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KAMALA D.

HARRIS
Attorney General of California
') .JENNIFER M. KIM
Supervising Deputy Attorney General
3 TARA L. NEWMAN (SBN 21 0960)
CHRISTINE M. MURPHY (SBN 183835)
4 Ci-IARA L. CRANE (SBN 250512)
Deputy Attorneys General
5 300 South Spring Street, Suite 1702
Los Angeles, CA 90013
6 Telephone: (213)897-2446
Fax: (213) 897-2805
7 E-mail: Tara.Newman@doj.ca.gov
Attorneys for Respondents and Defendants
Exempt from filing fees per Gov. Code
6103
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SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF LOS ANGELES
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CENTRAL DISTRICT
D.J. by Guardian Ad Litem E.A.; E.A.; B.S.
by Guardian Ad Litem C.L.; F.S. by
Guardian Ad Litem C.L.; C.L.; S.M. by
Guardian Ad Litem M.R.; A.M. by
Guardian Ad Litem M.R.; M.R.; S.Z.;
WALT DUNLOP,
Petitioners and Plaintiffs,
v.
Case No. BS142775
RESPONDENTS' MEMORANDUM OF
POINTS AND AUTHORITIES IN REPLY
TO PETITIONERS' OPPOSITION TO
RESPONDENTS' DEMURRER
Date:
Time:
Dept.:
Judge:
September 26,2013
9:30a.m.
85
The Honorable James C.
Chalfant
STATE OF CALIFORNIA; CALIFORNIA
DEPARTMENT OF EDUCATION; TOM
TORLAKSON, STATE
SUPERINTENDENT OF PUBLIC
INSTRUCTION, in his official capacity;
STATE BOARD OF EDUCATION; DOES
1-20, INCLUSIVE,
Trial Date: None set
Respondents and Action Filed: April 24, 2013
Defendants.
Reply to Opposition to Demurrer (BS 142775) I
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TABLE OF CONTENTS
Page
INTRCH)lJCTIC)N ........................................................................................................................... 1
ARCitJMENT ................................................................................................................................... 2
I. THIS COURT HAS NO JURISDICTION OVER THIS CASE BECAUSE
PETITIONERS FAILED TO A VAIL THEMSELVES OF THE
STA'T"UTORILY-MANDATED ADMINISTRATIVE REMEDY ........................ 2
ll. THE COURT SHOULD ABSTAIN FROM ADJUDICATING THE
CONTROVERSY ALLEGED IN THE PETITION BECAUSE THE
FEDERAL DOJ JS ALREADY APPLYING ITS EXPERTISE TO
INVESTIGATE THE SAME CONTROVERSY .................................................... 6
III. NO FEDERAL OR STATE LAW REQUIRES RESPONDENTS TO
RESPOND TO LEA LANGUAGE CENSUS DATA, LET ALONE
RESPOND IN A CLEARLY -PRESCRIBED MANNER ....................................... 9
IV. NO CAUSE OF ACTION FOR ILLEGAL EXPENDITURE OF
TAXPAYER FUNDS IS STATED ....................................................................... 1 0
V. THE STATE OF CALIFORNIA IS NOT A PROPER PARTY. .......................... 12
VI. THE PETITION FAILS BECAUSE IT IS UNCERTAIN .................................... 13
13 CONCLUSION .............................................................................................................................. 14
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TABLE OF AUTHORITIES
CASES
A helle ira 1'. [)istrict Court rdAppeal
(1941) 17 Cal.2cl280 ................................................................................................................. 2
Alvarado v. Selma Convalescent Hosp.
(2007) 153 Cai.App.4th I 292 ............................................................................................ 6, 7, 8
Bernstein v. Piller
(1950) 98 Cal.App.2d 441 ....................................................................................................... 13
Cal!fhrnia Correctional Peace (!fficers Assn. v. Stale Personnel Bd.
