICT’S NOTICE OF MOTION AND MOTION FOR WRIT OF ADMINISTRATIVE MANDAMUS; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT Hearing Date: September 2, 2020 Time: 9:30 a.m. Dept. 86 Assigned for All Purposes to: Judge Mitchell L. Beckloff, Dept. 86 Petition filed: September 16, 2019 Exempt from filing fees pursuant to Gov. Code, § 6103 TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD: PLEASE TAKE NOTICE that on September 2, 2020, at 9:30 a.m., or as soon thereafter as the matter may be heard in Department 86 of the Superior Court in and for the County of Los Angeles, Central District, located at 111 North Hill Street, Los Angeles, California 90012, Petitioner Los Angeles Unified School District will and hereby does move this Court pursuant to Education Code section 44945 and Code of Civil Procedure section 1094.5 to grant Petitioner’s Petition for Writ of Administrative Mandamus. 1 PETITIONER LOS ANGELES UNIFIED SCHOOL DISTRICT’S NOTICE OF MOTION AND MOTION FOR WRIT OF ADMINISTRATIVE MANDAMUS D A N N I S W O L I V E R K E L L E Y 11 5 Pi ne AV EN UE , Su lT E 50 0 Lo nG BE ac H, CA 9 0 8 0 2 DWK DMS 3573819v1 ~N O Y a B A W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 This Motion will be based upon the Petition for Writ of Administrative Mandamus, the Memorandum of Points and Authorities in Support of Petition for Writ of Administrative Mandamus, the Administrative Record lodged in this matter, all papers which have been or will be filed heretofore in this action, evidence taken at the hearing on this motion, and oral argument at that hearing. Dated: July 2, 2020 DANNIS WOLIVER KELLEY By: Morn AJ ELLEN C. WU Attorneys for Petitioner Los Angeles Unified School District 2 PETITIONER LOS ANGELES UNIFIED SCHOOL DISTRICT’S NOTICE OF MOTION AND MOTION FOR WRIT OF ADMINISTRATIVE MANDAMUS D A N N I S W O L I V E R K E L L E Y 11 5 Pi ne AV EN UE , Su lT E 50 0 Lo nG BE ac H, CA 9 0 8 0 2 DWK DMS 3573819v1 ~N O Y a B A W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TABLE OF CONTENTS TABLE OF CONTENTS .....oe ieee settee ess s sateen sree saben ee sree ea 3 TABLE OF AUTHORITIES .......oooiiiiiiiiii ccc sees sree 4 MEMORANDUM OF POINTS AND AUTHORITIES ......cccceoiiiiiieeeceeee reece 6 LL. INTRODUCTION ......ooiiiiiiiii cities sate sree sae 6 IL. STATEMENT OF FACTS... sects eee seein see seve eee 6 II. STANDARD OF REVIEW .....cociiiiiiiiiiiiiiiiiic ccc eee 9 IV. ARGUMENT coos sate eee eects sree sabes estes sree sabe eee nees 10 A. The Administrative Law Judge Committed a Serious Error of Law When She Allowed Beltran’s Untimely-Designated Expert Witness to Testify at the Hearing Regarding the Conduct at Graham.............cccccccoviiiiviiinniiennieennneen. 10 B. Commission’s Findings Regarding Beltran’s Conduct at Graham Are Not Supported by the Weight of the Evidence and an Abuse of Discretion................ 11 1. The District Established by a Preponderance of the Evidence that Beltran Engaged in the Alleged Misconduct at Graham. ..........c..ccccc...... 12 2. The Commission Improperly Relied Upon the Biased and Discriminatory Expert Witness Testimony. .......ccoceecveeveerneenieenecneennen. 15 3. Beltran’s Testimony Contradicts the Commission’s Findings Regarding his Conduct at Graham. ...........ccceeviieiiiiiniiinniieeceeeeen 16 C. Commission’s Findings Regarding Beltran’s Conduct at Rodia Are Not Supported by the Weight of the Evidence and an Abuse of Discretion................ 16 1. Great Weight Should Have Been Given to District’s Student and Staff TESHIMONIES. .....eeeuieeieiriieiie eects eee sere eee eee ees 18 2. Little Weight Should Have Been Given to Beltran’s Testimony Because He Was Impeached and Not Credible.............cceceerriiennieennneen. 21 3. The Weight of the Evidence Established that Beltran Sexually Harassed the Female Students at Rodia. .........ccoovveiiiiiiiniiinciicceeen, 22 D. The Commission’s Legal Conclusions Are Erroneous and Contrary to the Weight of the EVIENCE.......coouiiiiiiiiiiiiiiiiee cece eee 24 V. CONCLITSTON css suisssssuas owen swnns ss suns ossssnasss smn oss vases ves 555 5060s 5650555 A5a008 EIST 455 FRIES 25 PROOF OF SERVICE ......cooiiiiiiiiiiit ecstatic seeiee ae satesaeee 26 3 PETITIONER LOS ANGELES UNIFIED SCHOOL DISTRICT’S NOTICE OF MOTION AND MOTION FOR WRIT OF ADMINISTRATIVE MANDAMUS D A N N I S W O L I V E R K E L L E Y 11 5 Pi ne AV EN UE , Su lT E 50 0 Lo nG BE ac H, CA 9 0 8 0 2 DWK DMS 3573819v1 ~N O Y a B A W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TABLE OF AUTHORITIES Page(s) State Cases ABC Unified Sch. Dist. v. Haar (1994) 28 Cal APP.Ath 309 .....coiiiiieeeeee eee eee eee sate eaters t e sate sabe ene eeeeas 24 Estate of Anderson (1997) 60 CALL APP.ATN 4360....cooeieeeie eee eee sees eet sbae sabe a sree eeas 22 Board of Education of San Francisco Unified Sch. Dist. v. Weiland (1960) 179 Cal. APP. 2d B08 .....eeeeieeeeeeeete e cts t rs sates st ee sabe sabe e e eeees 24 Fisher v. San Pedro Peninsula Hosp. CLI8G) 214 Cal. APD. SOU x50.05 msm. ssn 00 swans ssn oo 555750 2555535.08. 5555555 555555018 SAESHS S555 5 SHH 58 SRR 53 23 Fukuda v. City of Angels (1999) 20 CalAth 80S .....c.ueiiiieeiie eee eee etter e estes sabe sabe a sees sbe esate esse anne sseessae ens 9 Gates v. Pend-leton (1925) 71 Cal APD. 752 eee eee eee eee ete sae eee b ae eabe sabe a sees sae este sabe anneeenseas 22 Jazayeriv. Mao (2009 1 74: Cal AR: FD summers sommes sss om oss sms mess sem Sm 22 Morrison v. Housing Authority of the City of Los Angeles Board of Commissioners (2003) 107 Cal. APP-Ath 8O0.......ceceieiiieiieeiie cites eee eee ee sbae eevee ee eees 9,25 Morrison v. State Board of Education (1969) 1 Cal.3d 214... eee eee eee etter sates estes eb ee eae sabe e eee beeesbe sabe anneeeneeas 25 Palo Verde Unified Sch. Dist. v. Hensey (1970) 9 CalLAPP.3A OT... eee steerer sates estes nb ee sete sabe a nea eeeas 24 Pasadena Unified Sch. Dist. v. Com. on Prof. Competence (1977) 20 Cal.3d 309... eee ete etter s east ee sabe sabe ese ee bee este esse enees see saae ens 9 San Diego Unified Sch. Dist. v. Commission on Professional Competence COLT) 194 Cal APPA, LAB co smmsm0m ssn ss sumans cnmssn. on sos ins ms555 5555558 5455858 555555 50 5H35358 SR55555:3 24 San Diego Unified School District v. Commission on Prof. Competence (2013) 214 Cal. APP-Ath 1120. .ci cei tees eee eet sate esterase ee sree ees 9 Woodland Unified Joint School District v. Comm. On Prof. Competence (1992) 2 CalLAPP.Ath 1429 ...coiieie eee eee eerste sates esters sbae sabe e eee eees 24 PETITIONER LOS ANGELES UNIFIED SCHOOL DISTRICT’S NOTICE OF MOTION AND MOTION FOR WRIT OF ADMINISTRATIVE MANDAMUS D A N N I S W O L I V E R K E L L E Y 11 5 Pi ne AV EN UE , Su lT E 50 0 Lo nG BE ac H, CA 9 0 8 0 2 DWK DMS 3573819v1 ~N O Y a B A W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Federal Cases Rene v. MGM Grand Hotel, Inc. (Oth Car. 2002) conic sae sae eae sree sae eee 23 Russello v. United States (1983) 464 TLS. 16 scussmmmmssnsuns svensumsnsnsnons avsnsumrss somos sss vies sss soe wise ss Kiss sss uasamsvasy sss ssa es suas 11 State Statutes Code of Civil Procedure section 1094.5(D) ....cccueiiiiiiiiiieeiieie ce eeeieee es ree ee erae e e rae eee 9 Education Code section 44944.05(D)(1)(C) ceoeeiiiiiiinieiee ieee eee eects e eens 10, 11 Education Code section 44944.05(D)(1)(D) «.veeuiiruiiriiriinieiiteiie sient eects ee ee 10, 11 Education Code section 44944 QO5(BY(ZIC) «usunssss ssnsusn ss susnnas swsanan so sunssss svsassn ss sawssss svanss.so somasss a5 10, 11 Education Code SECtION 44945 .........ooiiiiiiee eects etcetera sree saree ener 9 Bvidence Code: 58CHON 1220 «usm asssmmasssmvmsonsssvususssvms swenswany ss coms ssmnassssvans sss sues sys ass usmucs sass 22 Government Code section 12940) (4)(C) .ueeriiiiiiiiie ters sees eee 23 5 PETITIONER LOS ANGELES UNIFIED SCHOOL DISTRICT’S NOTICE OF MOTION AND MOTION FOR WRIT OF ADMINISTRATIVE MANDAMUS D A N N I S W O L I V E R K E L L E Y 11 5 Pi ne AV EN UE , Su lT E 50 0 Lo nG BE ac H, CA 9 0 8 0 2 DWK DMS 3573819v1 ~N O Y a B A W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MEMORANDUM OF POINTS AND AUTHORITIES I. INTRODUCTION Real Party in Interest Julio Beltran (“Beltran” or “Employee”) is a permanent, veteran teacher of Petitioner Los Angeles Unified School District (“District”). The District dismissed Beltran from employment when he engaged in inappropriate physical conduct and corporal punishments towards second grade students and inappropriate conduct of a harassing nature towards high school female students. At the dismissal hearing before Respondent Commission on Professional Competence (“Commission”), the District presented evidence from Beltran’s former elementary and high school students who were adversely impacted by his misconduct, as well as from staff members. The Commission found that Beltran engaged in questionable conduct towards his second grade students that may not be best practices, and that female high school students were uncomfortable due to their perception that Beltran was staring at students’ buttocks and breasts. Nonetheless, the Commission abused its discretion when it credited Beltran’s testimony and evidence over the District’s