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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIASECOND APPELLATE DISTRICT

Case STATE OF CALIFORNIA, et al. v. Court of Appeal No.:Name: SUPERIOR COURT OF LOS ANGELES Superior Court No.: BC484642

COUNTY

CERTIFICATE OF INTERESTED PARTIES OR ENTITIES OR PERSONS(Cal. Rules of Court, Rule 8.208)

(Check One) INITIAL CERTIFICATE ❑X SUPPLEMENTAL CERTIFICATE ❑,

Please check the applicable box:

X There are no interested entities or persons to list in this Certificate per California Rules of Court, rule 8.208(d).

Interested entities or persons are listed below:

Full Name of Interested Entity or Party Party Non-Party Nature of InterestCheck One (Explain)

The undersigned certifies that the above listed persons or entities (corporations, partnerships, firms or anyother association, but not including government entities or their agencies), have either (i) an ownershipinterest of 10 percent or more in the party if an entity; or (ii) a financial or other interest in the outcome of theproceeding that the justices should consider in determining whether to disqualify themselves, as defined inrule 8.208(e)(2).

Attorney Submitting Form

GREGORY D. BROWNDeputy Attorney GeneralState Bar No. 219209455 Golden Gate Avenue, Suite 11000San Francisco, CA 94102-7004Telephone: (415) 703-5461Fax: (415) 703-5480E-mail: Gregory.Brown@doj.ca.gov

(Signature o'P'Attorney Submitting Form)

LA201250683940848076.doc

Party Represented

Attorneys for State of California; Edmund G. Brown Jr.,in his official capacity as Governor of the State ofCalifornia; Tom Torlakson, in his official capacity asState Superintendent of Public Instruction; CaliforniaDepartment of Education; and State Board ofEducation

(D

TABLE OF CONTENTS

Page

Introduction................................................:................................................. 1

Petition for Writ of Mandate and/or Prohibition or OtherAppropriateRelief ...................................:.............................:........... 2

Theparties ......................................................................................... 2

Authenticity of e~ibits ..................................................................... 3

Statement of facts .............................................................................. 3

A. The Challenged Statutes ...........................................:. 3

B. Plaintiffs' underlying lawsuit ......................:............... 6

C. State Defendants' motion for suirunaryjudgment or summary adjudication ............................ 7

1. Plaintiffs' "fundamental interest" claimsfail to state a claim as a matter of law ............. 8

2. Plaintiffs have no evidence to create atriable issue of fact for their "suspectclass" claims .................................................... 9

Basisfor writ relief ......................................................................... 10

Request for immediate stay ............................................................. 12

Prayer..............................................................:............................... 12

Verification..................:.............................................................................. 13

Meinoranduin of Points and Authorities .................................................... 14

Standardof Review .................................................................................... 15

Argument.................................................................................................... 15

I. The respondent court committed plain legal error byholding that a classification is not a required elementof an equal protection claim ................................................. 15

II. State Defendants are entitled to summary judgment onplaintiffs' "suspect class" claims because plaintiffshave submitted no evidence of causation ............................ 17

III. State Defendants are entitled to summary judgment onplaintiffs' declaratory relief claim ....................................... 19

i

TABLE OF CONTENTS(continued)

Page

IV: State Defendants are entitled to a stay of theproceedings in the respondent court .................................... 20

Conclusion.................................................................................................. 20

ii

TABLE OF AUTHORITIES

Page

CASES

Aguilar v. Atlantic Richfield Co.(2001),25 Ca1.4th 826 ........................................................................18

Ball v. FleetBoston Financial Co~^p.(2008) 164 Ca1.App.4th 794 ..............................................................19

Casey v. Perini Copp.(2012) 206 Cal.App.4th 1222 ...................................:........................19

Cooley v. Superior Court(2002) 29 Cal.4th 228 ................................................................ 1, 8,16

Coulter v. Superior Court(1978) 21 Ca1.3d 144 ......................:..................................................11

Diamond v. Supe~io~ Court(2013) 217 Cal.App.4th 1172 ............................................................15

Fair Employment &Housing Com. v. Supe~^io~ Court(2004) 115 Ca1.App.4th 629 .................................:............................11

Fisherman's Wha~fBay Guise Copp. v. Supe~^io~^ Court(2003) 114 Cal.App.4th 309 ......:.......................................................12

Horn v. Cushman &Wakefield Western, Inc.(1999) 72 Cal.App.4th 798 ................................................................19

In Ne Epic J.(1979) 25 Cal.3d 522 .........................................................................16

Knowles v. Supe~ioN CouNt(2004) 118 Ca1.App.4th 1290 ............................................................11

Manduley v. Supe~io~ Court(2002) 27 Cal.4th 537 ........................................................................16

Merrill v. Navega~, Inc.(2001) 26 Ca1.4th 465 ........................................................................19

111

TABLE OF AUTHORITIES(continued)

Page

People v. Brown(2012) 54 Ca1.4th 314 ........................................................................16

Prudential Ins. Co. of America, Inc. v. Superior Court(2002).98 Cal.App.4th 585 .........................................:......................11

Rybicki v. Carlson(2013) 216 Ca1.App.4th 758 ..............................................................11

Santa Clara County Local TNansportation Autho~^ity v. Gua~^dino(1995) 11 Cal.4th 220 ............................:...........................................16