(1995) 10 Cal. 4th 1133 .............................................................................................................. 2
Coshow v. City ofEscondido
(2005) 132 Cal.App.4th 687 .................................................................................................... 1 1
Diaz v. Quitoriano
(1969) 268 Cai.App.2d 807 ....................................................................................................... 5
Matthaei v. Housing Authority ofBaltimore City
(1939) 177 Md. 506 ................................................................................................................. 12
People v. Burns
(1 888) 75 Cal. 627 ..................................................................................................................... 4
Philbrook v. Randall
(1924) 195 Cal. 95, 103 .......................................................................................................... 13
Sacramento County Deputy Sher(ffs 'Assn. v. County of Sacramento
(1990) 220 Cai.App.3d 280 ....................................................................................................... 2
Schwartz v. Poizner
(20 1 0) 187 Cai.App.4th 592 ................................................................................................ 9, 10
Serrano v. Priest
(1976) 18 Cal.3d 728 ............................................................................................................... 13
State ofCal((ornia v. Superior Court
(1974) 12 Cal.3cl 237 ............................................................................................................... 13
Tri-County Special Educ. Local Plan Area v. County
(2004) 123 Cal.App.4th 563 ...................................................................................................... 5
Vasquez 1'. State
(2003) 105 Cal.App.4th 849 .................................................................................................... 11
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TABLE OF AUTHORITIES
(continued)
Waste A1anagement County, Jnc. v. County (dAlameda
(2000) 79 Cal.App.4th 1223 .............................................................................................. 11. 12
STATUTES
Title 20 United States Code
6301 et seq ............................................................................................................................ 12
California Code ofRegulations Title 5
4600 ................................................................................................................................... 2, 3
4600 (d) ........................................................................................ ....................................... 3,6
4620 ........................................................................................................................................ 3
4630 (b) ................................................................................................................................... 3
463l(a) ................................................................................................................................... 3
Code Civil Procedures
3 79 ................................................................................................................................. 12, 13
430.10 (f) .............................................................................................................................. 13
526a ........................................................................................................................... 10, 11,12
Education Code
305 ........................................................................................................................................ 10
306(a) ..................................................................................................................................... l
310 ........................................................................................................................................ 10
315 ........................................................................................................................................ 10
35160 ..................................................................................................................................... 5
35160.1 ................................................................................................................................... 5
52163 .................................................................................................................................... 10
54026 (b) ............................................................................................................................... I 0
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INTRODUCTION
Petitioners fail to refute any of the arguments raised in respondents' demurrer, opting
instead to use their opposition brief (Opposition) to recite general principles of federal and state
law which are not even in dispute. Remarkably, the Opposition concedes that petitioners failed to
exhaust their administrative remedies by availing themselves of the statutorily-mandated Uniform
Complaint Procedures (UCP) remedies that could have resolved any past claims of denials
of English language services, and that can resolve any current and future claims of denials of
required language services. This fatal defect deprives this Court of jurisdiction over this case.
Further, the Opposition fails to cite to a single case where a court excused a party from
exhausting administrative remedies in a case like this one, where administrative remedies were
mandated, available, and more-than-adequate.
Notably, the Opposition also fails to dispute that the federal Department of Justice (DOJ) is
investigating the same controversy alleged in this case, thereby making it unnecessary and
wasteful for this Court to do the same, especially when the federal DOJ possesses particular
expertise over the complexities surrounding the provision of English language services in a state
as large and diverse as California that serves more than 1.4 million English Learners
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(ELs). The
Opposition fails to offer any valid reason why this Court should not abstain from resolving this
case. Nor could it; every reason exists for this Court to abstain and defer to the federal DOJ's
ongoing and thorough inquiry into the very issues that triggered this lawsuit.
Further, the Opposition offers no legal support for the incorrect - yet pivotal -assumption
in the underlying petition for writ of mandate (Petition) that respondents are violating the law
because school districts- or local educational agencies (LEAs)- collectively reported on the
online 2011 language census forms that 20,318 ELs were not receiving English language
instructional services. (See 50-52.) The Opposition cites no law or judicially
noticeable fact that establishes that the online language census data which triggered this lawsuit is
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"'English learner' means a child who does not speak English or whose native language
is not English and who is not currently able to perform ordinary classroom work in English, also
known as a Limited English Proficiency or LEP child." (Ed. Code, 306, subd. (a).)
Reply to Opposition to Demurrer (BS142775) I
an accurate depiction of ELs who are not receiving required English language services, and the
2 Opposition cites no state or federal law that requires respondents to respond to the online
3 language census data in a specific manner, let alone at all. Finally, the Opposition fails to rebut
4 the additional arguments raised in the demurrer regarding petitioners' lack of taxpayer standing,
5 the State of California being an improper party, and the uncertain allegations in the Petition.
6 Thus, respondents respectfully request the Court to sustain their demurrer in full without leave to
7 amend because the Petition states no viable cause of action and cmmot be amended to state one
8 because petitioners failed to exhaust their administrative remedies.
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I.
ARGUMENT
THIS COURT HAS NO JURISDICTION OVER THIS CASE BECAUSE
PETITIONERS FAILED TO AVAIL THEMSELVES OF THE
STATUTORILY-MANDATED ADMINISTRATIVE REMEDY.