evidence, and erroneously concluded that Beltran shall not be dismissed from District employment. The weight of the evidence established that Beltran engaged in misconduct that constitutes cause for his dismissal from District employment. Accordingly, the Court should issue a writ of mandate directing the Commission to vacate its decision and issue a new decision affirming Beltran’s dismissal. II. STATEMENT OF FACTS Beltran has been employed as a teacher with the District for approximately twenty (20) years, and during his tenure, he has taught elementary school, middle school, and continuation high school. (AR 849-51.) The dismissal charges against Beltran relate to his misconduct when he was assigned at Graham Elementary School (“Graham”) and Simon Rodia Continuation High School (“Rodia”) during the period of August 2013 to March 2018. (AR 2037-54.) During the 2013-14 school year, Beltran was assigned as a second grade teacher at Graham. Beltran’s second grade class was comprised of English Language Learners (“ELL”), which meant they entered school identified as English learners that were not yet able to pass the English proficiency exam, and their primary language was Spanish. (AR 205-06.) On or about May 23, 2014, student Erik R. (who was then 7 or 8 years old) complained to Graham Principal Elsa Bolado that when he got in trouble, Beltran told 6 PETITIONER LOS ANGELES UNIFIED SCHOOL DISTRICT’S NOTICE OF MOTION AND MOTION FOR WRIT OF ADMINISTRATIVE MANDAMUS D A N N I S W O L I V E R K E L L E Y 11 5 Pi ne AV EN UE , Su lT E 50 0 Lo nG BE ac H, CA 9 0 8 0 2 DWK DMS 3573819v1 ~N O Y a B A W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 him to go to the carpet and stay there. (AR 259.) Shortly thereafter, Erik’s mom reported to Principal Bolado that Erik told her that Beltran had physically harmed him and that Erik did not want to come to school. On or about May 28, 2014, Principal Bolado met with Erik in her office, and he informed her that Beltran grabbed him by the neck, had him kneel on the floor facing the wall with his hands behind his head, or had him kneel on the floor and use his chair as his desk when he was not sitting properly. Erik was upset and sad during the meeting. (AR 198-200; 261-62.) Per Principal Bolado’s request, Erik also prepared a written statement on May 28, 2014 about Beltran’s conduct. (AR 201- 08; 2301.) Erik identified several student witnesses to Principal Bolado. (AR 202, 204.) Principal Bolado conducted an investigation by first interviewing the student witnesses whom Erik identified, which occurred on or about May 28 and 29, 2014, followed by interviewing other students in Beltran’s second grade class, which occurred on or about June 2, 2014. Gabriel Jimenez, Title | Coordinator, assisted Principal Bolado with the investigation. Students were interviewed individually and also asked to prepare written statements of what they shared during the investigation. The interviewers did not ask leading questions of the students, nor did they share Erik’s complaint. They also instructed the students to not talk about the interview with anyone other than their parents. Some of the students could not write a legible statement, and in those instances, Principal Bolado or Mr. Jimenez transcribed the statements and confirmed the accuracy of the transcription with the students. In addition to Erik’s written statement, they obtained fourteen (14) written student statements regarding Beltran’s conduct. (AR 206-30; 276-77; 280; 292; 2293-2300; 2302-07.) Based on the investigation, the District determined that during the period in or about August 2013, through May 2014, Beltran grabbed students by the neck, made them sit or kneel on the carpet and/or face the wall, and screamed at students, specifically, towards five (5) boys: Erik R., Omar C., Joseph R., Juan A., and David M. (AR 2308-10.) On or about December 18, 2014, the District issued Beltran a Notice of Unsatisfactory Act and Notice of a 15-day suspension for his misconduct at Graham during the period of August 2013, through May 2014. (AR 2311-24.) Beltran was assigned to teach continuation high school students at Rodia starting in or about April 2015. Soon after he started working at Rodia, then-Principal Regina Awtry told Beltran that female students complained that he made them uncomfortable because they did not like the way he 7 PETITIONER LOS ANGELES UNIFIED SCHOOL DISTRICT’S NOTICE OF MOTION AND MOTION FOR WRIT OF ADMINISTRATIVE MANDAMUS D A N N I S W O L I V E R K E L L E Y 11 5 Pi ne AV EN UE , Su lT E 50 0 Lo nG BE ac H, CA 9 0 8 0 2 DWK DMS 3573819v1 ~N O Y a B A W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 looked at them. (AR 1758-61; 1766-68; 2353-54.) On or about August 28, 2015, Administrator Pedro Garcia verbally directed Beltran to, among things, refrain from using inappropriate language when addressing students, having physical contact with students, and looking at students in an intimidating manner. Such directives were memorialized in a conference memorandum issued to Beltran. (AR 713-14; 2040-46, 3190-91 [{[81].) Evelyn Mendoza has been a science teacher at Rodia since August 2015. (AR 502-03.) Students confided in her about such topics as suicidal feelings, lost family members and depression. (AR 505-06.) Mendoza described her professional relationship with Beltran as pretty “friendly” and “positive.” (AR 506.) Mendoza was student Liz’s teacher, and during the 2015-16 school year, Liz and student Judith confided in Mendoza that they felt uncomfortable in Beltran’s class because he stared at them a lot. Mendoza immediately reported their complaints to then-Principal Awtry. (AR 511-14, 517.) Mendoza also promptly informed Beltran of the student complaints that he made them uncomfortable because he stared or looked at them inappropriately. Beltran was quiet and did not respond. (AR 515-17.) Throughout the 2015-16 and 2016-17 school years, Rodia staff members, including Irma Media, Office Manager, and Victorio Gutierrez, Principal, also received complaints from numerous female students that they did not want to be in Beltran’s class because he was weird and made them feel uncomfortable, and that he looked at their breasts and buttocks. (AR 548-56.) During the period from approximately August 25, 2017, through September 8, 2017, Principal Gutierrez and Medina conducted a preliminary investigation, which consisted of collecting written statements from current and former students as well as staff members who had knowledge of the student complaints about Beltran since 2015. (AR 630-55; 2325-43.) In September 2017, the District’s Student Safety Investigation Team (“SSIT”) initiated a formal investigation regarding the student complaints of Beltran’s alleged misconduct at Rodia, and on or about March 8, 2018, issued a report regarding its investigation. (AR 2344-56.) The investigation revealed, among other things, that Beltran made comments to several female students about their hair, makeup and/or appearance that made them uncomfortable; and he stared at female students’ buttocks and/or breasts making them uncomfortable. (AR 2571-95.) On or about May 9, 2018, the District issued Beltran a Notice of Unsatisfactory Act and Notice of a 15-day suspension for his misconduct at Rodia during the period of August 2016, through March 2018. (AR 2596-2684.) 8 PETITIONER LOS ANGELES UNIFIED SCHOOL DISTRICT’S NOTICE OF MOTION AND MOTION FOR WRIT OF ADMINISTRATIVE MANDAMUS D A N N I S W O L I V E R K E L L E Y 11 5 Pi ne AV EN UE , Su lT E 50 0 Lo nG BE ac H, CA 9 0 8 0 2 DWK DMS 3573819v1 ~N O Y a B A W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 On or about November 14, 2018, the District served Beltran with a Notice of Board of Education Intention to Dismiss and Placement on Immediate Suspension, which included a Statement of Charges dated October 12, 2018. (AR 2704-62.) On or about December 12, 2018, Beltran submitted his Notice of Defense and Request for Hearing. (AR 2055-57.) On or about March 13, 2019, the District filed with the Office of Administrative Hearings (“OAH”) and served Beltran with the Accusation dated March 13, 2019, which is the operative pleading in this matter. (AR 2037- 54.) The hearing commenced on May 20, 2019, and concluded on May 31, 2019, before the Commission. (AR 3168.) On July 19, 2019, the Commission issued its decision regarding this matter (“Decision”), and found that Beltran did not engage in any misconduct that constitutes cause for discipline, and concluded that he shall not be dismissed from District employment. (AR 3168-3230.) On September 16, 2019, the District filed the instant Petition for Writ of Mandate seeking to overturn the Decision. III. STANDARD OF REVIEW The Decision of the Commission may be challenged through a petition for a writ of mandate. (Pasadena Unified Sch. Dist. v. Com. on Prof. Competence (1977) 20 Cal.3d 309, 313-314.) In reviewing the Decision, the trial court shall exercise its independent judgment to determine whether there is an abuse of discretion, which is established if the Decision is not supported by the findings, the findings are contrary to the weight of the evidence, or there is a serious error in law. (Ed. Code, § 44945; Code Civ. Proc., § 1094.5, subd. (b).) The Court must draw its own reasonable inferences from the evidence and make its own credibility determinations. (Morrison v. Housing Authority of the City of Los Angeles Board of Commissioners (2003) 107 Cal.App.4th 860, 868.) The Court is free to substitute its own findings after giving due respect to the agency’s findings. (San Diego Unified School District v. Commission on Prof. Competence (2013) 214 Cal.App.4th 1120, 1140-41; Fukuda v. City of Angels (1999) 20 Cal.4th 805, 817-19.) Here, the Commission abused its discretion because the Decision is not supported by the findings, the findings are contrary to the weight of the evidence, and there are serious errors of law. Accordingly, the Court should exercise its independent judgment and issue a writ of mandate directing the Commission to vacate its Decision and issue a new decision affirming Beltran’s dismissal from District employment. 