•

1111111)911 11611111
11 11111
LOUIS A. LEONE (SBN: 099874)
KATHERINE A. ALBERTS (SBN: 212825)
STUBBS & LEONE
A Professional Corporation F L.E D
ALAmEDA COUNTY
2175 N. California Blvd., Suite 900
Walnut Creek, CA 94596
Telephone: (925) 974-8600 O CT 2 2 2009
Facsimile: (925) 974-8601 dke
Mei IJ,HIQRCQU

Attorneys for Respondents Oepu

ALAMEDA UNIFIED SCHOOL DISTRICT and
KIRSTEN VITAL
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF ALAMEDA
AISHA BALDE, JOLELE CHAN, TOMMY Case No.:. RG 09-468037
CHEUNG, DANIEL CHIN, HANDFORD
CHIU, RICHARD CLARK, DIANE ANSWER TO FIRST AMENDED
CLARK, MIKEL DEL ROSARIO, ARCHIE VERIFIED PETITION FOR WRIT OF
FELIX, J'AIME FELIX, WENDY FONG, MANDAMUS
SUE FONG, MARIA GUADALUPE
GOMEZ, JUDY JOHANSING, DANLIN
LI, KERRI LONERGAN, MATT
BY FAX
LONGERAN, LIND MORGAN,
JONATHAN STAIRS, and VICKI
STAIRS,
Petitioners,
VS.

ALAMEDA UNIFIED SCHOOL

DISTRICT, KIRSTEN VITAL,
SUPERINTENDENT, in her official
capacity.
Respondents.
 1

2
COMES NOW Respondents ALAMEDA UNIFIED SCHOOL DISTRICT
3
("DISTRICT") and KIRSTEN VITAL, and for their answer to the First Amended Verified
4
Petition for Writ of Mandamus by Petitioners AIESHA BALDE ET AL. on file herein,
5
admits, denies and allege as follows:
6
INTRODUCTION
7

8
Respondents oppose the issuance of the Writ of Mandamus prayed for by
Petitioners in this action. The Education Code allows a parent to opt out their child from
9
school lesson in very limited circumstances. California Education Code §51240 allows
10
an opt out for a "school's instruction in health." The lesson at issue in this Petition,
11
Lesson 9, is not part of the school's instruction in health, but rather was adopted by the
12
District as part of its Caring School Community Curriculum. Lesson 9 is part of an anti-
13
bullying and anti-harassment curriculum adopted pursuant to the District's statutory duty
14
to provide safe and non-discriminatory schools to all students. Therefore, the Caring
15
School Community Curriculum is not part of the "school's instruction in health" and not
16

17
subject to the opt out in Education Code §51240.
PARTIES
18
• 1. Responding to paragraph 1 of the Petition, Respondents lack sufficient
19
information and belief upon which to admit or deny the allegations in paragraph 1, and
20
as such, the allegations are denied.
21
2. Responding to paragraph 2 of the Petition, Respondents lack sufficient
22
information and belief upon which to admit or deny the allegations in paragraph 2, and
23

24
as such, the allegations are denied.
3. Responding to paragraph 3 of the Petition, Respondents lack sufficient
25

26
information and belief upon which to admit or deny the allegations in paragraph 3, and
as such, the allegations are denied.
27