Under the doctrine of exhaustion of administrative remedies, "the rule is that where an
administrative remedy is provided by statute, relief must be sought from the administrative body
and this remedy exhausted before the courts will act." (Abelleira v. District Court of
Appeal (1941) 17 Cal.2d 280, 292; see also California Correctional Peace Officers Assn. v. State
Personnel Ed. (1995) 10 Cal.4th 1133, 1151 [holding, "Exhaustion of administrative remedies
usually contemplates termination of all available, nonduplicative administrative review
procedures ... in California a requirement that administrative remedies be exhausted is
jurisdictional"] (emphasis added); Sacramento County Deputy Sheriffs' Assn. v. County of
Sacramento (1990) 220 Cal.App.3d 280, 286 [holding that, when a defendant timely raises the
defense of exhaustion of administrative remedies and none of the recognized exceptions apply,
"exhaustion remains a prerequisite to judicial relief'] (emphasis added).) In sum, it is settled law
in California that a plaintiffs failure to exhaust available administrative remedies deprives a trial
court of jurisdiction over the case when the issue is timely raised- as it has been here- and when
no exception exists- as is the case here.
Notably, the Petition fails to allege that any petitioner availed himself or herself of his or
her administrative remedies by filing a UCP complaint pursuant to California Code of
Regulations, title 5, section 4600 et seq., setting forth the alleged discriminatory conduct now
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being complained of in the Petition. In fact, the Opposition concedes that administrative
2 remedies were not exhausted. (See Opposition, pp. 1 0-14.) However, in an attempt to avoid the
3 implications of petitioners' undisputed failure to exhaust administrative remedies, the Opposition
4 argues (1) that the doctrine of exhaustion of administrative remedies is inapplicable because
5 petitioners seek systemic relief (Opposition, pp. 1 0-12), and (2) seeking administrative relief
6 would be futile. (I d., pp. 13-14.) Neither argument contains any merit.
7 First and foremost, a UCP complaint would have obviated the need for this lawsuit because
8 each LEA has "the primary responsibility to insure compliance with applicable state and federal
9 laws and regulations" and "shall investigate complaints alleging failure to comply with applicable
10 state and federal laws and regulations and/or alleging discrimination, and seek to resolve those
11 complaints .... " (Cal. Code Regs., tit. 5, 4620.) Subject to exceptions, an LEA shall conduct
12 and complete an investigation of a UCP complaint within 60 days from the date of the receipt of
13 the complaint. (!d., tit. 5, 4631, subd. (a).) Thus, assuming for the sake of argument that
14 petitioners were aggrieved by their respective LEAs, complying with the UCP process would
15 have afforded petitioners a speedy resolution to their allegations of lack of delivery of English
16 language services. In addition, a UCP complaint would be the proper vehicle for raising a
17 complaint about the lack of delivery of English language services because, according to
18 petitioners, failure to provide required services to ELs is discrimination, and a UCP complaint
19 "may include an allegation ofunlawful discrimination." (!d., tit. 5, 4600, subd. (d).) Indeed,
20 the law mandates that one who believes he has been discriminated against in an educational
21 setting- as petitioners allege- file a UCP complaint to resolve the alleged discrimination. (I d.,
22 tit. 5, 4630, subd. (b)l However, nowhere in the Petition or Opposition do petitioners contend
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California Code of Regulations, title 5, section 4630, subdivision (b), provides in part:
An investigation of alleged unlawful discrimination shall be initiated by filing a complaint
not later than six months from the date the alleged discrimination occurred ...
(1) The complaint shall be filed by one who alleges that he or she has personally suffered
unlawful discrimination, or by one who believes an individual or any specific class of
individuals has been subjected to discrimination prohibited by this part.
(2) The complaint shall be filed with the local educational agency in accordance with the
complaint procedures of the local educational agency.
(continued ... )
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they filed a UCP complaint. Moreover, petitioners cannot amend the Petition to allege that they
were unaware or the UCP process because ignorance of the law is not an excuse for
noncompliance with the law. (See, e.g., People v. Burns (1888) 75 Cal. 627, 648.) Equally as
important, information regarding the UCP process is publicly available online (see Request for
Judicial Notice in Support of Demurrer (R.TN), Exs. 6 & 7), and LEAs annually notify parents,
employees, committees, students, and other interested parties of the UCP process. (I d., Ex. 7 .)
Instead, the Opposition argues that petitioners are excused from complying with the UCP
process because they seek "systemic" relief (Opposition, pp. 11 & 12) and, thus, "have not sued
the school districts and do not seek in this action any relief against individual school districts."
(I d., p. 1 0.) There is no merit to this argument because, assuming the truth of the allegations in
the Petition, the direct and immediate injuries at the heart of this case were denials of English
language services by each petitioner's respective LEA (See generally Petition.) Thus, the
injuries complained of in this case were indeed subject to the UCP process described in the
opening paragraphs of this argument. Contrary to petitioners' argument, an administrative
remedy was available, required, and more-than-adequate to resolve each petitioner's important
concerns regarding the delivery of English language services. The Opposition further argues that
the relief afforded by the UCP process is inadequate because it would resolve only "case-by-case
complaints and would not achieve systemic reform .... " (Opposition, pp. 11-12.) However,
the very point and great benefit of the UCP process is that it does resolve each student's (or other
interested party's) concerns on a case-by-case basis so that "systemic" problems, like those
alleged in this lawsuit, are nipped in the bud, resolved right away, and not pennitted to linger.
