Judge Curtis A. Kin, Case Number: 24STCP00143, Date: 2024-03-12 Tentative Ruling

Respondent Los Angeles Unified School District moves for an order dismissing the instant action with prejudice, or in the alternative, compelling petitioner Global Education Collaborative to participate in mandatory dispute resolution and staying the current proceedings pending resolution of the mandatory dispute resolution processes.

In enacting the Charter Schools Act of 1992 (Ed. Code § 47600, et seq.), the Legislature intended “to provide opportunities for teachers, parents, pupils, and community members to establish and maintain schools that operate independently from the existing school district structure.” (Ed. Code § 47601.) “Charter schools are public schools ‘“free from most state laws pertaining uniquely to school districts.”’ [Citation.] The freedom granted to charter schools is intended to promote choice and innovation, and to stimulate ‘competition within the public school system.’ [Citation.]” (California Charter Schools Assn. v. Los Angeles Unified School Dist. (2015) 60 Cal.4th 1221, 1228 [“Cal. Charter Schools Assn.”].)

Prior to the enactment of Proposition 39 by California voters in 2000, due to limited public funding to cover the cost of facilities, charter schools could use facilities which were not currently being used by the districts. (Cal. Charter Schools Assn., 60 Cal.4th at 1226, 1228.) Proposition 39 amended Education Code § 47614 and changed the way charter schools may obtain access to district facilities. (Id. at 1228.)

(a) The intent of the people in amending Section 47614 is that public school facilities should be shared fairly among all public school pupils, including those in charter schools.

(b) Each school district shall make available, to each charter school operating in the school district, facilities sufficient for the charter school to accommodate all of the charter school’s in-district students in conditions reasonably equivalent to those in which the students would be accommodated if they were attending other public schools of the district.

Charter schools seeking to use district facilities are required to provide the district with “with a reasonable projection of the charter school’s average daily classroom attendance by in-district students for the following year” on an annual basis. (Ed. Code § 47614(b)(2).) The State Board of Education subsequently issued regulations governing the implementation of section 47614. (5 C.C.R. §§ 11969.1-11969.10.)

Under regulation 11969.9(b), “[t]o receive facilities during a particular fiscal year, a charter school must submit a written facilities request to the school district on or before November 1 of the preceding fiscal year.” “School districts may require the charter school to submit its facilities request…on a form available from the [California Department of Education] and developed in consultation with the Advisory Commission on Charter Schools (ACCS) or another form specified by the school district.” (5 C.C.R. § 11969.9(c)(3).) The district then has until December 1 to object in writing and state the projects it considers reasonable. (5 C.C.R. § 11969.9(d).) The charter school then has until January 2 to respond to the district. (5 C.C.R. § 11969.9(e).)

The California Supreme Court summarized the procedures after submission of a facilities request: “By the following February 1, the school district receiving the request must make a preliminary space allocation proposal that ‘[at] a minimum’ ‘shall include (1) the projections of in-district classroom [average daily attendance] on which the proposal is based, (2) the specific location or locations of the space, (3) all conditions pertaining to the space, including a draft of any proposed agreement pertaining to the charter school's use of the space, and (4) the projected pro rata share amount and a description of the methodology used to determine that amount. The district shall also provide the charter school a list and description of the comparison group schools used in developing its preliminary proposal, and a description of the differences between the preliminary proposal and the charter school's facilities request....’ [Citation.] After the charter school has had an opportunity to respond to the proposal, the district must make a final space offer to the charter school by April 1, and the charter school must notify the District whether it accepts the offer within 30 days or by May 1, whichever is later. [Citation.]” (Cal. Charter Schools Assn., 60 Cal.4th at 1231.)

Petitioner Global Education Collaborative operates a charter school known as Global Education Academy (“GEA”). (Pet. at 2:1-2.) GEA is a charter school that serves 350 students in grades TK (transitional kindergarten) through eighth grade. (Pet. ¶ 23.) Grades TK through fifth grade are taught at a private leased facility. (Pet. ¶ 24.) Starting in 2020, GEA has taught students in sixth through eighth grades at facilities owned by respondent Los Angeles Unified School District (“District”). (Pet. ¶ 24.)

Charter schools located within the District that desire to use District facilities must submit a facilities request through the District’s proprietary online submission portal. (Pet. ¶¶ 19, 22.) On November 1, 2023, GEA’s Principal uploaded all necessary information and documentary support into the District’s portal. (Pet. ¶ 26.) The Principal attempted to but was unable to obtain confirmation of the application submission on the evening of November 1, 2023. (Pet. ¶ 29.)

The morning of November 2, 2023, the Principal emailed the District’s “Prop 39” email address, as well as the District’s Charter Schools Division Director and the Operations Coordinator, and stated that despite the application having been completed and the documents having been uploaded, she did not think the facilities request “went through.” (Pet. ¶¶ 30, 33 & Exs. 1, 2.) The Principal asked if it was possible to accept the facilities request for the 2024-25 school year. (Ibid.)

