CALIFORNIA CHARTER SCHOOLS ASSOCIATION v. LOS ANGELES UNIFIED SCHOOL DISTRICT

Respondent’s Opposition

Cal.October 10, 2013

COPY Case No. S20861 1 IN THE SUPREME COURT . SUPREME COURT OF THE STATE OF CALIFORNIA FILED UCT 10 2013 CALIFORNIA CHARTER SCHOOLS ASSOCIATION, Plaintiffand Respondent, Frank A. McGuire Clerk ~ DeputyV. LOS ANGELES UNIFIED SCHOOLDISTRICT,et ai. Defendants andAppellants. After a Decision by the Court of Appeal Second Appellate District, Division Five Case No. B242601 Los Angeles Superior Court Case No. BC438336 Honorable Terry A. Green, Presiding Judge, Dept. 14 OPPOSITION TO LAUSD’S MOTION REQUESTING JUDICIAL NOTICE IN SUPPORT OF ANSWERBRIEF ON THE MERITS LATHAM & WATKINS LLP CALIFORNIA CHARTER SCHOOLS James L. Arnone (Bar No. 150606) ASSOCIATION Winston P. Stromberg (Bar No. 258252) Ricardo J. Soto (Bar No. 167588) Vanessa C. Wu (Bar No. 274336) Julie Ashby Umansky(Bar No. 183342) Michele L. Leonelli (Bar No. 280867) Phillipa L. Altmann (Bar No. 186527) 355 South Grand Avenue 250 East 1“ Street, Suite 1000 Los Angeles, California 90071-1560 Los Angeles, California 90012 Telephone: (213) 485-1234 Telephone: (213) 244-1446 Facsimile: (213) 891-8763 Facsimile: (213) 244-1448 Email: james.arnone@lw.com Email: paltmann@calcharters.org Attorneys for Plaintiff and Respondent California Charter Schools Association Case No. S208611 IN THE SUPREME COURT OF THE STATE OF CALIFORNIA CALIFORNIA CHARTER SCHOOLSASSOCIATION, Plaintiffand Respondent, V. LOS ANGELES UNIFIED SCHOOL DISTRICT,etal. Defendants andAppellants. After a Decision by the Court of Appeal Second Appellate District, Division Five Case No. B242601 Los Angeles Superior Court Case No. BC438336 Honorable Terry A. Green, Presiding Judge, Dept. 14 OPPOSITION TO LAUSD’S MOTION REQUESTING JUDICIAL NOTICE IN SUPPORT OF ANSWERBRIEF ON THE MERITS LATHAM & WATKINS LLP CALIFORNIA CHARTER SCHOOLS James L. Amone(Bar No. 150606) ASSOCIATION Winston P. Stromberg (Bar No. 258252) Ricardo J. Soto (Bar No. 167588) Vanessa C. Wu (Bar No. 274336) Julie Ashby Umansky (Bar No. 183342) Michele L. Leonelli (Bar No. 280867) Phillipa L. Altmann (Bar No. 186527) 355 South Grand Avenue 250 East 1“ Street, Suite 1000 Los Angeles, California 90071-1560 Los Angeles, California 90012 Telephone: (213) 485-1234 Telephone: (213) 244-1446 Facsimile: (213) 891-8763 Facsimile: (213) 244-1448 Email: james.arnone@lw.com Email: paltmann@calcharters.org Attorneys for Plaintiff and Respondent California Charter Schools Association I. INTRODUCTION Defendants’ and Appellants’ (collectively, “LAUSD”) motion for Judicial notice (“RIN”) suffers from manyflaws that cannot be overcome. First, having failed to introduce any admissible evidence below showing that compliance with the plain languageof the Prop. 39 Implementing Regulations’ will cause anyofthe dire consequencesit asserts will occur, LAUSD nowseeksto use judicial notice to manufacture a new factual record in this case. LAUSD had ample opportunity to present evidenceat thetrial court, butit failed to do so. “{A]n appellate court generally is not the forum in which to develop an additional factual record....” (People v. Peevy (1998) 17 Cal.4th 1184, 1207 (Peevy); see also Haworth v. Superior Court (2010) 50 Cal.4th 372, 379,fn. 2.) Second, LAUSDseeksto use documents submittedin its RJN to prove the truth of the matters stated therein. That is improper. (Klein v. Chevron U.S.A., Inc. (2012) 202 Cal.App.4th 1342, 1360, fn. 6 (Klein).) Finally, LAUSDattempts to use other documents submittedin its RJN to make improper factual inferences. “Evidence which produces only speculative inferencesis irrelevant evidence.” (People v. v. De La Plane (1979) 88 Cal.App.3d 223, 242, emphasis added.) ' Cal. Code Regs., tit. 5, §§ 11969.1 — 11969.11 (“Implementing Regulations”). For the reasons described herein, Plaintiff and Respondent California Charter Schools Association (“CCSA”) requests that the Court deny LAUSD’s RJN. If, however, this Court is willing to consider LAUSD’s newly submitted evidence, CCSA requests that the Court also consider materials submitted by CCSAin its Conditional Request for Judicial Notice, filed concurrently with CCSA’s Reply Brief and this Opposition. II. ARGUMENT A. LAUSD’s Request For Judicial Notice Of The Full Text And Sample Ballots Of Measures Q and Y Is Improper LAUSDasksthis Court to take judicial notice of the sample ballots for ballot Measure Q, approved November4, 2008, and for ballot Measure Y, approved November8, 2005, pursuant to Evidence Codesection 