Case Name: Alum Rock Union Elementary School District, et al. v. Santa Clara County Board of Education, et al.
Case No.: 1-14-CV-260070

Petitioners/plaintiffs Alum Rock Union Elementary School District, Evergreen School District, Franklin-McKinley School District, and Mount Pleasant Elementary School District (collectively, “Petitioners”) allege that on December 14, 2011, respondent/defendant Santa Clara County Board of Education (the “BOE”) unlawfully approved twenty countywide charter petitions (“Countywide Charters”), creating a system of new public charter schools in Santa Clara County to be operated by real party in interest Rocketship Education (“Rocketship”). (See Petition for Writ of Mandate and Complaint (“Petition”), ¶ 8.) The BOE took this action despite the fact that the staff of the Santa Clara County Office of Education (the “OOE”) originally found that the petitions did not identify sufficient “countywide benefits” to permit their authorization. (Petition, ¶ 7.) Plaintiffs allege that the BOE violated its duties under the Education Code, and on February 4, 2014, they filed this action seeking a writ of mandate directing the BOE to set aside its approval of the Countywide Charters, declaratory relief providing that the charters’ approval violated the Education Code, and injunctive relief precluding the operation of the Countywide Charters and precluding Respondents from taking further action in violation of the Education Code. (Petition, prayer for relief, ¶¶ 1-3.) Currently before the Court is the demurrer of the OOE, the BOE, and Rocketship (collectively, “Respondents”).

Respondents’ request for judicial notice is GRANTED as to requests 1, 2, and 6 and DENIED as to requests 3 through 5 and 7 through 10. As to request 1, the number of school districts located within the County of Santa Clara is not reasonably subject to dispute (or actually disputed by Petitioners) and is capable of determination from the OOE’s web site, a source of reasonably indisputable accuracy. (Evid. Code, § 452, subd. (h).) As to requests 2 and 6, to the extent Respondents seek judicial notice of the facts that the Countywide Charters were approved at a meeting attended by three of Petitioners (see request no. 2) and matters related to the Countywide Charters were discussed at 10 subsequent meetings (see request no. 6), these facts are not reasonably subject to dispute and are capable of determination from the BOE’s minutes, which are sources of reasonably indisputable accuracy. (Evid. Code, § 452, subd. (h); see also Chaffee v. San Francisco Library Comm’n (2004) 115 Cal.App.4th 461, 464, fn. 3 [granting request for judicial notice of minutes of meeting of San Francisco Library Commission establishing agenda of and attendance at the meeting and actions taken by the Commission].)

However, the Court does not take judicial notice of “the interest and concerns of numerous other school districts” with respect to the BOE’s action on the Countywide Charters (see request no. 2) or the truth of any other matters discussed during the BOE meetings, which are facts reasonably subject to dispute and not capable of determination from the minutes. (See Evid. Code, § 452, subd. (h).) With respect to request numbers 3 through 5, while this correspondence may be available under the California Public Records Act as Respondents claim, it does not comprise enactments or official acts by Respondents or a source of reasonably indisputable accuracy. (Evid. Code, § 452, subds. (b), (c), and (h); see Ross v. Creel Printing & Publishing Co., Inc. (2002) 100 Cal.App.4th 736, 744 [appellate court did not take judicial notice of District Attorney’s letter that did not fall into any of the categories for either mandatory or permissive judicial notice under section 451 or 452]; California School Boards Ass’n v. State Bd. of Educ. (2010) 186 Cal.App.4th 1298, 1327, fn.20 [content of correspondence not a proper subject of judicial notice].) The Court does not take judicial notice of the documents encompassed by request numbers 7 through 10, other “official” documents offered for their truth, for the same reasons.

The demurrer is SUSTAINED IN PART and OVERRULED IN PART.

