Case Name:   People for the State of California, et al.  v. Summit Public Schools, et al.

Case No.:       1-13-CV-255504

 

This action arises from defendant Summit Public Schools’ (“Summit”) operation of a charter school in an industrial zoning district pursuant to an exemption from local zoning regulations adopted by Summit itself.

 

Plaintiffs People for the State of California and City of Sunnyvale (collectively, “Plaintiffs”) contend that Summit lacked the legal authority to take this action.  They move for summary adjudication of their first cause of action for nuisance per se and their third causes of action for declaratory relief, as well as Defendants’[1] second affirmative defense, in which Defendants allege that Summit had a statutory right to exercise a zoning exemption under Government Code section 53094.

 

Requests for Judicial Notice

 

Plaintiffs’ request for judicial notice is GRANTED, although not as to the facts asserted in the declaration of Noren Caliva-Lepe.  (Evid. Code, § 452, subds. (b) and (d); Sosinsky v. Grant (1992) 6 Cal.App.4th 1548, 1564 [a court may take judicial notice of the existence and content of each document in a court file, but cannot take judicial notice of the truth of hearsay statements therein]; Longshore v. County of Ventura (1979) 25 Cal.3d 14, 24 [granting request for judicial notice of county ordinances].)

 

Defendants’ request is GRANTED as to item nos. 1, 5, 7-17, and 19-28 (Evid. Code, § 452, subd. (h); 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]); item nos. 29-30 (Evid. Code, § 452, subd. (c); Church v. Jamison (2006) 143 Cal.App.4th 1568, 1579 fn. 19 [court of appeal took judicial notice of Division of Labor Standards Enforcement opinion letter]); item no. 31 (Evid. Code, § 452, subd. (c)); item no. 34 (Evid. Code, §§ 451, subd. (a) and  452, subd. (a); Hughes Electronics Corp. v. Citibank Delaware (2004) 120 Cal.App.4th 251, 266, fn.13 [where the issues being adjudicated deal with the interpretation and legislative intent of a statute, “legislative history and statutory amendments are both relevant and appropriate for judicial notice”]); and item no. 37 (Evid. Code, §§ 451, subd. (a) and 452, subd.(b)).

 

Defendants’ request is DENIED as to item nos. 2-4, 18, 32, 33 and 35, given that these documents are not sources of reasonably indisputable accuracy and do not reflect facts capable of immediate and accurate determination (Evid. Code, § 452, subd. (h)); item no. 6, given that it is unclear whether this document forms part of the legislative history of a relevant statute (see Kaufman & Broad Communities, Inc. v. Performance Plastering, Inc. (2005) 133 Cal.App.4th 26, 39 [denying judicial notice of an Assemblymember’s “Fact Sheet” where there was no showing the document was communicated to the Legislature as a whole]); and item no. 36, given that Plaintiffs’ discovery responses are not court records (Evid. Code, § 452, subd. (d)).

 

First Cause of Action for Nusiance Per Se

 

Defendants contend that Plaintiffs’ request for summary adjudication of the first cause of action must fail because Plaintiffs do not address the propriety of the relief they seek in connection with this claim, which Defendants assume is injunctive relief.[2]  Defendants are correct that in order to prevail on summary judgment or summary adjudication, plaintiffs must have established with undisputed facts every element of their cause of action, including the elements of causation and damages, or entitlement to equitable relief.  (See City of South Pasadena v. Department of Transportation (1994) 29 Cal.App.4th 1280, 1294-1295 [“When a party applies for summary judgment, it must present a statement of undisputed facts specifying each fact necessary for the relief it seeks.”; undisputed facts did not support the issuance of a broader injunction than had been entered by the trial court]; Paramount Petroleum Corp. v. Super. Ct. (Building Materials Corp. of America) (2014) 227 Cal.App.4th 226, 241 [plaintiff may not seek summary adjudication of liability only].)  Plaintiffs fail to address the relief they seek in connection with the first cause of action or their entitlement thereto in their motion.