452, subdivisions(b), (c), and (h). (LAUSD’s RJN,pp. 3-6; Exhs. 1 & 2.) Judicial notice is inappropriate for the purposes for which LAUSDseeksto use the sample ballot measuretext. LAUSDcites to the “Findings” from the sample ballot and attempts to use those findings as truthful factual statements. Asaninitial matter, courts are not the proper forum to develop a new factual record. (Vons Companies, Inc. v. Seabest Foods, Inc. (1996) 14 Cal.4th 434, 444, fn. 3 (Vons).) Further, courts may only take judicial notice of the existence of documents and may nottake judicial notice ofthe truth of the contents of those documents. (Klein, supra, 202 Cal.App.4th at p. 1360, fn. 6; Herrera v. Deutsche Bank National Trust Co. (2011) 196 Cal.App.4th 1366, 1375.) LAUSDreferences its own ballot measures for facts asserted therein, nearly quoting verbatim languageit wrote and put in the ballot measures. To demonstrate that LAUSDseeksto use its own ballot measures to provethe truth of the matters.asserted, the below table compares LAUSD’s statements in its AnswerBrief against the cited text of the ballot measures: Statement in Answer Brief Language in Ballot Measure “Between the mid-1980s and the mid-2000s the District experienced enormous growth, adding approximately 200,000 students — a numberthatis itself larger than any other school district in California.” (AB,p. 6 [citing LAUSD’s RJN, Exh.1, p. 2)” “The District has experienced enormousgrowth within the past 20 years, adding approximately 200,000 students — a numberthatis itself larger than any other school district in California.” (LAUSD’s RJN, Exh. 1 [Measure Q],p. 2.) “By 2002, over 354,000 students attended schools operating on multi- track, year-round calendars, reducing the numberof days these students attended school. [Citation] Similarly, more than 15,000 students could not attend neighborhood schools due to overcrowding and were bused to other campuses, sometimes more than an hour away.” (AB,pp. 6-7 [citing LAUSD’s RJN,Exh. 2, p. 92]; see also AB,p. 36.) “By 2002, over 100,000 more students were enrolled in the District than it had two-semesterseats for them to occupy, more than 15,000 students could not attend their neighborhood schools due to overcrowding and instead had to be bussed to other campuses, sometimes more than an hour away. Over 354,000 students attended schools that were operating on special calendars that could only accommodate their enrollment through the use of multi-tracking schedules that reduced the number of school-days students attended school.” (LAUSD’s RJN [Measure Y], Exh. 2, p. 92.) Statement in-Answer Brief -Language inBallotMeasure “{E]ven at the completion of the District's New School Construction and Modernization Program,tens of thousands of students will remain in portable classroomsand the majority of the District’s schools will be muchlarger than the state average.” (AB,p. 8 [citing LAUSD’s RJN, Exh.1, p. 3]; see also AB,p. 35.) “[E]ven at the completion of the currently defined Program,there will still be approximately 200,000 students learning in portable classrooms and the majority of the District’s schools will be much larger than the State average.” (LAUSD’s RJN, Exh. 1 [Measure QI, p- 3.) In addition, a school district ballot measure is approved by the voters, not the Legislature, an executive branch agency, or any other public agency. Assuch, the sample ballots for Measures Q and Y do not qualify for judicial notice under Evidence Code section 452, subdivision (b), as that subdivision only permits courts to take judicial notice of regulations and legislative enactments. Moreover,just because a local schooldistrict ballot measureis a document created by a government agency and submitted to the voters does not mean it constitutes “[f]acts and propositionsthat are not reasonably subject to dispute and are capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy.” (Evid. Code, § 452, subd. (h).) Here, LAUSD referencessections of the “Findings” from both ballot measures in its Answer Brief. A local school district ballot measure’s “Findings”are self-serving, containing information within the school district’s control and drafted in order to persuade voters to approve the measure. Assuch, the ballot measures should not qualify for judicial notice under Evidence Code section 452, subdivision (h). In sum, as LAUSDseeksonlyto use the ballot measures for the truth of the statements made therein, LAUSD’s request for judicial notice should be denied. B. LAUSD’s Academic Performance Index Base Reports Are Irrelevant