Respondents contend that the Petition is barred by the statute of limitations established by Code of Civil Procedure section 349.1 or by the doctrine of laches. Code of Civil Procedure section 349.1 provides that “[t]he validity of any acts or proceedings taken under color of law for the formation, organization, incorporation, dissolution, consolidation, change of organization or reorganization of, or for any change in the territorial boundaries of, any city, county, city and county, special district, public corporation or other public entity” must be brought within six months from the date of completion of said acts or proceedings. However, it is clear that no public entity was formed by the process at issue here. Though charter schools are deemed part of the public school system for certain purposes, they are “operated, not by the public school system, but by distinct outside entities.” (Wells v. One2One Learning Foundation (2006) 39 Cal.4th 1164, 1200, italics original [charter schools not entitled to “public entity” immunity enjoyed by their chartering districts]; see also Knapp v. Palisades Charter High School (2007) 146 Cal.App.4th 708, 53 [as alleged nonprofit public benefit corporation, charter school was not “public entity” within meaning of Government Tort Claims Act].)

Here, it is clearly alleged that Rocketship is a 501(c)(3) nonprofit corporation that received authorization to operate the Countywide Charters (Petition, ¶ 20), not a government entity. Consequently, Code of Civil Procedure section 349.1 does not apply to this action, and, as urged by Petitioners, the action is timely under Code of Civil Procedure section 338 given that it alleges liability created by the Education Code (see Petition, ¶¶ 57, 58, 61, 67 [Respondents violated Education Code sections 47605.6 and 47607]). (See California Teachers Assn. v. Board of Education (1982) 129 Cal.App.3d 826, 833 [challenge to salary schedule under Education Code section 45028 subject to three year statute of limitations provided by Code of Civil Procedure section 338]; Howard Jarvis Taxpayers Ass’n v. City of La Habra (2001) 25 Cal.4th 809, 821 [action seeking relief from a utility users tax imposed without voter approval in violation of Proposition 62 governed by section 338]; City of Arcadia v. State Water Resources Control Bd. (2010) 191 Cal.App.4th 156, 171 [action challenging water quality control board’s basin plan governed by section 338].)

Respondents’ laches argument largely relies upon a number of asserted facts that rely on judicial notice that the Court has found to be inappropriate. While the Petition reveals no explanation for Petitioners’ delay in bringing this action, the mere fact that the BOE has discussed issues related to the Countywide Charters at a number of meetings is insufficient to establish prejudice, particularly given that the Petition does allege that none of the charters are yet in operation (see Petition, ¶¶ 50, 51). This defense is not appropriately resolved at the pleading stage, and Respondents’ argument that their demurrer should be sustained on the basis of laches lacks merit. (See Sefton v. Sefton (2012) 206 Cal.App.4th 875, 895 [because laches defense is “inherently factual, both as to the question of the unreasonableness of [the plaintiff’s] delay, and as to the question of prejudice to the defendants, we cannot resolve it at the pleading stage”]; Conti v. Board of Civil Service Commissioners (1969) 1 Cal.3d 351, 362 [“Laches may be raised by demurrer, but only if the complaint shows on its face unreasonable delay plus prejudice or acquiescence.”].)

Respondents also contend that each of the 28 nonparty school districts located in Santa Clara County is an indispensable party. “A determination that … persons are necessary parties [as defined by Code of Civil Procedure section 389, subdivision (a)] is the predicate for the determination whether they are indispensable parties.” (Deltakeeper v. Oakdale Irrigation Dist. (2001) 94 Cal.App.4th 1092, 1100.) As urged by Petitioners, there is no indication that complete relief cannot be accorded here without the participation of the other school districts (see Code Civ. Proc., § 389, subd. (a)(1)), and Respondents do not appear to contest this point. Rather, they contend that each of the nonparty districts has “an equal interest in the results of this action” as the Petitioners (Motion at p. 4) and non-joinder would “injure or affect” those interests and would also subject the Respondents to a risk of incurring inconsistent obligations from additional lawsuits by nonparty districts following the resolution of the instant action (Motion at p. 5). (See Code Civ. Proc., § 389, subd. (a)(2).)

With respect to the first point, Code of Civil Procedure section 389, subdivision (a)(2)(i) applies not merely where a nonparty’s interest is “affected” by an action, but where the nonparty’s ability to protect its interest may be impaired or impeded “as a practical matter.” “A party’s ability to protect its interest is not impaired or impeded as a practical matter where a joined party has the same interest in the litigation.” (Deltakeeper v. Oakdale Irrigation Dist., supra, 94 Cal.App.4th at p. 1102 [in writ proceedings challenging an environmental impact report for a project involving a joint district water purchase agreement, the trial court erred in dismissing the petition based on plaintiffs’ failure to join all of the water purchasers as indispensable parties].)