 

Plaintiffs’ motion is thus DENIED as to the first cause of action.

 

Defendants’ Second Affirmative Defense

 

In their second affirmative defense, which is untitled, Defendants allege that “[i]n creating the condition alleged by Plaintiffs to be a nuisance, Defendants acted innocently and in good faith in that Defendants relied on their statutory right under section 53094 of the Government Code to exercise a valid zoning exemption for a public charter school.”  There follow several additional allegations pertaining to the impropriety of issuing injunctive relief even if Defendants’ actions are determined to be a nuisance, which appear to constitute the essence of the defense.

 

As discussed above, however, Plaintiffs do not address the propriety of injunctive relief in their motion.  In fact, Plaintiffs do not even purport to seek summary adjudication of the second affirmative defense as a whole:  Instead, they seek an order establishing that Summit “had no statutory right pursuant to California Government Code section 53094 to exercise a valid zoning exemption for a public charter school as asserted in Defendants’ second affirmative defense.”  (Notice of Mot., p. 2, italics added; see also Plaintiffs’ Separate Statement of Undisputed Material Facts (“PSF”), p. 8.)  Plaintiffs thus fail to address Defendants’ allegations that they acted in good faith and injunctive relief would be improper.  As urged by Defendants, Plaintiffs’ request for summary adjudication of the second affirmative defense consequently fails because it does not address the entire defense.[3]

 

Plaintiffs’ motion is accordingly DENIED as to the second affirmative defense.

 

Third Cause of Action for Declaratory Relief

 

A.  Propriety of Summary Adjudication

 

Defendants contend that because the third cause of action arises from the same operative facts as the first and second causes of action, summary adjudication should be denied, citing Southern Cal. Edison Co. v. Super. Ct. (Energy Development and Construction Corp., et al.) (1995) 37 Cal.App.4th 839 (hereinafter, “Southern Cal. Edison”) and Hood v. Super. Ct. (United Chambers Administrators, Inc.) (1995) 33 Cal.App.4th 319 (hereinafter, “Hood”).  However, in Hood, the moving party had selected issues implicated by other claims in its complaint and amended the complaint to add a cause of action for declaratory relief as to those issues.  (See Hood v. Super. Ct., supra, 33 Cal.App.4th at p. 321).  The court held that allowing this tactic would undermine the Legislature’s intent in modifying the summary judgment statute to stop the practice of adjudication of issues that do not completely dispose of a cause of action or defense, and noted that declaratory relief was inappropriate in the action at bar in any event.  (Id. at p. 323-324.)  Subsequently, Southern Cal. Edison held that it was appropriate to consider a motion for summary adjudication of a claim for declaratory relief seeking an interpretation of the parties’ contract where the complaint also asserted claims for breach of contract and specific performance involving the same issue of contract interpretation.  (Southern Cal. Edison Co. v. Super. Ct., supra, 37 Cal.App.4th at p. 847.)  The court stated that “the plain lesson of Hood is that parties will not be allowed to misuse the declaratory relief cause of action in an attempt to subvert the requirement a summary adjudication must completely dispose of a cause of action,” and that Hood “does not stand for the proposition the trial court cannot grant summary adjudication of a properly pled cause of action for declaratory relief merely because the controversy between the parties spills over into other causes of action.”  (Id. at p. 846.)