LAUSDrequests judicial notice of district-wide Academic Performance Index (“API”) Base Reports for the 2005, 2011, and 2012 school years, alleging that LAUSD’sincrease in performance, as measured by the API scores, directly correlates to a reduction in overcrowding and elimination of “stopgap measures” at LAUSD campuses. (LAUSD’s RIN, p. 6; see also AnswerBrief (“AB”), p. 9.) LAUSD claimsthatifit is forced to comply with CCSA’sinterpretation of the Implementing Regulations, LAUSD might have to overcrowdits classroomsorreinstate those former “stopgap measures,” causing academic performanceat LAUSD-run schools to suffer. (LAUSD’s RIN,pp. 6-7.) Contrary to LAUSD’sassertion,its API scores cannot be judicially noticed as they do notsatisfy the requirementthat “the matter to be noticed [be] relevant to the appeal.” (Cal. Rules of Court, rule 8.252, subd. (a)(2)(A).) LAUSD’s API scoresare irrelevant for manyreasons,butespecially because LAUSDoffers no proofthat the modestrise in API scores is connectedto,let alone the productof, a reduction in overcrowding at LAUSDcampuses. In the roughly half-decade betweenthe first API report LAUSDcites to (2005) and the last (2012), any numberofotherfactors could have impacted student performance at LAUSDschools, such as changing demographics, improved teaching methods, the availability of school breakfasts or lunches, or a decrease in crime in neighborhoods served by LAUSD-runschools. Second, LAUSD presumes that CCSA’s interpretation of the Implementing Regulations will result in overcrowding, with nothing more than the nakedassertion that “the District [would] be forcedto allocate charter schools classroomsat ratios of 10 to 15 students per classroom.” (LAUSD’s RJN,p. 6.) As discussed in CCSA’s Reply Brief on the Merits, LAUSDhasrepeatedly taken this alleged ratio out of context. (Reply Brief, pp. 27-28.) LAUSD’sgapsin logic demonstrate that the API base reports are irrelevantto this case, and therefore should notbe judicially noticed. (Cal. Rules of Court, rule 8.252, subd. (a)(2)(A); People v. De La Plane (1979) 88 Cal.App.3d 223, 242 [“evidence which produces only speculative inferencesis irrelevant evidence”], emphasisin original.) LAUSD’srequest that this Court judicially notice the API base reports should be denied. C. Information On LAUSD’s Website Regarding Preschool ProgramsIs Not Subject To Judicial Notice LAUSD’srequest that this Court take judicial notice of LAUSD’s own website regarding preschool programs at LAUSD-run schoolsis improperfor multiple reasons. First, as with the ballot measures, LAUSDseeksto augment an already established factual record at the eleventh hour. The time has passed to introduce new facts in this case. In Bullis Charter School v. Los Altos School District, the appellate court refused to “take judicial notice of various documents, namely...the District’s financial report...and other documents regarding California's public schools” because “[t]hese documents were notpart of the record considered below by thetrial court.” (Bullis Charter School v. Los Altos School Dist. (2011) 200 Cal.App.4th 1022, 1043, fn. 12.) The samerationale applies here. LAUSD had ample opportunity at the trial court to seek to introduce as evidence the documents included as Exhibits 4 and 5 to its RJN. It failed to do so. As such, LAUSD’srequest should be denied. (Peevy, supra, 17 Cal.4th at p. 1207; Vons, supra, 14 Cal.4th at p. 444, fn. 3.) Second, LAUSD impermissibly cites to the information contained in LAUSD’swebsite for the truth of the matters stated, (i.e. the number of LAUSDelementary school campuses housing preschool programs and the numberof preschoolstudents enrolled in such programs). Courts are not to take judicial notice of the truth of the contents of websites. (Ragland v. U.S. Bank National Assn. (2012) 209 Cal. App. 4th 182, 194.) For example, in several places in its Answer Brief, LAUSD impermissiblycites to information in Exhibits 4 and 5 ofits RJN for the truth ofthe facts contained therein: e “For example, State Preschool programs are run on 77 elementary school campusesacrossthe District. (RJN, Exh.4, pp. 128-130.)” (AB,p. 9.) e “Likewise, nearly 14,000 preschool students, across 280 elementary school campuses,are enrolled in the School Readiness Language Development Program (‘SRLDP’), which prepares English Language Learnersfor kindergarten curriculum through primary language instruction. (RJN, Exh. 5, pp. 131-142.)” (AB,p. 9.) ¢ “CCSA’s InventoryApproach would require the District to count all of the