Moreover, students are entitled to appropriate services given the local circumstances, as LEAs are
invested with the authority to choose the appropriate programs and/or services that suit their
particular students' needs. (Ed. Code, 35160 & 35160.1.)
( ... continued)
(3) An investigation of a discrimination complaint shall be conducted in a mmmer that
protects confidentiality of the parties and maintains the integrity of the process. (Emphasis
added.)
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Relying on Diaz v. Quitoriano ( 1 969) 268 Cai.App.2d 807 (Diaz), petitioners
try to bolster their "systemic" relief argument. (Opposition, p. 1 1 .) However, Diaz is inapposite
because the writ of mandate in that case was framed as a class action. (Diaz, supra, 268
Cai.App.2d at p. 809.) The Court explained the significance of this factor, in the context of the
doctrine of exhaustion of administrative remedies, as follows:
In its aspect as a class action, this mandate proceeding seeks relief
that is unavailable on the administrative appeal. As a class action,
if supported by the evidence, it can yield a decree which can be
availed of by every member of the represented class, present and
future.
(Jd., p. 812.) 11 is undisputed that this case is not a class action; instead, the case is triggered by
each student petitioner's distinct allegation that he or she was harmed by a denial of English
language services and, in the case of the parent petitioners and petitioner Dunlop, harmed by
school districts' failures to provide English language services. 17-26.) Thus, the
rationale of Diaz does not apply to a lawsuit like this one that is not brought in a representative
capacity and that could have been obviated had each petitioner simply addressed his or her
individual concerns regarding the delivery of his or her individual English language services
through the UCP process. Petitioners also rely on Tri-County Special Educ. Local Plan Area v.
County a/Tuolumne (2004) 123 Cal.App.4th 563 (Tri-County) to justify their contention that
they, unlike every other public school student in California, did not have to raise their claims of
discrimination through the UCP process before filing suit. (Opposition, p. 11.) However, in Tri-
County, the Court actually held that the UCP process afforded an adequate administrative remedy
to the pariies. (Tri-County, supra, at pp. 575-576.) Notably, like this case, Tri-County was not a
class action although the petitioners in that case, like petitioners here, sought remedies that would
impact more than just the named petitioners. (Id., at p. 569.)
In a final attempt to excuse their noncompliance with the UCP process, petitioners argue
that pursuing UCP remedies would have been futile because respondents have made clear how
they would respond to UCP complaints regarding the delivery of English language services.
(Opposition, pp. 13-14.) Again, there is no merit to this argument. The Petition contains no
allegations on this point. Further, the law governing the UCP process and Exhibits 6 and 7 to the
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RJN demonstrate that the process is fair and not predetermined, and the Opposition cites no law
2 or judicially-noticeable fact that demonstrates that the UCP process is anything other than fair.
3 Also, neither the Petition nor the Opposition alleges that any petitioner participated in the UCP
4 process and received a rubber-stamped decision finding no merit to the UCP complaint. Finally,
5 as a matter of law, the census forms, on which petitioners rely to argue that respondents have
6 made clear how they would rule, are not UCP complaints. (See Cal. Code Regs., tit. 5, 4600,
7 subd. (d).) Thus, respondents' position in the demurrer regarding the meaning of data on the
8 census forms does not translate to a predetermination of a UCP complaint filed by an individual
9 student concerning a specific LEA's failure to provide required language services.
10 In sum, by proceeding with this lawsuit even though they did not exhaust readily-available,
11 mandated, and efficient UCP remedies, petitioners are calling upon this Court to assume the
12 functions of an LEA and resolve alleged discriminatory education practices that could have been
13 resolved promptly and efficiently months (or years) ago by the LEAs that served petitioners.
14 Because petitioners failed to exhaust their administrative remedies and because no exception to
15 exhaustion exists, this Court has no jurisdiction over the Petition. The demurrer should be
16 sustained without leave to amend for this reason alone.
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II. THE COURT SHOULD ABSTAIN FROM ADJUDICATING THE
CONTROVERSY ALLEGED IN THE PETITION BECAUSE THE FEDERAL
DOJ IS ALREADY APPLYING ITS EXPERTISE TO INVESTIGATE THE
SAME CONTROVERSY.