STATUTES

Code Civ. Proc.§ 437c, subd. ~g) .........................................................:................10, 18

§ 437c, subd. (in)(1) ..........................................................................10

§ 437c, subd. ~)~2) ..................................................................2, 18, 19

Ed. Code§ 44915 ................................................................................................5

§ 44929.21, subd. (b) ............................................:..........................4, 5

§ 44932 .......................................:........................................................ 5

§ 44934 ................................................................................................ 5

§ 44937 ................................................................................................ 5

§ 44938, subd. (b)(1)-(2) .....................................................................5

§ 44943 ................................................................................................ 5

§ 44944, subd. (a)(1) .......................................................:....................5

§ 44944, subd. (b)(1) ....................................:......................................5

§ 44944, subd. (c)(1) .....................................:.............................:........ 5

§ 44944, subd. (c)(4) ..............:.............................................................6

§ 44945 ................................................................................................ 6

§ 44955, subd. (b) ................................................................................ 6

§ 44955, subd. (d)(1)-(2) .....................................................................6

Enid. Code§ 452, subd. (d)(1) ...............................................................................3

iv

TABLE OF AUTHORITIES(continued)

Page

CONSTITUTIONAL PROVISIONS

Equal Protection Clause of the California Constitution ............................ l

u

INTRODUCTION

The respondent superior court committed plain legal error by denying

petitioners' (State Defendants) motion for summary judgment and allowing

the real parties in interest (plaintiffs) to proceed to trial on nonactionable

claims.

In the underlying action, plaintiffs seek to invalidate five state

Education Code statutes (Challenged Statutes) as unconstitutional under the

equal protection clause of the California Constitution. Plaintiffs assert two

equal protection theories: (1) a "fundamental interest" theory that the

Challenged Statutes allegedly violate some students' equal protection rights

by causing them randomly" to be assigned to "grossly ineffective" teachers;

and (2) a "suspect class" theory that the Challenged Statutes allegedly cause

school district administrators to assign grossly ineffective teachers

disproportionately to minority and low-income students.

Plaintiffs' "fundamental interest" claims fail as a matter of law

because they do not allege any classification under which the State treats

similarly situated groups differently. The threshold element of any equal

protection claim is a classification between different groups (Cooley v.

Supe~io~ Court (2002) 29 Cal.4th 228, 253 (Cooley)), and it is undisputed

that plaintiffs' "fundamental interest" claims are not based on any

classification. Accordingly, these claims are nonactionable, and State

Defendants are entitled to summary judgment as a matter of law.

Plaintiffs' "suspect class" claims also fail as a matter of law because it

is undisputed—and the respondent court acknowledged—that plaintiffs

have "no evidence" that the Challenged Statutes cause grossly ineffective

teachers to be assigned disproportionately to minority and low-income

students. Where, as here, State Defendants made a prima facie showing

that plaintiffs cannot prove this element of their claims, to defeat summary

judgment plaintiffs were required to produce sufficient evidence for a

reasonable trier of fact to find in their favor. (Code Civ. Proc., § 437c, subd.

(p)(2).) Here, plaintiffs produced no evidence on this element of their

claims, and accordingly- State Defendants are entitled to summary judgment

as a matter of law.

In addition, this Court should issue an immediate stay because the

underlying case is set for atwenty-day (and possibly much longer) trial

commencing on January 27, 2014. In the absence of a stay, the parties and.

the respondent court will undertake an expensive, lengthy, and unnecessary

trial on nonactionable claims.

PETITION FOR WRIT OF MANDATE AND/OR PROHIBITION OROTHER APPROPRIATE RELIEF

Petitioners petition this Court for a writ of mandate and/or prohibition

or other appropriate relief, directed to respondent Superior Court of the

State of California in and for the County of Los Angeles, and by this

verified petition allege:

THE PARTIES

1. Petitioners are State of California; Edmund G. Brown Jr., in his

official capacity as Governor of the State of California; Toin Torlakson, in

his official capacity as State Superintendent of Public Instruction;

California Department of Education; and State Board of Education

(collectively, State Defendants), who are defendants in an action now

pending in the respondent superior court, entitled Beat~iz Ve~gara, et al. v.

State of California, et al., No. BC484642, the case frorri which this petition

is taken.

2. Respondent is the Superior Court of the State of California in

and for the County of Los Angeles.

3. The real parties in interest are the plaintiffs in this action:

Beatriz Vergara, a minor, by Alicia Martinez, as her guardian ad litem;

Elizabeth Vergara, a minor, by Alicia Martinez, as her guardian 'ad litem;

2

Clara Grace Campbell, a minor, by Lauren Campbell, as her guardian ad

litem; Brandon DeBose Jr., a minor, by Satonna Ballard-DeBose, as his

guardian ad litem; Kate Elliott, a minor, by Terri Elliott, as her guardian ad

litem; Herschel Liss, a minor, by Lisa Liss, as his guardian ad litem; Julia

Macias, a minor, by Jose Macias, as her guardian ad litem; Daniella

Martinez, a minor, by Karen Martinez, as her guardian ad litem; and

Raylene Monterroza, a minor, by Martha Monterroza, as her guardian ad

litem.