 

Here, Plaintiffs’ claim for declaratory relief was included in their initial complaint and is not superfluous to their claims for nuisance, given Plaintiffs’ need for a determination concerning their authority to enforce the zoning provisions of the Sunnyvale Municipal Code against Defendants regardless of whether Defendants’ actions are ultimately found to constitute a nuisance.  Plaintiffs’ request otherwise presents an appropriate subject for declaratory relief, which Defendants do not contest.  (Code Civ. Proc., § 1060 [“[a]ny person … who desires a declaration of his or her rights or duties with respect to another, or in respect to, in, over or upon property” may bring a request for declaratory relief]; see Environmental Defense Project of Sierra County v. County of Sierra (2008) 158 Cal.App.4th 877, 881 [trial court did not err in considering request for declaratory relief where there was a controversy between the county and a landowner concerning the interpretation of provisions of the Government Code pertaining to zoning procedures].)  The Court will consequently address Plaintiff’s request for summary adjudication of the third cause of action.

 

B.  Factual Issues and Objections to Evidence

 

Plaintiffs correctly note that their third cause of action raises almost purely legal issues.  Defendants attempt to create a factual dispute by objecting to the declaration of Noren Caliva-Lepe, upon which Plaintiffs exclusively rely, although they admit to the critical undisputed facts presented by Plaintiffs in their own separate statement of facts (“DSF”) and associated evidence.  (See DSF, Nos. 20 [on August 19, 2013, Summit passed a resolution exempting itself from zoning ordinances pursuant to Government Code section 53094] and 43 [Summit is operating a school on the Property and has enrolled students for the 2014-2015 school year].)

 

The Court issues the following rulings concerning Defendants’ objections to evidence:  Objections 1-12 and 14-19 are OVERRULED.  To the extent any statements concerning Summit’s actions are hearsay, they are admissible as party admissions if Summit now disputes their truth.  (Cal. Evid. Code, § 1220.)  Objection 13 is SUSTAINED on the ground that the statement at issue is a legal opinion that Ms. Caliva-Lepe is unqualified to offer.  (Cal. Evid. Code, § 720.)

 

As to Plaintiffs’ objections to evidence, the Court rules as follows:  Objections 1-77 are SUSTAINED.  While this evidence may be relevant to Defendants’ second affirmative defense and the issue of the relief to be granted in connection with the first cause of action, it is irrelevant to the legal issue raised by the third cause of action.  Objections 78-79 are SUSTAINED for the same reasons discussed with respect to Defendants’ request for judicial notice.  Objection 80 is OVERRULED given that is presented in improper format.  Objections 81-173 are OVERRULED.  While these documents are not all appropriate subjects for judicial notice as discussed above, requests for judicial notice are not subject to evidentiary objections.

 

In light of these rulings and considering the evidence presented by both parties, the Court finds that there are no triable issues of material fact as to the third cause of action and only legal issues remain for the Court’s resolution.[4]  The undisputed facts demonstrate that Summit is operating a school pursuant to an exemption issued by its own governing board on a site where operating a school is otherwise prohibited by the Sunnyvale Municipal Code.  (See PSF, Nos. 7-10; DSF, Nos. 20 and 43.)

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C.  Legal Analysis

 

Under Government Code section 53091, “local agencies” of the state are required to comply with applicable building and zoning ordinances of the municipality in which a property is situated.  (Regents of University of California v. City of Santa Monica (1978) 77 Cal.App.3d 130, 137; Gov. Code, § 53090, subd. (a) [defining “local agency” as an agency of the state].)  However, Government Code section 53094 provides an exception for “school districts” whose governing boards vote to render a zoning ordinance inapplicable to a proposed use of property by the school district for classroom facilities.  (Gov. Code, § 53094, subd. (b).)  No definition of a “school district” is provided by these provisions of the Government Code.