28

2
 •
4. Responding to paragraph 4 of the Petition, Respondents lack sufficient
information and belief upon which to admit or deny the allegations in paragraph 4, and
as such, the allegations are denied.
5. Responding to paragraph 5 of the Petition, Respondents lack sufficient
information and belief upon which to admit or deny the allegations in paragraph 5, and
as such, the allegations are denied.
6. Responding to paragraph 6 of the Petition, Respondents lack sufficient
information and belief upon which to admit or deny the allegations in paragraph 6, and
as such, the allegations are denied.
7. Responding to paragraph 7 of the Petition, Respondents lack sufficient
information and belief upon which to admit or deny the allegations in paragraph 7, and
as such, the allegations are denied.
8. Responding to paragraph 8 of the Petition, Respondents lack sufficient
information and belief upon which to admit or deny the allegations in paragraph 8, and
as such, the allegations are denied.
9. Responding to paragraph 9 of the Petition, Respondents lack sufficient
information and belief upon which to admit or deny the allegations in paragraph 9, and
as such, the allegations are denied.
10. Responding to paragraph 10 of the Petition, Respondents lack sufficient
information and belief upon which to admit or deny the allegations in paragraph 10, and
as such, the allegations are denied.
11. Responding to paragraph 11 of the Petition, Respondents lack sufficient
information and belief upon which to admit or deny the allegations in paragraph 11, and
as such, the allegations are denied.
12. Responding to paragraph 12 of the Petition, Respondents lack sufficient
information and belief upon which to admit or deny the allegations in paragraph 12, and
as such, the allegations are denied.