4. The following parties have been permitted to intervene in the

action and take a position adverse to the plaintiffs: California Teachers

Association and California Federation of Teachers (collectively,

Intervenors). Intervenors are filing their own separate Petition for Writ of

Mandate concurrently with this petition. To avoid unnecessary duplication,

State Defendants and Intervenors are filing Joint E~iibits in support of their

respective petitions.

AUTHENTICITY OF EXHIBITS

5. The Joint E~ibits (Exhibits) filed by State Defendants and

Intervenors concurrently with this petition are true copies of original

documents filed with respondent, except for E~ibit 69, which is a true

copy of the original reporter's transcript of the December 13, 2013 hearing.

The E~ibits are paginated consecutively from pages 1 through 6331, and

the page references in this petition are to this pagination. The E~ibits are

incorporated by reference in this petition and the Court may take judicial

notice of the E~ibits under Evidence Code section 452, subdivision (d)(1).

STATEMENT OF FACTS

A. The Challenged Statutes

6. In the underlying litigation, plaintiffs challenge the

constitutionality of five Education Code statutes (Challenged Statutes) that

3

are designed to attract and retain good teachers to the benefit of students.l

Among other things, the Challenged Statutes provide job protections that

the Legislature determined are essential to recruiting and retaining high

quality teachers, safeguarding teachers' academic freedom, and reducing

teacher turnover in the public school system. By ensuring that teachers can

be fired only for cause and with due process, these statutes provide

important bulwarks against local political pressures, cronyism, favoritism,

and other problems that could otherwise discourage good teachers from

entering the profession and drive good teachers away from the profession.

In addition, teacher salaries are not high, and thus the Legislature

determined that the promise of a reasonable measure of job security is

important to attract talented people to the profession.

7. The Permanent Employment Statute provides that a probationary

employee becomes a "permanent employee of the district" after completing

"two complete consecutive school years in a position or positions requiring

certification." (§ 44929.21, subd. (b).2) The school district's "governing

board shall notify the employee, on or before March 15 of the employee's

second complete consecutive school year of employment by .the district .. .

of the decision to reelect or not reelect the employee for the next

succeeding school year to the position." (Ibid.) If the governing board fails

to give notice, the employee is deemed "reelected" and granted permanent

1 The Challenged Statutes are Education Code §§ 44929.21, subd.(b) (Permanent Employment Statute); 44934, 44938, subds. (b)(1) & (b)(2),and 44944 (Dismissal Statutes); and 44955 (Last-In, First-Out (LIFO)Statute). State Defendants do not agree with plaintiffs' shorthanddescriptions of the statutes, but in the interests of clarity and ease ofreference for the Court, State Defendants will use plaintiffs' shorthandterminology.

2 All statutory references are to the Education Code unless otherwisestated.

employment. (Ibid.) Districts are not required to give a reason or cause to

support a notice ofnon-reelection of a probationary employee. (§ § 44915,

44929.21(b), 44932 et seq.)

8. The Dismissal Statutes establish the bases for, and the process

of, dismissing permanent employees for cause. One of the eleven bases

justifying a teacher's dismissal is unsatisfactory performance. (§ 44932.)

When a school district wishes to dismiss a teacher for performance issues,

it must give the teacher written notice of the unsatisfactory performance

and "an opportunity to correct his or her faults and overcome the grounds

for the charge." (§ 44938, subd. (b)(1)-(2).) The district may file written

charges to dismiss or suspend the teacher 90 days after it provided the

teacher with the notice of unsatisfactory performance. (§§ 44934; 44938,

subd. (b)(1)-(2).) After written charges to suspend or dismiss a teacher are

filed, the district may give notice to the teacher of its intent to dismiss or

suspend him or her in 30 days. (§ 44934.) If the teacher does not file a

written request for a hearing, he or she "may be dismissed or suspended

without pay" after the 30-day period expires. (§ 44937.) If the teacher

requests a hearing, the governing board of the district may either rescind its

action or schedule a hearing. (§ 44943.)

9. Under the Dismissal Statutes, the governing board of the district

must schedule the teacher's dismissal hearing within 60 days of the request.

(§ 44944, subd. (a)(1).) The hearing occurs before the Commission on

Professional Competence (the Commission), an ad hoc three-person panel

consisting of an Administrative Law Judge (ALJ), a member selected by

the teacher, and a member selected by the governing board. (§ 44944,

subd. (b)(1).) After discovery and a hearing; the Commission issues a

written decision determining whether the employee should—or should

not—be suspended or dismissed. (§ 44944, subd. (c)(1).) The

Commission's decision is "deemed to be the final decision of the governing

5

board." (§ 44944, subd. (c)(4).) Both the governing board, and the

employee, may file a petition in superior court seeking review of the

Commission's decision. (§ 44945.)

10. The LIFO Statute establishes criteria for school district

governing boards to utilize when they need to "decrease the number of

permanent employees in the district" for reasons that are not related to

teacher performance. (§ 44955, subd. (b).) It provides that "the services of

no permanent employee may be terminated under the provisions of this

section while any probationary employee, or any other employee with less

seniority, is retained to render a service which said permanent employee is

certificated and competent to render." (Ibid.) However, school districts

"may deviate from terminating a certificated employee in order of

seniority" when: (1) the teacher "has special training and experience"

necessary to teach a course or provide services "which others with more

seniority do not possess"; and (2) "[fJor purposes of maintaining or

achieving compliance with constitutional requirements related to equal

protection of the laws." (§ 44955, subd. (d)(1)-(2) [emphasis added].)