As explained in the demurrer, a court may abstain when the lawsuit involves detennining
complex policy, which is best handled by the legislature or an agency. (Alvarado v. Selma
Convalescent Hasp. (2007) 153 Cal.App.4th 1292, 1298 (Alvarado).) Or, a court may abstain
when granting injunctive relief would be unnecessarily burdensome for the court to monitor and
enforce given the availability of more effective means of redress. (Ibid.) Alternatively, a court
may abstain when federal enforcement ofthe law at issue in the case would be more orderly,
more effective, and less burdensome. (Ibid.) A court may also abstain when granting the relief
sought would compel the court to assume the functions of an administrative agency or interfere
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with such functions. (!hid) Finally, a court may abstain when an agency is better-suited to
2 provide an alternative and more effective remedy. (ld. at p. 1306.)
3 Pursuant to Alvarado, supra, the Court should abstain from resolving this lawsuit because,
4 in May ofthis year, the Educational Opportunities Section in the Civil Rights Division ofthe
5 federal DOJ began an inquiry into the very allegations raised in the Petition (RJN, Ex. 1 ), and
6 respondents are actively participating in, and responding to, that federal inquiry. (ld., Ex. 2.) In
7 fact, it was petitioners' counsel who alerted the federal DOJ to the issues raised in this lawsuit.
8 (Jd., Ex. 1, p. 1, fn. 2 [reference in the federal DO.T's letter to letter dated January 23,2013, from
9 petitioners' counsel Mr. Rosenbaum to respondents]; id., Ex. 1, p. 2, fn. 5 [reference in the federal
10 DOJ's letter to the Petition in this case]; Opposition, 19:4-5 ["it was Petitioners' demand letter
11 that prompted the federal government's letter to Respondents .... "].) Thus, it cannot be disputed
12 that the federal DOJ inquiry was prompted by the identical data that triggered this lawsuit: the
13 alleged fact that more than 20,000 ELs did not receive language instructional services between
14 the 2007-08 and 2010-11 school years. (See RJN, Ex. 1, p. 1; see 11-14.)
15 Based on this alleged fact, the federal DOJ is presently investigating whether respondents
16 are complying with the Equal Educational Opportunities Act (EEOA) of 1974 and Title VI of the
17 Civil Rights Act of 1964 (Title VI). (RJN, Ex. 1, p. 2.) The federal DOJ's inquiry into the
18 alleged EEOA and civil rights violations at issue in this case is appropriate given that it "is
19 charged with enforcing the EEOA." (Ibid.) However, despite initiating a complaint with the
20 federal DO.T regarding the alleged facts in this case and despite knowing of the federal DOJ' s
21 ongoing investigation, petitioners insist on maintaining a lawsuit against respondents based on
22 alleged violations of the EEOA (Petition, 120-127) and state civil rights laws. (I 128-
23 136.) Therefore, because each cause of action in the Petition is rooted in the san1e fundamental
24 facts (see id., 34-1 06), the federal DOJ's resolution of the EEOA cause of action will probably
25 resolve this entire lawsuit, meaning it would be counterproductive and wasteful for this Court to
26 resolve this lawsuit concurrently with the federal DOJ.
27 The Opposition does not dispute that the federal DOJ is currently investigating the alleged
28 EEOA violation in this case; nor does the Opposition dispute that the federal DOJ is charged with
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enforcing the EEOA and has the obvious expertise to do so. Rather, in opposing the abstention
2 argument, petitioners erroneously argue that the "only cases cited by Respondents to support their
3 abstention argument would have required the court to make complex determinations about
4 specific decisions that were handled by administrative agencies." (Opposition, p. 18.) However,
5 as seen in the examples cited above from Alvarado, supra, there are least five distinct scenarios
6 which justify abstention, including where abstention would ease the burden on the trial court,
7 where federal enforcement ofthe subject laws would be more orderly and effective, and where
8 not abstaining would compel the trial court to assume the functions of an agency or interfere with
9 such functions. (Alvarado, supra, 153 Cal.App.4th at p. 1298.) All scenarios exist here.
10 Further, as demonstrated by Alvarado's enumeration ofthe variety of scenarios thatjustify
11 abstention (Alvarado, supra, 153 Cal.App.4th at pp. 1298 & 1306), there is no merit to the
12 inference in the Opposition that state courts may only abstain from a case on the basis of federal
13 enforcement when a federal agency has "exclusive jurisdiction to enforce the underlying statutes .