3
 13. Responding to paragraph 13 of the Petition, Respondents lack sufficient
information and belief upon which to admit or deny the allegations in paragraph 13, and
as such, the allegations are denied.
14. Responding to paragraph 14 of the Petition, Respondents lack sufficient
information and belief upon which to admit or deny the allegations in paragraph 14, and
as such, the allegations are denied.
15. Responding to paragraph 15 of the Petition, Respondents lack sufficient
information and belief upon which to admit or deny the allegations in paragraph 15, and
as such, the allegations are denied.
16. Responding to paragraph 16 of the Petition, Respondents admit the
allegations contained therein.'
17. Responding to paragraph 17 of the Petition, Respondents admit the
allegations contained therein.
Jurisdiction and Venue
18. Responding to paragraph 18 of the Petition, Respondents admit that
Petitioners purport to bring this action pursuant to California Civil Code §1085.
19. Responding to paragraph 19 of the Petition, Respondents admit that
venue is proper in Alameda County.
Statement of Facts
20, Responding to paragraph 20 of the Petition, Respondents admit that
Lesson 9 of the District's Caring School Community curriculum was adopted by the
District's Board of Education on May 26, 2009. Respondents also admit that Lesson 9
and the entire Caring School Community curriculum were adopted pursuant to the
District's duties under the Student Safety and Violence Prevention Act of 2000,
Education Code §200, Penal Code §422.6(a) and the District's Board Policies
concerning student safety, discrimination and harassment. Respondents also admit
that the entire Caring School Community curriculum is aimed at teaching safety and
tolerance on the District's campuses as well as to prevent bullying and harassment.
Respondents admit that the goal of Lesson 9 is to create safe schools and to ensure
that all students feel safe in our schools and that all students have equal access to a
quality education. Respondents further admit that Lesson 9 is the part of the Caring
School Community Curriculum. Except as expressly stated herein, Respondents denies
each and every remaining allegation contained in paragraph 20.
21. Responding to paragraph 21 of the Petition, Respondents admit that the
Kindergarten lesson in Lesson 9 is an introductory lesson to help students understand
what makes children feel welcome, and to discover what the effect is of unwelcoming
behavior, such as hurtful teasing, name calling and exclusion. Respondents also admit
that the lessons for grades 1 — 3 discuss different family structures. Except as
eipressly stated herein, Respondents denies each and every remaining allegation
contained in paragraph 21.
22. Responding to paragraph 22 of the Petition, Respondents admit that
Exhibit 1 page 5 states under the heading "Lesson Purpose" are three bullet points,
which state: "To identify what makes a family" "To identify and describe a variety of
families" and "To understand families have some similarities and some differences."
Respondents also admit that Exhibit 1, page 6 states "Ask the class the following
questions and record their answers on paper" and two of the listed questions are "What
do family members give or share with each other?" and "What responsibilities do family
members have?" Respondent admits that Exhibit 1 page 9 lists under "Lesson
Purpose" two bullet points and that one of the bullet points is "To be able to identify
alternative types of family structures." Respondents admit that Exhibit 1 page 13 lists
under "About Talking About Families Class Meeting three bullet points and one of the
bullet points is "The class meeting will also assist students in developing sensitivity to
gay and lesbian family structures." Respondents admit that Exhibit 1, page 13 lists
under "About Developing Empathy and Being an Ally" two paragraphs and one of the
paragraphs states "Students will be introduced to an article by Robert, an 11 year old,
 •
whose families have two moms.' Except as expressly stated herein, Respondents
denies each and every remaining allegation contained in paragraph 22.
23. Responding to paragraph 23 of the Petition, Respondents admit that
Exhibit 1 page 23 states under "About Stereotypes including Lesbian, Gay, Bisexual
and Transqender People" that "In this lesson students will increase their awareness of
all stereotypes, including lesbian, gay, bisexual and transgender people." Respondents
also admit that Exhibit 1 page 23 lists under "Lesson Purpose" four bullet points and
one of them is "To learn that LGBT people are represented among all races, genders,
religions, socio-economic classes and professions." Except as expressly stated herein,
Respondents denies each and every remaining allegation contained in paragraph 23.
24. Responding to paragraph 24 of the Petition, Respondents lack sufficient
information and belief upon which to admit or deny the allegations in paragraph 24
regarding whether Petitioners' religious training and beliefs and personal moral beliefs
and Petitioners' ability to provide moral and religious training to their children, and as
such, the allegations are denied. Moreover, Respondents admit that they received
letters from parents purporting to opt their children out of Lesson 9 pursuant to
Education Code §51240. Respondents admit that Section 51240 is quoted accurately.
Except as expressly stated herein, Respondents denies each and every remaining
allegation contained in paragraph 24.
25. Responding to paragraph 25 of the Petition, Respondents lack sufficient
information and belief upon which to admit or deny the allegations in paragraph 25
regarding whether the attorney for Petitioners sent a letter to Superintendent Vital and
the contents of said letter, and as such, the allegations are denied. Respondents deny
each and every remaining allegation in paragraph 25.
26. Responding to paragraph 26 of the Petition, Respondents admit that
Superintendent Vital sent a letter to parents who requested an opt out of Lesson 9
pursuant to Education Code §51240, and informed them that the Board's motion and
 1 approval of Lesson 9 did not include an opt out. Except as expressly stated herein,
2 Respondents denies each and every remaining allegation contained in paragraph 26.
3 27. Responding to paragraph 27 of the Petition, Respondents admit that the
4 letter sent by Superintendent Vital to parents who requested an opt out of Lesson 9
5 pursuant to Education Code §51240, stated that "On May 26, 2009, the Board of
6 Education approved the motion to adopt the Caring School Community curriculum
7 supplement, Lesson 9 as part of its Safe School Community program. Lesson 9
8 addresses issues of sexual orientation/gender identity. The Board's motion and
9 approval did not provide an opt out option." Except as expressly stated herein,
10 Respondents denies each and every remaining allegation contained in paragraph 27.
11 ' 28. Responding to paragraph 28 of the Petition, Respondents deny each and
12 every allegation in paragraph 28.
13 29. Responding to paragraph 29 of the Petition, Respondents deny each and
14 every allegation in paragraph 29.
15 FIRST CAUSE OF ACTION FOR WRIT OF MANDAMUS
16 30. Responding to paragraph 30 of the Petition, Respondents incorporate by
17 reference their responses to paragraphs 1-29 as though fully set forth herein.
16 31. Responding to paragraph 31 of the Petition, Respondents deny each and
19 every allegation in paragraph 31.
20 32. Responding to paragraph 32 of the Petition, Respondents lack sufficient
21 information and belief upon which to admit or deny the allegations in paragraph 32, and
22 as such, the allegations are denied.
23 33. Responding to paragraph 33 of the Petition, Respondents lack sufficient
24 information and belief upon which to admit or deny the allegations in paragraph 33, and
25 as such, the allegations are denied.
26 34. Responding to paragraph 34 of the Petition, Respondents deny each and
27 every allegation in paragraph 34.
28

