Judge Mary H. Strobel, Case 20STCP01949 2022-10-20 Tentative Ruling

Hon. Mary H. Strobel

The clerk for Department 82 may be reached at (213) 893-0530.

Petitioner Aurolivia Nieto Luna, individually and as Guardian ad Litem for Minor Antonio O. (“Petitioner”) petitions for a writ of ordinary mandate directing Respondent Lennox School District (“Respondent” or “District”), as follows:

· Third Cause of Action: “to change its practice, change its website, and change all other documentation purporting to limit the type of documentation that a student may submit to verify his or her residency to comport with [Education Code] Section 48204.1; … to properly implement the required appeals process to conform with the Code; and … to specify the basis or bases for determining that students are not District residents when notifying them of same to conform with the Code….” (Reply 6.)

· Ninth Cause of Action: “to comply with Education Code section 46600 et. seq. by limiting the issuance of conditional permits for no more than 60 days while an application for interdistrict transfer is pending and/or in the appeal process…” (Reply 6.)

· Eleventh Cause of Action: to “[r]equire minimal requirements of due process of law: at minimum, parents/guardians of students who have been banned from campus pursuant to its Civility Policy, codified as Respondent’s Administrative Regulation 1312.5 (JA 021) are entitled to have (1) written notice of the reasons for the ban; (2) an explanation of the evidence against them, and (3) an opportunity to tell their side of the story to a neutral detached third party.” (Reply 6.)

Petitioner seeks this relief “on behalf of all students seeking to attend, currently attending, or, in the future, will attend, Respondent’s schools.” (Reply 2; see First Amended Petition (“FAP”) ¶¶ 31-32, 68, 93, 101.) Petitioner has withdrawn her fifth and seventh causes of action for writ of mandate. (Reply 6.)

Respondent opposes the petition, arguing that Petitioner lacks a beneficial interest, the petition is moot, and that the petition should also be denied on the merits.

Petitioner’s Request for Judicial Notice (“RJN”) Exhibits 1-4 – Granted.

On February 7, 2020, Eddie Garcia, District’s Director of Student Support Services informed Petitioner, in writing, that District had determined that Antonio O. (“Antonio”) lives outside District boundaries and did not have the required school permit. (Joint Appendix (“JA”) 6.) Petitioner contends that the February 7, 2020, notice failed to comply with the Education Code because the proof requirements conflicted with Education Code section 48204.1 and the notice failed to inform Petitioner of her right to appeal without providing new evidence of residency. (Opening Brief (“OB”) 5-7, 9-12.)

On February 12, 2020, Petitioner appealed the decision, which was then denied by the District on February 28, 2020. (JA 1.) District’s letter dated February 28, 2020, states the superintendent had granted Antonio a provisional inter-district permit to finish school at Dolores Huerta Elementary School in the District. The letter stated that this provisional permit would expire June 30, 2020. (Ibid.) Petitioner contends that District failed to give sufficient, written notice of the basis for its residency determination (OB 12) and also that District issued Antonio an official provisional permit that exceeded the two-month time limit provided in Education Code section 46603 (OB 17-20).

Subsequently, Antonio’s grandparents, who live within District boundaries, executed and submitted a Caregiver’s Affidavit stating that Antonio lives in their residence. Based on the Caregiver’s Affidavit, the District reenrolled Antonio. It is undisputed that Antonio is presently enrolled in District based on the Caregiver’s Affidavit. (FAP ¶ 1, fn. 1; Oppo. 6:8-10; Reply 2:6-7 [“Antonio is currently enrolled in the District”].)

Also on February 7, 2020, Garcia provided Petitioner a written letter stating, in pertinent part:

As per our conversation, on February 6, 2020, you were directed to leave the campus because of your use of loud and/or offensive language, use of obscenities, and speaking in a demanding, loud, insulting, and demeaning manner. As a result, you cannot enter any district facility or activity for seven (7) days or no sooner than Tuesday, February 18, 2020.