14 ... " (See Opposition, p. 19.) Indeed, neither of the cases cited in the Opposition for this
15 proposition hold as such. In addition, the Opposition's attempt to diminish the import and extent
16 of the federal DOJ's inquiry into the issues raised in this lawsuit by dismissing the inquiry as a
17 "mere initiation of a preliminary investigation" (id., p. 18) is belied by the sheer detail contained
18 in the federal DOJ's May 2013 letter to respondents and in respondents' response letter. (See
19 RJN, Exs. 1 & 2.)
20 Finally, petitioners cannot credibly argue that this case would not call upon this Comito
21 assume the functions of an administrative agency. (See Opposition, p. 18) Again, this argument
22 is belied by the very existence of the federal DOJ's May 3, 2013, letter to respondents, inquiring
23 about respondents' compliance with federal education and civil rights laws. To issue the relief
24 sought by petitioners in this lawsuit- compel respondents to take some action in response to the
25 2011 online language census forms- this Court would first be compelled to determine if a legal
26 basis existed to issue the relief. To make this determination, this Court would be assuming- and
27 duplicating- efforts currently being undertaken by the division in the federal DOJ that is
28 uniquely equipped to investigate and resolve the complex issues in this case. (See RJN, Ex. 1.)
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Specifically, this Court would be compelled to delve into the complexities of, at a minimum,
these issues:
1. The online language census forms completed annually by LEAs;
2. California's sheltered English immersion programs;
3. The obligations of LEAs, the California Department of Education (CDE), and the State
Board of Education (SBE) under the EEOA and Title VI;
4. CDE's Federal Program Monitoring process; and
5. The UCP process.
(See RJN, Exs. 1 & 2.) Each ofthese topic areas is already being addressed in the federal DOJ's
ongoing investigation into the provision of services to ELs in California. (Ibid) Thus, this Court
should abstain.
III. NO FEDERAL OR STATE LAW REQUIRES RESPONDENTS TO RESPOND
TO LEA LANGUAGE CENSUS DATA, LET ALONE RESPOND IN A
CLEARLY -PRESCRIBED MANNER.
The Opposition argues that the EEOA and the California Constitution are the two sources
of respondents' mandatory duty to take action in response to the information contained on the
2011 online language census forms. (Opposition, pp. 3-6.) And, under their first three causes of
action for a writ of mandate, petitioners seek to compel respondents to "( 1) cease doing nothing in
response to [language census] reports from districts indicating that nothing is being done to serve
EL students; and (2) establish polices and procedures to effectively ensure that all EL students in
California public schools receive required English language instructional services."
112, 119, & 127.)
However, the Opposition fails to cite to one single provision in the EEOA or California
Constitution that governs the online language census forms at issue or that prescribes the manner
in which respondents must respond to data entered by LEAs on these forms, whereas a writ of
mandate may only be issued to compel the performance of a clear, present, and ministerial duty
when the petitioner has a right to the performance of that duty or to correct the exercise of
discretionary legislative power, but only if the action taken is undeniably arbitrary. (Schwartz v.
Poizner (20 1 0) 187 Cal.App.4th 592, 596.) Thus, the writ sought in this case may not issue
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because none of the constitutional provisions or state or federal laws cited in the Petition require
respondents to respond to the data reported annually on the online language census forms in any
particular manner, let alone at all. The Opposition fails to show otherwise.
Further, the language census forms on which petitioners base this entire lawsuit are used
for .funding purposes only, not to determine if ELs are receiving required language services. (See
Ed. Code 54026, subd. (b)[" 'English learner' means a pupil described in subdivision (a) of
Section 306 or identified as a pupil of limited English proficiency, as that term is defined in
subdivision (m) of Section 52163. Counts of the pupils described in this subdivision shall be the
counts reported in the prior year language census"], emphasis added.) The judicially-noticeable
facts in support of the demurrer also establish that the language census forms are not a means for
monitoring LEA compliance with federal and state obligations to ELs. (RJN, Ex. 2, pp. 2-4.)
Finally, as demonstrated by the governing law,
3
English language services can be provided to ELs
in a variety of ways, not just through instructional services in a traditional classroom setting.
The judicially-noticeable facts in support of the demurrer also illustrate that respondents
monitor and ensure the delivery of English language services to ELs through a process called
Federal Program Monitoring (RJN, Ex. 2, pp. 4-5; id., Ex. 3) and, as explained above, through the
UCP process. The Opposition fails rebut these points and fails to cite a single law that prescribes
the manner in which respondents should respond to the data collected annually on the online
language census forms. Thus, no writ may issue.
IV. NO CAUSE OF ACTION FOR ILLEGAL EXPENDITURE OF TAXPAYER
FUNDS IS STATED.