B. Plaintiffs' Underlying Lawsuit

11. Plaintiffs filed the underlying action seeking to invalidate the

Challenged Statutes on May 14, 2012, and the operative first amended

complaint on August 15, 2012. (E~ibit 1 at p. l.) Trial is set for January

27, 2014 and is expected to take approximately four to six weeks. (E~ibit

2 at p. 29.)

12. Plaintiffs' first, second, and third claims for relief contend that

the Challenged Statutes violate the equal protection rights of California

students under a novel and unprecedented "fundamental interest" equal

protection theory. (E~ibit 1 at pp. 23-25 (¶¶ 79-90).) Plaintiffs allege that

the Challenged Statutes cause school districts to hire and retain some

"grossly ineffective teachers" (E~ibit 1 at p. 21 (~ 74)), and that some

students are then randomly or "arbitrarily" assigned to "grossly ineffective"

teachers by their school districts. (E~ibit 1 at pp. 21-22 (¶ 75).) These

equal protection claims are not based on any classification between two or

more similarly situated groups, but instead are based on plaintiffs' theory

that any student who is randomly assigned to a "grossly ineffective" teacher

has a valid equal protection claim because such an assignment violates that

student's "fundamental interest" in education. Thus, for their "fundamental

interest" claims, plaintiffs have not alleged—and assert that they need not

allege or prove—that the State has classified similarly situated groups of

students differently. (E~iibit 1 at pp. 24-25 (¶¶ 82, 86, 90).)

13. Plaintiffs' fourth, fifth, and sixth claims for relief are "suspect

class" equal protection claims. (E~ibit 1 at pp. 25-26 (¶~ 91-105).) These

claims allege that the Challenged Statutes "cause school administrators" to

assign or transfer "grossly ineffective" teachers "disproportionately" to

schools that serve high concentrations of minority and economically

disadvantaged students. (E~ibit 1 at pp. 19-20 (¶ 71).)

14. Plaintiffs' seventh claim for relief is a claim for declaratory

relief that is entirely derivative of claims one through six. (E~ibit l at pp.

26-27 (¶~ 106-108).)

15. Plaintiffs ask the respondent court to declare each of the

Challenged Statutes unconstitutional and to permanently enjoin their

implementation. (Exhibit 1 at p. 26 (Prayer for Relied.)

C. State Defendants' Motion for Summary Judgment or

Summary Adjudication

16. State Defendants and Intervenors filed separate motions for

summary judgment or summary adjudication on September 27, 2013.

(E~ibits 4 & 8.) The motions were heard on December 13, 2013, and on

that date the respondent court issued a written order denying both motions

7

in their entirety. (E~ibits 69 & 70.) As relevant to this petition, State

Defendants raised the following arguments:

1. Plaintiffs' "fundamental interest" claims fail tostate a claim as a matter of law.

17. In their summary judgment motion, State Defendants argued,

inter alia, that plaintiffs' first, second, and third claims—the "fundamental

interest" claims—fail to state a claim because they are expressly based on

the absence of any classification that could create two identifiable groups of

students treated differently by the Challenged Statutes. (E~ibit 5 at pp.

51-52; Exhibit 1 at pp. 24-25 (¶¶ 82, 86, 90) [alleging that the Challenged

Statutes affect an "arbitrary subset of children"].) Under a long and

unbroken line of cases including Cooley, supra, 29 Cal.4th at p. 253, the

threshold element of any equal protection claim is a showing that the state

has adopted a classification that affects two or more similarly situated

groups in an unequal manner. Because plaintiffs' "fundamental interest"

claims seek to raise an equal protection claim without any classification,

they fail to state a claim as a matter of law.

18. In opposing the motion, plaintiffs confirmed that their

"fundamental interest" claims are not based upon any classification—i.e.,

not based upon any differences in treatment of identifiable groups of

people—but instead are based entirely upon Nandom differences in teacher

assignments. (Exhibit 16 at pp. 1442-1-443 (Opposition at pp. 37-38).)

Plaintiffs did not address State Defendants' argument that adopting a

classification is the threshold element of any equal protection claim. And

at oral argument, plaintiffs' counsel acknowledged that under this equal

protection theory "all students are members of the group who are affected

by these statutes." (E~ibit 69 at p. 6301 (Transcript at p. 14:7-9)

[emphasis added].)

19. In denying the motion, the respondent court held that plaintiffs

are not required to show a classification as an element of their

"fundamental interest" claims, concluding that there is "an equal protection

violation in every instance that a student is assigned [a ̀ grossly ineffective']

teacher." (E~ibit 70 at p. 6330.)

2. Plaintiffs have no evidence to create a triable issue

of fact for their "suspect class" claims.