7
 1 35. Responding to paragraph 35 of the Petition, Respondents deny each and
2 every allegation in paragraph 35.
3 36. Responding to paragraph 36 of the Petition, Respondents admit that
4 Petitioners purport to petition this Court to issue a writ of mandamus, requiring
5 Respondents to comply with Petitioners' written requests and excuse Petitioners'
6 children from the parts of the Safe School Community Curriculum that conflict with their
7 religious training and belief or personal moral convictions.
8 37. Responding to paragraph 37 of the Petition, Respondents deny each and
9 every allegation in paragraph 37.
10

11 AFFIRMATIVE DEFENSES
12 FIRST AFFIRMATIVE DEFENSE
13 (Failure to State Claim)
14
1. As a first affirmative defense, Respondents allege and aver that
15
Petitioners' Petition, and each and every claim purportedly set forth therein, fails to sta
16
a claim upon which relief can be granted.
17
SECOND AFFIRMATIVE DEFENSE
18
(Statute of Limitations)
19
2. As a second affirmative defense, Respondents allege and aver that some
20
or all of Petitioners' claims are barred by the applicable statutes of limitations, including
21
but not limited to Cal. Gov't Code § 920 and 945.6 and Cal. Code Civ. Proc. §§ 338-
22
340, inclusive.
23
THIRD AFFIRMATIVE DEFENSE
24
(Waiver and Estoppel)
25
• 3. As a third affirmative defense, Respondents allege and aver that the
26
Petition, and each and every claim purportedly set forth therein, is barred by the
27
doctrines of waiver and estoppel.
28
• FOURTH AFFIRMATIVE DEFENSE
 •
(Laches)
4. As a fourth affirmative defense, Respondents allege and aver that the
Petition, and each and every claim purportedly set forth therein, is barred by the
doctrine of laches.

FIFTH AFFIRMATIVE DEFENSE

(Failure to Mitigate)
5. As a sixth affirmative defense, Respondents allege and aver that any
recovery on Petitioners' Petition, or any cause of action purportedly alleged therein, is
barred in whole or in part by Petitioners' failure to mitigate damages.
SIXTH AFFIRMATIVE DEFENSE
(Privilege and/or Justification)
6. As a sixth affirmative defense, Respondents allege and aver that any
recovery on Petitioners' Petition, or any cause of action purportedly alleged therein, is
barred because Respondents' conduct was privileged and/or justified.
SEVENTH AFFIRMATIVE DEFENSE
(Governmental Tort Claim)
7. As a ninth affirmative defense, Respondents allege and aver that
Petitioners failed to comply with the claim provisions of the California Governmental
Code with respect to the timely presentation of a Governmental Claim. Further,
Petitioners' claim, if submitted, differs materially from the allegations contained within
the Petition, and as such, said claims not referenced in the Governmental Claim are
barred.
EIGHTH AFFIRMATIVE DEFENSE
(Good Faith Immunities)

9
 1 8. As a eighth affirmative defense, Respondents allege and aver that its is
2 immune from the allegations and causes of action contained within the Petition based
3
upon the qualified and good faith immunities available under California Law.
4
NINTH AFFIRMATIVE DEFENSE
5
(Failure to Exhaust Remedies)
6
9. As an ninth affirmative defense, Respondents allege and aver that any
7
recovery on Petitioners' Petition, or any purportedly alleged claim therein, is barred
because Petitioners has failed to invoke and exhaust administrative remedies required
9
to be invoked and exhausted prior to the commencement of any action for recovery on
10
the grounds asserted in the Petition.
11
TENTH AFFIRMATIVE DEFENSE
12
(Government Code Immunities)
13