9 PETITIONER LOS ANGELES UNIFIED SCHOOL DISTRICT’S NOTICE OF MOTION AND MOTION FOR WRIT OF ADMINISTRATIVE MANDAMUS D A N N I S W O L I V E R K E L L E Y 11 5 Pi ne AV EN UE , Su lT E 50 0 Lo nG BE ac H, CA 9 0 8 0 2 DWK DMS 3573819v1 ~N O Y a B A W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 IV. ARGUMENT A. The Administrative Law Judge Committed a Serious Error of Law When She Allowed Beltran’s Untimely-Designated Expert Witness to Testify at the Hearing Regarding the Conduct at Graham The dismissal hearing commenced on May 20, 2019. (AR 3168.) On May 15, 2019, Beltran filed and served his Expert Witness Disclosure, designating Professor Bradley McAuliff as his expert witness to testify at the hearing. (AR 2217-34.) On May 17, 2019, the District filed its objection to Beltran’s Expert Witness Disclosure as untimely because it was not made 60 days prior to May 20, 2019, specifically, Education Code section 44944.05, subdivision (b)(2)(C), provides the following: “Expert witness disclosures shall be made no later than 60 days before the date of commencement of the hearing. A party’s failure to make full and timely expert witness disclosures shall preclude the party’s use of the expert witness’ testimony or evidence at the hearing.” (AR 2251-54 [emphasis added].) During the first day of hearing, the Administrative Law Judge (“ALJ”) considered and ruled on the parties’ pre-trial motions. Regarding the District’s objection to Beltran’s Expert Witness Disclosure, the ALJ considered such objection as the District’s motion to exclude the expert witness from the hearing. After hearing oral arguments, the ALJ denied the District’s motion because of her stated concerns with the exchange of initial and supplemental disclosures, “shenanigans,” and “cooperation issues.” (AR 12-16.) In effect, the ALJ exercised her “discretion” to allow an untimely- designated expert witness to testify at hearing, which was erroneous based on the strict language of the Education Code. As the District had argued to the ALJ, Education Code section 44944.05(b)(2)(C does not provide any good cause exception for an untimely designation, unlike other disclosure requirements under the Education Code for teacher dismissal proceedings.! A familiar principle of statutory construction, as relevant here, is that a negative inference may be drawn from the exclusion of language from one statutory provision that is included in other provisions of the same statute. (See ! Specifically, other provisions of the same statute provide the following in relevant part regarding initial and supplemental disclosures: ... A party’s failure to make initial disclosures within the deadlines set forth in this section shall preclude the party from introducing witnesses or evidence not disclosed at the hearing, unless the party shows good cause for its failure to timely disclose. (Ed. Code, § 44944.05, subdivision (b)(1)(C) [emphasis added].) ... A party’s failure to make supplemental disclosures promptly upon discovery or availability of new information or evidence shall preclude the party from introducing witnesses or evidence not disclosed at the hearing, unless the party shows good cause for its failure to timely disclose. (Ed, ode § 44944.03, subdivision (b)(1)(D) [emphasis added].) PETITIONER LOS ANGELES UNIFIED SCHOOL DISTRICT’S NOTICE OF MOTION AND MOTION FOR WRIT OF ADMINISTRATIVE MANDAMUS D A N N I S W O L I V E R K E L L E Y 11 5 Pi ne AV EN UE , Su lT E 50 0 Lo nG BE ac H, CA 9 0 8 0 2 DWK DMS 3573819v1 ~N O Y a B A W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 e.g., Russello v. United States (1983) 464 U.S. 16, 23 [“‘[W]here Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion’’].) Where, as here, Beltran failed to timely file his expert witness disclosure, Education Code section 44944.05(b)(2)(C) expressly provides that he shall be precluded from using the expert witness’ testimony or evidence at the hearing. Unlike the “good cause” exception for untimely initial or supplemental disclosures set forth in Education Code section 44944.05, subdivisions (b)(1)(C) and (b)(1)(D), there are no exceptions to the evidence exclusion penalty for an untimely expert witness disclosure. Accordingly, it shall be presumed that the Legislature intentionally and purposely meant to strictly apply the 60-day timeline for expert witness disclosures, and any untimely designation shall result in the exclusion of expert evidence at the hearing. Here, the ALJ committed a serious error in law when she denied the District’s motion to exclude Beltran’s untimely-designated expert witness and allowed Professor McAuliff to testify at the hearing. Moreover, as discussed further in Section B.2 of this brief, the ALJ’s error in law was serious and prejudicial to the District because the Commission relied on the expert witness’ testimony in its findings and conclusions that were adverse to the District. (See AR 3187-88 []]68- 69, 71].) Because the expert witness should not have been allowed to testify in the first place, all of the expert evidence shall be stricken from the record, and any findings and conclusions by the Commission in reliance on the expert witness shall similarly be stricken. B. Commission’s Findings Regarding Beltran’s Conduct at Graham Are Not Supported by the Weight of the Evidence and an Abuse of Discretion Charges 1 through 5 of the Accusation concern Beltran’s conduct at Graham during the 2013-14 school year, where he grabbed five (5) second grade boys by their necks, made them kneel, made them face the wall, and/or screamed at them. (AR 2038-39.) The Commission erroneously made the following findings regarding Beltran’s conduct at Graham: e “The preponderance of the evidence demonstrated that [Beltran] used a variety of strategies and tactics to deal with the academic and behavioral challenges posed by his students. Among the tools [Beltran] used was a ‘time out’ which involved moving a student to another location or standing by a wall, or sitting on a rug or at a classroom center so that the student had time to think about their actions until [Beltran] finished lessons with other students and 11 PETITIONER LOS ANGELES UNIFIED SCHOOL DISTRICT’S NOTICE OF MOTION AND MOTION FOR WRIT OF ADMINISTRATIVE MANDAMUS D A N N I S W O L I V E R K E L L E Y 11 5 Pi ne AV EN UE , Su lT E 50 0 Lo nG BE ac H, CA 9 0 8 0 2 DWK DMS 3573819v1 AN nn BA WLW 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 addressed the subject student directly. The testimony of the students at hearing was inconsistent about the character of [Beltran’s] ‘grab’ of the students by the neck. The testimony ranged from hard with a lot of pressure, to a light touch to no ‘grab’ at all. (AR 3188 [70] [emphasis added].) “While it was not established that the students intended to lie about their interactions with [Beltran], the truth of what they purportedly observed was not established by a preponderance of the evidence. Three of the four students had reputations for being untruthful and two were prone to making false reports about classmates to authority figures. Additionally, a significant amount of time had elapsed from when the alleged events occurred and the hearing testimony and their recollections were inconsistent about timelines and details. Moreover, David contradicted the statements. Under these circumstances and given the totality of the evidence, it is more likely than not that Joshep, Omar and Erick exaggerated when describing [Beltran’s] actions. When the written statements are examined closely with the witness testimony and in light of the credible expert testimony provided by Professor McAuliff about the potential for suggestibility, confirmation bias and cross-contamination from the way the questioning was conducted, and the students’ conversations amongst themselves, it cannot be concluded that the District met its burden.” (AR 3188 [71] [emphasis added].) “The preponderance of the evidence established that [Beltran] most likely used a physical prompt in the form of a hand at the shoulder or neck to get the subject student’s attention and guide them to the “time out” location. If the location was a rug or carpet, [Beltran] did insist