classrooms used exclusively for state preschool programs on 77 elementary school campusesacrossthe District and every classroom used for the nearly 14,000 preschool students enrolled in the SRLDP taught on 280 elementary school campusesacross the District. (RJN, Exh. 4, pp. 128-130; RJN, Exh. 5, pp. 131-142.)” (AB,p. 22.) Third, citations to LAUSD’s ownwebsite are self-serving. LAUSD controls this website, and so its descriptions of the preschool programs and lists of LAUSD campuses where such programsallegedly operate are not subject to independent, objective verification. (See Jolley v. Chase Home Finance, LLC (2012) 213 Cal.App.4th 872, 889 [simply because a documentis on apublic agency’s website does not meanit is not reasonably subject to dispute].) As such, the website informationis not of sufficient authenticity to even be noticeable under Evidence Code, subdivision (h), for its existence. Moreover, LAUSD’s webpagesandlists say nothing about how many“classrooms”preschool programs occupy at LAUSD elementary schools. LAUSD claims CCSA’s interpretation of the regulation would require LAUSDto count classroomsactually used for preschool. (LAUSD’s RJN,p. 8.) But LAUSD cannot demonstrate that will occur because nothing in Exhibits 4 and 5 to LAUSD’s RJN showsthat preschool programswill occupy “classrooms”required to be counted in the inventory under California Code of Regulations,title 2, section 1859.31. LAUSD’srequest that this Court judicially notice information from LAUSD’swebsite regarding preschool programs should be denied. 10 Wl. CONCLUSION Based on the foregoing, CCSArespectfully requests that the Court deny LAUSD’s improper RJN. Respectfully submitted, DATED: October 10, 2013 LATHAM & WATKINS LLP James L. Arnone Winston P. Stromberg Vanessa C. Wu Michele L. Leonelli By: BBIE Winston P. Stromberg” Attorneysfor Plaintiffand Respondent California Charter Schools Association LA\3304291.7 1] PROOF OF SERVICE I am employedin the County of San Francisco, State of California. I am overthe age of 18 years and not a party to this action. My business address is Latham & Watkins LLP, 505 Montgomery Street, Suite 2000, San Francisco, CA 94111-6538. I served the following documentdescribedas: OPPOSITION TO LAUSD’S MOTION REQUESTING JUDICIAL NOTICE IN SUPPORT OF ANSWERBRIEF ON THE MERITS by serving a true copy of the above-described documentin the following manner: BY ELECTRONIC MAIL The above-described documentwastransmitted via electronic mail to the following party(ies) on October 10, 2013: David M.Huff, Esq. (dhuff@ohslegal.com) ORBACH, HUFF & SUAREZ LLP 1901 Avenueofthe Stars, Suite 575 Los Angeles, CA 90067 BY U.S. MAIL I am familiar with the office practice of Latham & Watkins LLP for collecting and processing documents for mailing with the United States Postal Service. Under that practice, documents are deposited with the Latham & Watkins LLP personnel responsible for depositing documents with the United States Postal Service; such documents are delivered to the United States Postal Service on that samedayin the ordinary course of business, with postage thereon fully prepaid. I deposited in Latham & Watkins LLP’s interoffice mail a sealed envelope or package containing the above-described document and addressed asset forth below in accordancewith the office practice of Latham & Watkins LLP for collecting and processing documents for mailing with the United States Postal Service on October 10, 2013: David M.Huff, Esq. David R. Holmquist, Esq. Steven Graff Levine, Esq. MarkFall, Esq. Marley S. Fox, Esq. Nathan A.Reierson, Esq. Joanna Braynin, Esq. Office of General Counsel ORBACH, HUFF & SUAREZ LLP LOS ANGELES UNIFIED SCHOOL DISTRICT 1901 Avenueofthe Stars, Suite 575 333 South Beaudry Avenue, 23rd Floor Los Angeles, CA 90067 Los Angeles, CA 90017 Attorneys for Appellants Attorneys for Appellants Clerk/Executive Officer of the Court Clerk of the Court Court of Appealofthe State of California Honorable Terry A. Green - Department 14 Second Appellate District, Division Five SuperiorCourt of the State of California 300 South Spring Street, 2"! Floor County of Los Angeles Los Angeles, CA 90013 111 North Hill Street Los Angeles, CA 90012 I declare that I am employedin the office of a memberofthe Barof, or permitted to practice before, this Court at whose direction the service was made and declare underpenalty of perjury underthe lawsofthe State of California that the foregoing is true and correct. Executed on October 10, 2013, at San Francisco, California. chekae ) Elizabeth Alvarez )