14 10. As a tenth affirmative defense, Respondents allege and aver that they are
15 immune from the allegations and causes of action contained within the Petition based
16 upon the immunities available under California Government Code §815 at seq. and
17 §820 at seq., including but not limited to Government Code §§820.2 and 815.2(b).
18 ELEVENTH AFFIRMATIVE DEFENSE
19 (Failure to Exhaust Judicial Remedies)
20
11. As a eleventh affirmative defense, Respondents allege and aver that any
21
recovery on Petitioners' Petition, or any purportedly alleged claim therein, is barred
22
because Petitioners failed to exhaust the judicial remedies available to them.
23
TWELFTH AFFIRMATIVE DEFENSE
24
(Unclean Hands)
25
12. As a twelfth affirmative defense, Respondents allege and aver that the
26
Petition, or any purportedly alleged claim therein, is barred in whole or in part by reason
27
of Petitioners' unclean hands.
28

10
 I THIRTEENTH AFFIRMATIVE DEFENSE
2 (Failure to State Sufficient Facts)
3 13. As a thirteenth affirmative defense, Respondents allege and aver that
4
neither the Petition nor any of the alleged causes of action therein state facts sufficient
5
to constitute a cause of action against these answering Respondents.
6
FOURTEENTH AFFIRMATIVE DEFENSE
7
(Separation of Powers)
8
14. As a fourteenth affirmative defense, Respondents allege and aver that
9
the relief sought in the Petition, if awarded, would violate the separation of powers
10
doctrine between the judicial branch and a state administrative/legislative agency.
11
FIFTEENTH AFFIRMATIVE DEFENSE
12
(Lack of Standing)
13
15. As a fifteenth affirmative defense, Respondents allege and aver that any
14
recovery on the Petition, or any cause of action purportedly alleged therein, is barred in
15
whole or in part by the fact that Petitioners and each them lack standing.
16
SIXTEENTH AFFIRMATIVE DEFENSE
17
(Good Faith)
18
16. As a sixteenth affirmative defense, Respondents allege and aver that any
19
recovery on the Petition, or any cause of action purportedly alleged therein, is barred in
20

21
whole or in part by the fact that the subject program is mandated by state law and as

22
such, Respondents acted in good faith.

23
SEVENTEENTH AFFIRMATIVE DEFENSE

24 (Mootness)

25 17. As a seventeenth affirmative defense, Respondents allege and aver that

28 any recovery on the Petition, or any cause of action purportedly alleged therein, is
27 barred in whole or in part because such causes of action are moot.
28

11
 I EIGHTEENTH AFFIRMATIVE DEFENSE
2 (Ripeness)
3 18. As a eighteenth affirmative defense, Respondents allege and aver that
4
any recovery on the Petition, or any cause of action purportedly alleged therein, is
5
barred in whole or in part by the doctrine of ripeness.
6
NINETEENTH AFFIRMATIVE DEFENSE
7
(Reservation of All Defenses)
8
19. Because Petitioners' Petition is couched in conclusory terms, these
9
answering Respondents cannot fully anticipate all defenses that may apply to this
10
action. Accordingly, Respondents reserve the right to assert additional defenses, if and
11
to the extent that such defenses apply to this action.
12

13
WHEREFORE, Respondents pray that the Court order a judgment decree:
14
1. That Petitioners take nothing by their Petition;
15
2. That the Court deny Petitioners' request for a writ of mandate;
16
3. That the Court deny Petitioners' request for attorneys' fees and
17
costs;
18
4. For an award of Respondents' attorneys' fees;
19
5. For an award of Respondents' costs of suit; and,
20
6. For such other and further relief as the Court may deem just and
21

22
proper.

23

24

25

26

27

28

12
 PRAYER s

WHEREFORE, these answering Respondents pray that Petitioners take nothing

3 by their Petition and that these answering Respondents be dismissed hence with its
costs of suit incurred herein and for such other further relief as the Court deems fit and
proper.
6

7
Dated: October4, 2009 STUBBS & LEONE

9
10 LOUIS A. LEONE, ESQ.
1 KAT HERINE A. ALBERTS, ESQ.
Attorney for Respondents
12 ALAMEDA UNIFIED SCHOOL DISTRICT arid
KIRSTEN VITAL
13

15

16

17

18

19

20

21

22

23

24

25

26

27

28

13