that the students sit down cross-legged in a ‘criss-cross applesauce’ position. This was not a ‘grab’ or physical harm or intimidation to the students and did not violate any of the District’s many policies. However, it may not have been best practices. Similarly, using ‘time outs’ was not in violation of any of the District’s polices, but may not have constituted “best practices” for a teacher of [Beltran’s] experience level. The term ‘yelling’ is subjective and implies that someone raises their voice to an inappropriately loud level. The Commission did not conclude that [Beltran] raised his voice to an inappropriate level at any time, but it is likely that [Beltran] was required to directly address Joshep, Erick, Omar, David and some of their friends, and likely in a stern voice, for a variety of reasons including to get students’ attention, to stop dangerous behavior, etc., none of which would have been inappropriate in these circumstance. Similarly, the Commission concluded that the preponderance of the evidence did not establish that [Beltran] required the students to kneel or put their hands behind their back. This is not to say that the students did not in fact kneel or hold their hands behind their back or use a chair as a desk as a self-selected alternative to sitting or standing as instructed. (AR 3189 [] 72] [emphasis added].) The Commission’s findings are contrary to the evidence in the record. The District presented the testimonies of three of the five boys who were subject to Beltran’s misconduct, as well as student witness statements that corroborated the boys’ testimonies. Moreover, Beltran’s own testimony and evidence contradict the Commission’s above findings. 1. The District Established by a Preponderance of the Evidence that Beltran Engaged in the Alleged Misconduct at Graham. Erik testified at the hearing, and at the time of his testimony, he was 13 years old and in the seventh grade. (AR 36, 39.) Erik described how Beltran grabbed him by the neck: “He would, like, come to, like, our seat, and he would grab us by the neck, and he would walk us to a corner and stare at the corner and stay there. And, like, if he didn’t want it -- we had to bend our knees and, like, stay 12 PETITIONER LOS ANGELES UNIFIED SCHOOL DISTRICT’S NOTICE OF MOTION AND MOTION FOR WRIT OF ADMINISTRATIVE MANDAMUS D A N N I S W O L I V E R K E L L E Y 11 5 Pi ne AV EN UE , Su lT E 50 0 Lo nG BE ac H, CA 9 0 8 0 2 DWK DMS 3573819v1 ~N O Y a B A W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 on our knees. If we didn’t do that, he would, like, grab us more hard and make us be on our knees and stare at the corner.” (AR 41-42.) Beltran grabbed Erik’s neck below his hairline. (AR 79.) Erik was required to stay in the corner for 5-10 minutes and stare at the wall, and Beltran got angry if Erik did not stay and stare at the wall. (AR 43, 77.) When Beltran grabbed Erik by the neck, Erik described the pain as 6.2 (AR 44-45.) Because of Beltran’s conduct, Erik felt angry, embarrassed and sad, and after school, Erik locked himself in his bedroom and cried, which happened “lots of time.” (AR 42-43, 48.) Erik identified Beltran in the courtroom and confirmed Beltran was the person who grabbed him by the neck. (AR 90.) During his testimony, Erik was honest about his conduct in Beltran’s class and described himself as playful, and that he talked and sometimes did not follow the class rules. (AR 69.) Beltran also excluded Erik from class pizza parties. (AR 49-50.) Erik’s testimony was corroborated by other District evidence. Omar testified that he saw Beltran grab Erik’s neck when he was sitting at his desk on approximately 20 occasions, and that Beltran made Erik face the wall. (AR 310-11, 317-20.) Additionally, on the day he was interviewed by the police, Erik prepared a written statement on May 28, 2014, which was consistent with his hearing testimony. (AR 52-53; 2301.) Students Juan, Ximena, Osmara, Roselyn, Ivan, Jennifer, Brithany, Joshua, Jaime, and Jahir’s written statements corroborate Erik’s hearing testimony regarding Beltran’s conduct. (AR 2296, 2298-2300, 2302-07.) Joseph testified at the hearing, and at the time of his testimony, he was 14 years old and in the seventh grade. (AR 109.) Joseph did not like being in Beltran’s class because “[Beltran] used to scream a lot, and he used to grab us by the neck and throw us on the carpet.” (AR 111.) Beltran screamed at the class every day with an angry face. (AR 129.) When Joseph saw Beltran grab other students’ necks, Joseph laughed and Beltran got mad and then grabbed Joseph’s neck and threw him to the carpet. Joseph described Beltran’s grab of his neck as “hard,” using pressure, and the pain was a 9. Beltran grabbed his neck, below his hairline, approximately once a day, starting at the beginning until the end of the school year. (AR 116-18; 167.) Approximately three times a day, Beltran also grabbed Joseph’s neck and took him to face the wall for about 15 minutes and he had to keep his 2 During the hearing, the students were asked to describe the pain on a scale of 1 to 10, with 1 being the lowest level of pain, and 10 being the highest. 13 PETITIONER LOS ANGELES UNIFIED SCHOOL DISTRICT’S NOTICE OF MOTION AND MOTION FOR WRIT OF ADMINISTRATIVE MANDAMUS D A N N I S W O L I V E R K E L L E Y 11 5 Pi ne AV EN UE , Su lT E 50 0 Lo nG BE ac H, CA 9 0 8 0 2 DWK DMS 3573819v1 ~N O Y a B A W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 hands behind his back. Beltran got mad if Joseph did not face the wall. (AR 119-23.) Joseph felt angry, sad and uncomfortable by Beltran’s conduct, and he cried during class time. (AR 129-130.) During his testimony, Joseph was honest about his conduct in Beltran’s class and stated that he did not follow the class rules or do his homework, talked to his friends, and was a joker and clown. Beltran also benched Joseph during recess, called his parents about his conduct, and excluded him from class pizza parties. (AR 153-54, 156-60, 162-63.) Joseph's testimony was corroborated by other District evidence. Erik testified that on one occasion, he saw Beltran grab Joseph’s neck and put him in the corner on his knees. (AR 45-46.) Omar testified that he saw Beltran grab Joseph's neck on approximately 30 occasions, Beltran made Joseph face the wall, and when Joseph did not face the wall, Beltran grabbed Joseph’s neck and put him into the rug. (AR 310-11, 317-20.) Additionally, Joseph prepared a written statement dated May 29, 2014, which was consistent with his hearing testimony. (AR 132-134; 2295.) Students Juan, Jennifer, and Jahir’s written statements corroborate Joseph’s hearing testimony regarding Beltran’s conduct. (AR 2296, 2303, 2307.) Omar testified at the hearing, and at the time of his testimony, he was 13 years old and in the seventh grade. (AR 301.) While Omar was sitting at his desk, Beltran grabbed Omar’s neck, came close to his face and ear, and told him to do his work, which occurred approximately 30 times during the year. Omar described Beltran’s grab of his neck below the hairline as a “light grab.” Omar felt intimidated by Beltran’s conduct. (AR 303, 307-10, 314, 320.) When Omar was misbehaving, Beltran also made him face the wall for about 10 minutes, which occurred about 30 times throughout the year, or Beltran grabbed Omar’s neck and pushed him to the rug to sit down, and Omar sat criss-cross on the rug. (AR 304-05, 315-17.) After Omar told Principal Bolado about Beltran, he thought Beltran’s conduct was wrong: “Because he’s a teacher, and you shouldn’t be grabbing the students.” (AR 356.) Beltran also sent Omar to another classroom and/or excluded him from pizza parties because of his conduct. (AR 338, 352.) During his testimony, Omar was honest about his conduct in Beltran’s class and stated that he did not follow class rules, talked a lot, and did not do his work. (AR 335-36.) Omar’s testimony was corroborated by other District evidence. Erik testified that he saw Beltran grab Omar’s neck. (AR 45.) Joseph testified that when Omar was a troublemaker, he saw Beltran grab Omar’s neck and throw him to the carpet. (AR 116-17.) Additionally, Omar prepared a written 14 PETITIONER LOS ANGELES UNIFIED SCHOOL DISTRICT’S NOTICE OF MOTION AND MOTION FOR WRIT OF ADMINISTRATIVE MANDAMUS D A N N I S W O L I V E R K E L L E Y 11 5 Pi ne AV EN UE , Su lT E 50 0 Lo nG BE ac H, CA 9 0 8 0 2 DWK DMS 3573819v1 ~N O Y a B A W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 statement for Principal Bolado, which was consistent with his hearing testimony. (AR 321-24; 2293.) Students Juan, Ximena, Osmara, Roselyn, Joshua, Jaime, and Jahir’s written statements corroborate Omar’s hearing testimony regarding Beltran’s conduct. (AR 2296, 2298-2300, 2305-07.) The Commission improperly gave weight to David’s testimony over the above three boys’ testimony. (AR 3188 [{71].) David testified that Beltran did not do anything to hurt him when he was in Beltran’s second grade class, and he did not see Beltran do anything to hurt other kids in the class. (AR 1220-21.) David was friends with students Osmara, Jennifer and Jazmin, and described them as good students who would not lie about Beltran. (AR 1226-29; 1240.) Osmara stated in her written statement that Beltran grabbed David, Omar and Erik by the neck when they got in trouble. (AR 2299.) By a preponderance of the evidence, David’s testimony does not outweigh the District’s contrary evidence of Erik, Omar, and Joseph, and the other students’ witness statements that corroborated the evidence of Beltran’s misconduct. 