Judge: Mary H. Strobel, Case: 22STCP01337, Date: 2022-09-06 Tentative Ruling

Case Number: 22STCP01337    Hearing Date: September 6, 2022    Dept: 82

            Petitioner The North Valley Military Institute College Preparatory Academy (“Petitioner” or “NVMI”) moves for an order:

1. Determining that Respondent Los Angeles Unified School District (the “District”) has failed to comply with this Court’s June 29, 2022 writ of mandate compelling the District, through its Board of Education, to adopt within 30 days “sufficient findings and an explanation of that finding” if it continued to make a multi-site Prop. 39 final offer to NVMI.

2. Ordering that, per the terms of the Court’s June 29, 2022 writ of mandate, the District must accommodate all of NVMI’s in-District average daily attendance (i.e., 37 classrooms) at the Sun Valley Facility in the 2022-2023 school year.

(Notice of Motion 2.)

Respondents Los Angeles Unified School District (“District” or “LAUSD”) and its Board of Education (“Board”; collectively “Respondents”) oppose the motion.

Judicial Notice

            Respondents’ Request for Judicial Notice (“RJN”) Exhibits A-J – Granted. 

Relevant Background and Procedural History

On April 15, 2022, Petitioner filed its verified petition for writ of mandate and complaint for declaratory and injunctive relief.  Respondents did not file an answer. 

On April 28, 2022, Petitioner filed its opening brief in support of the petition and supporting evidence.  The court received Respondents’ opposition and supporting evidence, and Petitioner’s reply.

On June 14, 2022, the court heard argument on the petition and took the matter under submission.  On June 16, 2022, the court issued a detailed written ruling on the petition for writ of mandate.  The court stated that it “will issue a writ ordering the District, through its governing board, to adopt within 30 days sufficient findings and an explanation of that finding if it continues to make a multi-site offer under 5 CCR section 19169.2(d) [sic].”  (RJN Exh. F at 13.)  The court ordered the parties to meet and confer with respect to a proposed form of judgment and writ.  (Id. at 15.)  The June 16 ruling provided a detailed discussion of the evidence and the court’s reasoning, which is not repeated here but is incorporated by reference. 

On June 21, 2022, the Board considered and adopted a “New Finding and Written Statement of Reasons Why the North Valley Military Institute College Preparatory Academy Cannot Be Accommodated on a Single School Site, and Determination of Necessity to Move” (“New Multi-Site Findings”).  (Troy Decl. Exh. 7.)

            On June 29, 2022, the court entered judgment on the petition in favor of Petitioner.  The court denied the second cause of action for declaratory relief.  The judgment states: “Writ of mandamus shall issue ordering the District, through the Board, to adopt within 30 days sufficient findings and an explanation of that finding if it continues to make a multi-site offer under 5 CCR section 11969.2(d).  If those findings are not made within that time frame, the court orders District to accommodate NMVI fully at the Sun Valley campus.”  (RJN Exh. G.)

            Contrary to Petitioners’ assertion in the motion, the court never “issued a writ of mandate” directing any action of Respondents.  (Mot. 5:9-10.)  The court did not issue a writ because Petitioners never lodged a proposed form of writ, as required by Local Rules and the court’s June 16 ruling. 

Also on June 29, 2022, Petitioner filed a Petition for Writ of Mandamus in the Court of Appeal. On July 11, 2022, Respondents filed a preliminary opposition. (RJN, Exh. H.) On July 19, 2022, the Court of Appeal denied Petitioner’s appellate petition, stating in its order that “Petitioner fails to demonstrate the respondent court lacked authority to remand the matter to the school district with directions to make findings and adopt a statement of reasons. Nothing in this order precludes petitioner from challenging the new findings and statement of reasons, nor does it prevent the trial court from fashioning additional relief if warranted.”  (Ibid.)

On August 9, 2022, Petitioner filed an ex parte application shortening time for hearing on a motion for finding of non-compliance with writ.  The court granted the ex parte application and set the hearing for September 6, 2022.

On August 9, 2022, Petitioner filed the instant motion.  The court has received Respondents’ opposition and Petitioner’s reply.

On August 29, 2022, Petitioner filed a notice of appeal of the judgment granting petition for writ of mandate. 

Analysis

            Stay Pending Appeal?

On August 29, 2022, Petitioner filed a notice of appeal of the June 29, 2022 judgment granting the petition for writ of mandate.  That judgment provided that a writ of mandate would issue ordering the District, through the Board, “to adopt within 30 days sufficient findings and an explanation of that finding if it continues to make a multi-site offer under 5 CCR section 11969.2(d).”   Petitioner has appealed from the judgment.

CCP section 916(a) states that, with exceptions not applicable here, “the perfecting of an appeal stays proceedings in the trial court upon the judgment or order appealed from or upon the matters embraced therein or affected thereby, including enforcement of the judgment or order, but the trial court may proceed upon any other matter embraced in the action and not affected by the judgment or order.” 

            “This rule is applicable to proceedings on a writ of mandate. . . . And, while the rule of automatic stay does not apply to an injunction which is ‘prohibitory’ in nature, rather than ‘mandatory’ (Paramount Pictures Corp. v. Davis (1964) 228 Cal.App.2d 827, 835, 39 Cal.Rptr. 791), an injunction is considered to be mandatory where it requires affirmative action and changes the status quo.” (Hayworth v. City of Oakland (1982) 129 Cal.App.3d 723, 727- 728.) Here, the judgment provided that a writ would issue ordering the Board to take certain action changing the status quo.  It was a mandatory, not prohibitory order.  As such, it appears the judgment is stayed pending appeal. 

Counsel should address that threshold issue.  The court will not rule on the merits of the motion to enforce the writ if the court determines that the action is stayed.