Petitioners claim they have taxpayer standing under Code of Civil Procedure section 526a
(section 526a) because respondents have allegedly illegally expended and wasted Economic
Impact Aid and Title Ill funds. (See 15.) Yet, petitioners concede that "[t]he purpose
3
See, e.g., Ed. Code, 305 [providing that children shall be taught English by being
taught in English; in other words, being taught a core subject in the English language is a way to
provide English language services to an EL]; 310 [providing for different educational programs,
other than sheltered English immersion, for helping an EL become proficient in the English
language]; and 315 [providing funding for community-based English language tutoring
programs].
l 0
Reply to Opposition to Demurrer (BS142775)
of section 526a ... is to permit a large body of persons to challenge wasteful government action
2 that otherwise would go unchallenged because of the standing requirement." (Vasquez v. State
3 (2003) 105 Cal.App.4th 849, 854, internal quotations omitted; Opposition, p. 8.) And, as
4 explained in Section I of this reply, an aggrieved party who claims to have been denied English
5 language services has standing to challenge the denial through the UCP process and then, after
6 exhausting that process, through the court system. Thus, because petitioners have standing to
7 challenge the denial of English language services through means other than section 526a, the
8 underlying purpose of section 526a- which the Opposition acknowledges- would be frustrated
9 were the Court to find that petitioners have standing to maintain their section 526a cause of
I 0 action.
11 Further, petitioners contend they have made allegations of misuse because the "programs
12 for delivering language instructional services to the state's English learner students, including the
13 development and operation of the monitoring program ... necessarily involves the expenditure of
14 public funds ... " (Opposition, pp. 9:24-10:2.) However, by this very statement, petitioners are
15 expressly acknowledging that respondents have spent the funds at issue, in part, to develop and
16 operate the comprehensive Federal Program Monitoring process. Thus, it is apparent that the
17 section 526a cause of action is based, not on fact or law, but on petitioners' dissatisfaction with
18 the current programs used by CDE to monitor LEAs. Such dissatisfaction does not give rise to a
19 section 526a claim. "[A] taxpayer is not entitled to injunctive relief under Code of Civil
20 Procedure section 526a where the real issue is a disagreement with the manner in which
21 government has chosen to address a problem .... " (Coshow v. City of Escondido (2005) 132
22 Cal.App.4th 687, 714, intemal citations and quotations omitted.)
23 In addition, "the essence of a taxpayer action remains an illegal or wasteful expenditure of
24 public funds or damage to public property. The taxpayer action must involve an actual or
25 threatened expenditure of public funds. General allegations, innuendo, and legal conclusions are
26 not sufficient; rather, the plaintiff must cite specific facts and reasons for a belief that some illegal
27 expenditure or injury to the public fisc [sic] is occurring or will occur." (Waste Management of
28 Alameda County, Inc. v. County of Alameda (2000) 79 Cal.App.4th 1223, 1240, internal citations
]]
Reply to Opposition to Demurrer (BSJ42775)
omitted, disapproved on other grounds by the California Supreme Court.) Neither the Petition
2 nor the Opposition cites specific facts to support petitioners' general, and inaccurate, belief that
3 "[t]he State disburses money dedicated for EL services to districts that report denying English
4 language instructional services to EL students." (Petition, ,I 15 .) This vague and conclusory
5 allegation is insufficient to maintain a section 526a cause of action, especially in light of the
6 guidelines issued by the U.S. Department of Education for the use of Title III funds. These
7 guidelines set forth the obligations of State educational agencies which receive Title III grants.
8 (See generally supplemental RJN filed concurrently herewith, Exs. 9 & 1 0; see specifically id.,
9 Ex. 9, p. 4.) Neither the Petition nor the Opposition alleges that respondents have failed to fulfill
10 any of these obligations or otherwise used Title III funds in an illegal or wasteful manner.
11 Finally, petitioners may not challenge the expenditure of federal funds under section 526a.
12 Title III funds are not state or city taxpayer dollars but are federal funds granted to states under
13 the No Child Left Behind Act. (20 U.S.C. 6301 et seq.; Petition, ,-r 15.) Alleged misuse of
14 federal funds does not result in injury that permits standing for a state taxpayer suit. (See, e.g.,
15 Matthaei v. Housing Authority of Baltimore City ( 193 9) 177 Md. 506, 513 ["misuse of Federal
16 funds would not cause injury to the complainants as state and city taxpayers, and support a suit by
17 them"].) In sum, petitioners' cause of action for violation of section 526a fails as a matter of law,
18 as to the expenditure of state and federal funds.
19 V. THE STATE OF CALIFORNIA IS NOT A PROPER PARTY.
20 The Opposition argues that the State of California is a proper party because "more than
21 100 years of case law" provides that the State is the ultimate guarantor of educational rights
22 (Opposition, p. 14), and because the demurrer fails to cite "a single case in which a California
23 court held the State was not a proper party under Section 379 of the Code of Civil Procedure."
24 (ld., pp. 14-15.) Neither argument contains any merit.