On November 30, 2023, the District asserted that GEA did not submit a written facilities request on or before November 1, 2023 and denied GEA’s facilities request. (Pet. ¶ 36.) The District maintained it was under no obligation under regulation 11969.9(d) to object to the request but reserved the right to object in case GEA is found to have submitted a valid facilities request. (Pet. ¶¶ 37, 38.) The District then alternatively argued that if it is determined that it complied with its obligation to object under regulation 11969.9(d), then the in-district classroom average daily attendance it would consider reasonable for GEA is 0.00. (Pet. ¶ 39.)

GEA seeks a writ of mandate compelling the District to accept its facilities request and prepare a proposal of facilities to be offered to GEA for the 2024-25 school year based on its enrollment projection submitted on November 1, 2023. (Pet. ¶ 55, Prayer for Relief ¶ 1.)

The District’s request to take judicial notice of the material revision to the charter of Global Education Academy approved by the District’s Board of Education on December 18, 2018 is GRANTED. (Physicians Committee for Responsible Medicine v. Los Angeles Unified School Dist. (2019) 43 Cal.App.5th 175, 183, citing Evid. Code § 452(a), (c) [“school board actions can be official acts, and school board policies and regulations may be recognized by judicial notice”].)

The District moves to dismiss the instant petition on the ground that Element 14 of GEA’s charter requires GEA to engage in a mandatory dispute resolution process. (RJN Ex. 1 at 133-35.) Under Element 14, “[a]ny Dispute related to or arising out of Education Code §4 7614 and/or its implementing regulations set forth in California Code of Regulations, title 5, section 11969 et seq.” shall be resolved by the procedures set forth in Element 14. (RJN Ex. 1 at 134.)

First, the party with a dispute must tender a “Written Notification” that identifies the nature of the dispute and all supporting facts to the other party. (RJN Ex. 1 at 134.) The other party then shall tender a “Written Response” to the disputing party within 15 business days from the date of receipt of the Written Notification. (Ibid.) If the Written Response does not resolve the dispute, the parties must schedule an Issue Conference to take place within 15 days of receipt of the Written Response where the parties shall discuss the dispute. (RJN Ex. 1 at 135.) If the parties do not resolve the dispute at the Issue Conference, either party may request mediation. (Ibid.) If mediation is not successful, either party may initiate a civil action in the Los Angeles County Superior Court. (Ibid.)

On November 22, 2023, GEA tendered a Written Notification to the District. (Borden Decl. ¶ 13 & Ex. B.) On December 15, 2023, the District tendered a Written Response to GEA. (Borden Decl. Ex. C.) The District contends that GEA never requested an Issue Conference or mediation of its dispute concerning GEA’s facilities request for the 2024-25 school year. (Borden Decl. ¶ 14.)

CCP § 581 lists grounds on which an action may be dismissed, including, for example, when either party fails to appear for trial after notice (subd. (b)(3)) and after the plaintiff’s failure to amend a complaint within the period of leave granted by the court after it sustains a demurrer (subd. (f)(2)). As noted by the District, CCP § 581(m) states: “The provisions of this section shall not be deemed to be an exclusive enumeration of the court’s power to dismiss an action or dismiss a complaint as to a defendant.” (See Reply at 7:11-15.) The breadth of CCP § 581(m) notwithstanding, the District cites no authority where the court compelled the parties to meet and confer about a dispute or attend mediation. The cases cited by the District pertain to motions to compel arbitration, which are expressly allowed by CCP §§ 1281.2 and 1281.7. (Freeman v. State Farm Mut. Auto. Ins. Co. (1975) 14 Cal.3d 473, 479 [“A proceeding to compel arbitration is in essence a suit in equity to compel specific performance of a contract.”]; Mercury Ins. Group v. Sup. Ct. (1998) 19 Cal.4th 332, 349 [“An order denying a petition to compel contractual arbitration is appealable”].) With respect to Proposition 39, Element 14 does not contain any arbitration requirement. (Cf. RJN Ex. 1 at 136 [non-Proposition 39 disputes subject to arbitration after mediation].)

The District also contends that GEA failed to exhaust administrative remedies. “A basic doctrine of law demands exhaustion of a party’s administrative remedies before he files suit, even though no statute makes it a condition of his right to sue…. Mandatory contractual remedies must be exhausted before resort to the courts.” (A. Teichert & Son, Inc. v. State (1965) 238 Cal.App.2d 736, 746, disapproved of on other grounds by E. H. Morrill Co. v. State (1967) 65 Cal.2d 787.) However, “when a purported administrative remedy did not incorporate ‘clearly defined machinery for the submission, evaluation and resolution of complaints by aggrieved parties,’” courts have declined to impose an exhaustion requirement. (Hill RHF Housing Partners, L.P. v. City of Los Angeles (2021) 12 Cal.5th 458, 479.)