Here, there is no indication that the nonparty districts have a different interest than Petitioners in invalidating the Countywide Charters, and even if they did, Respondents have an equally strong interest in defending the charters. Consequently, the nonparty districts will not be impeded in their ability to protect their interests given that their interests will be represented by a joined party. (Cf. Save Our Bay, Inc. v. San Diego Unified Port Dist. (1996) 42 Cal.App.4th 686 [affirming order granting summary judgment for port district in mandate proceeding brought by environmental organization challenging the adequacy of an environmental impact report for a project on the grounds that landowner was an indispensable party; district did not represent the landowner’s interests in the approval of the report for a specific project, since it was concerned only with the placement of a marina on that site, not with representing the interests of the owner].)

As to Respondents’ second point, subdivision (a)(2)(ii) specifies that the risk of multiple liability must be “substantial,” and this requirement has been held to mean substantial “as a practical matter,” meaning there is “more than a theoretical possibility of the absent party’s asserting a claim that would result in multiple [or inconsistent] liability.” (Union Carbide Corp. v. Super. Ct. (Villmar Dental Labs, Inc.) (1984) 36 Cal.3d 15, 21 [no substantial risk of multiple liability required all persons in the chain of distribution to be joined to purchasers’ price-fixing suit under the Cartwright Act, even where a federal suit had already been filed by another purchaser].) Here, Respondents contend that if the Court denies the Petition, nonparty districts may challenge the Countywide Charters for a second time, potentially leading to conflicting decisions as to the charters’ validity. However, given that there is no indication that nonparty districts are contemplating such action and the statute of limitations on such a claim will expire in December of this year—possibly even before this action is resolved—this scenario is only theoretically rather than substantially likely. (See Union Carbide Corp. v. Super. Ct. (Villmar Dental Labs, Inc.), supra, 36 Cal.3d at p. 23 [noting that “[t]here is no showing of any actual assertion of a Cartwright Act claim on behalf of any such intermediate purchaser” and the extended nature of antitrust actions combined with the four-year statute of limitations makes it impractical for potential plaintiffs to sit on their rights until after entry of judgment in an earlier suit].)

Consequently, the nonparty districts are not necessary parties pursuant to Code of Civil Procedure section 389, subdivision (a). Further, even if they were necessary parties, they are not indispensable parties given that a judgment rendered in their absence will be adequate as to the sole issue of whether the Countywide Charters were properly granted and will not prejudice them or the parties to this action, while it is not clear that the Petitioners will have an adequate remedy if this action is dismissed. (See Code Civ. Proc., § 389, subd. (b); see also People ex rel. Lungren v. Community Redevelopment Agency (1997) 56 Cal.App.4th 868, 883 [trial court abused its discretion in granting community redevelopment agency’s motion to dismiss for nonjoinder of Native American tribe action by state attorney general to set aside contract between the redevelopment agency and the tribe; “The only real issue to be considered by the court is whether the Agency had the power to enter into the contract it did with the Tribe. Although it is undeniable that the Tribe would be affected by the outcome of the court’s decision on the issue, the presence or absence of the Tribe would not appear to have any direct impact on resolution of the legal issues themselves.”].)

The demurrer is accordingly OVERRULED on the above-described grounds, as to the BOE and Rocketship.

Nevertheless, Respondents are correct that it is clearly the action of the BOE alone in approving the Countywide Charters that is at issue here. (See Educ. Code, § 47605.6; Petition, ¶ 7 [the BOE approved the Countywide Charters].) Even accepting Petitioners’ contention that the OOE should be included in any order establishing a remedy in this action, Petitioners cite no authority for the proposition that the OOE should consequently be required to defend this action as a party. (See In re Orlando C. (2010) 186 Cal.App.4th 1184, 1191 [“To render a person amenable to an injunction it is neither necessary that he should have been a party to the suit in which the injunction was issued, nor to have been actually served with a copy of it, so long as he appears to have had actual notice.”]; Planned Parenthood Golden Gate v. Garibaldi (2003) 107 Cal.App.4th 345, 353 [“an injunction can properly run to classes of persons with or through whom the enjoined party may act”].)

Consequently, the demurrer is SUSTAINED as to the OOE without leave to amend.

The Court will prepare the order.