25 First, Code of Civil Procedure section 3 79 is inapplicable where, as here, case law makes
26 clear that the State is not a proper defendant when an agency or state officer is charged with
27 enforcing the laws at issue in the case. Specifically, the State is not a proper party in cases for
28 declaratory or injunctive relief when an administrative agency or other state body has the
12
Reply to Opposition to Demurrer (BS142775)
authority or duty to issue the relief sought. (State ofCal(fhrnia v. Superior Court ( 1974) 12
2 Cal.3d 237, 255.) Further, the California Supreme Court has held that: "it is the general and
3 long-established rule that in actions for declaratory and injunctive relief challenging the
4 constitutionality of state statutes, state officers with statewide administrative functions under the
5 challenged statute are the proper parties [sic] defendant." (Serrano v. Priest (1976) 18 Cal. 3d
6 728, 752.) In light of the above case law, which was cited in the demurrer, there is no merit to the
7 Opposition's argument that the State is a proper party under Code of Civil Procedure section 379.
8 Tellingly, the Opposition fails to explain why the State is a proper party in light of the other
9 named respondents who petitioners expressly acknowledge are responsible for administering and
10 enforcing all laws related to public education. (See 28-30.)
11 As to the claimed "years of case law" holding that the State is the ultimate guarantor of
12 educational rights, the Opposition fails to show that, in any of these alleged cases, the State
13 demurred on the ground that its co-defendants were the educational agencies and/or officers
14 specifically charged with administering and enforcing the education laws at issue in the case, as
15 the State is doing here. Thus, the State is not a proper respondent in this lawsuit.
16 VI. THE PETITION FAILS BECAUSE IT IS UNCERTAIN.
17 The Petition is not clear, and its "headings" do not save it from a demurrer for uncertainty,
18 as argued in the Opposition. (Opposition, p. 16.) A defendant may demur if a complaint is
19 uncertain. (Code Civ. Proc., 430.10, subd. (f).) "Uncertain" means "ambiguous and
20 unintelligible." (Ibid.) A complaint should be clear and precise "so that nothing is left to
21 surmise." (Bernstein v. Piller (1950) 98 Cal.App.2d 441, 443, citing Philbrook v. Randall (1924)
22 195 Cal. 95, 103.) Here, the Petition cites more than 35 different statutes, not to mention
23 constitutional provisions, cases, and regulations, yet it fails to allege that any of these authorities
24 imposes a mandatory non-discretionary duty on respondents that respondents have not performed.
25 Thus, much is left to surmise, and the demurrer should be sustained for this additional reason.
26 CONCLUSION
27 Because this Court lacks jurisdiction over the Petition and because the Petition otherwise
28 states no cause of action, the demurrer should be sustained in full, without leave to amend.
13
Reply to Opposition to Demurrer (BS142775)
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Dated: September 19,2013
LA20 13509157
51369429.doc
14
Respectfully submitted,
KAMALA D. HARRIS
Attorney General of California
JENNIFER M. KIM
Supervising Deputy Attorney General
CHRISTINE M. MURPHY
TARA L. NEWMAN
Deputy Attorneys General
~ L , R N ~ -
Deputy Attorney General
Attorneys.for Respondents and Defcmdants
Reply to Opposition to Demurrer (BS142775)
DECLARATION OF SERVICE BY OVERNIGHT COURIER
Case Name: D.J., et al., v. Dept. of Education, et al.
Case No.: BS142775
I declare:
I am employed in the Office of the Attorney General, which is the office of a member of the
California State Bar, at which member's direction this service is made. Jam 18 years of age or
older and not a party to this matter; my business address is: 300 South Spring Street, Suite 1702,
Los Angeles, CA 90013.
On September 19, 2013, I served the attached RESPONDENTS' MEMORANDUM OF
POINTS AND AUTHORITIES IN REPLY TO PETITIONERS' OPPOSITION TO
RESPONDENTS' DEMURRER by placing a true copy thereof enclosed in a sealed envelope
with the FEDEX, addressed as follows:
Mark Rosenbaum, Esq.
Jessica Price, Esq.
Brooks Allen, Esq.
David Sapp, Esq.
ACLU Foundation of Southem California
1313 West Eighth Street
Los Angeles, CA 90017
Justin Ma, Esq.
Asian Pacific American Legal Center
1145 Wilshire Blvd.
2nd Floor
Los Angeles, CA 90017
Robert D. Crockett, Esq.
Monica R. Klosterman, Esq.
Stefanie C. Hyder, Esq.
Latham & Watkins LLP
355 South Grand Avenue
Los Angeles, CA 90071-1560
David Loy, Esq.
ACLU Foundation of San Diego &
Imperial Counties
P.O. BOX 87131
San Diego, CA 92138-7131
J declare w1der penalty of perjury under the laws of the State of California the foregoing is true
and correct and that this declaration was executed on September 19, 2013, at Los Angeles,
California.
LA2013509157
51369732.doc51369732.DOC
Mmiha Ochoa
Declarant Signature
1