20. State Defendants argued, inter alia, that they are entitled to

summary judgment on plaintiffs' fourth, fifth, and sixth claims—the

"suspect class" claims— because the Challenged Statutes do not play any

role in the manner in which local school districts assign teachers to

particular schools or classrooms, and thus plaintiffs cannot establish the

required element that the Challenged Statutes cause "grossly ineffective"

teachers to be assigned disproportionately to minority and/or low-income

students. (E~ibit 5 at pp. 56-60, 62-67.) State Defendants produced

evidence demonstrating that school districts maintain complete authority to

assign and transfer teachers to particular classrooms or schools, and that

neither State Defendants nor the Challenged Statutes play any role in how

teachers are assigned or transferred to particular schools or classrooms.

(Exhibit 6 at p. 71 (Separate Statement No. 4); E~ibit 71 at p. 81 (¶ 6).)

21. In opposing the. motion, plaintiffs did not submit or identify any

evidence that the Challenged Statutes cause the disproportionate

assignment of "grossly ineffective" teachers to minority and low-income

schools. Indeed, plaintiffs essentially conceded the lack of any such causal

connection, acknowledging that "districts make teacher assignment

`decisions."' (E~ibit 16 at p. 1447 (Opposition at p. 42, fn. 19) [emphasis

added].)

22. In denying the motion, the respondent court acknowledged that

plaintiffs have submitted "no evidence" that the Challenged Statutes cause

D

"grossly ineffective" teachers to be assigned disproportionately to low-

incoine and minority schools. (Exhibit 70 at p. 6327 ["Plaintiffs provide no

evidence concerning how teachers -are assigned."].) The respondent court,

however, did not directly address this causation element, nor did it identify

any "evidence proffered ... in opposition to the motion which indicates

that a triable controversy exists" on this element. (Code Civ. Proc., § 437c,

subd. (g).) Instead, the respondent court implicitly concluded, without any

explanation, that despite the fact that plaintiffs have "no evidence" there is

nonetheless a triable issue of fact on this element of plaintiffs' claims.

(Exhibit 70 at p. 6327 ["Plaintiffs' evidence raises triable issues of fact as

to the effect of the Challenged Statutes."].)

BASIS FOR WRIT RELIEF

23. State Defendants petition this Court for a peremptory writ

pursuant to Code of Civil Procedure section 437c, subdivision (m)(1),

which provides that following the denial of a motion for summary

judgment, "a party may, within 20 days after service upon hiin or her of a

written notice of entry of the order, petition an appropriate reviewing court

for a peremptory writ." (Code Civ. Proc., § 437c, subd. (in)(1).) The

respondent court denied summary judgment on December 13, 2013, and

accordingly this petition is timely.

24. The respondent court committed plain legal error by concluding

that (1) plaintiffs need not allege or prove the element of a "classification"

for their "fundamental interest" equal protection claims; and (2) there is a

triable issue of fact on plaintiffs' "suspect class" equal protection claims

despite the fact that plaintiffs have no evidence to support the element of

causation.

25. State Defendants have no plain, speedy, and adequate remedy at

law other than the relief sought herein. There is no direct appeal from the

denial of a motion for summary judgment. Accordingly, in the absence of

10

the requested stay and writ relief, State Defendants will be forced to go

through a lengthy trial before they can appeal from a final judgment. (See

Fair Employment &Housing Com. v. SuperioN Court (2004) 115

Ca1.App.4th 629, 633 ["Where there is no direct appeal from a trial court's

adverse ruling, and the aggrieved party would be compelled to go through a

trial and appeal from a final judgment, a petition for writ of mandate is

allowed."].)

26. State Defendants will suffer irreparable injury in the absence of

the requested relief because they will be forced to go through an expensive

and unnecessary four-to-six-week trial on claims that are barred as a matter

of law. (Knowles v. Supe~io~ Court (2004) 118 Cal.App.4th 1290, 1295

["Where the trial court's denial of a motion for summary judgment will

result in a trial on nonactionable claims, a writ of mandate will issue."],

quoting Prudential Ins. Co. of A~rzeNica, Inc. v. Supe~io~^ Court (2002) 98

Cal.App.4th 585, 594; see also Coulter v. Superior' Court (1978) 21 Ca1.3d

144, 148 ["[M]andamus will lie ...when that extraordinary relief inay

prevent a needless and expensive trial and reversal."], superseded by statute

on other grounds as stated in Rybicki v. Carlson (2013) 216 Ca1.App.4th

758, 762-763.) Further, the respondent court's failure to require plaintiffs

to allege and submit evidence to support the legal elements of their claims

prejudices State Defendants by rendering the entire basis for the trial

uncertain. Following the respondent court's plainly erroneous legal rulings,

State Defendants can no longer ascertain the elements, standards, burdens,

or relevant evidence for plaintiffs' claims at trial. Indeed, it appears that the

trial will largely consist of a debate among the twelve designated experts on

policy questions, including how best to measure teacher effectiveness, that

are almost entirely unconnected to the elements of the legal claims alleged

in plaintiffs' first amended complaint.

11

27. State Defendants have a clear, present, and substantial right to

an order by respondent court that vacates its prior order and grants State ,

Defendants' motion for summary judgment. (Fishe~rnan's Wha~fBay

Cruise Copp. v. Supe~io~ Court (2003) 114 Cal.App.4th 309, 320 ["On a

motion for summary adjudication, the trial court has no discretion to

exercise. ... If there is no triable issue of fact, the motion must be granted.

If the trial court errs, ...obtaining relief by means of mandate may be

proper." (citation omitted)].)