If you enter a district facility before the applicable time period, we will notify law enforcement officials and you will be guilty of a misdemeanor in accordance with California Education Code 44811 and Penal Code 415.5 and 627.7.

Petitioner contends that this seven-day ban was imposed without proper notice and without a hearing or the opportunity to appeal, violating her due process rights. (OB 13-14.) Petitioner also argues that District’s Civility Policy, codified in Administrative Regulation 1312.5, does not comply with due process requirements and must be invalidated. (Ibid.)

On June 18, 2020, Petitioner filed her verified petition for writ of mandate and complaint for injunctive and declaratory relief.

On May 12, 2021, after the court sustained a demurrer to the original petition, Petitioner filed the operative FAP. The court found that “Petitioner’s writ causes of action based on his own residency application are moot.” (Minute Order dated 3/25/21 at 8.)

On July 29, 2021, at a trial setting conference, the court stayed all non-writ causes of action (first, second, fourth, sixth, and eighth causes of action) until the court rules on the writ causes of action.

On July 27, 2022, Petitioner filed her opening brief in support of the petition. The court has received Respondent’s opposition, Petitioner’s reply, and the joint appendix.

The petition for writ of mandate is brought pursuant to CCP section 1085. There are two essential requirements to the issuance of an ordinary writ of mandate under Code of Civil Procedure section 1085: (1) a clear, present, and ministerial duty on the part of the respondent, and (2) a clear, present, and beneficial right on the part of the petitioner to the performance of that duty. (California Ass’n for Health Services at Home v. Department of Health Services (2007) 148 Cal.App.4th 696, 704.) “An action in ordinary mandamus is proper where … the claim is that an agency has failed to act as required by law.” (Id. at 705.)

“‘On questions of law arising in mandate proceedings, [the court] exercise[s] independent judgment.’” (Christensen v. Lightbourne (2017) 15 Cal.App.5th 1239, 1251.) The interpretation of statute or regulation is a question of law. (See State Farm Mut. Auto. Ins. Co. v. Quackenbush (1999) 77 Cal.App.4th 65, 77.) A challenge to the procedural fairness of an administrative process “is reviewed de novo on appeal because the ultimate determination of procedural fairness amounts to a question of law.” (Nasha L.L.C. v. City of Los Angeles (2004) 125 Cal.App.4th 470, 482.)

Petitioner bears the burden of proof and persuasion in a mandate proceeding brought under CCP section 1085. (California Correctional Peace Officers Assn. v. State Personnel Bd. (1995) 10 Cal.4th 1133, 1154.) An agency is presumed to have regularly performed its official duties. (Evid. Code § 664.) A reviewing court “will not act as counsel for either party … and will not assume the task of initiating and prosecuting a search of the record for any purpose of discovering errors not pointed out in the briefs.” (Fox v. Erickson (1950) 99 Cal.App.2d 740, 742.)

Petitioner has withdrawn her fifth and seventh causes of action for writ of mandate. (Reply 6.) Based on this withdrawal, the fifth and seventh causes of action are denied.

Petitioner’s Standing to Seek Writs of Mandate; and Respondent’s Mootness Defense

Respondent contends that “[a]ll of Petitioner’s claims are moot as Petitioner does not have a clear, present, and beneficial interest of any duty by the District.” (Oppo. 5.)

To have standing to seek a writ of mandate, a party must be “beneficially interested.” (CCP § 1086.) “A petitioner is beneficially interested if he or she has some special interest to be served or some particular right to be preserved or protected over and above the interest held in common with the public at large.” (Rialto Citizens for Responsible Growth v. City of Rialto (2012) 208 Cal. App. 4th 899, 913.) “This standard … is equivalent to the federal ‘injury in fact’ test, which requires a party to prove by a preponderance of the evidence that it has suffered ‘an invasion of a legally protected interest that is '(a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical.'’” (Associated Builders and Contractors, Inc. v. San Francisco (1999) 21 Cal.4th 352, 361-362.)