 

i.  Defendants’ Argument That Summit Must Be Able to Issue a Zoning Exemption as a Member of the “Public School System”

 

The Legislature enacted Government Code section 53090, et seq. in response to a pair of decisions relied upon by Defendants, Hall v. City of Taft (1956) 47 Cal.2d 177 (hereinafter, “Hall”) and Town of Atherton v. Super. Ct. (Menlo Park Sch. Dist.) (1958) 159 Cal.App.2d 417 (hereinafter, “Atherton”).  (See City of Santa Clara v. Santa Clara Unified Sch. Dist. (1971) 22 Cal.App.3d 152, 157.)  In these cases, it was held that, because the state had occupied the field of school site selection and school districts were local agencies of the state with respect to this activity, school districts were not subject to municipal construction regulations (Hall) or zoning ordinances (Atherton).  (See id. at pp. 156-157.)  By enacting section 53090, et seq. in response to these decisions, the Legislature waived the state’s sovereign immunity with respect to most of its local agencies’ compliance with applicable building and zoning regulations, but it retained the powers recognized in Hall and Atherton with respect to “school districts.”  (See Bame v. City of Del Mar (2001) 86 Cal.App.4th 1346, 1356 [state agencies enjoy immunity from local regulation unless the state, through statute or provision of the California Constitution, has expressly consented to waive such immunity].)

 

Defendants contend that Hall and Atherton stand for the proposition that all entities operating as part of the “public school system”—comprising local primary and secondary school districts, county offices of education that provide primary and secondary education, community college districts, state colleges, and now, charter schools—are exempt from local construction regulations and zoning ordinances in locating and constructing schools.[5]  However, Hall and Atherton in fact recognized the state’s immunity from such regulations, not an independent right on the part of subsidiary entities comprising the “public school system,” and following these decisions, the state specifically elected to waive its sovereign immunity on behalf of local agencies other than “school districts,” not addressing the “public school system” as such.

 

Defendants further argue that article IX, section 6 of the California Constitution, which provides that “no part of the Public School System shall be, directly or indirectly, transferred from the Public School System or placed under the jurisdiction of any authority other than one included within the Public School System,” prohibits subjecting charter schools to local zoning requirements.  However, requiring a charter school to comply with generally applicable zoning requirements promulgated by a local entity would not have the effect of transferring it to or placing it under the jurisdiction of the local entity.  (See Lehmann v. Los Angeles City Board of Education (1957) 154 Cal.App.2d 256, 262 [article IX, section 6 did not exempt a school district from compliance with employment regulations promulgated by the Division of Industrial Safety; “Recognition of authority in the Division of Industrial Safety to make safety regulations applicable to places of employment in public schools as well as to all other places of employment not otherwise provided for would not be transferring a school or college or any other part of the public school system from the public school system, or placing it under the jurisdiction of the Division of Industrial Safety”].)

 

Consequently, whether charter schools are part of the “public school system” is not determinative of whether they are subject to local zoning requirements.  The issue is whether they are “school districts” for purposes of the statute at issue.

 

ii.  Whether Charter Schools Are “School Districts”

 

“Initially, charter schools were viewed as operationally but not legally separate from their chartering authorities.  [Citation.]  Effective 1999, Education Code section 47604 provided that charter schools may also elect to operate as, or be operated by, a nonprofit public benefit corporation.”  (Knapp v. Palisades Charter High School (2007) 146 Cal.App.4th 708, 715.)  Either way, charter schools are intended to “operate independently from the existing school district structure.”  (Wells v. One2One Learning Foundation (2006) 39 Cal.4th 1164, 1186, quoting Ed. Code, § 47601.)  Except where the Legislature has expressly made an exception, charter schools and their operators are “exempt from the laws governing school districts.”  (Id., quoting Ed. Code, § 47610.)  The exceptions that have been enacted by the Legislature pertain to funding, teachers’ retirement, and laws establishing the minimum age for public school attendance, or else deal with “charter schools” specifically.  (See Scott B. v. Board of Trustees of Orange County High School of the Arts (2013) 217 Cal.App.4th 117, 123 [Education Code section 48918, which establishes requirements for the expulsion procedures to be established by a “school district,” does not apply to charter schools because the Legislature did not specify that it does].)  In light of this authority, Defendants’ argument that a charter school should be treated as a “school district” in a context where the Legislature has not expressly so provided must be rejected.  Notably, Defendants cite to no case in which a court has ordered such a result.