REQUEST FOR IMMEDIATE STAY

28. Unless this Court issues a stay of the proceedings below, the

parties will undertake a lengthy, costly, and unnecessary trial on

nonactionable claims. Trial is set for January 27, 2014, and is scheduled to

take twenty court days, though it will almost certainly be significantly

longer. (E~ibit 2 at p. 29.) Accordingly, to avoid a wasteful expenditure

of public and judicial resources, this Court should issue an order staying the

proceedings in the respondent court until this Court can rule on the merits

of State Defendants' petition.

PRAYER

WHEREFORE, petitioners State of California;- Edmund G. Brown Jr.,

in his official capacity as Governor of the State of California; Toin

Torlakson, in his official capacity as State Superintendent of Public

Instruction; California Department of Education; and State Board of

Education pray that this Court:

1. Issue an order temporarily staying the proceedings in the

respondent court pending resolution of the merits of this petition;

2. Issue a peremptory writ of mandate under the seal of this Court,

vacating and setting aside the respondent court's order and directing the

12

respondent court to enter an order granting State Defendants' motion for

summary judgment;

3. Allow State Defendants to recover the costs of this petition; and

4. Grant such other relief as may be just and proper.

Dated: December 23, 2013 Respectfully submitted,

KAMALA D. HARRISAttorney General of CaliforniaJULIE WENG-GUTIERREZSenior Assistant Attorney GeneralSUSAN M. CARSONSupervising Deputy Attorney General

GREGORY D. BROWNNIMROD P. ELIASDeputy Attorneys GeneralAttorneys for State Petitioners-Defendants

13

VERIFICATION

I, Gregory D. Brown, declare as follows:

I ain one of the attorneys for the petitioners herein. I have read the

foregoing Petition for Writ of Mandate and/or Prohibition or Other

Appropriate Relief and know its contents. The facts alleged in the petition

are within my own knowledge and I know these facts to be true. Because

of my familiarity with the relevant facts pertaining to the trial court

proceedings, I, rather than petitioners, verify this petition.

I declare under penalty of perjury under the laws of the State of

California that the foregoing is true and correct. Executed on December 23;

2013 at San Francisco, California.

C/Gregory D. Brown

14

MEMORANDUM OF POINTS AND AUTHORITIES

"The standard of review for an order granting or denying summary

judgment is de novo." (Diamond v. Supe~io~ Court (2013) 217

Cal.App.4th 1172, 1182.) "In performing its independent review, the

reviewing court applies the same three-step process as the trial court."

(Ibid.) The Court "first looks] to the pleadings to identify the elements of

the causes of action for which relief is sought." (Ibid.) Then, when a

defendant moves for summary judgment the Court looks to whether the

defendant has met its "initial burden of showing that a cause of action lacks

merit because one or more elements of the cause of action cannot be

established or there is a complete defense to that cause of action." (Ibid.)

If the defendant has inet that burden, "the burden shifts to the plaintiff to

make a prima facie showing of the existence of a triable issue of material

fact." (Id. at p. 1183.)

All evidence and inferences are viewed "in the light most favorable to

the opposing party," but a plaintiff "cannot avoid summary judgment by

asserting facts based on mere speculation and conjecture, but instead must

produce admissible evidence raising a triable issue of fact." (Ibid.

[emphasis added].)

ARGUMENT

I. THE RESPONDENT COURT COMMITTED PLAIN LEGAL ERROR

BY HOLDING THAT A CLASSIFICATION IS NOT A REQUIRED

ELEMENT OF AN EQUAL PROTECTION CLAIM

The respondent court committed plain legal error by allowing

plaintiffs to proceed to trial on "fundamental interest" equal protection

claims that do not allege the required element of a classification that treats

similarly situated groups differently.

15

It is black letter law that that "[t]he first prerequisite to a meritorious

claim under the equal protection clause is a showing that the state has

adopted a classification that affects two or more similarly situated groups

in an unequal manner." (Cooley v. SuperioN Court; supra, 29 Cal.4th at p.

253 [first two emphases added], quoting In ~e ENic J. (1979) 25 Ca1.3d 522,

530; see also People v. Brown (2012) 54 Cal.4th 314, 328 [same, quoting

Cooley]; Manduley v. Supe~ioN Court (2002) 27 Ca1.4th 537, 568 [similar].)

In equal protection analysis, the threshold question is whetherthe legislation under attack somehow discriminates against anidentifiable class of persons. Only then do the courts ask thefurther question of whether this identifiable group is a suspectclass or is being denied some fundamental interest, thusrequiring the discrimination to be subjected to close scrutiny.

(Santa Clara County Local T~anspoNtation AuthoNity v. Gua~dino (1995) 11

Ca1.4th 220, 258 (Gua~dino) [citation omitted; emphasis added].)

Here, the respondent court erred as a matter of law by permitting

plaintiffs to maintain—and proceed to trial on "fundamental interest"

equal protection claims that are not based on any classification between

identifiable groups. (E~ibit 70 at p. 6330 [stating that there is "an equal

protection violation in every instance that a student is assigned to [a grossly

ineffective] teacher"].) The respondent court's decision is directly contrary

to the Cooley and Guar~dino line of cases, which establish that a

classification is a threshold element of any equal protection claim, and thus

that aclassification-free equal protection claim fails to state a claim as a

matter of law. Accordingly, plaintiffs' "fundamental interest" claims are

nonactionable, and State Defendants are entitled to summary judgment as a

matter of law.