In the opposition, Respondent argues that Petitioner lacks a beneficial interest because her claims are moot. “California courts will decide only justiciable controversies. [Citations.] The concept of justiciability is a tenet of common law jurisprudence and embodies ‘[t]he principle that courts will not entertain an action which is not founded on an actual controversy....’” (Wilson & Wilson v. City Council of Redwood City (2011) 191 Cal.App.4th 1559, 1573.) “A case is considered moot when ‘the question addressed was at one time a live issue in the case,’ but has been deprived of life ‘because of events occurring after the judicial process was initiated.’” (Id. at 1574.) “The pivotal question in determining if a case is moot is therefore whether the court can grant the plaintiff any effectual relief.” (Ibid.)

For the third and ninth causes of action, Petitioner seeks writs of mandate directing District to comply with the Education Code and “to establish lawful practices and procedures regarding residency verification, residency investigations, residency determinations, notice of same to parents and/or guardians, notice of appeal rights; … and ‘Official Provisional Permits’.” Petitioner seeks this relief “on behalf of all students seeking to attend, currently attending, or, in the future, will attend, Respondent’s schools.” (Reply 2; see First Amended Petition (“FAP”) ¶¶ 31-32, 68, 93, 101.) For the eleventh cause of action, Petitioner challenges Respondent’s civility policy on its face and as applied, as violative of due process.

To have standing to challenge the District policies, Petitioner must show either that Petitioner has a beneficial interest in enforcement of Respondent’s duty, or that the exception for public interest standing applies. Neither party has adequately addressed whether Petitioner has the requisite beneficial interest or whether the elements of public interest standing are met with respect to the challenged policies or practices. The court can resolve this issue with respect to some claims based on the current briefing, but will require supplemental briefing as to others as explained below.

“A petitioner who is not beneficially interested in a writ may nevertheless have ‘citizen standing’ or ‘public interest standing’ to bring the writ petition under the ‘public interest exception’ to the beneficial interest requirement. The public interest exception ‘applies where the question is one of public right and the object of the action is to enforce a public duty—in which case it is sufficient that the plaintiff be interested as a citizen in having the laws executed and the public duty enforced.’” (Rialto Citizens for Responsible Growth v. City of Rialto (2012) 208 Cal. App. 4th 899, 913-914.) In a citizen standing analysis, “[t]he courts balance the applicant’s need for relief (i.e., his beneficial interest) against the public need for enforcement of the official duty. When the duty is sharp and the public need weighty, the courts will grant a mandamus at the behest of an applicant who shows no greater personal interest than that of a citizen who wants the law enforced.” (Citizens for Amending Proposition L v. City of Pomona (2018) 28 Cal.App. 5th 1159, 1174.) “Judicial recognition of citizen standing is an exception to, rather than repudiation of, the usual requirement of a beneficial interest.” (Reynolds v. City of Calistoga (2014) 223 Cal.App.4th 865, 873-874.)[1]

Petitioner contends that “Respondent’s [Civility] policy, which it applies regularly to parents, guardians, and others, in particular Section 2 of AR 1312.5, both on its face and as applied, violates” due process principles in the California and U.S. Constitutions. (FAP ¶ 102.)[2]

Standing. While Respondent states that “all” claims are moot, Respondent develops no argument about Petitioner’s beneficial interest or mootness with regard to the facial challenge to the Civility Policy. (Oppo. 11-14.) As the parent of a student that attends District schools, and as a person who is subject to the Civility Policy on an ongoing basis, Petitioner has a beneficial interest in challenging the Civility Policy on the grounds that it facially violates due process principles. The eleventh cause of action is not moot to the extent Petitioner brings a facial challenge to the Civility Policy. The court could grant effectual relief in a writ directing Respondent not to enforce its Civility Policy as presently written.

However, the as-applied challenge to the Civility Policy, based on the seven-day ban imposed on Petitioner in February 2020, is moot. The court cannot grant Petitioner any effectual relief in a writ of mandate directed at the prior seven-day ban, which has expired. Petitioner also shows no beneficial interest in such a writ.