 

As discussed, the Legislature has not amended Government Code section 53090 et seq. to provide that a “school district” includes a charter school.  Further, it seems clear that this was quite intentional, because the Legislature did enact a provision within the relevant statutory scheme, Government Code section 53097.3, that addresses the “[a]pplicability of [a] city or county ordinance to [a] charter school.”  That section provides that, “[n]otwithstanding any other provision of this article, no school district may render a city or county ordinance inapplicable to a charter school facility pursuant to this article, unless the facility is physically located within the geographical jurisdiction of that school district.”  (Gov. Code, § 53097.3.)  Thus, the Legislature has expressly provided that a “school district,” as opposed to a charter school itself, may render an ordinance inapplicable to a “charter school facility,” but only under specified circumstances, and it did not amend these provisions to allow charter schools themselves to issue an exemption, although this possibility must have been obvious.

 

Defendants contend that this interpretation would lead to absurd results, as it would require charter schools to run any zoning exemptions through the school district in whose boundaries they attempt to locate, and would furthermore prevent charter schools independent from the school district in which they seek to locate from obtaining an exemption at all, since school districts can only issue a zoning exemption for property to be used “by the school district” itself (Gov. Code, § 53094).  This, Defendants urge, would violate the Legislature’s intent in creating more flexible charter schools to “[p]rovide vigorous competition within the public school system to stimulate continual improvements in all public schools.”  (Ed. Code,§ 47601, subd. (g).)  However, contrary to Defendants’ argument, there is no evidence that the Legislature intended for charter schools to compete with traditional public schools or to have more flexibility relative to traditional public schools in terms of their physical facilities.  (See, e.g., Ed. Code,§ 47610, subd. (d) [charter schools required to comply with the California Building Standards Code as adopted and enforced by the local building enforcement agency with jurisdiction over the area in which the charter school is located].)  While Defendants urge that numerous funding provisions and public programs grant charter schools funds for the construction, rehabilitation, and improvement of facilities, this does not speak to the Legislature’s intent with respect to the siting of charter schools.  Contrary to Defendants’ argument, it is entirely consistent with the legislative scheme governing charter schools for local school districts to retain certain powers over charter schools.  (See Wilson v. State Bd. of Education (1999) 75 Cal.App.4th 1125, 1139-1140 [noting that chartering authorities including local school districts retain oversight and monitoring powers over charter schools and have the ability to revoke a charter for, among other reasons, a material violation of the charter or a violation of any law, and can demand steps short of revocation be taken to cure problems as they occur]; Wells v. One2One Learning Foundation, supra, 39 Cal.4th 1164 [same].)

 

Finally, while this issue is not addressed by the parties, the Court notes that charter schools may, as Summit apparently has done, elect to operate as private nonprofit corporations separate from the state and its local school districts.  (Wells v. One2One Learning Foundation, supra, 39 Cal.4th at p. 1186, citing Ed. Code, § 47604, subd. (a).)  It would appear that such schools are not entitled to the state’s sovereign immunity as recognized in Hall and Atherton in the first place, nor to the state’s retention of that immunity on behalf of “school districts” as provided in Government Code section 53094.  (See Tustin Heights Asso. v. Board of Supervisors (1959) 170 Cal.App.2d 619, 632 [private schools are subject to local zoning requirements]; Wells v. One2One Learning Foundation, supra, 39 Cal.4th at p. 1200 [independent charter schools not entitled to “public entity” immunity enjoyed by their chartering districts]; Knapp v. Palisades Charter High School (2007) 146 Cal.App.4th 708, 53 [as alleged nonprofit public benefit corporation, charter school was not a “public entity” within meaning of Government Tort Claims Act and was not protected by the Act’s claims presentation requirement].)