Moreover, if the courts were to adopt plaintiffs' unprecedented theory

of equal protection, any random difference in the provision of government

services would be cognizable as an equal protection violation. The

consequences would be dire, opening the floodgates to an entirely new

class of claims against which it would be virtually impossible to defend. In

the education context, for example, when a public school is at enrollment

capacity any applicant who is denied admission based on a random lottery

and is forced to attend an allegedly inferior school would have a valid equal

protection claim under plaintiffs' theory because his or her fundamental

interest in education would be impacted. Similarly, if a school has two

third grade teachers and parents deem one to be inferior to the other, all

students randomly assigned to the inferior teacher would have valid

"fundamental interest" equal protection claims. And this would be equally

true in other arenas. For example, any crin2inal defendant whose case is

randomly assigned to a tough prosecutor or judge, or to an inferior public

defender, would also have a valid equal protection claim because his or her

fundamental interest in liberty would be affected. This is not, and cannot

be, the law. Equal protection is not violated by random differences in

outcomes that are an unavoidable byproduct of living in a complex society,

but instead is implicated only when, as a threshold matter, the state

provides different treatment based on an identifiable gNOUp cha~acte~istic.

II. STATE DEFENDANTS ARE ENTITLED TO SUMMARY JUDGMENT

ON PLAINTIFFS' "SUSPECT CLASS" CLAIMS BECAUSE

PLAINTIFFS HAVE SUBMITTED NO EVIDENCE OF CAUSATION

The respondent court committed plain legal error by concluding that

plaintiffs could proceed to trial on their "suspect class" claims despite

having "no evidence" to support the causation element for those claims.

State Defendants moved for summary judgment on plaintiffs'

"suspect class" claims on the ground, inter alia, that plaintiffs cannot

establish a fundamental element of their claims because they cannot show

that the Challenged Statutes cause grossly ineffective teachers to be

disproportionately assigned to minority and low-income students. (E~ibit

17

5 at pp. 56-60, 62-67.) State Defendants inet their prima facie burden by

producing evidence demonstrating that neither the Challenged Statutes nor

State Defendants play any role in the assignment or transfer of teachers, as

those decisions are made by school districts and are entirely within the

districts' discretion. (E~ibit 6 at p. 71 (Separate Statement No. 4); E~ibit

71 at p. 81 (¶ 6).) State Defendants' showing shifted the burden to

plaintiffs to "set forth the specific facts showing that a triable issue of

material fact exists" on this issue. (Code Civ. Proc., § 437c, subd. (p)(2);

see also Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850-855.)

Plaintiffs, however, failed to submit or identify any evidence to show

that the Challenged Statutes cause grossly ineffective teachers to be

disproportionately assigned to minority and low-income students. (E~ibit

70 at p. 6327 ["Plaintiffs provide no evidence concerning how teachers are

assigned."].) Indeed, not only is there no evidence of such causation, but

plaintiffs themselves acknowledged that it is the "districts"—rather than the

Challenged Statutes or State Defendants—that "make teacher assignment

`decisions."' (E~ibit 16 at p. 1447 (Opposition at p. 42, fn. 19) [emphasis

added].)

In denying summary judgment, the respondent court did not directly

address this causation element, nor did it identify any "evidence

proffered ... in opposition to the motion which indicates that a triable

controversy exists" on this element. (Code Civ. Proc., § 437c, subd. (g).)

Instead, the respondent court implicitly concluded, without explanation,.

that despite the fact that plaintiffs have "no evidence" there is nonetheless a

triable issue of fact on this element of plaintiffs' claims. (Exhibit 70 at p.

6327 ["Plaintiffs' evidence raises triable issues of fact as to the effect of the

Challenged Statutes."].)

The respondent court's conclusion that there is a triable issue of fact

despite plaintiffs' failure to produce any evidence to support a required

18

element of their claims was plain error. It is axiomatic that where, as here,

a defendant has made a prima facie showing that the plaintiff cannot

establish an element of the claim, to defeat summary judgment the plaintiff

has the burden to submit at least some evidence from which a reasonable

trier of fact could find that the element exists. (See Code Civ. Proc., § 437c,

subd. (p)(2) [once the defendant has shifted the burden, the plaintiff must

"set foNth the specific facts showing that a triable issue of material fact

exists as to that cause of action" (emphasis added)].) And "[a]lthough

evidence of causation may be circumstantial, ̀it must be substantial'; it is

insufficient where, as here, it leaves the question of causation ̀ in the realm

of mere speculation and conjecture ...."' (Me~~ill v. Navega~, Inc. (2001)

26 Ca1.4th 465, 490 [emphasis added]; see also Casey v. Perini Copp. (2012)

206 Cal.App.4th 1222, 1239 ["[I]t [is] ̀ not enough to produce just some

evidence'; rather, the evidence ̀ must be of sufficient quality to allow the

trier of fact to find the underlying fact in favor of the party opposing the

motion for summary judgment."']; Horn v. Cushman &Wakefield Western,

Inc. (1999) 72 Ca1.App.4th 798, 807 ["We emphasize that an issue of fact

can only be created by a conflict of evidence. It is not created by

speculation or conjecture."].)