Substantive Analysis. Petitioner contends that District’s Civility Policy, codified in District’s Administrative Regulation 1321.5, violates due process requirements of California and federal law. (OB 13-14, citing JA 21; Educ. Code § 51101; and Goss v. Lopez (1975) 419 U.S. 565, 575.) Specifically, Petitioner contends that parents or guardians of District pupils are entitled to “(1) notice of the facts giving rise to the banishment, (2) an explanation of the evidence against them, and (3) and an opportunity to tell their side of the story to a neutral party” before being banned from a District property pursuant to the Civility Policy. (OB 13-14; see also Reply 4-5.)

1. Any individual who disrupts or threatens to disrupt school/office operations…; uses loud and/or offensive language … will be directed to leave that school site or district property promptly by the Superintendent or designee.

2. If any member of the public uses obscenities or speaks in a demanding, loud, insulting and/or demeaning manner, the individual to whom the remarks are directed will calmly and politely admonish the speaker to communicate civilly…. If the meeting or conference is on district premises, the offending person will be directed to leave promptly and not return for seven days if they are a Lennox School District parent/guardian, or 30 days if they are not a Lennox School District parent. If the situation escalates, employees should contact the local law enforcement and their supervisor immediately.

3. Offending parties will receive a letter outlining their behavior, the consequences of such behavior, and the prohibition of their presence from all Lennox School District facilities and activities for seven days if they are a Lennox School District parent/guardian, or 30 days if they are not a Lennox School District parent.

Whether enforcement of the Civility Policy violates due process depends, in substantial part, on the specific circumstances of each case. “[D]ue process is a flexible concept that requires protections appropriate to the particular situation.” (Rondon v. Alcoholic Beverage Control Appeals Bd. (2007) 151 Cal.App.4th 1274, 1284.) “[A]t a minimum [due process] require[s] that deprivation of life, liberty or property by adjudication be preceded by notice and opportunity for hearing appropriate to the nature of the case.” (Goss v. Lopez (1975) 419 U.S. 565, 579.) A litigant asserting a deprivation of due process generally must show “(1) a deprivation of a constitutionally protected liberty or property interest, and (2) a denial of adequate procedural protections.” (Franceschi v. Yee (9^th Cir. 2018) 887 F.3d 927, 935.)

Petitioner fails to show that she or other parents or guardians have a constitutionally protected right to visit public school facilities at all times or without limitation. “Judicial interposition in the operation of the public school system of the Nation raises problems requiring care and restraint. . . . By and large, public education in our Nation is committed to the control of state and local authorities.” (Goss, supra, 419 U.S. at 578 [internal citation omitted].) It follows that a public school district has authority to impose limits on visitation to school premises by parents or guardians. (See e.g. Penal Code § 626.4, discussed infra.) Petitioner cites no authority to the contrary.

Petitioner argues that “Education Code section 51101, subd. (a) confers property and/or liberty rights within the meaning of the due process clauses, rights that the government cannot take away without due process in the sense of notice and a hearing of some sort.” (OB 14, citing Hewitt v. Helms (1983) 459 U.S. 460, 471-72; but see Sandin v. Connor (1995) 515 U.S. 472 [declining to follow Hewitt analysis].)

(a) Except as provided in subdivision (d), the parents and guardians of pupils enrolled in public schools have the right and should have the opportunity, as mutually supportive and respectful partners in the education of their children within the public schools, to be informed by the school, and to participate in the education of their children, as follows:

(1) Within a reasonable period of time following making the request, to observe the classroom or classrooms in which their child is enrolled or for the purpose of selecting the school in which their child will be enrolled in accordance with the requirements of any intradistrict or interdistrict pupil attendance policies or programs.

(2) Within a reasonable time of their request, to meet with their child's teacher or teachers and the principal of the school in which their child is enrolled.

(7) To have a school environment for their child that is safe and supportive of learning.

(9) To be informed of their child's progress in school and of the appropriate school personnel whom they should contact if problems arise with their child.

the pertinent question here is whether the statute grants parents or guardians a protected right to visit school premises and to not be banned from school premises for seven days or less for disruptive behavior. Section 51101(a)(1) and (2) state that parents or guardians only have a statutory right to visit school premises at a “reasonable period of time following a request.” Section 51101 does not define “reasonable period of time.” The statute generally supports a school district’s authority to place reasonable limitations on a parent’s or guardian’s visitation of school premises.