Here, Element 14 sets forth no procedure for the evaluation and resolution of GEA’s dispute. Element 14 only requires the parties to meet and confer at an Issue Conference about GEA’s facilities request. (RJN Ex. 1 at 135.) If the dispute remains unresolved, Element 14 requires the parties to attend mediation. (Ibid.) Mediation does not require the evaluation or resolution of the dispute. Mediation is “a process in which a neutral person or persons facilitate communication between the disputants to assist them in reaching a mutually acceptable agreement.” (Evid. Code § 1115(a).) “Although mediation takes many forms and has been defined in many ways, it is essentially a process where a neutral third party who has no authoritative decisionmaking power intervenes in a dispute to help the disputants voluntarily reach their own mutually acceptable agreement.” (Travelers Casualty & Surety Co. v. Superior Court (2005) 126 Cal.App.4th 1131, 1138-39.)

Unlike arbitration, Element 14 does not require the mediator to evaluate or reach any conclusion on the merits of whether GEA is entitled to have its facilities request processed and considered. (See A. Teichert, 238 Cal.App.2d at 746 [“Contract provisions for the extrajudicial settlement of disputes are binding on the parties whether the arrangement is technically a commonlaw or statutory arbitration or something akin”]; cf. RJN Ex. 1 at 136 [for non-Proposition 39 disputes, “If the mediation is not successful, then the parties agree to resolve the Dispute by binding arbitration conducted by a single arbitrator”].) Accordingly, the dispute resolution procedures set forth in Element 14 are not remedies GEA was required to exhaust before commencing the instant action.

For the foregoing reasons, the District fails to meet its burden to demonstrate grounds to dismiss the instant petition. (People v. Williams (1999) 20 Cal.4th 119, 129 [“In general, the moving party must carry the initial burden of informing its opponent and the court of the specific basis for its motion”].)

In any event, even if the District could advance a legal basis for dismissal based on the provisions of Element 14, the Court would find the District has waived its right to enforce the dispute resolution procedures set forth in Element 14. The charter is a contract that binds the charter school and the District. (See Knapp v. Palisades Charter High School (2007) 146 Cal.App.4th 708, 714; RJN Ex. A [GEA charter agreed to by District and GEA].) A party may expressly waive contractual rights through its words or impliedly waive contractual rights based on conduct indicating an intent to relinquish the right. (Wind Dancer Production Group v. Walt Disney Pictures (2017) 10 Cal.App.5th 56, 78.)

On November 22, 2023, GEA requested confirmation that the District accepted its Proposition 39 facilities request. Specifically, GEA stated:

Global Education Academy has requested confirmation from the District several times since early November that the District has accepted its Prop. 39 request, with no response from the District. [¶] As such, we are sending formal correspondence to the District initiating dispute resolution with the District regarding this matter, pursuant to Section 14 of the GEA charter, as several weeks have elapsed with no response from the District.

(Borden Decl. ¶ 13 & Ex. B at 165.) After having stated the grounds upon which the District must accept the request, GEA concluded its correspondence to the District with the following: “Please inform GEA as soon as possible whether the District will be proceeding with the Prop. 39 process or if the dispute resolution process must commence.” (Borden Decl. ¶ 13 & Ex. B at 167.)

The District responded on December 15, 2023. (Borden Decl. Ex. C.) The District disagreed that GEA timely submitted its facilities request. After stating the ground on which it disagreed with GEA’s claim that the District failed to process its timely request, the District concluded its response with the following:

Based on the foregoing, Charter School is not entitled to be allocated and/or provided access to any facilities by the District for the 2024-25 school year pursuant to Proposition 39. As such, the District does not believe Charter School has a viable legal claim that warrants the continuation of the dispute resolution process, and respectfully declines to grant Charter School’s request presented in the Written Notification.

(Borden Decl. Ex. C at 172.)[1] The Court finds that the District knowingly waived any right to enforce the dispute resolution procedures in the charter. In its Written Notification, GEA requested notification as to whether the District will process GEA’s facilities request or whether the dispute resolution process must commence. In its Written Response, the District declined the request. The District responded that GEA’s claim was not viable to the effect that continuation of the dispute resolution process was not warranted.

In the reply, the District contends: “LAUSD’s statement was merely a summary expression of LAUSD’s view that GEA’s claim lacked merit. LAUSD did not refuse to further participate in the dispute resolution process or otherwise instruct GEA that it was excused from complying with the mandatory dispute resolution process.” (Reply at 11:21-24.) The Court disagrees. The District did not merely end its letter by stating only that it does not believe that GEA has a viable legal claim. The District instead asserted that continuation of the dispute resolution process was not warranted. GEA had requested the District to inform it “as soon as possible whether the District will be proceeding with the Prop. 39 process or if the dispute resolution process must commence.” (Borden Decl. ¶ 13 & Ex. B at 167.) The District denied GEA’s request. The District did not request an Issue Conference or mediation. Accordingly, the Court finds the District waived its right to have an Issue Conference or mediation under Element 14 of GEA’s charter.

[1] The Court notes that petitioner objects to the District’s Written Response based on lack of authentication. (See Pet. Objections to Evidence at 4.) However, petitioner itself relies on the contents of that written response to argue that the District waived the right to enforce the dispute resolution procedures. (Opp. at 7:6-9, 11:13-12:9.) Respondent does not take any position concerning petitioner’s objection. (See Reply at 11-12, fn. 4.) Accordingly, the Court considers the contents of the Written Response.