Because it is undisputed that plaintiffs submitted no evidence to

support the causation element of their "suspect class" claims, State

Defendants are entitled to summary judgment or adjudication on these

claims as a matter of law.

III. STATE DEFENDANTS ARE ENTITLED TO SUMMARY JUDGMENTON PLAINTIFFS' DECLARATORY RELIEF CLAIM

State Defendants are entitled to summary judgment on plaintiffs'

seventh claim—for declaratory relief—because that claim is entirely

derivative of plaintiffs' first through sixth claims, all of which fail as a

matter of law. (See supra, Parts I & II; Ball v: FleetBoston Financial Copp.

19

(2008) 164 Cal.App.4th 794, 800 [declaratory relief claim was "wholly

derivative" of the statutory claim and therefore failed alongside it].)

IV. STATE DEFENDANTS ARE ENTITLED TO A STAY OF THE

PROCEEDINGS IN THE RESPONDENT COURT

Unless this Court issues a stay of the proceedings below, the parties

will undertake a lengthy, costly, and unnecessary trial on nonactionable

claims. Trial is set for January 27, 2014, and is expected to take

approximately four to six weeks. (Exhibit 2 at p. 29.) Accordingly, to

avoid a wasteful expenditure of public and judicial resources, this Court

should issue an order staying the proceedings in the respondent court until

this Court can rule on the merits of State Defendants' petition.

CONCLUSION

For the foregoing reasons, this Court should (1) issue an immediate

stay of all proceedings in the trial court and (2) issue a peremptory writ of

mandate directing the respondent court to vacate its December 13, 2013

order and to issue a new order granting State Defendants' motion for

summary judgment.

Dated: December 23, 2013 Respectfully submitted,

LA201250683940848076.doc

KAMALA D. HA~isAttorney General of CaliforniaJULIE WENG-GUTIERREZ

Senior Assistant Attorney GeneralSUSAN M. CARSON

Supervising Deputy Attorney General

>'-c'' ̀ ~~~-̀ raw` -̀.-~

GREGORY D. BROWN

NIMxoD P. ELIAS

Deputy Attorneys GeneralAttorneys fog State Petitioners-Defendants

2~

CERTIFICATE OF COMPLIANCE

I certify that the attached PETITION FOR WRIT OF MANDATE

AND/OR PROHIBITION OR OTHER APPROPRIATE RELIEF.

AND REQUEST FOR IMMEDIATE STAY; MEMORANDUM OF

POINTS AND AUTHORITIES uses a 13 point Times New Roman font

and contains 5,250 words.

Dated: December 23, 2013 KAMALA D. HA1t1~isAttorney General of California

_~~~~ —~~

GREGORY D. BROWN

Deputy Attorney GeneralAttorneys foN State PetitioneNS-Defendants

DECLARATION OF SERVICE

Case Name: Vergara, et. al. v. State of California, et. al. No.:BC484642

I declare:

I am employed in the Office of the Attorney General, which is the office of a member of theCalifornia State Bar at which member's direction this service is made. I am 18 years of age orolder and not a party to this matter; my business address is 455 Golden Gate Avenue, Suite11000, San Francisco, CA 94102-7004. On December 23, 2013, I served the followingdocument(s):

PETITION FOR WRIT OF MANDATE AND/OR PROHIBITION OROTHER APPROPRIATE RELIEF AND REQUEST FOR IMMEDIATESTAY; MEMORANDUM OF POINTS AND AUTHORITIES

on the parties through their attorneys of record, by placing true copies thereof in sealedenvelopes addressed as shown below for service as designated below:

By Messenger Service: I caused each such envelope to be delivered to a courieremployed by a professional messenger service, with whom we have a direct billingaccount, who personally delivered each such envelope to the office of the addresses listedbelow.

Joshua S. LipshutzGibson, Dunn & Erutcher LLP555 Mission Street, Suite 3000San Francisco, CA 94105(415) 393.8233Counsel for Plaintiffs

Eileen B. Goldsmith, Esq.Altshuler Berzon LLP177 Post Street, Ste. 300San Francisco, CA 94108(415) 421-7151Counsel for Defendants-IntervenorsCalifornia Teachers Association andCalifornia Federation of Teachers

Roy A. CombsFagen, Friedman & Fulfrost, LLP70 Washington Street, Suite 205(510) 550-8200Counsel for Oakland Unzfied SchoolDistrict

Superior Court of CaliforniaCounty of Los AngelesHon. Rolf M. Treu111 North Hill St.Los Angeles, CA 90012

I declare under penalty of perjury under the laws of the State of California the foregoing is trueand correct and that this declaration was executed on December 23, 2013, at San Francisco,California.

ley S. Luellen ~f / GDeclarant Signature

LA201250683940848311.doc

DEC 2 3 2013

~~►C ~.Lp

DEPARTMENT OF JUSTICE

Office of th

e Attorney General

455 Golden Gate Avenue, Su

ite

1 1000

San Francisco, CA 94102-7004

Joshua S. Lipshutz

Gibson, Dunn & Crutcher LLP

555 Mission Street, Suite 3000

San Francisco, CA 94105

BY MESSENGER SERVICE