 

For all these reasons, the motion for summary adjudication of the third cause of action is GRANTED.  The Court hereby declares that (1) Summit did not have legal authority or jurisdiction to adopt a resolution to exempt itself from local zoning requirements, (2) only school districts may exempt charter schools operating within their geographic boundaries from local zoning requirements under Government Code sections 5394, subdivision (b) and 53097.3, and (3) Summit’s purported resolution was adopted in excess of its jurisdiction and is null and void.

 

 

 

[1] Defendants Edward L. Eyre, Michael D. Connor, Elizabeth O. Connor, Robert T. Bly, Jr., Trudi K. Tuban, Janet V. Eyre 2004 Trust, 1990 Feeny Family Trust, 1998 Feeny Family LLC, Ron Himes Pension and Profit Sharing Trust, Marcus C. Wood, Anne L. Bryan, Amanda A. Bryan, Jerry S. Rawls, and Cree and Jennifer Edwards Family Trust Dated 10/19/99 (collectively, the “Owners”) are the alleged owners of the property at issue in this action.  (Complaint, ¶ 6.)  Summit, the Owners, and William J. Edwards, who was named as a Doe defendant on November 5, 2013, are herein collectively referred to as “Defendants.”

[2] It is not entirely clear from the complaint what relief Plaintiffs seek in connection with this claim, given that the first cause of action itself does not specify the relief sought and the prayer for relief does not specify whether the various forms of relief requested are tied to the first cause of action or one of the other claims asserted in the complaint.

[3] In their separate statement, Plaintiffs include a fourth issue, that Summit had no right to exercise a zoning exemption pursuant to Government Code section 53094 “as asserted in Defendants’ answer, affirmative defenses 1 and 3-20.”  This issue is not properly before the Court given that it was not raised in Plaintiffs’ notice of motion or supporting memorandum of points and authorities.  (Cal. Rules of Court, rules 3.1350, subd. (b) [motion for summary adjudication must specify the causes of action or defenses concerning which summary adjudication is sought in the notice of motion] and 3.1113 [memorandum of points and authorities supported by arguments and evidence along with a discussion of statutes and cases in support of the position advanced must be filed in support of a motion].)  Even if it were, Plaintiffs’ request for summary adjudication of these defenses would be improper for the reasons discussed with respect to the second affirmative defense.

[4] It is noted that Defendants erroneously contend that it is Plaintiffs’ burden to disprove each of their affirmative defenses in order to demonstrate that there are no triable issues of material fact as to the third cause of action.  (Opp., pp. 2-3 and 10.)  Contrary to Defendants’ argument, for purposes of motions for summary judgment and summary adjudication, a plaintiff or cross-complainant has met its burden if it “has proved each element of the cause of action entitling [it] to judgment on that cause of action. Once the plaintiff or cross-complainant has met that burden, the burden shifts to the defendant or cross-defendant to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto.”  (Code Civ. Proc., § 437c, subd. (p)(1).)

 

[5] Defendants present voluminous argument supporting their contention that other members of the “public school system” beyond traditional primary and secondary school districts are not subject to local zoning ordinances or are entitled to exempt themselves from local zoning requirements pursuant to Government Code section 53094.  However, these entities either are not “local agencies” subject to the state’s waiver of sovereign immunity in the first instance (see Regents of University of California v. City of Santa Monica (1978) 77 Cal.App.3d 130, 137 [“section 53090, which defines ‘local agency,’ excludes ‘the state’ and, by implication, such statewide agencies with plenary constitutionally granted powers as the Regents”) or, unlike charter schools, function as “school districts” for all purposes (see Ed. Code, § 1984 [“For the purposes of establishing and maintaining a county community school, a county board of education shall be deemed to be a school district.”]; Cal. Const., art IX, § 14, entitled “School districts” [providing that the Legislature has the power to incorporate and organize “school districts, high school districts, and community college districts” and authorize the governing boards of all such “school districts” to “act in any manner which is not in conflict with the laws and purposes for which school districts are established”].)