Petitioner cites no authority that section 51101 creates a protected property interest. Respondent cites Macias v. Filippini (2018 E.D. Cal.) 2018 WL 2264243, *6-9, a federal district court case that considered whether section 51101 created a protected property interest for parents of a student who were indefinitely banned from a public school campus. (Oppo. 12.) Considering the indefinite ban at issue, the Macias court left “unsettled whether § 51101, standing alone, imposes ‘significant limitations’ on school-district officials' discretion.” The court found that an indefinite ban implicated a protected property interest of parents or guardians, noting that “the California legislature has decided [in Penal Code section 626.4, discussed infra] that a school may not ban a parent from campus for longer than 14 days.” (Macias, supra at *8.)

As discussed in the Macias case and in opposition, Penal Code section 626.4 states that “[t]he chief administrative officer of … a school, or an officer or employee designated by the chief administrative officer to maintain order on such campus or facility, may notify a person that consent to remain on the campus or other facility under the control of the chief administrative officer has been withdrawn whenever there is reasonable cause to believe that such person has willfully disrupted the orderly operation of such campus or facility.” (§ 626.4(a).) Section 626.4 also states: “In no case shall consent be withdrawn for longer than 14 days from the date upon which consent was initially withdrawn. The person from whom consent has been withdrawn may submit a written request for a hearing on the withdrawal within the two-week period…. The chief administrative officer shall grant such a hearing not later than seven days from the date of receipt of the request.” Thus, in section 626.4, the legislature has determined that a public school may not ban a parent or guardian from school premises for more than 14 days. The legislature has also determined that the school need not provide a hearing on the decision to ban a parent or guardian within the first seven days of a two-week ban.

Based on the foregoing, Petitioner does not show that the seven-day ban in the Civility Policy, as applied to parents or guardians of District students, implicates a protectable liberty or property interest to which due process protections apply. Petitioner has not developed an argument that the 30-day ban, on persons who are not parents or guardians, violates due process principles. Petitioner also does not show any beneficial interest in raising that due process claim on behalf of persons who are not parents or guardians of school pupils.

Even if due process protections apply to parents and guardians banned for seven days or less under the Civility Policy, Petitioner does not show that the procedures as outlined in the Civility Policy are constitutionally infirm. Depending on the type of disruptive behavior at issue, the policy generally contemplates that a discussion between school staff and the parent or guardian may occur before the parent or guardian is banned from school property. Thus, “[i]f any member of the public uses obscenities or speaks in a demanding, loud, insulting and/or demeaning manner, the individual to whom the remarks are directed will calmly and politely admonish the speaker to communicate civilly.” (JA 21.) If the individual causes more serious disruption or threat to “health and safety of pupils,” more immediate action may be required. (Ibid.) “Offending parties will receive a letter outlining their behavior, the consequences of such behavior, and the prohibition of their presence from all Lennox School District facilities and activities for seven days if they are a Lennox School District parent/guardian….” (Ibid.) Given the broad authority vested in local authorities over public school operations, the limited duration of the seven-day ban at issue, and the protections included in the policy (including verbal admonishment and subsequent written notice), the court finds that this procedure satisfies due process principles.

Petitioner discusses at length the seven-day ban imposed on her on February 7, 2020. (See OB 4-5, 13-14; Reply 4-5 and fn. 2.) Petitioner’s due process claim based on that seven-day ban is moot, and she lacks a beneficial interest in challenging that prior ban, as discussed above. Moreover, the circumstances of District’s enforcement of the Civility Policy will likely differ from case to case, suggesting that the facts related to her ban are of limited relevance to a facial challenge to the Civility Policy. Finally, the evidence related to the seven-day ban imposed on Petitioner is consistent with the court’s conclusion that the procedures satisfy due process principles. District staff discussed Petitioner’s disruptive behavior with her on February 6, 2020, when directing her to leave District property. (JA 5, 318-321.) Petitioner was thereafter informed of the offensive behavior, and the seven-day ban, in a subsequent letter. (JA 5.) She was invited to call District staff if she had any questions. (Ibid.) Further procedures were not required by due process principles under the circumstances.