2. The Commission Improperly Relied Upon the Biased and Discriminatory Expert Witness Testimony. As explained above, because Beltran’s expert witness should have been excluded from the hearing, the Commissions findings and conclusions relying on the expert evidence shall be stricken. Specifically, although the Commission found that the boys did not intend to lie about their interactions with Beltran, it nonetheless found the “truth of what they purportedly observed was not established by the preponderance of the evidence” because of the “credible expert testimony provided by Professor McAuliff.” (AR 3188 [{71].) Professor McAuliff’s expert opinion was founded in discrimination towards ELL students: He opined that for Beltran’s second grade students, “the fact that a lot of these kids were struggling academically, had potential learning disabilities, really puts them more in kind of the preschooler stage, and that’s the group that is the most easily influenced by suggestive questions and these larger factors.” (AR 1700-01.) In essence, Professor McAuliff opined that ELL students are less reliable than students of the same age who are not ELL, which is based upon the improper and discriminatory bias that ELL students are less intelligent, developed, or mature than students who speak English as a first language, which are contrary to the weight of the evidence. (AR 3187-88 [191 68-69].) There was no evidence in the record that Beltran’s ELL students had any learning 15 PETITIONER LOS ANGELES UNIFIED SCHOOL DISTRICT’S NOTICE OF MOTION AND MOTION FOR WRIT OF ADMINISTRATIVE MANDAMUS D A N N I S W O L I V E R K E L L E Y 11 5 Pi ne AV EN UE , Su lT E 50 0 Lo nG BE ac H, CA 9 0 8 0 2 DWK DMS 3573819v1 ~N O Y a B A W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 disabilities or issues with development or maturity. Moreover, in preparation for his expert testimony, Professor McAuliff was not provided the transcripts for the boys who testified at the hearing, and admitted that his expert opinion could change if he were provided such hearing transcripts. (AR 1714- 15.) He also admitted that he had no evidence that any of the students talked amongst themselves about Beltran’s conduct, and just assumed they talked to each other because they were classmates. (AR 1720.) The Commission erroneously discounted the District’s evidence as unreliable based upon the expert’s unfounded and wholly discriminatory opinion about ELL students.® The Commission adopted this discriminatory foundation throughout its findings and conclusions regarding Beltran’s conduct at Graham, and the Decision is irreparably flawed. (AR 3188 [{[71].) 3. Beltran’s Testimony Contradicts the Commission’s Findings Regarding his Conduct at Graham. When explaining his “time out” procedure, Beltran testified that he verbally asked the subject student, “Can you please go and have a time out?,” which meant the student had to go to the rug or center, or to their desk, for about five minutes. (AR 895-97.) Contrary to the Commission’s findings, Beltran never stated that he touched the students in the neck area to “guide them” to time out. In fact, Beltran denied ever grabbing students by the neck, forcing students to kneel in the corner or on the floor, throwing students on the rug, making students face the wall or the corner, sending them to another teacher’s classroom, or excluding students from pizza parties. (AR 891-92; 898-99; 3178 [] 28].) Beltran, however, admitted that he did scream or yell at the students. (AR 892.) C. Commission’s Findings Regarding Beltran’s Conduct at Rodia Are Not Supported by the Weight of the Evidence and an Abuse of Discretion Charges 6 through 30 of the Accusation concern Beltran’s conduct at Rodia during the 2016- 17 and start of the 2017-18 school years, where he engaged in sexual harassing-type conduct towards teenage girls when he leered and stared at their buttocks and breasts and complimented girls by 3 David, who testified for Beltran’s case, is also an ELL student. Nonetheless, in contradiction and with no explanation why David should be treated differently than the other ELL students, the Commission credited and relied upon David’s testimony but discounted the other three boys’ testimonies as well as corroborating administrative hearsay from the other students’ witness statements. (AR 3181, 3188 [q[q 42, 71].) 16 PETITIONER LOS ANGELES UNIFIED SCHOOL DISTRICT’S NOTICE OF MOTION AND MOTION FOR WRIT OF ADMINISTRATIVE MANDAMUS D A N N I S W O L I V E R K E L L E Y 11 5 Pi ne AV EN UE , Su lT E 50 0 Lo nG BE ac H, CA 9 0 8 0 2 DWK DMS 3573819v1 AN nn BA WLW 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 calling them “cute” and “pretty.” (AR 2039-52.) The Commission erroneously made the following findings regarding Beltran’s conduct at Rodia: e “[Beltran] is a very formal individual who arrived at the hearing each morning in a suit and sat stiffly and expressionlessly staring ahead, often looking over the top of his glasses and listening intently to evidence each day. Based upon the testimony of [Beltran], his students, administrators and staff, this was consistent with [Beltran’s] rigid, formal and sometimes awkward demeanor in the classroom. . . . Primarily he imposed structure and order in the classroom and enforced rules. This gave him the label of ‘mean’ and ‘strict’ and did not make him a popular teacher. [Beltran] values respect and order and was not particularly concerned about being popular or the friend of all students. However, his awkward attempts at conversation were seen as contrived by the students and the mandate to implement Restorative Justice techniques only exacerbated the situation.” (AR 3213 [] 153] [emphasis added].) eo “[Beltran] probably stared at students and at the computers to ensure that students were doing what they were supposed to do, and that computers and other equipment were not being damaged, stolen or used for other than the intended purposes. He also was on the lookout for cellphone usage; students applying makeup, students that needed assistance, tardy students, off task behavior and students coming and going from the classroom without permission. Ultimately, only [Beltran] knows what he was looking at, if anything, when students felt uncomfortable. The Commission acknowledges that Liz felt uncomfortable when her peers teased her whether they accurately or really perceived [Beltran] to be overly attentive to her or not.” (AR 3213 [{ 154] [emphasis added].) eo “[T]he testimony of Liz B. and Lorena N. are given little weight in determining whether [Beltran] actually inappropriately looked or stared at the butts or breasts of Liz B., or any other students. These witnesses generally extrapolated from and relied on hearsay from others and speculated about [Beltran’s] gaze and intent. Each had reason to be biased against [Beltran] (i.e. Lorena did not receive credit for her Spanish class because [Beltran] would not excuse her from the required recordings, [Beltran] would not allow Liz to be distracted by photos with her boyfriend and was strict about his classroom rules.) However, the Commission gives weight to their testimony about how they felt about their perception of [Beltran] and believes that based upon the totality of circumstances in the gossip-laden environment, Liz B. and Lorena N. were uncomfortable with Respondent due to what their peers had represented to them and their misinterpretation of [Beltran’s] demeanor. The gossip and speculation based upon hearsay was pervasive and infected most of the written statements from the Rodia students.” (AR 3214 [156] [emphasis added].) e “Less weight overall was given to the testimony of Ms. Medina and Ms. Mendoza than to others because they had become ensnarled in the gossip and speculation about [Beltran]. It was also clear from Ms. Medina’s demeanor during her testimony that she was friends with the female students and did not care for [Beltran]. The Commission credits the testimony of Ms. Medina and Ms. Mendoza in that they accurately recounted what was told to them by students and what they heard from the students. Ms. Galata’s testimony regarding her interviews with [Beltran] and the students was credited as was the testimony of Principal Gutierrez. However, neither had first-hand knowledge of the allegations nor had they observed [Beltran] stare at students inappropriately, make inappropriate remarks or possess the subject magazines.” (AR 3214-15 [] 158] [emphasis added].) e “It was not established by a preponderance of the evidence, as alleged in Charge 11 of the Accusation, that during the period of August 2016 through September 2017, [Beltran] stared at Students’ buttocks and breasts. It was only established that some students reported that they believed [Beltran] was staring at their buttocks and breasts and that their belief in the (sic) that as fact made them uncomfortable in the classroom.” (AR 3217 [{ 168] [emphasis added].) 