Petitioner contends that “Respondent has a pattern and practice in place in which it regularly issues [provisional] permits irrespective of whether an interdistrict transfer application or appeal pursuant to Section 46600 et. seq. is pending, and irrespective of time periods or limitations.” (OB 20, citing JA 246.) Petitioner seeks a writ directing Respondent to comply with section 46600 et seq. “by limiting the issuance of conditional permits for no more than 60 days while an application for interdistrict transfer is pending and/or in the appeal process.” (OB 21; Reply 6.)

(a)(1) For a period not to exceed two school months, the governing board of a school district of proposed enrollment may provisionally admit to the schools of the school district a pupil who resides in another school district, pending a decision of the governing boards of the two school districts, or by the county board of education upon appeal, regarding the interdistrict attendance. A pupil shall be eligible for provisional attendance only upon providing reasonable evidence that a final decision for a request for interdistrict transfer is pending either with the school district of residence, the school district of proposed enrollment, or the county board of education.

(2) The period of provisional attendance begins on the first day of the pupil's attendance in the school.

(3) If a decision by the school districts or the county board of education has not been rendered by the conclusion of two school months, and the school districts or the county board of education are still operating within the prescribed timelines, the pupil shall not be allowed to continue attendance at the school district of proposed enrollment….

Petitioner cites evidence that District granted Antonio a “conditional” permit for more than the 60-day limit specified in section 46603. (See JA 1; see also JA 145-150 [deposition of Eddie Garcia] and JA 300-301 [declaration of Eddie Garcia].) However, section 46603 did not apply at all to Petitioner or Antonio. As stated by Respondent, Petitioner maintains that she has always been a resident of District and she never applied for an inter-district transfer for Antonio. (Oppo. 15-16; see also OB 4-5.) Thus, the conditional permit issued to Antonio could not have been authorized by section 46603, which only applies “pending a decision of the governing boards of the two school districts, or by the county board of education upon appeal, regarding the interdistrict attendance.” Neither party addresses whether District had authority to issue a conditional permit under some other statute.

Standing. Even assuming Respondent exceeded its authority in issuing a conditional permit to Antonio (which the court does not decide), Petitioner does not show a beneficial interest in a writ related to that past administrative action. Indeed, Petitioner and Antonio apparently benefited from the conditional permit and thus would have no beneficial interest in a writ directed at such action. The petition is also moot because the court cannot grant any effectual relief as to that past administrative action pertaining to Antonio, who is now enrolled in District. For similar reasons, the court is not persuaded Petitioner has a beneficial interest in a facial challenge to District policies that would appear to benefit students. Further, Petitioner has not identified a “sharp” public duty or “weighty” public need related to enforcement of section 46603 to justify public interest standing. (Citizens for Amending Proposition L v. City of Pomona (2018) 28 Cal.App. 5th 1159, 1174.) Petitioner has not identified any harm to herself, Antonio, or any other current or future students from District’s alleged policy of issuing conditional use permits in the manner alleged.

Substantive analysis. Even if Petitioner has standing, Petitioner has not submitted sufficient evidence that District has a pattern and practice of violating section 46600 et seq. with respect to provisional or conditional permits. District’s issuance of a conditional permit to Antonio does not prove a pattern and practice of violating the law. (See JA 300-301, ¶¶ 5-7.) Petitioner also cites to statements of Eddie Garcia at his deposition. (OB 17-20, citing JA 244-247; see also Reply 5-6, citing JA 188.)[3] Garcia testified that “we provide conditional permits, and we’ve done it before when midyear parents or families move out of our district, and we allow them to continue in our district for a short period of time.” (JA 146.) He testified that typically such students can stay “60 days, unless they get a release from their home district.” (Ibid.) Based on the parties’ record citations, Petitioner’s counsel did not ask Garcia about the specific details of past cases in which conditional use permits were issued, including whether the students’ parents or guardians had applied for interdistrict transfer or had an appeal pending. The cited evidence is insufficient to prove that Respondent has any policy or practice that violates the law, or that Respondent has a clear, present, and ministerial duty to conform its policy or practice to the law.