17 PETITIONER LOS ANGELES UNIFIED SCHOOL DISTRICT’S NOTICE OF MOTION AND MOTION FOR WRIT OF ADMINISTRATIVE MANDAMUS D A N N I S W O L I V E R K E L L E Y 11 5 Pi ne AV EN UE , Su lT E 50 0 Lo nG BE ac H, CA 9 0 8 0 2 DWK DMS 3573819v1 ~N O Y a B A W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 The Commission’s findings are contrary to the weight of the evidence. The District presented the testimonies of two former female students (who were victims of Beltran’s misconduct) and of two staff and one administrator, and witness statements, that all corroborated the girls’ testimonies. 1. Great Weight Should Have Been Given to District’s Student and Staff Testimonies. Contrary to the Commission’s findings, the District did not merely present evidence of “gossip,” but rather, presented female victims who personally experienced and were adversely impacted by Beltran’s misconduct. Specifically, Lorena was 18 years old when she testified at the hearing. (AR 364.) Lorena had Beltran for Spanish and Health classes in 2016 and 2017, which were computer classes. (AR 371-72; 405-07.) Lorena testified that she felt uncomfortable in Beltran’s class because he gave her a “weird” vibe because of the way he expressed himself to her and others. Specifically, Beltran complimented the way she looked and stated: “Oh, you look nice with your hair down. Haven’t you noticed guys treating you different? I mean, I even held the door open for you when you walked in”; and asked her whether she thought about wearing makeup because that would stand out to guys. Lorena understood Beltran’s reference to “guys” as the boys in her school. (AR 373-74.) Lorena also observed Beltran make similar comments to other female students: Beltran said to student Caroline that she looked like a “cute chola” (AR 381-84), and to student Nadine that she looked cute because she had makeup on her eyes (AR 376-80). In 2016 and 2017, Lorena observed Beltran staring at girls in an inappropriate manner, and this made her uncomfortable. Specifically, during class time while Lorena was seated at her desk, she “caught” Beltran staring at girls’ butts when they stood up from their seats and walked to exit the classroom. Lorena could see Beltran’s eyes and she “caught him looking down at their butts and not at their back or their head,” and this occurred with different girls more than ten times per year. (AR 390-98.) Lorena never saw Beltran looking at boys when they left the classroom. (AR 429.) The alleged bias that the Commission attributed to Lorena was insufficient to discount her testimony regarding Beltran. Lorena was upset when Beltran made her complete the audio recording to pass her Spanish class because he did not require such recordings of other students to pass, including one of Lorena’s friends. (AR 413-14.) This event did not establish any motive or bias for Lorena to lie about Beltran. Moreover, towards 18 PETITIONER LOS ANGELES UNIFIED SCHOOL DISTRICT’S NOTICE OF MOTION AND MOTION FOR WRIT OF ADMINISTRATIVE MANDAMUS D A N N I S W O L I V E R K E L L E Y 11 5 Pi ne AV EN UE , Su lT E 50 0 Lo nG BE ac H, CA 9 0 8 0 2 DWK DMS 3573819v1 ~N O Y a B A W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 the end of the school year, Lorena was aware that people were voluntarily writing statements about their uncomfortable experiences with Beltran, and this prompted her to voluntarily come forward and provide her own statement about Beltran. (AR 399-409; 2336.) Liz was 20 years old when she testified at the hearing. (AR 430.) She had Beltran for approximately two (2) years for Spanish during 2016 and half of 2017. Liz’ brother, Kevin, also attended Rodia and they had Beltran’s Spanish class together in 2016. (AR 435-37.) Liz testified that she felt unsafe and uncomfortable in Beltran’s class. Specifically, in 2016, classmates told Liz on a daily basis that when she stood up to go to the restroom or throw something away, Beltran was looking at her “ass,” and that Beltran “likes her.” Kevin told Liz that he saw Beltran look at Liz’s butt and this made him uncomfortable. (AR 439-42; 454-55.) When Liz personally observed Beltran looking at her friend Amber’s butt when she stood up and went to the restroom, Liz was convinced that Beltran was looking at her butt too, as her classmates and brother had reported to her. Liz observed Beltran’s eyes looking at Amber’s butt.* (AR 442-46.) Beltran also got really close to Liz and invaded her personal space when he stood behind her to look over her shoulder, or got close to her on the side, which happened every day. One day, Liz was wearing a button-up flannel shirt, and it opened near her chest area and her breast was visible. Beltran came close to Liz’s head and whispered that he could see her breast between her shirt. Beltran’s conduct made Liz feel hot and uncomfortable. (AR 447-53.) Moreover, near the start of the school year, in Liz’s and other students’ presence, student Xavier told Beltran: “Stop looking at Liz when she gets up. No girl likes to be checked out.” Beltran did not respond to Xavier’s accusation and sat there silently. Liz felt uncomfortable because she expected Beltran to deny Xavier’s accusation, and when he did not, Liz believed that Beltran was acknowledging the truth of Xavier’s accusation. After speaking with Xavier, Liz was under the impression that Principal Awtry was not going to do anything about what Liz perceived to be Beltran’s inappropriate behavior. (AR 456-62; 474.) Since the start of the school year, Liz confided in Evelyn Mendoza, a Rodia teacher, about her concerns with Beltran’s conduct * The ALJ asked Liz: “Did you girls all have a plan to watch the teacher and see what he did when the girls stood up?”, and Liz responded: “No. Not really. But it was more like I would look at him, and then I would just be, like, ‘Dammit. I just saw him do that.” And then that’s when we just all confirm, like, it is happening, yeah.” (AR 447.) 19 PETITIONER LOS ANGELES UNIFIED SCHOOL DISTRICT’S NOTICE OF MOTION AND MOTION FOR WRIT OF ADMINISTRATIVE MANDAMUS D A N N I S W O L I V E R K E L L E Y 11 5 Pi ne AV EN UE , Su lT E 50 0 Lo nG BE ac H, CA 9 0 8 0 2 DWK DMS 3573819v1 ~N O Y a B A W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 and feeling uncomfortable. (AR 466-68.) Liz testified that throughout the school year, Beltran made her uncomfortable: “I believe that when you go to a school, the teacher should make you feel safe, not make you feel uncomfortable. (AR 477-78.) After Liz graduated, in approximately September 2017, someone at Rodia called Liz and asked if she would provide a statement about her experience in Beltran’s class. Liz decided to provide a written statement because the school was now going to do something about Beltran’s inappropriate conduct. Liz’ brother also provided a written statement as a witness to Beltran’s conduct towards Liz. (AR 469-77; 2331-32; 2339.) The alleged bias that the Commission attributed to Liz was insufficient to discount Liz’s testimony regarding Beltran. Liz felt awkward that Beltran made her turn over the pictures of her and her boyfriend on her binder, especially when none of her other teachers told her to do so. (AR 464-65.) Beltran’s conduct went towards Liz’s feelings of discomfort towards Beltran, and does not establish any bias to lie. The Commission also improperly discounted Medina’s and Mendoza’s hearing testimonies. Their testimonies were consistent with and corroborated Liz’s and Lorena’s testimonies. The Commission improperly found that Medina appeared to be “friends” with the students, which is contrary to the weight of the evidence. Medina was the office manager at Rodia since the 2016-17 school year. (AR 542-43.) Medina described the Rodia students as “broken students,” where many are homeless, in the foster system, or were sexually abused/molested. Because Rodia did not have a counselor, Medina served in the counselor role for the students. (AR 545-47.) Several students referred to Medina as “mom,” and complained to her that they did not want to be in Beltran’s class because he was weird and made them feel uncomfortable, and that he looked at their breasts and buttocks. Medina received these student complaints throughout most of the 2016-17 school year, and the complaints were frequent, at least once or twice a week. Medina allowed girls to work in the office} because of her “instinct to protect the girls.” (AR 552-56.) Principal Gutierrez also instructed Medina to interview students who complained about Beltran and have them prepare written statements. (AR 548-52.) Contrary to the Commission’s findings, Medina was not ensnarled in the gossip - she was the recipient of many of the student-victims’ complaints who confided in her about Beltran’s misconduct in her role as “mom” or counselor. Similarly, contrary to the Commission’s findings, Mendoza was not ensnarled in the gossip, but was the direct recipient of student complaints. Liz and 20 PETITIONER LOS ANGELES UNIFIED SCHOOL DISTRICT’S NOTICE OF MOTION AND MOTION FOR WRIT OF ADMINISTRATIVE MANDAMUS D A N N I S W O L I V E R K E L L E Y 11 5 Pi ne AV EN UE , Su lT E 50 0 Lo nG BE ac H, CA 9 0 8 0 2 DWK DMS 3573819v1 ~N O Y a B A W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 student Judith confided in Mendoza that they felt uncomfortable in Beltran’s class because he stared af them a lot. In addition to informing then-Principal Awtry, Mendoza also promptly informed Beltran that some students had complained to her that Beltran made them uncomfortable because he stared or looked at them inappropriately. Beltran did not respond. Mendoza informed Beltran about the complaints because she “wanted him to be aware that a student was feeling uncomfortable and maybe for him to try to be more aware of his - I don’t know - I guess the way he interacts with students, yeah.” (AR 511-17.) On August 25, 2017, Mendoza voluntarily submitted a written statement to Principal Gutierrez regarding the student complaints she heard about Beltran over the past 2 years.’ (AR 522-26; 2325.) 2. Little Weight Should Have Been Given to Beltran’s Testimony Because He Was Impeached and Not Credible. During his direct testimony, Beltran denied looking at female students in an inappropriate manner, or doing anything that would make them feel uncomfortable. In fact, he testified that the first time he ever learned that female students had accused him of looking at them inappropriately was when Principal Gutierrez removed him in September 2017 and he was under investigation. Beltran testified that had he known earlier that female students were making these complaints about him, he would have modified his behavior so that students would not have misperceived his conduct. (AR 1035-37; 1121-22.) Beltran also testified that Principal Awtry and Mendoza never told him any complaint details and only vaguely mentioned that students were talking about him. (AR 1035-38.) Beltran’s direct testimony was inconsistent with his prior statements to the District and with Mendoza’s credible testimony, and therefore, the Commission erred by finding Beltran credible. During cross examination, Beltran acknowledged that he was truthful during his interview with a District investigator and understood it was his opportunity to provide his defense. (AR 1173-74; 1179.) Kandice Galata, SSIT investigator, testified that her investigation report accurately reflected what Beltran told her during the November 13, 2017 interview. (AR 1758-61; 1766-68.) During that > Mendoza also had her own personal experiences with Beltran where he made her feel uncomfortable and weird. The first was when he invaded her personal space by getting too close to her. The second was during passing period, when in response to something a student said to her, Mendoza said to Beltran, “Oh, I'm really good at pretending” or “I'm really good about faking it.” Beltran then responded, “Your husband must like that.” (AR 507-09.) 21 PETITIONER LOS ANGELES UNIFIED SCHOOL DISTRICT’S NOTICE OF MOTION AND MOTION FOR WRIT OF ADMINISTRATIVE MANDAMUS D A N N I S W O L I V E R K E L L E Y 11 5 Pi ne AV EN UE , Su lT E 50 0 Lo nG BE ac H, CA 9 0 8 0 2 DWK DMS 3573819v1 ~N O Y a B A W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 interview, Beltran shared the following regarding what Principal Awtry told him: Mr. Beltran stated that not too long after he began working at Rodia HS, former Principal Ms. Awtry told him that students complained that they were uncomfortable. Ms. Awtry informally conferenced Mr. Beltran and told him that student Judith L. complained that she did not like the way Mr. Beltran looked at her. Ms. Awtry also said some other students complained about similar things, but he did not remember if Ms. Awtry named them or just said students. (AR 2353-54.) District counsel moved for Beltran’s statements during the District’s investigation be admitted for all purposes as admission of party opponent. The ALJ erroneously denied the District’s motion and concluded that Beltran’s statements were only administrative hearsay. (AR 1761-65.) An out-of-court statement is admissible to prove its truth if offered against the declarant in an action to which the declarant is a party. (Evid. Code, § 1220; Estate of Anderson (1997) 60 Cal.App.4th 436, 441; Jazayeri v. Mao (2009) 174 Cal. App.4th 301, 324-325.) The hearsay statement need not contradict an essential element of a party’s prima facie case and suffices that the party’s out-of-court statement contradicts something the party is trying to prove or support something the adversary is trying to prove. (Gates v. Pend-leton (1925) 71 Cal.App. 752, 756-757.) Here, during his interview with the SSIT investigator, Beltran stated that Principal Awtry told him soon after he started at Rodia that Judith and other students complained that he made them feel uncomfortable because of the way he looked at them. Beltran’s prior statement contradicts his hearing testimony that he first learned that students were uncomfortable with his conduct when he was placed under investigation, and that had he known earlier, he would have modified his behavior. Beltran’s out-of-court statements to Ms. Galata constitute admissible evidence by a party opponent because they contradict his trial testimony, and were offered by the District to prove that Beltran knew early on that female students had complained about the way he looked at them and he did nothing to change his behavior. Moreover, Mendoza credibly testified that she told Beltran that some students had complained that he made them uncomfortable because he stared or looked at them inappropriately. 3. The Weight of the Evidence Established that Beltran Sexually Harassed the Female Students at Rodia. The Commission erroneously found that Beltran was socially-awkward and overly-formal with teenagers, which may have led students to misperceive his actions as inappropriate. Such 22 PETITIONER LOS ANGELES UNIFIED SCHOOL DISTRICT’S NOTICE OF MOTION AND MOTION FOR WRIT OF ADMINISTRATIVE MANDAMUS D A N N I S W O L I V E R K E L L E Y 11 5 Pi ne AV EN UE , Su lT E 50 0 Lo nG BE ac H, CA 9 0 8 0 2 DWK DMS 3573819v1 ~N O Y a B A W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 finding is contrary to the weight of the evidence, which as explained above, Beltran was aware since the beginning and throughout his tenure at Rodia that female students perceived his actions as inappropriate, which made them uncomfortable. Moreover, Beltran admitted that student Xavier told him in class to “stop looking at Liz.” (AR 1026-28; 1168-69.) Beltran also admitted that someone told him that student Andrea was offended because he complimented the image of a rapper on her shirt. (AR 1179-81.) Additionally, while Beltran was teaching at Rodia, on August 28, 2015, he was directed, among other things, to refrain from looking at students in an intimidating manner. (AR 3190-91 [{(81].) Based on the weight of the evidence, it was established that Beltran knew throughout his tenure at Rodia that students perceived him as looking at girls inappropriately, and that based on this perception, the female students were uncomfortable. Beltran, however, did nothing to change his conduct, and instead, he perpetuated the hostile educational environment which resulted in female students repeatedly complaining about his conduct over his 2-year tenure at Rodia. The Commission improperly ignored such evidence and instead, erroneously credited Beltran’s self-serving testimony: “Ultimately, only [Beltran] knows what he was looking at, if anything, when students felt uncomfortable.” (AR 3213 [{ 154].) In a sexual harassment analysis, the appropriate inquiry is whether the female students, from an objective and subjective viewpoint, would find Beltran’s conduct to be hostile or offensive: (1) whether a reasonable person would find an objectively hostile or abusive environment; and (2) the victim’s subjective perception that the environment is hostile or abusive. (Fisher v. San Pedro Peninsula Hosp. (1989) 214 Cal.App.3d 590, 609.) Beltran’s motives are irrelevant to this analysis. (Gov. Code, § 12940()(4)(C) [“(s)exually harassing conduct need not be motivated by sexual desire]; see e.g., Rene v. MGM Grand Hotel, Inc. (9th Cir. 2002) 305 F.d. 1061, 1066-67 [“[S]o long as the environment itself is hostile to the plaintiff because of [his] sex, why the harassment was perpetuated (sexual interest? misogyny? personal vendetta? misguided humor? boredom?) is beside the point.”].) Here, the weight of the evidence supports a conclusion that Beltran’s conduct created a hostile educational environment for his students. In August 2015, the District specifically directed Beltran to “refrain from looking at students in an intimidating manner,” but he failed to follow this directive. Moreover, the Commission credited students Liz and Lorena’s testimonies that they were 23 PETITIONER LOS ANGELES UNIFIED SCHOOL DISTRICT’S NOTICE OF MOTION AND MOTION FOR WRIT OF ADMINISTRATIVE MANDAMUS D A N N I S W O L I V E R K E L L E Y 11 5 Pi ne AV EN UE , Su lT E 50 0 Lo nG BE ac H, CA 9 0 8 0 2 DWK DMS 3573819v1 ~N O Y a B A W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 uncomfortable with what they observed as Beltran staring at female students’ buttocks and breasts, and making inappropriate comments to female students about their appearance. Moreover, such complaints were pervasive from other female students, which corroborated Liz’s and Lorena’s testimonies and evidence. The Commission, however, improperly credited Beltran’s testimony over the victims’ testimonies, which was erroneous. Accordingly, had the Commission conducted the correct analysis, it should have concluded that Beltran’s conduct towards female students at Rodia constituted sexual harassment and created a hostile educational environment. D. The Commission’s Legal Conclusions Are Erroneous and Contrary to the Weight of the Evidence. Because the Commission erroneously found that Beltran did not engage in any misconduct, which is contrary to the weight of the evidence, the Commission also erred in concluding that there was no legal cause for Beltran’s dismissal. (AR 3224-26.) Beltran’s misconduct as sufficiently proven by the evidence constitute immoral conduct, unprofessional conduct, evident unfitness for service, and persistent violation of or refusal to obey the school laws and regulations. His corporal punishment and child abuse of second grade boys at Graham, and his sexual harassment and inappropriate conduct of teenage girls at Rodia, were hostile to the welfare of the students, parents, District and its staff, and the public, contrary to good morals, and demonstrates his inconsiderate attitude toward good order and the welfare of his students. (Board of Education of San Francisco Unified Sch. Dist. v. Weiland (1960) 179 Cal. App. 2d 808, 811.) Moreover, numerous California court decisions have consistently upheld teacher dismissals based on immoral conduct due to the teacher’s sexually harassing conduct of students, including both verbal and physical conduct. (See e.g., San Diego Unified Sch. Dist. v. Commission on Professional Competence (2011) 194 Cal.App.4th 1454; Palo Verde Unified Sch. Dist. v. Hensey (1970) 9 Cal. App.3d 967; ABC Unified Sch. Dist. v. Haar (1994) 28 Cal.App.4th 369.) Moreover, Beltran received two (2) Notices of Unsatisfactory Act regarding his unprofessional conduct at Graham and Rodia, and failed to improve his conduct. Beltran’s misconduct and his failure to take any responsibility for his actions reveal irremediable defects in temperament and character that evidence his unfitness to serve as a teacher. (Woodland Unified Joint School District v. Comm. On Prof. Competence (1992) 2 Cal.App.4th 24 PETITIONER LOS ANGELES UNIFIED SCHOOL DISTRICT’S NOTICE OF MOTION AND MOTION FOR WRIT OF ADMINISTRATIVE MANDAMUS D A N N I S W O L I V E R K E L L E Y 11 5 Pi ne AV EN UE , Su lT E 50 0 Lo nG BE ac H, CA 9 0 8 0 2 DWK DMS 3573819v1 ~N O Y a B A W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1429, 1457.) Beltran created an unsafe, hostile, and unwelcome environment at Graham and Rodia. The evidence also demonstrated that Beltran persistently violated or refused to obey the District rules and policies.’ The Commission also misapplied the Morrison factors to determine that Beltran should not be dismissed from employment. (AR 3227-28.) Analyzing Beltran’s misconduct under the Morrison factors demonstrate that he is unfit to serve as a teacher and shall be dismissed from District employment.” Dismissal is warranted in this case because of the serious nature of Beltran’s misconduct and to protect students from the likelihood that he will engage in similar conduct in the future. Corporal punishment is absolutely prohibited at the District. Sexual harassment cannot and shall not be tolerated in our public school classrooms (or in any setting). Beltran has been physically aggressive with second grade students, as well as objectified and sexualized female high school students. Without any acceptance of responsibility or any remorse, Beltran will engage in this same misconduct with students if returned to the classroom, and will cause irreparable harm to students. V. CONCLUSION Based on the foregoing, given the weight of the evidence, this Court should exercise its independent judgment and issue a writ of mandate directing the Commission to vacate its Decision and issue a new decision affirming the District’s decision to dismiss Beltran from employment. Dated: July 2, 2020 DANNIS Kline, ) By: ELLEN C. WU Attorneys for Petitioner Los Angeles Unified School District ® The District polices he violated include Code of Conduct with Student, Sexual Harassment Policy, Employee Code of Ethics, Child Abuse Policy, Board Resolution to Enforce the Respectful Treatment of all Persons, Abolition of Corporal Punishment, and Bullying and Hazing Policy. "There are seven Morrison factors, which include the likelihood that the conduct adversely affected students or fellow teachers, degree of adversity, proximity or remoteness in time of the conduct, extenuating or aggravating circumstances, if any, surrounding the conduct, and the likelihood of a recurrence, and only the pertinent factors need to be examined as it relates to the individual teacher’s conduct. (Morrison v. State Board of Education (1969) 1 Cal.3d 214, 229 (“Morrison™).) 25 PETITIONER LOS ANGELES UNIFIED SCHOOL DISTRICT’S NOTICE OF MOTION AND MOTION FOR WRIT OF ADMINISTRATIVE MANDAMUS D A N N I S W O L I V E R K E L L E Y 11 5 Pi ne AV EN UE , Su lT E 50 0 Lo nG BE ac H, CA 9 0 8 0 2 DWK DMS 3573819v1 ~N O Y a B A W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PROOF OF SERVICE STATE OF CALIFORNIA ) ) ss. COUNTY OF LOS ANGELES ) I am employed in the County of Los Angeles, State of California. I am over the age of 18 and not a party to the within action; my business address is: 115 Pine Avenue, Suite 500, Long Beach, CA 90802. On the date set forth below I served the foregoing document described as PETITIONER LOS ANGELES UNIFIED SCHOOL DISTRICT’S NOTICE OF MOTION AND MOTION FOR WRIT OF ADMINISTRATIVE MANDAMUS; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT on interested parties in this action as follows: SEE ATTACHED SERVICE LIST (VIA U.S. MAIL) I enclosed the documents in a sealed envelope or package addressed to the persons at the addresses on the attached service list. I deposited such document with the U.S. Mail at Redondo Beach, California with postage thereon fully prepaid I am aware that on motion of party served, service is presumed invalid if postal cancellation date or postage meter date is more than one day after date of deposit for mailing in affidavit. (VIA U.S. MAIL/REGISTERED/CERTIFIED) I enclosed the documents in a sealed envelope or package addressed to the persons at the addresses on the attached service list. I deposited such document with the U.S. Mail at Redondo Beach, California with postage thereon fully prepaid to cover the cost of certified mailing, attaching a registration number for the certified mailing and a postcard complete with the addressee’s name and address for a return receipt as requested. I am aware that on motion of party served, service is presumed invalid if postal cancellation date or postage meter date is more than one day after date of deposit for mailing in affidavit. (VIA FACSIMILE) I caused such document to be transmitted via facsimile to the addressee from the facsimile machine of DANNIS WOLIVER KELLEY whose phone number is 562-366-8500. The transmission by facsimile was reported as complete and without error. (BY PERSONAL SERVICE) I caused such envelope to be delivered by hand to the offices of the addressee. (VIA OVERNIGHT MAIL) I enclosed the documents in an envelope or package provided by an overnight delivery carrier and addressed to the persons at the addresses on the attached service list. I placed the envelope or package for collection and overnight delivery at an office or a regularly utilized drop box of the overnight delivery carrier. (VIA ELECTRONIC SERVICE) [Code Civ. Proc. Sec. 1010.6; CRC 2.251] by electronic mailing a true and correct copy through DANNIS WOLIVER KELLEY ’s electronic mail system from ifriend @dwkesq.com to the email address(es) set forth above, or as stated on the attached service list per agreement in accordance with Code of Civil Procedure section 1010.6 and CRC Rule 2.251. The transmission was reported as complete and without error. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed on July 2, 2020, at Redondo Beach, California. VW. 7=.0 Ila Friend 26 PETITIONER LOS ANGELES UNIFIED SCHOOL DISTRICT’S NOTICE OF MOTION AND MOTION FOR WRIT OF ADMINISTRATIVE MANDAMUS 1 Service List 2 Via U.S. Mail Respondent 3 Office of Administrative Hearings 4 || Presiding Administrative Law Judge 320 West Fourth Street, Room 630 5 Los Angeles, CA 90013 6 || Via Email Counsel for Real Party in Interest Julio Beltran 7| Tamra Smith Telephone: (424) 234-3643 8 Egality Law LLP Facsimile: (424) 234-5243 5757 Wilshire Boulevard, Suite 340 Email: tsmith@egalitylaw.com 9 || Los Angeles, California 90036 10 11 > Oo Sg Eo gis 248 14 o4Yao S5d 1s 2E¢ Zn8 16 Ow 17 18 19 20 21 22 23 24 25 26 27 28 21 - PETITIONER LOS ANGELES UNIFIED SCHOOL DISTRICT’S NOTICE OF MOTION 3573819v1 AND MOTION FOR WRIT OF ADMINISTRATIVE MANDAMUS