Respondent contends that the third cause of action is moot and Petitioner lacks a beneficial interest because “Antonio has been reenrolled in the District” and “[t]here is no controversy between the parties regarding Antonio’s eligibility to be enrolled in the District.” (Oppo. 8.)

Standing. For the third cause of action, among other relief, Petitioner “seek[s] a writ of mandate ordering Respondent to vacate the February 28, 2020 decision denying residency [for Antonio].” (Opening Brief (“OB”) 7:24-25.) Petitioner argues at length why she believes District violated Education Code section 48204.1 and administrative regulation 5111.1 in the manner that District handled the residency dispute regarding Antonio in 2020. (OB 4-7, 9-11.) This request for relief pertaining to the February 28, 2020, residency decision is clearly moot because Antonio is presently enrolled in District based on a Caregiver’s Affidavit. (FAP ¶ 1, fn. 1; Oppo. 6:8-10; Reply 2:6-7.) Petitioner also lacks a beneficial interest in challenging that prior residency decision given Antonio’s reenrollment. Petitioner seems to concede this point in reply and develops no argument to the contrary. (Reply 2; Sehulster Tunnels/Pre-Con v. Traylor Brothers, Inc. (2003) 111 Cal.App.4th 1328, 1345, fn. 16 [failure to address point is “equivalent to a concession”].)

Petitioner also argues that she seeks relief related to violations of residency practices and policies “on behalf of all students seeking to attend, currently attending, or, in the future, will attend, Respondent’s schools.” (Reply 2; see First Amended Petition (“FAP”) ¶¶ 31-32, 68, 93, 101.) Because Petitioner has not shown she has another child who could be harmed by the practices and policies at issue, or that the practices and policies could affect Antonio in the future, Petitioner has not shown a beneficial interest in enforcement of any District duty related to these alleged policies and practices.

However, neither party has addressed public interest standing as it relates to the particular policies and practices at issue with respect to residency requirements. As discussed above, Petitioner must show a “sharp” public duty and “weighty” public need for enforcement. This analysis may differ depending on the “duty” Petitioner seeks to enforce. Under the third cause of action Petitioner challenges the District’s policies and practices under several theories. Petitioner contends District:

1) Violates Education Code section 48204.1 and Board Policy 5111.1 by limiting the types of documentation it will accept as proof of residency to utility bills, rental agreement and/or license;

2) Violates Education Code section 48204.2 and Board Policy 5111.1 by not providing the student’s parent/guardian written notice specifying the basis for a determination of non-residency; and

3) Violates Education Code Section 48204.2 by not accurately informing parents of appeal rights after a determination of a student’s non-residency.

The court will discuss a schedule with the parties regarding supplement briefing on the issue of public interest standing as it relates to these three claims. Briefing will be limited to the issue of standing. The parties may not present any additional evidence or make other legal arguments regarding violation of any statutes. Each brief may not exceed five pages.

The parties shall submit additional briefing on the issue of standing with respect to the third cause of action for writ of mandate as it relates to residency requirements and procedures.

[1] In reply, Petitioner argues that she has standing to pursue writs benefiting other students because she and Antonio are taxpayers who reside within District boundaries. (Reply 2 and fn. 1 and Reply 5.) Paying taxes alone does not satisfy the elements of public interest standing.

[2] The petition also alleges that the Civility Policy violates freedom of speech principles in the First Amendment. (FAP ¶ 102.) However, Petitioner has not pursued that claim in her opening or reply briefs, thereby forfeiting the issue.

[3] Petitioner miscites Garcia’s deposition testimony as JA 244-247. (OB 17-20.) No deposition testimony is found on those pages. Petitioner may refer to JA 145-150.